J-S32029-18 & J-S32030-18

                                   2018 PA Super 302

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTT ALLEN SHREFFLER                      :
                                               :
                       Appellant               :   No. 1375 MDA 2017

              Appeal from the Judgment of Sentence May 26, 2017
       In the Court of Common Pleas of Mifflin County Criminal Division at
                        No(s): CP-44-CR-0000247-2016


    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    SCOTT ALLEN SHREFFLER                      :
                                               :
                       Appellant               :   No. 1376 MDA 2017

              Appeal from the Judgment of Sentence May 26, 2017
       In the Court of Common Pleas of Mifflin County Criminal Division at
                        No(s): CP-44-CR-0000250-2016

BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.*

OPINION BY NICHOLS, J.:                        FILED: NOVEMBER 5, 2018

        Appellant Scott Allen Shreffler appeals from the judgment of sentence

following a jury trial and his convictions for three counts of delivery of a

controlled substance.1 He claims the trial court erred by not suppressing the


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*   Retired Senior Judge assigned to the Superior Court.
1   35 P.S. § 780-113(a)(30).
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Commonwealth’s wiretap recordings of his conversations with a confidential

informant because of the Commonwealth’s failure to comply with the

disclosure provisions of Pa.R.Crim.P. 573(B)(1)(g) and the Wiretapping and

Electronic Surveillance Control Act (Wiretap Act).2    We are constrained to

vacate the judgment of sentence and remand for a new suppression hearing

due to the Commonwealth’s insufficiently justified failure to comply.

        We glean the facts from the record that existed at the time of the

suppression hearing.3 On March 28, 2016, the police arranged a controlled

buy between a then-confidential informant (CI)4 and Appellant that occurred



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2   18 Pa.C.S. §§ 5701-5782.
3 Our scope of review of an order denying a pretrial motion to suppress is
limited to the evidence presented at the suppression hearing.
Commonwealth v. Freeman, 150 A.3d 32, 34-35 (Pa. Super. 2016), appeal
denied, 169 A.3d 524 (Pa. 2017). The facts adduced at the suppression
hearings, however, were—charitably—sparse. We occasionally reference
evidence adduced at trial solely for context.
4 As later explained at trial, this buy was the third controlled buy between the
then-confidential informant, Dale Mesmer (who testified at trial), and
Appellant. N.T. Trial, 6/22/17, at 60; Omnibus Pretrial Mot., 8/22/16. On
March 21, 2016, the police conducted a controlled buy at Appellant’s home
between Appellant and Mesmer. N.T. Trial, 3/21/17, at 26, 31. Mesmer
purchased crack cocaine from Appellant. Id. at 39, 137. As a result of that
purchase, the police obtained a warrant to intercept communications inside
Appellant’s home. Id. at 46. The police executed a second controlled buy on
March 25, 2016. Id. at 45. As with the first transaction, the police used
Mesmer to purchase drugs—heroin this time—from Appellant. Id. at 45, 51.
This time, however, Mesmer was wearing a wire and he recorded a
conversation consistent with the sale of illegal narcotics. Id. at 50, 59, 140.




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at Appellant’s home. Aff. of Probable Cause, 4/5/16. The CI was wired and

recorded their conversation. Id. The CI purchased two Buprenorphine pills,

a controlled substance, from Appellant. Id. As a result of the buy, the police

obtained a search warrant that evening and searched Appellant’s home,

recovering a bottle of Buprenorphine. Id. The police arrested Appellant and

charged him with multiple counts of delivery of a controlled substance. 5

       On June 10, 2016, Appellant’s counsel informally requested the

Commonwealth’s discovery. Omnibus Pretrial Mot., 8/22/16, at 4. On August

22, 2016, Appellant filed an omnibus pretrial motion seeking, among other

things, to compel the Commonwealth to disclose the identity of the

confidential informant. Id. Appellant acknowledged that the Commonwealth

provided some discovery materials, but none of the materials pertained to the

informant. Id. The court scheduled a hearing for November 16, 2016.

