J-S01040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                 :   IN THE SUPERIOR COURT OF
                                                 :        PENNSYLVANIA
                       Appellant                 :
                                                 :
                                                 :
                v.                               :
                                                 :
                                                 :
    BETH ANN MASON                               :   No. 1091 MDA 2018

                  Appeal from the Order Entered June 26, 2018
                In the Court of Common Pleas of Franklin County
              Criminal Division at No(s): CP-28-CR-0002352-2017


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI, J.

CONCURRING/DISSENTING MEMORANDUM BY PANELLA, P.J.:

FILED MARCH 07, 2019

        I respectfully concur in part and dissent in part. I agree with the learned

Majority’s application of Pa.R.A.P. 311(d), and that the video portion of the

surveillance recording should be admissible at trial. However, I would deem

the audio portion of the surveillance recording admissible as well, under the

crime exception. In my opinion, the Commonwealth demonstrated Eric Valle

had reasonable suspicion of aggravated assault. In the alternative, I would

conclude Mason had no reasonable expectation of privacy in the bedroom of

Valle’s   home.      And   even    in   the    absence   of   these   two   overarching

considerations, I would conclude that the sounds resulting from the children

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   Retired Senior Judge assigned to the Superior Court.
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being struck do not constitute an oral communication or “evidence derived

therefrom.” Accordingly, I would vacate the suppression order, and remand

to the trial court for further proceedings.

        “Because this Court’s mandate is to determine if the suppression court

properly applied the law to the facts, our scope of review is plenary.”

Commonwealth v. Milburn, 191 A.3d 891, 897 (Pa. Super. 2018).

        Here, I would conclude the Commonwealth correctly asserted that Valle

demonstrated reasonable suspicion to install the “nanny cam” as an exception

to the prohibitions of the Wiretap Act.

        The most relevant exception to the prohibition of the Wiretap Act against

the interception and disclosure of communications is subsection 17 of 18

Pa.C.S.A. § 5704. That provision permits:

        (17) Any victim, witness or private detective licensed under . . .
        The Private Detective Act of 1953, to intercept the contents of any
        wire, electronic or oral communication, if that person is under a
        reasonable suspicion that the intercepted party is committing,
        about to commit or has committed a crime of violence and
        there is reason to believe that evidence of the crime of
        violence may be obtained from the interception.

18 Pa.C.S.A. § 5704(17) (emphases added) (footnote omitted). “Crime of

violence” is defined by the Crimes Code to include aggravated assault.1 To

determine     whether     reasonable      suspicion   exists,   the   totality   of   the




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1   See 18 Pa.C.S.A. § 2702.

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circumstances must be considered.      See Commonwealth v. Raglin, 178

A.3d 868, 872 (Pa. Super. 2018), appeal denied, 187 A.3d 913 (Pa. 2018).

      Here, based on the unexplained bruising, “thumbing,” split lip, and other

injuries to his children while in the charge of Appellee, I would conclude Valle

had ample, objective reasons to believe Ms. Mason was committing, had

committed, or was about to commit a crime of violence, viz., aggravated

assault. See Trial Court Opinion, 6/26/18, at 5, 7; see also 18 Pa.C.S.A. §

5704(a)(17). The crimes the Commonwealth chose to charge Mason with do

not control our analysis. Rather, we consider the crimes Valle had reasonable

suspicion to believe Mason was committing at the time he installed the

camera. In reaching this conclusion, I am particularly mindful that any of the

enumerated acts, inflicted on a small child of two or three, including the

throwing of a child into a playpen, and repeated hitting, could easily cause

injuries that might prove serious, permanent, or even fatal.

      Moreover, I cannot conclude that Mason had a reasonable expectation

of privacy. “[T]he question of whether an employee[, as with any individual],

has a reasonable expectation of privacy must be addressed on a case-by-case

basis.” Commonwealth v. Cruz, 166 A.3d 1249, 1256 (Pa. Super. 2017),

appeal denied, 180 A.3d 1207 (Pa. 2018)” (quoting City of Ontario v. Quon,

560 U.S. 746, at 756–57 (2010) (brackets in original).

      An expectation of privacy will be found to exist when the individual
      exhibits an actual or subjective expectation of privacy and that
      expectation is one that society is prepared to recognize as
      reasonable. In determining whether a person’s expectation of

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       privacy is legitimate or reasonable, the totality of the
       circumstances must be considered and the determination will
       ultimately rest upon a balancing of the societal interests involved.
       The constitutional legitimacy of an expectation of privacy is not
       dependent on the subjective intent of the individual asserting the
       right but on whether the expectation is reasonable in light of all
       the surrounding circumstances.

Commonwealth v. Viall, 890 A.2d 419, 422 (Pa. Super. 2005) (citations and

internal quotation marks omitted) (emphasis added).

       Further, our Supreme Court has emphasized that it is a
       defendant’s burden to prove that he [or she] has both a subjective
       expectation of privacy and that the subjective expectation is one
       which society is willing to respect as legitimate.

Cruz, 166 A.3d at 1255 (Pa. Super. 2017) (citation omitted) (emphasis in

original).2

       Here, I discern no basis on which to conclude Mason established she had

a privacy interest that was actual, societally sanctioned as reasonable, and

justifiable. See Commonwealth v. Peterson, 636 A.2d 615, 617 (Pa. 1993)

(finding no reasonable expectation of privacy in living area that defendant did

not establish was his home); see also, Cruz, 166 A.3d at 257 (finding

appellant failed to demonstrate reasonable expectation of privacy while he

was in bathroom of employer). I note even the trial court conceded Mason’s


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2 I concede that I have been unable to locate authority explicitly addressing
the issue of which party bears the burden of proof of establishing this condition
of the Wiretap Act’s ban on recording oral communications. What authority I
have found assumes this burden rests with party asserting the expectation of
non-interception based upon the analysis used to determine whether a person
has a reasonable expectation of privacy under the Fourth Amendment. See,
e.g., Commonwealth v. Prisk, 13 A.3d 526, 531 (Pa. Super. 2011).

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failure to plead with specificity the ground for exclusion “is arguably fatal.”

Trial Ct. Op., at 3 n.6.

       Mason was an employee, not a social guest. While the record is not

explicitly clear on whether Mason was an overnight guest, the burden of

establishing this fact fell on Mason. See Cruz, 166 A.3d at 1255. It is

undisputed that the recording at issue took place in a bedroom in Valle’s house

where the children slept while in Mason’s care. I am not prepared to hold that

any adult, outside of their own home, has a reasonable expectation of privacy

in an area where young children are sleeping. Under these circumstances,

Mason failed to show she had a societally sanctioned expectation of privacy in

that room.

       Even if I were to find Mason had a reasonable expectation of privacy in

the children’s bedroom, I would not find that the sounds of Mason slapping

the children,3 or pushing them into another object, are oral communications.

Nor   can    I   conclude    these    sounds     are   evidence   derived   from   oral

communications. They are simply the consequences of non-verbal actions




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3 I am dealing with the allegations of the Commonwealth at this point. Of
course, Mason denies any aggressive striking of the children, and obviously,
denies the Commonwealth’s characterizations of her actions. My analysis of
the sounds arising from the children contacting any other object does not
depend on whether Mason (a) caused the contact, or (b) acted criminally. Put
simply, the sounds at issue are completely independent of any oral
communication.

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taken by either Mason or the children. Admission of these sounds would not

tend to disclose the content of any oral communication from Mason.

     Accordingly, I respectfully concur in part and dissent in part.




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