J. A04019/16


                              2016 PA Super 269

COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :           PENNSYLVANIA
                    v.                   :
                                         :
DENNIS ANDREW KATONA,                    :         No. 1995 WDA 2014
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, November 10, 2014,
            in the Court of Common Pleas of Westmoreland County
               Criminal Division at No. CP-65-CR-0002549-2011


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.


OPINION BY FORD ELLIOTT, P.J.E.:                FILED DECEMBER 02, 2016

        Dennis Andrew Katona appeals from the November 10, 2014 judgment

of sentence from the Court of Common Pleas of Westmoreland County

following his conviction for two counts each of possession with intent to

deliver (“PWID”) and possession of a controlled substance.1        This case

presents an issue of first impression, which we are confident will ultimately

be resolved by the Pennsylvania Supreme Court or the legislature. As for

our review, we vacate and remand.

        Appellant’s charges were the result of the execution of a search

warrant at his home on June 29, 2011. Following the denial of his motion to




* Retired Senior Judge assigned to the Superior Court.
1
    35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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suppress the contraband discovered in the search, appellant was convicted

of the aforementioned offenses on November 10, 2014. That same day, the

trial court sentenced appellant to an aggregate term of 40 to 80 months’

imprisonment. On November 20, 2014, appellant filed a motion to modify

his sentence, which the trial court denied on November 24, 2014.          On

December 8, 2014, appellant filed a timely notice of appeal. On December

19, 2014, the trial court ordered appellant to file a concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).       Appellant

complied with the trial court’s order on January 13, 2015.     Thereafter, on

February 11, 2015, the trial court issued an opinion in support of its order

denying appellant’s motion to suppress evidence.      On February 13, 2015,

the trial court issued an opinion pursuant to Rule 1925(a).

      On appeal, appellant raises the following issues for our review:

            I.     Whether the June 29, 2011 search warrant for
                   appellant’s home was rendered invalid because
                   it relied almost exclusively on an order or
                   search      warrant      as   described     in
                   Commonwealth v. Brion, [652 A.2d 287 (Pa.
                   1994),] and as codified in 18 Pa.C.S.[A.]
                   § 5704(2)(iv) which order or warrant allowed
                   for, inter alia, unlimited intercepts over a
                   period of thirty days, as opposed to allowing
                   only a single intercept?

            II.    Whether the June 29, 2011 search warrant was
                   invalid because it failed to meet the specific
                   requirements of an anticipatory warrant?

            III.   Whether      the   Commonwealth      presented
                   insufficient evidence of possession to sustain
                   the conviction against appellant?


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Appellant’s brief at 3 (capitalization omitted).

      The crux of appellant’s suppression claim is whether the June 29 th

search was unconstitutional because it was based on a May 16, 2011 order

signed by Judge John Blahovic that authorized consensual intercepts by a

confidential informant (“CI”) over a 30-day period in appellant’s home.

Specifically, as a result of numerous in-home intercepts, probable cause was

established for the full search of appellant’s home.   Appellant asserts that

the May 16th order violated our Supreme Court’s decision in Brion, in that it

allowed for unlimited intercepts in his home over a period of 30 days. (See

appellant’s brief at 17-34.)

      Our standard of review in addressing a challenge to the denial of a

motion to suppress is as follows:

            Our 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, we are
            bound by these 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


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            the facts. Thus, the conclusions of law of the courts
            below are subject to our plenary review.

Commonwealth v. Best, 120 A.3d 329, 346 (Pa.Super. 2015), quoting

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), appeal

denied, 124 A.3d 309 (Pa. 2015) (citations omitted).

      Both the United States Constitution and the Pennsylvania Constitution

guarantee that individuals shall not be subject to unreasonable searches or

seizures.

            The right of the people to be secure in their persons,
            houses, papers, and effects, against unreasonable
            searches and seizures, shall not be violated, and no
            Warrants shall issue, but upon probable cause,
            supported by Oath or affirmation, and particularly
            describing the place to be searched, and the persons
            or things to be seized.

U.S. Const. Amend. IV.

            The people shall be secure in their persons, houses,
            papers and possessions from unreasonable searches
            and seizures, and no warrant to search any place or
            to seize any person or things shall issue without
            describing them as nearly as may be, nor without
            probable cause, supported by oath or affirmation
            subscribed to by the affiant.

Pa. Const. Art. I, § 8.