       On the day of the hearing, but before it started, Appellant filed a

supplemental omnibus pretrial motion requesting that the court suppress

evidence obtained as a result of the wiretap. Suppl. Omnibus Pretrial Mot. to

Suppress, 11/16/16, at 1. Appellant averred that he had been provided the

March 25 and 28, 2016 recordings from the second and third controlled buys.


____________________________________________


5 From Appellant’s wallet, the police recovered the money used by Mesmer to
purchase the Buprenorphine pills. N.T. Trial, 3/21/17, at 81. Subsequently,
the police testified that after giving Miranda v. Arizona, 384 U.S. 436
(1966), warnings, Appellant admitted he sold crack cocaine, heroin, and
Buprenorphine. Id. at 82-83.


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Id. at 1. Appellant asserted the Commonwealth failed to comply with various

provisions of the Wiretap Act, including approval of the wiretap by the district

attorney and president judge “based upon a sufficient Affidavit of Probable

Cause of the investigative or law enforcement officer establishing probable

cause for the issuance of said Order.” Id. at 2.

       The trial court held the November 16, 2016 hearing on Appellant’s initial

omnibus pretrial motion, but did not address his supplemental motion. The

court denied the initial motion on November 17, 2016, and scheduled a

hearing on Appellant’s supplemental motion.

       At the January 5, 2017 evidentiary hearing on the supplemental motion,

Appellant argued that the recordings should be suppressed because the

Commonwealth allegedly failed to fully comply with the Wiretap Act. N.T. Mot.

Hr’g, 1/5/17, at 8. As examples, Appellant claimed the Commonwealth bore

the burden of establishing the CI’s consent to be recorded and that any

wiretap must be justified with an affidavit of probable cause.6 Id. at 8-9. The

Commonwealth countered that the order authorizing a wiretap was under seal

and that only the trial court had possession of it. Id. at 9.

       During the hearing, the Commonwealth called Detective Craig Snyder.

Id. at 13. Detective Snyder testified that he prepared the application for the


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6Although the parties did not specifically cite the statutes in question, it was
evident they were discussing 18 Pa.C.S. § 5721.1(b)(2) and (5). N.T. Mot.
Hr’g, 1/5/17, at 8-9.


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in-home wiretap and a trial judge approved it. Id. at 17. As noted above,

the in-home recordings were provided to Appellant during discovery. Id. at

21.     After further testimony, Appellant again objected that documents

pertaining to the wiretap application were not provided. Id. at 23; see also

id. at 16-17 (objecting on the basis of the best evidence rule regarding the

wiretap documents).

        Appellant again contended that he cannot assail the sufficiency of the

wiretap application absent the documents. Id. The Commonwealth reiterated

that these documents were under seal and absent a court order, it would not

turn over the documents to Appellant. Id. at 24. At the conclusion of the

hearing, the trial court requested Appellant to file a letter brief. Id. at 28-29.

On January 12, 2017, Appellant filed a letter brief, which argued, among other

things, that the Commonwealth failed to comply with the statutory disclosure

requirements of 18 Pa.C.S. § 5720.7 Appellant’s Ltr. Br. in Supp. of Suppl.

Mot. in Limine, 1/12/17.

        On January 17, 2017, the trial court denied Appellant’s motion.               In

relevant part, the trial court quoted 18 Pa.C.S. § 5720 and stated that the

Commonwealth         notified    Appellant     of   the    existence     of   wiretapped

conversations     and    provided     Appellant     with   copies   of    the   recorded

conversations. Order, 1/17/17, at 2-3. The court further observed that the


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7   We quote the statute, infra.


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J-S32029-18 & J-S32030-18


Commonwealth had not yet attempted to introduce the contents of the

recordings at any proceeding. Id. at 3. For these reasons, the court denied

the motion.8

        The trial court scheduled a jury trial to begin on March 21, 2017. That

morning, Appellant again filed a motion in limine objecting to, among other

items, the use of the intercepted communications because the Commonwealth

failed to disclose the application, supporting affidavit, order, and final report.

Appellant’s    Mot.    in   Limine,   3/21/17.      Appellant   reasoned    that   the

Commonwealth’s         failure   to   comply     with   the   mandatory    disclosure

requirements denied him            the   opportunity of challenging       the   court’s

authorization of the wiretap and the ability to effectively cross-examine

witnesses. Id. The court overruled Appellant’s objection. N.T. Trial, 3/21/17,

at 3.

