J-A18033-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :                 IN THE SUPERIOR COURT OF
                               :                    PENNSYLVANIA
                 Appellant     :
                               :
                               :
            v.                 :
                               :
                               :
 JAMES T. BYRD, A/K/A AL-TARIQ :               No. 1818 WDA 2016
 SHARIF ALI BYRD               :
                               :

                    Appeal from the Order October 31, 2016
               In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-CR-0003369-2016


BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

MEMORANDUM BY OTT, J.:                               FILED MARCH 26, 2018

       The Commonwealth appeals1 from the order entered October 31, 2016,

in the Court of Common Pleas of Allegheny County, granting James T. Byrd,

a/k/a Al-Tariq Sharif Ali Byrd’s motion to suppress all recordings of his jail

visits. The Commonwealth claims the trial court erred in finding these jail

visitation recordings were made in violation of the Pennsylvania Wiretapping

and Electronic Surveillance Control Act (“the Wiretap Act”) 2 and that the two-



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1 The Commonwealth has certified in its notice of appeal that the suppression
order will terminate or substantially handicap its prosecution of the case. See
Pa.R.A.P. 311(d).

2   18 Pa.C.S. § 5701, et seq.
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party consent exception did not apply.3          After a thorough review of the

submissions by the parties, the certified record, and relevant law, we reverse

and remand for further proceedings.

       The trial court set forth the factual history as follows.

             [Byrd was initially arrested charged with certain offenses in
       the unrelated matter at Docket No. 1817 WDA 2016 for an incident
       that occurred on February 23, 2015. The present appeal relates
       to events that took place after this incident.          Byrd was
       subsequently] released on bail [for those unrelated charges] but
       in June, 2015, was detained in the Allegheny County Jail by the
       Ohio Parole Authority. Between June, 2015 and February, 2016,
       [Byrd] received multiple visits from his fiancée, Dana Heaps. The
       conversations that took place during those visits were recorded.
       While reviewing the recordings, it was determined that [Byrd] had
       discussed a recording he made of a sexual encounter with Heaps
       while she was unconscious. Apparently, [Byrd] did not like that
       Heaps took the medication Seroquel, so he took the medication
       away from her and gave it to her as he felt was appropriate. On
       one occasion, he gave her a greater dose than was prescribed,
       causing her to pass out. While she was unconscious, [Byrd]
       engaged in oral, anal, and vaginal sex with her and recorded the
       encounter on his cell phone. During one [of] Heaps’ visits to
       [Byrd] at the Allegheny County Jail, [Byrd] discussed the
       medication and the recording of the sexual encounter with her.
       Upon review of the recorded jail visit conversation, Heaps was
       interviewed by police and the charges were filed.

Trial Court Opinion, 1/12/2017, at 7.




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3  The Commonwealth filed an appeal in an unrelated matter with respect to
Byrd at Docket No. 1817 WDA 2016. In that appeal, the Commonwealth
raised the same issue regarding the Wiretap Act as well as a search and
seizure challenge. The trial court addressed both cases in its January 12,
2017, Pa.R.A.P. 1925(a) opinion.



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       Byrd was charged with rape (unconscious victim), two counts of

involuntary deviate sexual intercourse (unconscious victim), two counts of

aggravated indecent assault (unconscious victim), two counts of terroristic

threats, stalking, indecent assault (unconscious victim), invasion of privacy,

and persons not to possess firearms.4            On October 11, 2016, Byrd filed a

motion to suppress, arguing those jail visitations recordings with Heaps were

illegally obtained and therefore, violated his constitutional rights and the

Wiretap Act. A hearing was held on October 31, 2016.5 That same day, the

court entered an order granting Byrd’s motion with respect to all recordings

of his jail visits. The Commonwealth filed a motion to reconsider, which was

denied November 29, 2016. This appeal followed.6

       In its sole issue, the Commonwealth contends the trial court erred in

rejecting its argument that Byrd’s jail visit recordings “were permitted under

the two-party consent exception to the Wiretap Act, finding that the

Commonwealth failed to prove that [Byrd] heard the recording warning which



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4   18 Pa.C.S. §§ 3121(a)(3), 3123(a)(3), 3125(a)(4), 2706(a)(1)
2709.1(a)(1), 3126(a)(4), 7507.1(a)(1), and 6105(a)(1), respectively.