                  Evidence obtained as a result of an unlawful
            search is subject to the fruit of the poisonous tree
            doctrine. The United States Supreme Court has
            stated that any material, tangible, or verbal evidence
            “obtained either during or as a direct result of an
            unlawful invasion” is inadmissible at trial. Wong
            Sun v. United States, 371 U.S. 471, 485 (1963).

                   Our supreme court further stated:


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                         We need not hold that all evidence
                  is “fruit of the poisonous tree” simply
                  because it would not have come to light
                  but for the illegal actions of the police.
                  Rather, the more apt question in such a
                  case is “whether, granting establishment
                  of the primary illegality, the evidence to
                  which instant objection is made has been
                  come at by exploitation of that illegality
                  or    instead   by   means      sufficiently
                  distinguishable to be purged of the
                  primary taint.”

            Commonwealth v. Cunningham, 370 A.2d 1172,
            1176-1177 (Pa. 1977), quoting Wong Sun, 371 U.S.
            at 487-488.

Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa.Super. 2015).

       Both appellant and the Commonwealth cite and discuss the seminal

case of Brion. In Brion, our Supreme Court considered a case in which an

informant agreed to wear a body wire when he purchased marijuana from

Mr. Brion in his home. Brion, 652 A.2d at 287. The use of the informant

wearing the wire was approved by the Lycoming County First Assistant

District Attorney, but was not approved by any judicial authority. Id. This

court reversed the trial court’s order granting Mr. Brion a new trial. Id. at

288.

       Our Supreme Court subsequently reversed this court, stating the

controlling issue as follows:

            [W]hether, under the Pennsylvania Constitution, the
            police can send a confidential informer into the home
            of an individual to electronically record his
            conversations and transmit them back to the police.


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              Because the right to privacy in one’s domain is
              sacrosanct, we hold that Article 1 § 8 of the
              Pennsylvania Constitution precludes the police from
              sending a confidential informer into the home of an
              individual to electronically record his conversations.

Id. at 287.

     While recognizing that 18 Pa.C.S.A. § 5704 of the Pennsylvania

Wiretap Act (“the Act”) specifically allows for consensual intercepts without

prior court approval, the Brion court reasoned as follows:

              In accordance with the analysis articulated by
              Judge Cirillo in Schaeffer I, see 370 Pa.Super. at
              207-214, 536 A.2d at 368-372 we hold that an
              individual can reasonably expect that his right to
              privacy will not be violated in his home through the
              use of any electronic surveillance. In so holding,
              . . . . “[A] reasonable construction of the Act allows
              the conclusion that the General Assembly's
              exemption of participant monitoring from the
              prohibitions and requirements of the Act was not
              necessarily a legislative declaration that the practice
              was free of state constitutional constraints as well.”
              370 Pa.Super. at 185, 536 A.2d at 357.            With
              respect to oral communications occurring within
              one’s home, interception pursuant to 18 Pa.C.S.
              § 5704(2)(ii) can only be deemed constitutional
              under Article 1, Section 8 if there has been a prior
              determination of probable cause by a neutral, judicial
              authority.

Id. at 289 (some citations omitted).

     The General Assembly later codified the Brion court’s holding.

              § 5704.        Exceptions to prohibition of
              interception and disclosure of communications

              It shall not be unlawful and no prior court approval
              shall be required under this chapter for:



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          ....

          (2)    Any investigative or law enforcement
                 officer or any 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 activities
                 . . . where:

                 ....

                 (ii)   one of the parties to the
                        communication has given
                        prior    consent     to    such
                        interception.    However, no
                        interception     under      this
                        paragraph shall be made
                        unless the Attorney General
                        or a deputy attorney general
                        designated in writing by the
                        Attorney General, or the
                        district   attorney,    or    an
                        assistant district attorney
                        designated in writing by the
                        district attorney, of the
                        county        wherein        the
                        interception is to be initiated,
                        has reviewed the facts and is
                        satisfied that the consent is
                        voluntary and has given prior
                        approval for the interception
                        ...

                 ....

                 (iv)   . . . If an oral interception
                        otherwise authorized under
                        this paragraph will take place
                        in     the   home      of    a
                        nonconsenting party, then, in
                        addition to the requirements
                        of subparagraph (ii), the
                        interception shall not be


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                        conducted until an order is
                        first   obtained    from   the
                        president    judge,    or   his
                        designee who shall also be a
                        judge, of a court of common
                        pleas,[2] authorizing such in-
                        home interception, based
                        upon an affidavit by an
                        investigative       or     law
                        enforcement      officer  that
                        establishes probable cause
                        for the issuance of such an
                        order.    No such order or
                        affidavit shall be required
                        where probable cause and
                        exigent circumstances exist.
                        For the purposes of this
                        paragraph,        an      oral
                        interception shall be deemed
                        to take place in the home of
                        a nonconsenting party only if
                        both the consenting and
                        nonconsenting parties are
                        physically present in the
                        home at the time of the
                        interception.