        Trial commenced, and a jury found Appellant guilty.9 Following a pre-

sentence investigation, the trial court sentenced Appellant to an aggregate

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8 On February 10, 2017, the court granted the Commonwealth’s motion to
consolidate dockets 247-2016 and 250-2016 for trial. Order, 2/10/17.
9 At trial, the Commonwealth played the March 25 and 28, 2016 recordings of
the conversations between Appellant and Mesmer for the jury. N.T. Trial,
3/21/17, at 141, 145. Mesmer testified that their March 25th conversation
was about the purchase of heroin. Id. at 141. For the March 28th
conversation, Mesmer verified his and Appellant’s voice on the recording. Id.
at 145. No party introduced the wiretap application, affidavit of probable
cause, or final report into the record.




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J-S32029-18 & J-S32030-18


sentence of 106 to 212 months’ imprisonment.           N.T. Sentencing Hr’g,

5/26/17, at 31.10

       Appellant filed a timely post-sentence motion challenging the trial

court’s denial of his suppression motion. Specifically, Appellant contended the

court did not recognize the Commonwealth’s failure to comply with the

disclosure requirements of the Wiretap Act, which should have resulted in

suppression of the recordings. Appellant’s Post-Sentence Mot., 6/5/17, at 5.

Appellant also challenged the discretionary aspects of his sentence. Id. at 2-

5. The court denied the post-sentence motion on August 4, 2017.

       Meanwhile, Appellant also filed a pro se motion on July 25, 2017.11 In

that motion, Appellant claimed that at an unrelated civil proceeding, the trial

court said it had sua sponte changed his sentence because the sentence for

distribution of Buprenorphine exceeded the statutory maximum. Appellant’s

____________________________________________


Appellant testified in his own defense and denied selling Mesmer drugs on
March 21 and 25, 2016. Id. at 194, 196. Appellant admitted multiple times
to selling Buprenorphine to Mesmer on March 28, 2016. Id. at 202, 218, 232.
Appellant conceded that the March 25th and 28th recordings were accurate.
Id. at 219-20. Appellant, however, disputed that the substance of the
recordings consisted of an illegal narcotics transaction. Id. at 220-21. He
also denied confessing to the sale of the narcotics after the police gave him
Miranda warnings. Id. at 224-25, 227.
10 Specifically, the trial court sentenced Appellant to 32 to 64 months’
imprisonment for delivery of buprenorphine, 32 to 64 months’ imprisonment
for delivery of cocaine, and 42 to 84 months’ imprisonment for delivery of
heroin, for an aggregate total of 106 to 212 months’ imprisonment.
11The record reflects that the trial court forwarded the motion to Appellant’s
counsel that same day. See Pa.R.Crim.P. 576(A)(4).


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J-S32029-18 & J-S32030-18


Pro se Mot. to Clarify Court’s Sua Sponte Amendment of Sentence. On August

9, 2017, the court granted Appellant’s pro se motion to clarify the court’s sua

sponte amendment of his sentence. Order, 8/9/17. The court stated that it

erred by sentencing Appellant to a term exceeding five years for distribution

of Buprenorphine. Id. Thus, it corrected the original sentence of 32 to 64

months’ imprisonment for delivery of Buprenorphine to 30 to 60 months’

imprisonment. Id. Appellant’s corrected aggregate sentence is 104 to 208

months’ imprisonment.

       Appellant filed a single timely counseled notice of appeal on September

1, 2017, under a caption listing both docket numbers.12 Appellant also filed a

timely counseled court-ordered Pa.R.A.P. 1925(b) statement. We add that

the Rule 1925(b) statement stated that Appellant intended to raise the issues

within his post-sentence motion, a copy of which was attached to the Rule

1925(b) statement. Appellant’s Rule 1925(b) Statement, 9/28/17. The trial

court filed a responsive Rule 1925(a) decision.