5  At the hearing, the court addressed the jail visitations recordings as they
relate to this matter and the matter at Docket No. 1817 WDA 2016.

6 On December 7, 2016, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth filed a concise statement on December 14,
2016 The trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on
January 12, 2017.

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was played each time an inmate used the phone system to talk to a visitor.”

Commonwealth’s Brief at 16 (footnote omitted).

      Our   standard    of   review   of   a   trial   court’s   order   granting   a

defendant/appellee’s motion to suppress evidence is well established:

      When the Commonwealth appeals from a suppression order, we
      follow a clearly defined standard of review and consider only the
      evidence from the defendant’s witnesses together with the
      evidence of the prosecution that, when read in the context of the
      entire record, remains uncontradicted. The suppression court’s
      findings of fact bind an appellate court if the record supports those
      findings. The suppression court’s conclusions of law, however, are
      not binding on an appellate court, whose duty is to determine if
      the suppression court properly applied the law to the facts.
      Commonwealth v. Miller, 2012 PA Super 251, 56 A.3d 1276,
      1278-79 (Pa. Super. 2012) (citations omitted). “Our standard of
      review is restricted to establishing whether the record supports
      the suppression court’s factual findings; however, we maintain de
      novo review over the suppression court’s legal conclusions.”
      Commonwealth v. Brown, 606 Pa. 198, 996 A.2d 473, 476
      (2010) (citation omitted).

Commonwealth v. Korn, 139 A.3d 249, 252-253 (Pa. Super. 2016), appeal

denied, 159 A.3d 933 (Pa. 2016). “It is within the suppression court’s sole

province as factfinder to pass on the credibility of witnesses and the weight to

be given to their testimony. The suppression court is free to believe all, some

or   none   of   the   evidence   presented     at     the   suppression   hearing.”

Commonwealth v. Elmobdy, 823 A.2d 180, 183 (Pa. Super. 2003) (citations

omitted), appeal denied, 847 A.2d 58 (Pa. 2004).                 Nevertheless, the

suppression court’s conclusions of law are not binding on an appellate court,

and are subject to plenary review. Commonwealth v. Johnson, 969 A.2d

565, 567 (Pa. Super. 2009) (citations omitted).

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       Generally, the Wiretap Act “prohibits the interception, disclosure or use

of any wire, electronic or oral communication.” Commonwealth v. Deck,

954 A.2d 603, 607 (Pa. Super. 2008), citing 18 Pa.C.S. § 5703, appeal denied,

964 A.2d 1 (Pa. 2009).7 18 Pa.C.S. § 5704 identifies “exceptions to Section

5703’s prohibitions and allows for the interception of a wire, electronic or oral

communication in designated circumstances.”         Deck, 954 A.2d at 607.8

Pertinent to this case, Subsection 5404(4) states: “It shall not be unlawful

and no prior court approval shall be required under this chapter for . . . [a]

person, to intercept a wire, electronic or oral communication, where all parties

to the communication have given prior consent to such interception.” 18

Pa.C.S. § 5704(4).

       Turning to the present matter, the Commonwealth states:

              Inmates and visitors at the Allegheny County Jail are
       notified that their conversations may be monitored or recorded
       immediately prior to each visit conversation. By engaging in a
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7  An “oral communication” is defined as follows: “Any oral communication
uttered by a person possessing an expectation that such communication is not
subject to interception under circumstances justifying such expectation. The
term does not include any electronic communication.” 18 Pa.C.S. § 5702.

8 The parties originally disputed whether the recordings fell within the county
correctional facility telephone call exception to the Wiretap Act. See 18
Pa.C.S. § 5704(14); Trial Court Opinion, 1/12/2017, at 11. However, at the
suppression hearing, the Commonwealth conceded that the telephone jail visit
system was not a “telephone,” and therefore, Subsection 5704(14) did not
apply. See N.T., 10/31/2016, at 38; see also Commonwealth v. Fant, 146
A.3d 1254, 1265 (Pa. 2016) (holding inmate visit conversations using a
telephone device “are not ‘telephone calls,’ and they are not subject to the
county correctional facility ‘telephone’ exception under the Wiretap Act.”)



