J-S52009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
                                           :             PENNSYLVANIA
            v.                             :
                                           :
KHALIL JOHNSON,                            :
                                           :
                  Appellant                :            No. 375 MDA 2017

          Appeal from the Judgment of Sentence January 25, 2017
           in the Court of Common Pleas of Lackawanna County,
             Criminal Division, No(s): CP-35-CR-0001002-2016

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 12, 2017

      Khalil Johnson (“Johnson”) appeals from the judgment of sentence

imposed following his convictions of criminal use of a communication facility,

possession of a controlled substance, delivery of a controlled substance, and

possession of drug paraphernalia.      See 18 Pa.C.S.A. § 7512(a); 35 P.S.

§ 780-113(a)(16), (30), (32). We affirm.

      The trial court set forth the relevant underlying facts as follows:

      On October 18, 2016, following a jury trial, [Johnson] was
      convicted of [the above-mentioned crimes], and acquitted of
      false identification to law enforcement officers. These charges
      arose on March 15, 2016, when the Lackawanna County District
      Attorney’s Office Drug Unit conducted a controlled buy of heroin
      from [Johnson]. A confidential informant contacted [Johnson]
      and arranged to meet him in the parking lot of the Dollar Store
      in West Scranton. [Johnson] entered her car, and she made the
      controlled buy. The confidential informant had consented to
      having her text messages, phone calls, and conversations with
      [Johnson] intercepted by the District Attorney’s office, so the
      interaction between [Johnson] and the confidential informant
      was recorded by the District Attorney’s Office.            [The
      Memorandum of Approval (“Memorandum”) to intercept
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      communications was executed on February 17, 2016, and stated
      that the proposed interception would occur between February
      17, 2016, and March 17, 2016. Prior to trial, Johnson filed a
      Motion in Limine, seeking to exclude evidence of his recorded
      conversation with the confidential informant. The trial court
      denied the Motion.]

      On January 25, 2017, [Johnson] was sentenced to 33 months to
      12 years [in prison], followed by 2 years of probation.

Trial Court Opinion, 4/21/17, at 1-2.

      Johnson filed a timely Notice of Appeal, and a court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

      On appeal, Johnson raises the following question for our review:

      A. Whether the trial court erred when it denied [Johnson’s]
         Motion in Limine to exclude evidence of the recorded in-
         person conversation between [Johnson] and a [c]onfidential
         [i]nformant taken inside the [c]onfidential [i]nformant’s
         vehicle on March 15, 2016[,] for the following reasons:

          1. The intercept was not supported by reasonable grounds to
             suspect criminal activity;

          2. The intercept was based upon stale information;

          3. The intercept was based upon a defective Memorandum [];

          4. The Memorandum [] was not supported by valid consent;
             and

          5. Because [Johnson] had a reasonable expectation of
             privacy, [the] Memorandum [] was insufficient to support
             the intercept[?]

Brief for Appellant at 4.

      “When reviewing a trial court’s denial of a motion in limine, this Court

applies   an   evidentiary   abuse      of   discretion   standard   of   review.”



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Commonwealth v. Schley, 136 A.3d 511, 514 (Pa. Super. 2016).                 “An

abuse of discretion will not be found based on a mere error of judgment, but

rather exists where the court has reached a conclusion which overrides or

misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias or ill-will.”     Id.

(citation omitted).

              Pennsylvania’s Wiretapping and Surveillance Control Act
        [(“Wiretap Act”)],[1] is a pervasive scheme of legislation which
        suspends an individual’s constitutional rights to privacy only for
        the limited purpose of permitting law enforcement officials, upon
        a showing of probable cause, to gather evidence necessary to
        bring about a criminal prosecution and conviction. The statute
        sets forth clearly and unambiguously by whom and under what
        circumstances these otherwise illegal practices and their
        derivative fruits may be used.

               However, the Wiretap Act contains an exception allowing
        law enforcement to utilize wiretaps without obtaining prior
        judicial approval when one of the parties to the conversation
        consents to the interception:

          § 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:

                                       ***

          (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,
          including, but not limited to, the crimes enumerated in
          section 5708 (relating to order authorizing interception of
          wire, electronic or oral communications), where:

1   See 18 Pa.C.S.A. § 5701, et seq.


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                                     ***

         (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 made, has reviewed the facts and is satisfied that the
         consent is voluntary and has given prior approval for the
         interception ....

      18 Pa.C.S.A. § 5704 (emphasis added).

             In determining whether the approval of a consensual
      wiretap was proper, … police officers must articulate “reasonable
      grounds” for the monitoring and the Attorney General or the
      district attorney must verify [] that these reasonable grounds
      exist.

Commonwealth v. McMillan, 13 A.3d 521, 524–25 (Pa. Super. 2011)

(citations and emphasis omitted, footnote added).       Section 5704 does not

contain any temporal restrictions such as “current” or “contemporaneous”

with regard to “suspected criminal activities.” Id. at 525.

