J-S72045-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES LEE HANKINS :
:
Appellant : No. 651 MDA 2018
Appeal from the Judgment of Sentence March 16, 2018
In the Court of Common Pleas of Lackawanna County Criminal Division at
No(s): CP-35-CR-0002596-2016
BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
MEMORANDUM BY BOWES, J.: FILED JUNE 11, 2019
James Lee Hankins appeals from the aggregate judgment of sentence
of fifty-two to 114 months of imprisonment imposed after he was convicted of
nine crimes related to a drug sale and its aftermath. We affirm.
The trial court summarized the underlying facts as follows.
Detectives John Munley and Harold Zech, on September 15,
2016, met with a confidential informant, Sean Gaiduli (hereinafter
[referred to] as “CI”). He reported he could purchase heroin and
crack cocaine from [Appellant]. The CI was able to give a brief
physical description of [Appellant], as well as [Appellant]’s
telephone number.
[O]n September 19th the CI placed a phone call to
[Appellant] in order to arrange the purchase quantity of heroin
and crack cocaine. Detective Zech intercepted and recorded the
phone conversation. Text messages were exchanged between the
CI and [Appellant] and were shown to the detectives. Finally, the
detectives placed an audio recording device on the CI to record
conversations between [Appellant] and the CI. Arrangements
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This matter was reassigned to this author on May 10, 2019.
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were made for the CI to make a controlled buy from [Appellant]
at Goodfellas Pizza in the city of Scranton. Detectives and
Scranton police officers set up surveillance at Goodfellas Pizza.
Detective Zech drove the CI to the back of the restaurant. After
arriving at Goodfellas, Detective Zech saw a male, later identified
as [Appellant], arrive on scene.
[Appellant] and the CI met behind Goodfellas Pizza. The
police and detectives listened to their conversation via the audio
recording device. After the transaction was completed, the CI
gave the drugs to Detective Vincent Butkiewicz. The drugs were
then field tested and determined to be opiates and cocaine.
The police initiated a stop of [Appellant]. He ran from the
police. He was ultimately arrested when the Scranton police
chased after him. He ran into the residence of an individual
named Kayla Askew. . . . While running [Appellant] threw his cell
phone on the ground and the police recovered it. It was
determined that the cell phone number matched the number used
to set up the drug purchase. [Appellant] was taken into custody
in the basement of Ms. Askew’s residence. The buy money was
found hidden in [a] Tupperware container in the basement.
Trial Court Opinion, 6/26/18, at 2-3 (citations and unnecessary capitalization
omitted).
Appellant filed an omnibus pretrial motion seeking, inter alia, to
suppress the intercepted communications between the CI and himself, as well
as the physical evidence seized from Appellant’s person and Ms. Askew’s
residence. The suppression motion was denied after a hearing. The case
proceeded to a non-jury trial at which, inter alia, the CI and Detectives Zech
and Butkiewicz testified. The trial court convicted Appellant of two counts
each of delivery of a controlled substance, possession of a controlled
substance, and possession of drug paraphernalia, as well as one count each
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of criminal use of a communications facility, tampering with evidence, and
resisting arrest.
Appellant was sentenced as noted above following a pretrial
investigation. He filed no post-sentence motion, but filed a timely notice of
appeal and court-ordered statement of errors complained of on appeal. The
trial court authored an opinion pursuant to Pa.R.A.P. 1925(a), and this matter
is ripe for our review.
Appellant presents the following questions for our consideration, which
we have reordered for ease of disposition.
A. Whether the evidence was insufficient as a matter of law
with regards to the charges of resisting arrest and
tampering with or fabricating evidence.
B. Whether the suppression court erred when it denied
Appellant’s omnibus pre-trial motion to exclude/suppress all
evidence derived from electronic surveillance of
conversations between Appellant and [the CI] recorded on
September 19, 2016 under the Wiretapping and Electronic
Surveillance Control Act, 18 Pa.C.S.A. § 5701, et seq.
[(“Wiretap Act”)], for [various] reasons[.]
C. Whether the suppression court erred in refusing to suppress
all evidence obtained from Appellant’s person and from the
warr[a]ntless search of [Ms. Askew’s residence], when it
was obtained as a result of a wiretap violation, and therefore
“fruit of the poisonous tree.”