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        conversation after receiving notice that the conversation may be
        monitored or recorded, the participants consent to the
        interception. Each of the conversations at issue in the instant case
        carried the warning that the conversation could be monitored or
        recorded. As such, visit recordings comply with the Wiretap Act,
        and any incriminating statements obtained from these recordings
        are admissible as evidence at trial.

Commonwealth’s Brief at 19.               The Commonwealth points to several

conversations as instances in which Byrd and his visitors “actually intimated

that they knew they were being recorded:”9 (1) Byrd telling his fiancée, Dana

Heaps, he could not communicate the way he wanted to because of the prison

setting;10 (2) Byrd talking at normal volume and then moving to whispered

tones in certain conversations;11 (3) Byrd telling Heaps, “I swear to God, and

– and – I’m gonna say it on the phone, I don’t give a fuck;”12 and (4) Heaps

having to repeat herself during one visit because she spoke before the

recorded message played regarding the recording and monitoring of prison

phone     calls.13     Id.    at   19–21.        Relying   on   Commonwealth   v.




____________________________________________


9    Commonwealth’s Brief at 18.

10   N.T., 10/31/2016, at 23.

11   Id. at 24.

12   Id. at 24.

13   Id. at 24-25.



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Baumhammers, 960 A.2d 59 (Pa. 2008), cert. denied, 558 U.S. 821

(2009),14 the Commonwealth states:

       These conversations indicate actual acknowledgment that [Byrd]
       and Ms. Heaps knew they were being recorded during the visits[.]

                                               …

             Like the defendant in Baumhammers, supra, [Byrd] and
       his visitor were notified, prior to beginning their conversations,
       that each conversation was subject to recording. Pursuant to the
       Court’s holding in Baumhammers with regard to jail calls, the
       audio warning heard by [Byrd] and Ms. Heaps prior to the
       [Allegheny County Jail] visits provided sufficient notice to make
       all parties actually aware that their conversation was subject to
       recording. Moreover, Ms. Heaps testified that she knew she was
       being recorded and [Byrd]’s behavior and statements
       demonstrated that he believed that they were being recorded as
       well.

Commonwealth’s Brief at 21-22.                 The Commonwealth concludes “the

intercepts were lawful” under the mutual consent exception to the Wiretap

Act. Id. at 24.

       In suppressing the recordings, the court found the following:


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14 Baumhammers, supra, held that a recorded jail telephone conversation
between the defendant and his parents was permissible under Subsection
5704(14), even where there was no written notification that the conversation
would be recorded, because:

       These individuals were actually aware that their telephone
       conversation was being or could be intercepted and recorded by
       prison authorities. Written notice to Appellant, assuming he never
       received any, would not have afforded him any greater protection
       of his right to privacy or that of his parents than the actual notice
       they possessed at the time of the conversation.

Baumhammers, 960 A.2d at 79.

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            The evidence presented at the suppression hearing
     established that inmate visits at the Allegheny County Jail are
     conducted over a closed-circuit system using telephone receivers.
     A visitor arriving at the Allegheny County Jail is taken to a visitor
     room with windowed cubicles, chairs and a telephone receiver.
     The inmate is escorted to a room on the other side of the visitor
     window with a telephone receiver below the window. There are
     no cubicles or walls on the inmate side. The inmate picks up the
     receiver, enters his or her jail telephone ID number and then the
     visitor picks up his or her receiver. Before the parties are
     connected, a recording stating that the visit “may be monitored or
     recorded” is played. There is nothing in the inmate handbook
     which indicates that the visits are recorded and there was no
     testimony regarding whether [Byrd] heard the recording before
     each visit. Ms. Heaps testified that she heard the recording
     indicating that the conversation “may be monitored or recorded”
     at each visit, but received no written documentation indicating
     that the conversations would be monitored or recorded.

                                      …

     In support of its arguments, the Commonwealth presented the
     testimony of Ms. Heaps, who testified that she heard a recorded
     statement stating that the conversation “may be monitored or
     recorded” prior to the connection of each visit call. Even though
     Ms. Heaps was never informed of the policy in writing or gave her
     consent in writing, the Commonwealth presumes that by
     beginning to speak after the recorded statement, she signified her
     consent. This Court accepts the Commonwealth’s presumption for
     purposes of this analysis.