       Appellant raises the following issues:

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12  The court had previously granted the Commonwealth’s motion to
consolidate the cases at each docket number for trial. See generally
Commonwealth v. Walker, ___ A.3d ___, ___, 2018 WL 2448643, *6 (Pa.
2018) (holding, “that when a single order resolves issues arising on more than
one lower court docket, separate notices of appeal must be filed. The failure
to do so will result in quashal of the appeal.” (footnote omitted)). Here, since
Appellant’s cases had been previously consolidated by court order, quashal is
inappropriate.




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J-S32029-18 & J-S32030-18


        1. Did the trial court commit reversible error by failing to order
        suppression of the Commonwealth’s electronic interception of
        Appellant’s oral communications with the Confidential Informant
        in Appellant’s home, due to the [C]ommonwealth’s failure to
        comply with the disclosure provisions of the Wiretap Act?

        2. Must the sentences imposed by the trial court be vacated as
        illegal and/or manifestly excessive and an abuse of discretion?

Appellant’s Brief at 4.13

        In support of his first issue, Appellant reiterates that he filed a motion

to suppress the intercepted communications because the Commonwealth

failed to comply with sections 570414 and 5714 of the Wiretap Act. Id. at 9.

In Appellant’s view, the order authorizing the in-home wiretap was

discoverable under Pa.R.Crim.P. 573(B)(1)(g). Id. at 10-11. Although his

motion in limine sought suppression, Appellant construes his motion as

seeking discovery of not only the order, but discovery of the wiretap

application and affidavit of probable cause, as well.           Id. at 11.   Appellant

contends he needed those documents in order to properly challenge the

validity of the wiretap application.           Id.   Absent the documents, Appellant

argues his cross-examination of the affiant at the suppression hearing was

unduly limited. Id. Appellant points out that the affiant testified he could not


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13   Appellant, with leave of this Court, filed identical briefs for both appeals.
14 In pertinent part, Section 5704(2)(iv) sets forth the requirements for a
wiretap inside the home of a nonconsenting party. 18 Pa.C.S. § 5704(2)(iv).
The requirements include a court order authorizing in-home interception
based upon review of an affidavit establishing probable cause. Id.


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J-S32029-18 & J-S32030-18


recall whether the affidavit of probable cause referenced the confidential

informant’s reliability. Id. at 13. Appellant notes he renewed his objection to

the admissibility of the recordings in a motion in limine on the basis that the

Commonwealth failed to provide the documents at least ten days prior to trial.

Id. at 14.

        The Commonwealth counters that it complied with the disclosure

requirements because it “provided notice of the fact and nature of the

interceptions, along with digital recordings of the interceptions[], far in

advance of trial.” Commonwealth’s Brief at 11. In the Commonwealth’s view,

it complied with the disclosure requirements. Id. at 11-12. As for Appellant’s

contention that he was entitled to the sealed documents, the Commonwealth

responds that no application was made to unseal under 18 Pa.C.S. § 5715.

Id. at 13-14.15

        The trial court reasons that it was sufficient for the Commonwealth to

have     provided     Appellant     with       the   recordings   of   the   intercepted

communications.       Trial Ct. Op., 1/17/17, at 4.         The trial court states that

because the Commonwealth had not yet introduced the recordings at trial or

a hearing, it was not obligated to provide the order, wiretap application, and

final report. Id.

        The standard of review follows:


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15   We quote the statute below.


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J-S32029-18 & J-S32030-18


      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. 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 our plenary review.

      Moreover, appellate courts are limited to reviewing only the
      evidence presented at the suppression hearing when examining a
      ruling on a pre-trial motion to suppress.

Freeman, 150 A.3d at 34-35 (citation omitted).

   Rules of Statutory Construction and Relevant Wiretap Statutes

                       Rules of Statutory Construction

      Before quoting the relevant wiretap statutes, we briefly state the rules

of statutory construction.

      In evaluating a trial court’s application of a statute, our standard
      of review is plenary and is limited to determining whether the trial
      court committed an error of law. In making this determination, we
      are guided by the Statutory Construction Act, which dictates:

         § 1921. Legislative intent controls

         (a) The object of all interpretation and construction of
         statutes is to ascertain and effectuate the intention of the
         General Assembly. Every statute shall be construed, if
         possible, to give effect to all its provisions.