18 Pa.C.S.A. § 5704(2)(ii), (iv).

      In the instant matter, a CI consented to wear a wire for the purposes

of recording conversations and transactions with appellant. Pursuant to the

statute, Deputy Attorney General Michael M. Ahwesh, as designated by the

Attorney General, applied for an order with the trial court authorizing the

consensual interception of oral communications between the CI and


2
  Although the Brion court suggested that the order be obtained from the
Superior Court as this court has original jurisdiction over non-consensual
applications, the legislature opted for requesting the order from the Court of
Common Pleas.


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appellant in appellant’s home.    In an order dated May 16, 2011, the trial

court granted the Commonwealth’s request, permitting the interceptions of

communications between appellant and the CI over a 30-day period.        The

relevant text of the order reads as follows3:

            1.    Intercept    conversations     between     Jasup
                  Hoffman and Dennis Katona which may occur
                  between the date of this Order and thirty (30)
                  days    thereafter,  at    the    residence   of
                  Dennis Katona or at any other location within
                  Westmoreland County where Dennis Katona
                  may have an expectation of privacy such as
                  one would have in one’s own home. The type
                  of communications to be intercepted will
                  concern the commission of offenses involving
                  violations of the Controlled Substance, Drug,
                  Device & Cosmetic Act, Corrupt Organization
                  and conspiracy to commit said offenses, in
                  violation of Section 903 of the Crimes Code,
                  18 Pa. C.S. § 903.

            2.    Engage in such consensual interception
                  pursuant to Section 5704(2)(IV) of the Act,
                  18 Pa. C.S. § 5704(2)(IV), based upon the
                  facts contained in the Application and Affidavit
                  establishing probable cause to believe that
                  additional communications of the same type
                  may be obtained thereafter, and due to the
                  character    of    the   investigation,    such
                  interception need not automatically terminate
                  when the type of communication described
                  above in paragraph (1) has first been obtained

3
  It should be noted that a 30-day period is the permissible length of a
non-consensual interception under Section 5710 of the Act. Additionally,
unlike the lack of restrictions under Section 5704, non-consensual intercepts
are presented to this court’s general jurisdiction and require a myriad of
safeguards, such as establishing that other means to gather evidence are
unavailable or too risky, requiring periodic progress reports be made to the
authorizing judge, minimizing intercepts of unrelated conversations and
ceasing interception at the earliest time once evidence is gathered.


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                  but     may     continue    intercepting   such
                  conversations with the consent of the
                  participant     until    communications      are
                  intercepted which establish and reveal the
                  complete manner in which Dennis Katona and
                  others either known or as yet unknown,
                  conduct the criminal enterprise in violation of
                  the criminal offenses set forth above and the
                  identities of confederates, places and manner
                  of operation, and the nature of the conspiracy
                  involved therein, or at diverse times during the
                  period of thirty (30) days from the date of this
                  order.

Trial court order, 5/16/11 at 4-5. The Commonwealth sought, and the trial

court granted, extensions of the trial court’s original order.

      The Brion issue presented in this appeal is whether a separate finding

of probable cause was required each time the CI intercepted a conversation

with appellant in his home or whether permitting unlimited intercepts over a

30-day period was constitutional.     We find that, based on a clear reading

and the intent of both the Brion decision and the statute, a separate finding

of probable cause was required for each in-home intercept.        The probable

cause requirement addressed in Brion was very much in the nature of a

search warrant with all of its attendant protections.        Although an order

issued by an independent judicial authority is all that is required by

Section 5704(2)(iv), the rationale underlying the Brion decision is no less

important. Tellingly, the order signed by Judge Blahovic clearly disregards

the very purpose and framework of Brion’s constitutional analysis.