           Nevertheless, the Commonwealth has failed to present any
     evidence indicating that [Byrd] heard the recording. It is not
     outside the realm of possibility that [Byrd] did not have the
     receiver to his ear when the recording played, and therefore may
     not have heard it. The Commonwealth conceded that [Byrd] was
     not provided with a written statement or agreement regarding
     consent to be recorded, and similarly conceded that there was no
     such provision in the inmate handbook.

          At the conclusion of the suppression hearing, this Court
     made the following findings:




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         THE COURT: But there is no direct evidence of what Mr.
         Byrd may have known.

         [THE COMMONWEALTH]:             Well, Mr. [Samuel] Pastor
         testified that both parties hear this on every visitation. And
         he’s got to have the phone up to his ear when he’s punching
         in – he picks up the phone and he punches in his ID number
         and it says the call is being processed.

         THE COURT: Well, but he doesn’t have to have the phone
         to his ear.

         …

         THE COURT: Actually the inmates in the Allegheny County
         Jail are told, as I heard on the recording that you played,
         may be subject to recording. May be monitored or recorded.

         [THE COMMONWEALTH]: I said it’s almost identical. What
         the federal –

         THE COURT: There’s a big difference between “is” and “may
         be”.

         …

         THE COURT: The court finds that you have not proven the
         consent of Mr. Byrd in this case. Relying on the Fant
         decision, the jail visit conversations will be suppressed.

      (S.H.T., pp. 33, 36, 38).

            By failing to establish that [Byrd] was aware of the recording
      and consented to it, the Commonwealth has not satisfied the
      requirements on two-party consent exception to the Wiretap Act.

Trial Court Opinion, 1/12/2017, at 8, 11-12.

      We are constrained to disagree for several reasons. First, we conclude

the factual findings made by the trial court are belied by the record.       We

reiterate that, as the trial court noted: (1) before an inmate and visitor can


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converse with one another, a recording stating that the visit “may be

monitored or recorded” is played;15 and (2) Heaps acknowledged at the

suppression hearing that during every one of her visits with Byrd at the jail,

she heard a prerecorded messaged that those visits would be recorded or

monitored, and still decided to speak with him. N.T., 10/31/2016, at 22, 27.

Additionally, one can readily infer that Byrd was aware the conversations were

being recorded as evidenced by his statements and behavior. For example,

he specifically told Heaps, “I'm gonna say it on the phone. I don't give a fuck.”

Id. at 24. The mutual consent exception permits interception of conversations

in instances where the defendant “knew, or should have known, that the

conversation was recorded.” Commonwealth v. Diego, 119 A.3d 370, 377

(Pa. Super. 2015), appeal denied, 129 A.3d 1240 (Pa. 2015).16 Based on the

environment in which Byrd conversed with Heaps, an open visitation area in

the jail, he should have known that their conversations could be recorded.

       Second, we find the trial court’s hyper-technical analysis requires that

in these instances, the Commonwealth must always establish on the record


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15   Trial Court Opinion, 1/12/2017, at 8.

16  In Diego, supra, the defendant engaged in a text message conversation
with the informant, which the Commonwealth sought to admit into evidence.
In concluding there was no violation of the Wiretap Act, a panel of this Court
stated:    “It is the sender’s knowledge that the communication will
automatically be recorded, surmised from the very nature of the selected
means of transmission, that is dispositive of the sender's lack of an
expectation of privacy or, at least, the lack of any reasonable expectation of
privacy.” Diego, 119 A.3d at 377.

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that the inmate had the telephone to his ear, listened to the message that

announced the conversation may be recorded, and then consented to the

message.    This type of requirement is unreasonable because under such

scrutiny and logic, an inmate could easily avoid the consent element by simply

holding the phone away from his ear for a period of time prior to speaking

with a visitor, in order to evade hearing that message.     As such, the trial

court’s decision is misplaced with respect to the both its findings of fact and

conclusions of law. See Korn, supra. Accordingly, we conclude no Wiretap

Act violation occurred as the two-party consent exception applies and,

therefore, the trial court erred when it granted suppression on that basis.

Accordingly, we remand this matter to the court for further proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/26/2018




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