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         (b) When the words of a statute are clear and free from all
         ambiguity, the letter of it is not to be disregarded under the
         pretext of pursuing its spirit.

      1 Pa.C.S. § 1921. As a general rule, the best indication of
      legislative intent is the plain language of a statute.

      Every statute shall be construed, if possible, to give effect to all
      its provisions. We presume the legislature did not intend a result
      that is absurd, impossible, or unreasonable, and that it intends
      the entire statute to be effective and certain. When evaluating
      the interplay of several statutory provisions, we recognize that
      statutes that relate to the same class of persons are in pari
      materia and should be construed together, if possible, as one
      statute. If two statutes conflict, they are to be construed so effect
      may be given to both, if possible; if this is not possible, the special
      provision prevails over the general one as an exception to it,
      unless the general one was enacted later and there is manifest
      legislative intent that it prevail.

Commonwealth v. Anderson, 169 A.3d 1092, 1095-96 (Pa. Super. 2017)

(en banc) (some formatting and some citations omitted).

      “[T]he Wiretap Act is to be strictly construed to protect individual privacy

rights” because it derogates a fundamental Pennsylvania constitutional right—

the right to privacy.   Karoly v. Mancuso, 65 A.3d 301, 310 (Pa. 2013)

(citations omitted). Given that “private conversations are [being] overheard

by   governmental     authorities,”   courts   should   closely   scrutinize    law

enforcement authorities for strict compliance with the Act’s requirements. Id.

In establishing a violation of the Wiretap Act, a defendant is not required to

establish actual prejudice.   Commonwealth v. Hashem, 584 A.2d 1378,

1381-82 (Pa. 1991) (holding, “We . . . specifically reject the Superior Court’s

holding that before relief can be granted in this type of claim the Defendant


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J-S32029-18 & J-S32030-18


must bear the burden of showing how the failure to comply with the [Wiretap]

Act prejudiced him. As we [held previously], where an act is in derogation of

this Commonwealth’s constitutionally protected right to privacy its provisions

must be strictly applied.” (citation omitted)).16

     Mandatory Disclosure of Wiretap Order, Application, and Final Report

       Section 5715 provides that sealed wiretap applications, final reports,

and orders authorizing wiretaps

       may be disclosed only upon a showing of good cause before a
       court of competent jurisdiction except that any investigative or
       law enforcement officer may disclose such applications, orders
       and supporting papers and monitor’s records to investigative or
       law enforcement officers of this or another state, any of its political
       subdivisions, or of the United States to the extent that such
       disclosure is appropriate to the proper performance of the official
       duties of the officer making or receiving the disclosure.

18 Pa.C.S. § 5715.

       In any event, notwithstanding the “good cause” requirement, section

5720 of the Wiretap Act compels disclosure of the wiretap order, application,

and final report at least ten days before trial:


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16 In Commonwealth v. Donahue, 630 A.2d 1238 (Pa. Super. 1993), the
defendant contended on appeal that the intercepted communications should
have been suppressed because the final report was not timely served on him.
Donahue, 630 A.2d at 1247. The Donahue Court disagreed, holding that
violation of Section 5720 was not a basis for suppression under Section 5721,
which has since been repealed and replaced by Section 5721.1. Id. at 1248;
see 18 Pa.C.S. § 5721 historical and statutory notes. The holding of the
Donahue Court must be viewed in light of the issue raised, specifically that
in Donahue, the defendant actually received the final report, but not in a
timely fashion.


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J-S32029-18 & J-S32030-18


       The contents of any wire, electronic or oral communications
       intercepted in accordance with the provisions of this subchapter,
       or evidence derived therefrom, shall not be disclosed in any trial,
       hearing, or other adversary proceeding before any court of the
       Commonwealth unless, not less than ten days before the trial,
       hearing or proceeding the parties to the action have been
       served with a copy of the order, the accompanying
       application and the final report under which the interception
       was authorized or, in the case of an interception under section
       5704 (relating to exceptions to prohibition of interception and
       disclosure of communications), notice of the fact and nature of the
       interception. The service of inventory, order, application, and final
       report required by this section may be waived by the court only
       where it finds that the service is not feasible and that the parties
       will not be prejudiced by the failure to make the service.

