J-A31032-14


                                   2015 PA Super 28

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellant

                       v.

RAHIEM CARDEL FANT

                            Appellee                  No. 386 MDA 2014


               Appeal from the Order Entered February 26, 2014
                In the Court of Common Pleas of Clinton County
               Criminal Division at No: CP-18-CR-0000415-2013


BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION BY STABILE, J.:                           FILED FEBRUARY 09, 2015

       The Commonwealth appeals from the February 26, 2014 order entered

in the Court of Common Pleas of Clinton County granting the suppression

motion filed by Rahiem Cardel Fant (Appellee).1         Following review, we

reverse.

       In its opinion accompanying the order, the trial court explained:

       [Appellee] is charged with four (4) counts of alleged criminal
       conduct, i.e., Aggravated Assault, a felony of the first degree,
       Aggravated Assault, a felony of the second degree, Simple
       Assault, a misdemeanor of the second degree, and Recklessly
       Endangering Another Person, a misdemeanor of the second
       degree. All allegations of [Appellee’s] criminal conduct arise out
       of an incident that occurred on North Grove Street in the City of
____________________________________________


1
  Appellee’s motion was titled “Motion in Limine to Exclude Evidence Relating
to Telephone Recordings and Personal Belongings.” It was properly treated
by the trial court as a suppression motion.
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      Lock Haven on May 11, 2013, wherein [Appellee] allegedly
      stabbed an adult male in the abdomen and the arm. [Appellee]
      is scheduled for jury trial to commence on Thursday, February
      27, 2014.     [Appellee] filed a Motion in Limine to Exclude
      Evidence Relating to Telephone Recordings and Personal
      Belongings on February 21, 2014. This [c]ourt conducted a
      hearing on February 25, 2014.           At the hearing, the
      Commonwealth offered the testimony of Jackie Motter, Warden
      of the Clinton County Correctional Facility and Jenifer Bottorf,
      Victim/Witness    Coordinator     of  Clinton   County.     The
      Commonwealth also offered four (4) exhibits which were entered
      into evidence.

      [Appellee’s] Motion seeks the exclusion of recordings made at
      the Clinton County Correctional Facility between [Appellee] and
      unknown persons and the subsequent receipt by law
      enforcement personnel of a bag of clothing and other personal
      belongings formerly owned by [Appellee] which were in the
      basement of Angela Monks, the previous paramour of [Appellee].
      [Appellee] argues numerous reasons why these items should not
      be admitted into evidence.

Trial Court Opinion (T.C.O.), 2/26/14, at 1-2.

      The trial court granted Appellee’s suppression motion and prohibited

the introduction of, and references to, recordings made during Appellee’s

visitation sessions at the Clinton County Correctional Facility (the facility) as

well as the introduction of, and references to, personal belongings

discovered as a result of the recordings. Trial Court Order, 2/26/14, at 1.

The Commonwealth filed this timely appeal from the February 26, 2014

order. On March 16, 2014, in accordance with the trial court’s directive, the

Commonwealth filed its Rule 1925(b) statement of errors complained of on

appeal asserting five errors, which are condensed into the three issues

presented to this Court as follows:


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       I.       Did the court err in finding that the recordings made of
                Appellee’s correctional facility visitation calls were not
                telephone calls which fell within the exception to the
                Wiretap Act?

       II.      Did the court err in suppressing evidence without finding
                that Appellee had a reasonable expectation of privacy in
                the correctional facility visitation calls?

       III.     Did the court err in suppressing the personal belongings of
                Appellee seized as the seizure was based upon lawfully
                obtained information?

Commonwealth Brief at 5.2

       We begin by setting forth our scope and standard of review. As this

Court has recognized:

       When reviewing a grant of a suppression motion, the appropriate
       scope and standard of review are as follows:

             [W]here a motion to suppress has been filed, the burden is
             on the Commonwealth to establish by a preponderance of
             the evidence that the challenged evidence is admissible.
             In reviewing the ruling of a suppression court, our task is
             to determine whether the factual findings are supported by
             the record. If so, we are bound by those findings. Where,
             as here, it is the Commonwealth who is appealing the
             decision of the suppression court, we must consider only
             the evidence of the defendant’s witnesses and so much of
             the evidence for the prosecution as read in the context of
             the record as a whole remains uncontradicted.