      Additionally, “for the purposes of 18 Pa.C.S.[A.] § 5704(2)(ii), one’s

consent must be given voluntarily in order for the governmental actions to

be lawful.”   Commonwealth v. Rodriguez, 548 A.2d 1211, 1213 (Pa.

1988).

      The voluntariness of one’s consent must be the product of an
      essentially free and unconstrained choice by its maker. His will
      must not have been overborne and his capacity for self-
      determination critically impaired. Each case must be determined
      from the totality of the circumstances. Furthermore, consent is
      not voluntary where it is the product of coercion or duress[,]


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J-S52009-17


      either express or implied. However, a decision to consent is not
      rendered involuntary merely because it is induced by a desire to
      avoid the possibility of a well[-]founded prosecution.

Id. (citations, quotation marks, brackets, and ellipses omitted).

      We will address Johnson’s claims together. Johnson contends that the

trial court erred in denying his Motion in Limine to suppress the intercepted

communications with the confidential informant. Brief for Appellant at 10,

12.     Johnson   argues    that   the   Commonwealth,     in   executing   the

Memorandum, violated the requirements of the Wiretap Act, and that any

evidence seized from the recordings should have been excluded at trial. Id.

at 12-13.

      First, Johnson asserts that the Memorandum failed to articulate

reasonable grounds for monitoring communications, as it was vague and

only stated that there was an investigation of the distribution of a controlled

substance.    Id. at 10, 13-14; see also id. at 13-14 (claiming that the

Memorandum did not identify Johnson or the type of controlled substance

under investigation).

      Second, Johnson asserts that the authorization of the intercept was

based upon stale information. Id. at 10, 14-15. Johnson argues that the

intercept was authorized on February 17, 2016, but the sale that led to his

convictions did not occur until March 15, 2016. Id. at 14. Johnson further

points out that in the Memorandum, the confidential informant did not

specify that she had previously bought drugs from Johnson. Id.



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         Next, Johnson contends that the Memorandum was defective because

Deputy District Attorney Mike Ossont (“Ossont”) failed to adhere to the

requirements set forth in section       5704(2), which safeguard against

unauthorized wiretaps. Id. at 10, 18. Johnson claims that Ossont failed to

sign the Memorandum.        Id. at 10, 15-19.    Johnson further argues that

Ossont did not interview or question the confidential informant in person to

determine whether the informant’s consent to be recorded was freely given.

Id. at 15-16, 18, 19, 21. Johnson also asserts that Ossont was not properly

authorized by the District Attorney to approve wiretaps. Id. at 15, 18-19.

         Johnson additionally claims that the confidential informant did not

provide valid consent for the intercept. Id. at 10, 19-21. Johnson argues

that the confidential informant’s consent was involuntary because she was

paid to be an informant.2      Id. at 20-21.    Johnson also asserts that the

confidential informant did not consent to wear a wire for the drug deal. Id.

at 21.

         Finally, Johnson contends that he had a reasonable expectation of

privacy in the confidential informant’s vehicle, as the public could not hear

the exchange. Id. at 10, 21, 23. Johnson further argues that “he had an

expectation of privacy in his phone conversation with the [confidential

informant,]” and thus, the Memorandum was insufficient to support the




2  The confidential informant was paid $100 for the completed drug
transaction. See N.T., 10/17/16, at 40, 88, 96.


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wiretap.   Id. at 21-22.   Johnson claims that the error was not harmless

since the recorded conversations directly contributed to the verdict. Id. at

23-24.

     The trial court addressed Johnson’s claims as follows:

           [Johnson] argues that the recorded in-person conversation
     between [Johnson] and the confidential informant[,] taken inside
     of her vehicle[,] should have been excluded from evidence
     because it was not supported by reasonable grounds to suspect
     criminal activity, not supported by valid consent[,] and taken
     pursuant to stale information.         However, the confidential
     informant … testified at trial that she was not forced or coerced
     to be a confidential informant, or to have a recording device
     placed in her car. [N.T., 10/17/16, at 40, 51, 69-71.] [The
     confidential informant] also testified that she had purchased
     heroin from [Johnson] in the past and could identify his voice
     because she had heard it before many times. Id. at 43, 56, 63[;
     see also Memorandum, 2/17/16, at 1 (identifying an unknown
     black male, known to the confidential informant as “Slim,” as the
     target of the intercept, and stating that the intercept involved
     “suspected criminal activities.”)]. She testified that while she
     consented to the recording on February 17, 2016, she was
     unable to make a purchase until March 15, 2016[,] because she
     attempted to buy heroin from him in that time period[,] but was
     unable to do so. [N.T., 10/17/16,] at 71. Thus, [Johnson’s]
     assertions that the confidential informant did not consent to the
     recording, and that the police did not have reasonable grounds
     to suspect criminal activity are incorrect. Moreover, while there
     is not a requirement that the suspected criminal activity is
     ongoing or current, the gap of three weeks between the
     confidential informant’s consent and the actual recording did not
     cause the information to become stale. [See Memorandum of
     Consent, 2/17/16, at 1 (wherein the confidential informant
     voluntarily consented to interceptions of communications with
     Johnson between February 17, 2016, and March 17, 2016);
     Officer’s Memorandum, 2/17/16, at 1 (requesting that “the
     proposed interception to occur on 02/17/2016 THRU
     03/17/2016.”); see also McMillan, 13 A.3d at 525 (stating that
     “[s]ection 5704 does not contain temporal restrictions such as
     ‘ongoing,’ ‘current,’ or ‘contemporaneous,’” and that for a
     consensual wiretap, only a showing of reasonable grounds is