                                       *       *    *

       18 Pa.C.S.A. § 5720 is suspended by Pa.R.Crim.P. Rule 1101(5)
       insofar as § 5720 may delay disclosure to a defendant seeking
       discovery under Pa.R.Crim.P. Rule 573(B)(1)(g).

18 Pa.C.S. § 5720 (italics omitted and emphasis added).17         The obligatory

disclosure requirements of section 5720 necessarily presume that the section

5715 seal was lifted. See 18 Pa.C.S. § 5715.

       Rule of Criminal Procedure 573(B)(1)(g) addresses mandatory discovery

disclosure by the Commonwealth:

       (B) Disclosure by the Commonwealth.

       (1) Mandatory. In all court cases, on request by the defendant,
       and subject to any protective order which the Commonwealth
       might obtain under this rule, the Commonwealth shall disclose to

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17Pennsylvania Rule of Criminal Procedure 1101(5) states that “18 Pa.C.S. §
5720, is suspended as inconsistent with Rule 573 only insofar as the section
may delay disclosure to a defendant seeking discovery under Rule
573(B)(1)(g).” Pa.R.Crim.P. 1101(5).


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      the defendant’s attorney all of the following requested items or
      information, provided they are material to the instant case. The
      Commonwealth shall, when applicable, permit the defendant’s
      attorney to inspect and copy or photograph such items.

                                     *     *      *

           (g) the transcripts and recordings of any electronic
           surveillance, and the authority by which the said transcripts
           and recordings were obtained.

Pa.R.Crim.P. 573(B)(1)(g). The comment to this subsection provides that it

      is intended to insure that the statutory provision and Rule
      573(B)(1)(g) are read in harmony. A defendant may seek
      discovery under paragraph (B)(1)(g) pursuant to the time frame
      of the rule, while the disclosure provisions of Section 5720 would
      operate within the time frame set forth in Section 5720 as to
      materials specified in Section 5720 and not previously discovered.

Id. cmt.

      Read     together,   Rule   573(B)(1)(g)        mandates   disclosure   of   the

“authority”, e.g., the “inventory, order, application, and final report” of section

5720, as part of Commonwealth’s mandatory discovery requirements. See

Pa.R.Crim.P. 573(B)(1)(g).        But even if Rule 573(B)(1)(g)’s reference to

“authority” could    be construed as not encompassing               section 5720’s

“inventory, order, application, and final report”, section 5720 nonetheless

requires the disclosure of such documents at least ten days prior to the trial.

See 18 Pa.C.S. § 5720.

    Statutes Governing a Motion to Exclude Wiretapped Communications

      Section 5721.1 sets forth the procedures for a motion to exclude a

wiretapped communication. See 18 Pa.C.S. § 5721.1. That section sets forth


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six different grounds for exclusion. See 18 Pa.C.S. § 5721.1(b)(1)-(6). In

relevant part, we state the specific grounds at issue:

      (2) The order of authorization issued under section 5712 or the
      order of approval issued under section 5713(a) or 5713.1(b) was
      not supported by probable cause with respect to the matters set
      forth in section 5710(a)(1) and (2) (relating to grounds for entry
      of order).

      (3) The order of authorization issued under section 5712 is
      materially insufficient on its face.

                                  *     *      *

      (5) With respect to interceptions pursuant to section 5704(2), the
      consent to the interception was coerced by the Commonwealth.

      (6) Where required pursuant to section 5704(2)(iv), the
      interception was made without prior procurement of a court order
      or without probable cause.

18 Pa.C.S. § 5721.1(b)(2)-(3), (5)-(6).

      The movant—usually the defendant—has the burden of proof for (b)(3)

and the respondent—usually the Commonwealth—has the burden of proof for

(b)(2) and (5). 18 Pa.C.S. § 5721.1(c)(3)-(4). The movant has the initial

burden of proof under (b)(6) of establishing the interception took place at the

movant’s home, and then the burden shifts to the respondent to prove that

the interception complied with section 5704(2)(iv). Id. § 5721.1(c)(5).