Appellant’s brief at 4-5 (unnecessary capitalization omitted).
We begin with Appellant’s sufficiency challenge, setting forth the
relevant legal principles. Evidentiary sufficiency is a question of law, for which
our standard and scope of review are de novo and plenary, respectively.
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Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017). In
order to preserve a sufficiency-of-the-evidence claim for appellate review,
when directed to file a Rule 1925(b) statement by the trial court, an appellant
“must specify the element or elements upon which the evidence was
insufficient in order to preserve the issue for appeal.” Commonwealth v.
Hoffman, 198 A.3d 1112, 1125 (Pa.Super. 2018) (internal quotation marks
omitted). “Such specificity is of particular importance in cases where, as here,
the appellant was convicted of multiple crimes each of which contains
numerous elements that the Commonwealth must prove beyond a reasonable
doubt.” Id. (cleaned up).
In his Rule 1925(b) statement, the only sufficiency challenge Appellant
raised was “Whether the verdicts were supported by sufficient evidence?”
Concise Statement, 5/9/18, at ¶ 4. The trial court opined that this generic
allegation of evidentiary sufficiency was inadequate to preserve any
sufficiency challenges for appeal. Trial Court Opinion, 6/26/18, at 10-11. We
agree.
Appellant’s bald claim that the evidence was insufficient, without
identifying which element or elements of the nine different convictions he was
challenging, results in waiver. See, e.g., Commonwealth v. Williams, 959
A.2d 1252, 1258 n.9 (Pa.Super. 2008) (holding sufficiency challenge was not
preserved where appellant was convicted of murder, robbery, possessing
instruments of crime, and firearms violations, and failed to specify which
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elements he was challenging or why the evidence was insufficient). Indeed,
given that Appellant in his brief challenges only two of his nine convictions, it
would have been a substantial waste of judicial resources to have required the
trial court to have gone through the elements of all of the other convictions
and detailed where in the record the Commonwealth produced evidence to
satisfy every element of each. As such, no relief is due on Appellant’s
sufficiency challenges.
Appellant next claims the suppression court erred in denying his motion
to exclude all statements obtained through electronic surveillance of his
conversations with the CI. The following principles guide our review of this
issue.
An appellate court’s standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions drawn
from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only the
evidence of the Commonwealth and so much of the evidence for
the defense as remains uncontradicted when read in the context
of the record as a whole. Where the suppression court’s factual
findings are supported by the record, the appellate court is bound
by those findings and may reverse only if the court’s legal
conclusions are erroneous. Where the appeal of the determination
of the suppression court turns on allegations of legal error, the
suppression court’s legal conclusions are not binding on an
appellate court, whose duty it is to determine if the suppression
court properly applied the law to the facts. Thus, the conclusions
of law of the courts below are subject to plenary review.
Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned
up).
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Appellant claims that the suppression court erred in failing to rule that
the Commonwealth did not comply with various requirements of the Wiretap
Act. Specifically, Appellant notes the following deficiencies: “1. the intercept
was not supported by reasonable grounds to suspect criminal activity; 2. the
intercept was based upon to[o] stale information; 3. the intercept was based
upon a defective memorandum of approval; [and] 4. the memorandum of
approval was not supported by valid consent[.]” Appellant’s brief at 4
(unnecessary capitalization omitted). Appellant further contends that the
failure to suppress the statements was not harmless error. Id.
The suppression court addressed Appellant’s contentions as follows.1
The Wiretap Act generally prohibits intercepting, using or
disclosing private communications between individuals, however,
there are exceptions. One such exception allows for investigative
or law enforcement officers or a person acting at the direction or
request of an investigative or law enforcement officer to intercept
a wire, electronic or oral communication involving suspected
criminal activity where one of the parties to the communication
has given prior consent to such interception. Despite this
exception, in order to make such an interception under the
Wiretap Act the district attorney, or an assistant district attorney
designated in writing by the district attorney of the county wherein
the interception is to be instituted, must review the facts and be
satisfied that the consent is voluntary, and give their prior
approval for the interception. Police officers must articulate
reasonable grounds for the monitoring or the assistant district
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1 The suppression court noted that Appellant’s Wiretap Act claims were vague,
but addressed them nonetheless. Suppression Court Opinion, 12/15/17, at
14. We conclude that Appellant sufficiently identified challenges to the
voluntariness of the CI’s consent and the adequacy of the paperwork in the
lower court to preserve them for our review. See, e.g., Brief in Support of
Amended Omnibus Pretrial Motion, 8/3/17, at 14-15; N.T. Omnibus Hearing,
9/29/17, at 16-19.