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J-S52009-17


     necessary); Commonwealth v. Adams, 524 A.2d 1375, 1378
     (Pa. Super. 1987) (stating that section 5704(2)(ii) does not “set
     forth a specific length of time during which a consent remains
     viable.”).     The confidential informant] testified that she
     attempted to purchase heroin in that time period but was unable
     to do so.

           [Johnson] also asserts that the Memorandum [] for the
     recording was defective because it was not signed by the
     Assistant District Attorney, was defective on its face because it
     included a date after the date of the Memorandum, and because
     the Assistant District Attorney was not authorized to approve the
     Memorandum.         [Johnson] made this assertion during the
     argument on the [M]otion in [L]imine, but [the trial] court
     denied the [M]otion and found that the questionable date in the
     Memorandum was almost certainly a clerical error, and that
     [Johnson] could cross[-]examine regarding the dates and the
     accuracy of the information. Id. at 3-4. At trial, Detective John
     Munley [(“Detective Munley”)] testified that [] Ossont oversees
     the Drug Unit at the District Attorney’s Office and approves [the]
     electronic surveillance by the office. Id. at 91. He testified that
     the confidential informant in this case was consensualized by []
     Ossont over the telephone and that [] Ossont went over the
     authorization to intercept communications with her to make sure
     that she was doing this of her own free will and understood
     everything else in the Memorandum[,] and that [] Ossont
     approved the interception over the telephone. Id. at 90-91.
     [Detective Munley] testified that the reference in the
     Memorandum [] to the date of the Officer’s Memorandum as
     March 30, 2016, was a typographical error on his part and that
     the date should have been February 17, 2016. Id. at 142. He
     also testified that he wrote [] Ossont’s name on the form
     because the interview with the confidential informant was
     conducted by telephone.             Id.     [Johnson’s] attorney
     cross[-]examined Detective Munley on these points at length,
     but did not establish that the Memorandum [] was invalid and
     that the recording should have been excluded.

          Finally, [Johnson] argues that the interception of his
     conversation with the confidential informant violated his
     expectation of privacy in the confidential informant’s vehicle.
     However, a defendant does not have an expectation of privacy in
     a confidential informant’s vehicle or an expectation that the
     words spoken to a confidential informant will not be intercepted.


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     [See] Commonwealth v. Bender, 811 A.2d 1016[, 1023] (Pa.
     Super. 2002) [(concluding that the defendant had no reasonable
     expectation of privacy during conversation in the consenting
     informant’s vehicle); see also Rodriguez, 548 A.2d at 1212-13
     (stating that one-party consensual wiretapping, as authorized by
     section 5704(2)(ii), does not violate the Fourth Amendment or
     Article I, Section 8 of the Pennsylvania Constitution).] Thus, the
     recording of [Johnson’s] conversation with the confidential
     informant inside of her vehicle was not excludable[,] and th[e
     trial] court properly denied [Johnson’s] [M]otion in [L]imine.

Trial Court Opinion, 4/21/17, at 3-5. Because the trial court’s findings are

supported by the record, and its legal conclusions are sound, we adopt its

reasoning for the purpose of this appeal, see id., with the following

addendum.

     Although the confidential informant was paid for the completed drug

transaction, this economic incentive did not vitiate her consent and cannot

be deemed coercive to the extent that it deprived the informant of free

choice. See Rodriguez, 548 A.2d at 1213. Further, the fact that Ossont

determined the voluntariness of the confidential informant’s consent and

approved the intercept over the phone did not violate the requirements of

section 5702(2)(ii). See Adams, 524 A.2d at 1377-78 (concluding that the

trial court properly denied the motion to suppress where the deputy attorney

general interviewed the confidential informant over the phone to determine




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the voluntariness of the informant’s consent regarding the interceptions). 3

      Applying the above standards to the instant case, we conclude that the

trial court did not abuse its discretion in finding that there were reasonable

grounds for the intercept; the confidential informant voluntarily consented to

the intercept; and Ossont properly authorized the intercept, thereby

justifying the admission of Johnson’s statements.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/12/2017




3 We note that the confidential informant independently corroborated the
information regarding the sale of heroin contained in the recordings. See
N.T., 10/17/16, at 58, 60 (wherein the confidential informant testified that
Johnson sold her two bags of heroin in exchange for $20 while in the
informant’s vehicle); see also id. at 46-52 (wherein the confidential
informant discussed the set-up of the deal, and the police providing her with
money to buy the heroin).


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