      Critically, in evaluating a motion to exclude under (b)(2), “both the

written application under section 5710(a) and all matters that were presented




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to the judge under section 5710(b) shall be admissible.” Id. § 5721.1(c)(2).18

“The Pennsylvania Supreme Court has recognized that the term ‘shall’ is

mandatory for purposes of statutory construction when a statute is

unambiguous.” Phelps v. Caperoon, 190 A.3d 1230, 1237 (Pa. Super. 2018)

(citation and quotation marks omitted). The statutory language of subsection

(c)(2) necessarily presumes that all such materials have been unsealed.    In

other words, the respondent, i.e., the Commonwealth, has the burden of

unsealing the written application and affidavit of probable cause in response

to a defendant’s motion to exclude invoking subsection (b)(2). See 18 Pa.C.S.

§ 5721.1(b)(2), (c)(2), (c)(4).

Commonwealth Erred By Failing to Comply with Mandatory Discovery

        Here, Appellant moved to exclude the wiretapped conversations on the

basis that the Commonwealth failed to provide the affidavit of probable cause,

wiretap application, and order approving the wiretap. Suppl. Omnibus Pretrial

Mot. to Suppress, at 1-2. At the hearing on the motion, Appellant accurately

noted that the Commonwealth bore the burden of establishing probable cause

for the wiretap order.       N.T. Mot. Hr’g, 1/5/17, at 8-9; see 18 Pa.C.S. §

5721.1(b)(2), (c)(4).       The Commonwealth’s argument that only the court

could unseal the requested documents is in tension with 18 Pa.C.S. §

5721.1(c)(2). As set forth above, that subsection states that in considering a


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18   Section 5710 sets forth the grounds for entry of a wiretap order.


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motion to exclude under subsection (b)(2), “both the written application . . .

and all matters that were presented to the judge . . . shall be admissible.” Id.

§ 5721.1(c)(2).    Given such mandatory language, the statutory language

undercuts the Commonwealth’s argument that it could not present such

documents—particularly since it carries the burden of proof.           See id.

5721.1(c)(2), (c)(4).

      Regardless, the Commonwealth failed to comply with its mandatory

discovery obligations under Pa.R.Crim.P. 573(B)(1)(g) and section 5720. Rule

573(B)(1)(g) obligated the Commonwealth to disclose the authority for the

wiretap.    See Pa.R.Crim.P. 573(B)(1)(g).    And section 5720 required the

Commonwealth to serve a copy of the order, application, and final report at

least ten days before trial. See 18 Pa.C.S. § 5720. The Commonwealth did

not. Indeed, the Commonwealth did not advise the trial court of its statutory

obligations.

      The Commonwealth attempts to evade responsibility by shifting the

burden to Appellant to file a motion to unseal. See Commonwealth’s Brief at

13-14.     But the Commonwealth, in response to an appropriate motion to

suppress, has the sole burden of establishing, by a preponderance of the

evidence, that it had probable cause to apply for a wiretap. See 18 Pa.C.S. §

5721.1(b)(2), (c)(4).   It cannot sidestep its statutorily-imposed burden of

proof by claiming that Appellant had the burden of filing a motion to unseal.

See id.


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J-S32029-18 & J-S32030-18


      Given our Supreme Court’s admonition that the Wiretap Act must be

strictly construed to preserve the fundamental Pennsylvania constitutional

right of privacy, see Karoly, 65 A.3d at 310, Appellant need not establish any

prejudice from the Commonwealth’s procedural violations. See Hashem, 584

A.2d at 1381. Accordingly, having discerned an error of law, Freeman, 150

A.3d at 34-35, we are reluctantly compelled to vacate Appellant’s judgment

of sentence, vacate the order denying Appellant’s post-sentence motion,

vacate the January 17, 2017 order denying Appellant’s motion, and remand

for a new suppression hearing.     If the trial court again denies Appellant’s

suppression motion, then it shall reimpose the corrected sentence, and

Appellant is entitled to his post-sentence and appellate rights.

      Judgment of sentence vacated.           Order denying Appellant’s post-

sentence motion vacated. Trial court’s January 17, 2017 order vacated. Case

remanded for a new suppression hearing. Jurisdiction relinquished.

Judge Panella joins the opinion.

Judge Platt files a concurring opinion.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/05/2018

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