             Moreover, if the evidence supports the factual findings of
             the suppression court, this Court will reverse only if there
             is an error in the legal conclusions drawn from those
             findings.
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2
  We remind the Commonwealth of the requirement to include a copy of the
statement of errors complained of on appeal in briefs filed with this Court.
Pa.R.A.P. 2111(a)(11).



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Commonwealth v. Burgos, 64 A.3d 641, 647 (Pa. Super. 2013) (quoting

Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010)

(citations omitted)).

      As noted, this Court is bound by the findings of the suppression court

that are supported by the record.          Because this is an appeal by the

Commonwealth, we must consider only the evidence of Appellee’s witnesses

and the evidence of the Commonwealth that remains uncontradicted in the

context of the record. Id.

      Here, Appellee did not present any witnesses at the suppression

hearing. The only two witnesses who testified were the facility’s warden and

the Clinton County victim/witness coordinator, both of whom were called by

the prosecution.        Four exhibits were admitted in the course of their

testimony.    The exhibits included Policy Number 100:15, “Telephone

Regulations for Inmates,” from the Clinton County Correctional Facility Policy

and Procedure Manual; the Clinton County Correctional Facility Inmate

Handbook; The Inmate I.D. Card Agreement and Acknowledgement of

Inmate Rules and Regulations, both of which were signed by Appellee; and

the Clinton County Correctional Facility Inmate Telephone ID Number

Release Form signed by Appellee. Absent any witnesses for Appellee, this

Court must determine whether the suppression court’s factual findings are

supported    by    the    evidence   of   the   Commonwealth   that   remains

uncontradicted in the context of the record.

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      At issue are recordings of conversations that took place between

Appellee and visitors in the facility’s visitation room and whether the

recorded calls were “telephone calls” under § 5704(14) the Pennsylvania

Wiretap Act, 18 Pa.C.S.A. § 5704(14).     Regarding the suppression court’s

factual findings, no Findings of Fact or Conclusions of Law were announced

at the conclusion of the suppression hearing.    Instead, the court “ordered

that [the court] will take this matter under advisement, attempt to do some

legal research, and reach a decision tomorrow morning.” N.T., 2/25/14, at

38. In its opinion and order issued the following day, the court stated:

      [Appellee’s] first argument in support of excluding the recordings
      is that it violates § 5704 of the Pennsylvania Wiretap Statute. 18
      PaC.S.A. § 5704.         The Commonwealth has argued that
      § 5704(14) permits these recordings.         A close examination
      indicates that “telephone calls” may be intercepted and recorded
      by the correctional facility and then forwarded to law
      enforcement for the prosecution or investigation of any crime.
      Initially, although this [c]ourt attempted to seek clarifications
      throughout the proceedings because of the intricacies of the
      Wiretap Statute, this [c]ourt must note that all the recordings
      but two (2) are not what this [c]ourt would refer to as
      “telephone calls.” The District Attorney admitted at the hearing
      on February 25, 2014 that no case law exists regarding this
      case.

      The system in place at the Clinton County Correctional Facility
      for visitation is that Defendant picks up an apparatus that
      resembles a telephone and punches in an i.d. number and the
      other individual across the glass from Defendant picks up that
      apparatus and a discussion ensues. These are the discussions
      except for two (2) short phone calls that were intercepted. This
      [c]ourt does not believe that this was what the Legislature
      contemplated when it indicated that it was allowing telephone
      calls from the correctional facility to be intercepted and
      recorded. Clearly, the conversation is between a visitor at a
      correctional facility and an inmate. These conversations do not

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       involve the use of a telephone company, telephone lines or
       equipment outside the correctional facility.    The every day
       common sense use of the word telephone does not include this
       scenario.    Therefore, this Court rules that the “visit”
       conversations are not telephone calls and are not subject to the
       Wiretap accession under § 5704(14).             Therefore, the
       Commonwealth has offered no other argument for any exception
       and therefore, those calls must be suppressed.

T.C.O., 2/26/14, at 2-3.

       As is evident from the excerpt quoted above, the trial court made few

“factual findings.”      Cf. Pa.R.Crim.P. 581(I) (“At the conclusion of the

hearing, the judge shall enter on the record a statement of findings of fact .

. . .”).   Essentially, the findings of fact were limited to (a) describing the

facility’s visitation system as one in which the inmate and his visitor carry on

a discussion through a glass partition using an apparatus that resembles a

telephone activated by the inmate punching in an I.D. number, and (b)

announcing that all but two of the recorded conversations did not involve the

use of a telephone company, telephone lines or equipment outside the

correctional facility. A fair reading of the trial court’s opinion does not reveal

any additional findings of fact. To the extent those findings are supported

by the record, we are bound by them.3            However, our review of the

suppression hearing transcript reveals additional uncontradicted facts not


____________________________________________


3
 As noted below, the trial court’s finding that the recordings in question did
not involve a telephone company is not supported by the evidence. The
evidence supports the remaining findings.