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attorney mast verify that these reasonable grounds exist. . . .
[N]either the Wiretap Act or relevant case law requires that a
memorandum of consent be executed by the proper authority.
Surveillance conducted with the consent of a party to the
conversation is not subject to the exacting standards of
authorization required for non-consensual surveillance under the
Wiretap Act.
In regards to consent, a totality of the circumstances must
be considered when determining whether a party freely provided
knowing, intelligent, and voluntary consent. The fact that an
Assistant District Attorney determines the voluntariness of the
confidential informant’s consent and approved the intercept over
the phone does not violate the requirements of [the Wiretap Act].
. . . The Wiretap Act requires only that where suspected
criminal activity is involved, the district attorney review the facts
and be satisfied that consent is voluntary, and give prior approval
for the interception. As stated supra the court finds the
Commonwealth properly adhered to the Wiretap Act
requirements. Detective Zech testified that upon receiving,
information from the [CI] about a black male with a stocky build
and dread-locked hair known as “D –Brown” selling narcotics and
crack cocaine in the Scranton area, he had the [CI] consensualized
so that all communications between the [CI] and D-Brown could
be intercepted, including the phone calls, text messages, and
covert audio recording device. The Commonwealth presented a
memorandum of approval, a memorandum of consent, and a
memorandum of interception. The [CI] was consensualized by
ADA Brian Gallagher. The information was relayed to ADA
Gallagher who interviewed the [CI] and determined his/her
consent was voluntary. Based on his review of the facts and the
[CI]’s consent he authorized detectives to intercept and record
phone calls with [Appellant] and/or anyone who may be working
with him to make the intended drug transaction. As such, the
interception/recording of the [CI]’s phone calls were justified
based on compliance with the Wiretap Act requirements. The
court’s review of the facts indicates that the actions of
Lackawanna County District Attorney’s office followed the
directives of the statute.
Suppression Court Opinion, 12/15/17, at 13-15 (citations, quotation marks,
and unnecessary capitalization omitted).
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Following a review of the certified record and the applicable law, we
conclude that Appellant’s Wiretap Act claims warrant no relief based upon the
suppression court’s disposition of them on the merits. See also 18 Pa.C.S.
§ 5704(2)(ii) (providing that it is not unlawful and no prior court approval is
necessary for interception of communications where one of the parties has
consented and, inter alia, the ADA “has reviewed the facts and is satisfied that
the consent is voluntary and has given prior approval for the interception”);
Commonwealth v. McMillan, 13 A.3d 521, 525 (Pa.Super. 2011) (holding
the relevant section of the Wiretap Act has no temporal restrictions, such that
police had reasonable grounds to conclude defendant would discuss past
sexual abuse of minor during consensual intercepted phone call although the
defendant had not had contact with the minor for more than one and one-half
years).
With his last issue, Appellant contends that the physical evidence
obtained from Appellant and from the search of Ms. Askew’s residence should
have been suppressed as fruit of the poisonous tree. Appellant’s brief at 28-
30. “The fruit of the poisonous tree doctrine excludes evidence obtained from,
or acquired as a consequence of, lawless official acts.” Commonwealth v.
Torres, 177 A.3d 263, 276 (Pa.Super. 2017) (cleaned up). “A fruit of the
poisonous tree argument requires an antecedent illegality.” Id.
Appellant cites the alleged Wiretap Act violations as the antecedent
illegality through which the Commonwealth ultimately obtained the physical
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evidence at issue. However, because Appellant failed to establish that there
were Wiretap Act violations, the fruit-of-the-poisonous-tree doctrine does not
warrant suppression of the physical evidence obtained thereafter.
Accordingly, we conclude that Appellant has proffered no properly-
preserved claim of error that merits relief from this Court.
Judgment of sentence affirmed.
Judge Shogan joins the memorandum.
Judge Kunselman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/11/2019
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