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      We further recognize that the legislature did not set a period of time

for intercepts in Section 5704(2)(ii).   However, we cannot ignore that the

amendment to the statute was specifically drafted to incorporate the

decision in Brion. Certainly, the Brion court did not anticipate that a “prior

determination of probable cause by a neutral judicial authority” for an

intercept taking place in the “sanctity of one’s home” could continue for

2 weeks, 30 days, or even indefinitely. Additionally, the Commonwealth has

failed to assert that applying for additional orders based on probable cause

to intercept conversations each time the CI entered appellant’s home

throughout the 30-day period would have been burdensome or onerous.

      The Commonwealth argues that interception orders should remain in

effect over an extended period of time because Section 5704 (2)(ii) does not

“set forth a specific length of time during which the consent of the CI

remains viable.”   (Commonwealth’s brief at 7-8.)     The consent of the CI,

however, is not the issue in this case. The issue is whether the interception

order can remain in effect over an extended period of time, allowing for

unlimited interceptions to occur in appellant’s home without any additional

determination of probable cause that incriminating conversations will occur

upon each entry.      Pursuant to Brion’s clear intent, probable cause

determinations lack constitutional grounding when based upon unfettered

wire-interception orders spanning an extended duration of time and,

therefore, cannot stand.



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      Our holding is also based on the level of privacy an individual can

expect during a face-to-face conversation within the confines of his or her

home that is subject to interception under Section 5704. Both the United

States   Constitution   and   the   Pennsylvania   Constitution   recognize   the

enhanced expectation of privacy afforded to an individual inside his or her

home.    See e.g., Katz v. United States, 389 U.S. 347, 361 (1967)

(Harlan, J., concurring) (recognizing that activities taking place inside the

home not within the “plain view of outsiders” are entitled to Fourth

Amendment protection); Commonwealth v. Dunnavant, 107 A.3d 29, 31-

32 (Pa. 2014) (per curiam) (Todd, J., in support of affirmance) (“We have

long recognized the sanctity of the home in this Commonwealth as we have

repeatedly stated that ‘[u]pon closing the door to one’s home to the outside

world, a person may legitimately expect the highest degree of privacy known

to our society.’”), quoting Commonwealth v. Bricker, 666 A.2d 257, 261

(Pa. 1995) (citations omitted).

      Our Supreme Court considered a similar issue in Commonwealth v.

Rekasie, 778 A.2d 624 (Pa. 2001). The Rekasie court determined that an

individual holds more of an expectation of privacy during a face-to-face

conversation within the individual’s home as compared to a telephone

conversation. Rekasie, 778 A.2d at 631-632.

            Qualitatively   different   than    a   face-to-face
            interchange occurring solely within the home in
            which an individual reasonably expects privacy and
            can limit the uninvited ear, on a telephone call, an


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            individual has no ability to create an environment in
            which he or she can reasonably be assured that the
            conversation is not being intruded upon by another
            party. On the telephone, one is blind as to who is on
            the other end of the line. Thus, while society may
            certainly recognize as reasonable a privacy
            expectation in a conversation carried on face-to-face
            within one’s home, we are convinced society would
            find that an expectation of privacy in a telephone
            conversation with another, in which an individual has
            no reason to assume the conversation is not being
            simultaneously listened to by a third party, is not
            objectively reasonable.

Id. at 632.    Because society places a higher expectation of privacy in a

face-to-face conversation taking place within an individual’s home compared

to a telephone conversation, a 30-day period of time in which to obtain such

in-home intercepted communications does not comport with the protections

afforded by the Fourth Amendment of the United States Constitution and

Article I, Section 8 of the Pennsylvania Constitution.

      We, therefore, hold that, because the General Assembly did not

enumerate any time restrictions regarding how long an order authorizing the

interception of communication involving a consenting party is to remain in

effect, such an order is subject to the same probable cause determinations

as a traditional search warrant in order to maintain the level of privacy

citizens of this Commonwealth have always come to expect with face-to-face

communications within their own homes.            Accordingly, any evidence

obtained as a result of the intercepted conversations, and the subsequent

search warrant issued on June 29, 2011, should have been suppressed.



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Therefore, we are constrained to vacate appellant’s judgment of sentence

and remand for a new trial.

      Any discussion of appellant’s second and third issues on appeal is not

necessary, as the issues are now moot. As noted, we are cognizant of the

fact that this court will not be the final word on this issue.   We strongly

advocate that our Supreme Court review this case and determine whether

our interpretation is in line with its seminal decision in Brion. We recognize

this decision has broad ramifications for law enforcement.

      Judgment of sentence vacated.             Case remanded.    Jurisdiction

relinquished.

      Shogan, J. joins this Opinion.

      Strassburger, J. files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/2/2016




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