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enunciated by the trial court that must be considered to determine whether

error in the trial court’s legal conclusions warrants reversal of its order.

      From our review of the suppression hearing transcript, we glean the

following. The uncontradicted testimony of the facility’s warden established

that the facility’s Inmate Handbook contains information regarding the

recording of telephone calls. N.T. Suppression Hearing (N.T.), 2/25/14, at

6; Commonwealth Exhibit 2.        Section 3001 on page 7 of the handbook

provides in bold typeface that “[t]elephone calls are subject to monitoring,

recording, and may be intercepted or divulged.” Id. at 6-7. Appellee signed

an acknowledgement of receipt of his Inmate ID Card Agreement and an

acknowledgement of the Inmate Rules and Regulations on his booking date,

May 12, 2013. Id. at 7-8; Commonwealth Exhibit 3. Appellee also signed a

release form on the same date that explains the inmate telephone system

and the unique telephone ID number assigned to him.                   Id. at 8;

Commonwealth Exhibit 4.        The form includes an acknowledgement that

telephone calls are subject to monitoring, recording and interception. Id.

      An inmate uses his telephone ID number to initiate calls outside the

facility as well as visitation calls within the facility for face-to-face visits

using a telephone to communicate through glass.            Id. at 13-17.       Both

external and internal calls are recorded on the same system and are stored

on the prison’s computer server. Id. at 9-10; 12-14. Calls are designated

as calls to an outside number or a visitation call. Id. at 14. Visitation calls


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go through and are recorded by the inmate phone company. Id. at 14; 16.4

Those having access to the stored calls include the warden, the deputy

warden, the lieutenants, and the office and records manager who has been

designated to record phone calls during the warden’s one year tenure as

warden and during the 13 years she served as deputy warden. Id. at 10-

12.     According to the uncontradicted testimony of the victim/witness

coordinator, the recordings in question here, with the possible exception of

two outside calls, were from visitation calls within the facility during face-to-

face visits using a telephone activated by Appellee entering his telephone ID

number.      Id. at 25.        The request for the recordings stemmed from a

February 3, 2014 call from a Commonwealth witness who expressed concern

about “the players involved and the possibility of somebody reaching out to

her to . . . talk to her about what she was going to say.” Id. at 19.

        In his motion to suppress, Appellee contended that “[b]y letter dated

February 18, 2014, the office of the District Attorney provided [Appellee’s]

counsel    with    three      (3)   CDs   containing    recordings      of   telephone

conversations         taken    during     various   visits   at   the   Clinton   County

Correctional Facility between [Appellee] and various visitors.”               Motion in

Limine to Exclude Evidence Relating to Telephone Recordings and

Personal Belongings, 2/21/14 at ¶ 4 (emphasis added). Much of Appellee’s

____________________________________________


4
    See footnote 3.



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motion focused on the Commonwealth’s delay in producing voluminous

amounts of discovery material relating to the recordings and the burden on

the defense of reviewing the materials in the short time remaining before

trial. Id. at ¶¶ 5-8 and ¶¶ 11-19. However, Appellee also challenged the

anticipated use of the recordings at trial based on the alleged failure of

officials at the facility to follow the process and regulations outlined in the

Pennsylvania Wiretap Act with respect to the recordings. Id. at ¶ 10.

      Section 5704(14) of the Wiretap Act provides, in pertinent part, that:

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

         (14) An investigative officer, a law enforcement officer or
         employees of a county correctional facility to intercept,
         record, monitor or divulge any telephone calls from or to
         an inmate in a facility under the following conditions:

            (i) The county correctional facility shall adhere to the
            following    procedures    and      restrictions   when
            intercepting, recording, monitoring or divulging any
            telephone calls from or to an inmate in a county
            correctional facility as provided for by this
            paragraph:

               (A) Before the implementation of this
               paragraph, all inmates of the facility shall be
               notified in writing that, as of the effective date
               of     this    paragraph,      their    telephone
               conversations may be intercepted, recorded,
               monitored or divulged.

               (B) Unless otherwise provided for in this
               paragraph, after intercepting or recording a
               telephone      conversation,         only     the
               superintendent, warden or a designee of the
               superintendent or warden or other chief
               administrative official or his or her designee, or

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               law enforcement officers shall have access to
               that recording.

               (C) The contents of an intercepted and
               recorded telephone conversation shall be
               divulged only as is necessary to safeguard the
               orderly operation of the facility, in response to
               a court order or in the prosecution or
               investigation of any crime.

18 Pa.C.S.A. § 5704(14) (emphasis added).

      The Commonwealth and Appellee both acknowledge that the Wiretap

Act does not define the word “telephone.”            Commonwealth Brief at 12;

Appellee Brief at 7.        The Commonwealth offers the Webster’s Dictionary

definition of a telephone as “[a]n instrument for reproducing sounds,

especially articulate speech, at a distance,” and an alternate definition of “an

electrical device for transmitting speech, consisting of a microphone and

receiver mounted on a handset,” from Collins English Dictionary – Complete

& Unabridged 10th Edition 2009. Appellee offers a Merriam-Webster Online

Dictionary definition indicating that a telephone is “a device that is

connected to a telephone system and that you use to listen or speak to

someone      who       is     somewhere     else.”        (http://www.merriam-

webster.com/dictionary/telephone?show=0&t=1409159323.) Another online

source, BusinessDictionary.com, explains that a “telephone consists of two

essential parts; a microphone and a speaker. This allows the user to speak

into the device and also hear transmissions from the other user.”




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(http://www.businessdictionary.com/definition/telephone.html#ixzz3O4MV4

vqJ).

        Appellee argues that the Commonwealth’s selected definitions are self-

serving and suggests that his definition should be accepted because it

includes an important distinction, i.e., that a telephone must be connected

to a telephone system and used to listen or speak to someone who is

somewhere else. Appellee Brief at 7. However, the uncontradicted evidence

from the suppression hearing reveals that the telephones in the facility’s

visitation room are connected to the “inmate phone company.”                 N.T.,

2/25/14, at 16.    Calls on both the inmate phone system and the facility’s

Verizon telephone system are recorded by the same computer system. Id.

Further, the telephones in the visitation room are used to listen or speak to

someone who is somewhere else, i.e., on the other side of a glass partition

that    would   otherwise   prevent    prisoners    and   their   visitors   from

communicating audibly.       Those facts bring the visitation calls within

Appellee’s proffered definition.

        Under any of the “common meanings” of telephone, as listed above,

we conclude the record does not support the trial court’s legal conclusion

that the “apparatus that resembles a telephone” is not a telephone and that

the recorded telephone “visit” conversations are not subject to the exception

set forth in § 5704(14) of the Wiretap Act.        The Act does not distinguish

between external and internal telephone calls from or to an inmate in a


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county correctional facility.      Because the motion to suppress was granted

based on an unwarranted distinction between the two, we reverse the trial

court’s order suppressing the recorded conversations as well as the evidence

obtained as a result of those conversations.5

       Order reversed. Case remanded. Jurisdiction relinquished.6




____________________________________________


5
   Because our resolution of the Commonwealth’s first issue enables us to
dispose of the matter before us, it is not necessary to address separately the
Commonwealth’s remaining issues.
6
   We note and agree with Appellee’s contention that this Court lacked
jurisdiction to entertain this appeal under Pa.R.A.P. 341 relating to final
orders. Although the Commonwealth’s brief suggests the appeal is taken
pursuant to Rule 341, the Commonwealth certified in its notice of appeal
that the trial court’s order “will terminate or substantially handicap the
prosecution,” satisfying the requirement of Pa.R.A.P. 311(d) (“In a criminal
case, under the circumstances provided by law, the Commonwealth may
take an appeal as of right from an order that does not end the entire case
where the Commonwealth certifies in the notice of appeal that the order will
terminate or substantially handicap the prosecution.”). While the trial court
suggests that it would be “extremely difficult” for this Court to determine
whether the prosecution would be substantially handicapped by the
suppression order, Trial Court 1925(a) Opinion, 4/1/14 at 3-4, our Supreme
Court has recognized that the grant of a suppression motion is a proper
basis for invoking Rule 311(d). See, e.g., Commonwealth v. Cosnek, 836
A.2d 871, 875 (Pa. 2003) (“When a pretrial motion removes evidence from
the Commonwealth’s case, only the prosecutor can judge whether that
evidence substantially handicaps his ability to prove every essential element
of his case.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/9/2015




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