                            [J-46-2016] [MO: Donohue, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 66 MAP 2015
                                               :
                     Appellee                  :   Appeal from the Order of the Superior
                                               :   Court at No. 386 MDA 2014 dated
                                               :   February 9, 2015 Reversing the Order
              v.                               :   of the Clinton Court of Common Pleas,
                                               :   Criminal Division, at No. CP-18-CR-
                                               :   0000415-2013, dated February 26,
RAHIEM CARDEL FANT,                            :   2014.
                                               :
                     Appellant                 :   SUBMITTED: March 16, 2016


                                 CONCURRING OPINION


JUSTICE WECHT                                            DECIDED: September 28, 2016

       I join the Majority opinion with the exception of footnote 13. Maj. Slip Op. at 19-

21, n.13. The Pennsylvania Wiretapping and Electronic Surveillance Control Act (the

“Wiretap Act” or “the Act”), 18 Pa.C.S. §§ 5701-82, establishes a general prohibition

barring interception of wire, electronic, or oral communications,1 subject to several

specific exceptions. The question presented by today’s case is whether certain “visit

conversations,” as described by the Majority, fall within the exception in Subsection

5704(14) of the Wiretap Act, 18 Pa.C.S. § 5704(14), which, under certain conditions,

permits interception of “telephone calls from or to an inmate in a facility.”2 Because the


1
       See 18 Pa.C.S. § 5703.
2
       Section 5704 provides, in relevant part, that “[i]t shall not be unlawful and no prior
court approval shall be required under this chapter for” the following:
(continuedD)
Wiretap Act does not define “telephone calls,” it is necessary to discern the ordinary


(Dcontinued)
     (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 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.
             (ii)   So as to safeguard the attorney-client privilege, the county
             correctional facility shall not intercept, record, monitor or divulge
             any conversation between an inmate and an attorney.
             (iii)  Persons who are calling into a facility to speak to an inmate
             shall be notified that the call may be recorded or monitored.
             (iv)     The superintendent, warden or a designee of the
             superintendent or warden or other chief administrative official of the
             county correctional system shall promulgate guidelines to
             implement the provisions of this paragraph for county correctional
             facilities.
18 Pa.C.S § 5704(14).



                           [J-46-2016] [MO: Donohue, J.] - 2
meaning of this term. I agree with the Majority’s resolution of the meaning of “telephone

calls” and its application of the statutory exception to the facts found by the suppression

court herein.   However, I distance myself from the Majority’s consideration of the

Commonwealth’s alternative argument.

       The Commonwealth has argued in the alternative that we should affirm the

Superior Court’s decision because there was no “interception” under the Wiretap Act.

Although this issue was not raised below, the Commonwealth asserts that we can reach

it through application of the “right-for-any-reason doctrine.”3             However, the

Commonwealth is seeking to uphold the judgment of the intermediate appellate court,

rather than that of the fact-finding tribunal. Although the Majority is correct that we have

never resolved whether the doctrine may be invoked to uphold the intermediate

appellate court’s order, I am inclined to agree with Chief Justice Saylor’s narrow

understanding of the doctrine’s focus in Pennsylvania. See Commonwealth v. DiNicola,

866 A.2d 329, 346 n.7 (Pa. 2005) (Saylor, J., concurring) (“Significantly, the focus of the

right-for-any-reason doctrine in Pennsylvania is on upholding the judgment of the fact-

finding tribunal, not that of the intermediate appellate court.” (citing E.J. McAleer & Co.,

Inc. v. Iceland Products Inc., 381 A.2d 441, 443 n.4 (Pa. 1977); Commonwealth v.

Katze, 658 A.2d 345, 349 (Pa. 1995))).




3
       As we have explained, “[u]nder the right-for-any-reason doctrine, an order or
judgment may be affirmed for any reason appearing as of record.” Freed v. Geisinger
Med. Ctr., 5 A.3d 212, 222 n.4 (Pa. 2010) (Saylor, J., dissenting); see generally Thomas
G. Saylor, Right for Any Reason: An Unsettled Doctrine at the Supreme Court Level and
An Anecdotal Experience with Former Chief Justice Cappy, 47 Duq. L. Rev. 489, 490
n.2 (2009) (collecting cases).



                            [J-46-2016] [MO: Donohue, J.] - 3
      Moreover, under any iteration, application of the right-for-any-reason doctrine is

questionable when the appellee before this Court was the appellant in the intermediate

appellate court, such as the Commonwealth herein. Under such circumstances, any

matter not raised and preserved in the intermediate appellate court is unavailable for

appellate review.   See In re J.M., 726 A.2d 1041, 1051 n.15 (Pa. 1999); Freed v.

Geisinger Med. Ctr., 5 A.3d 212, 222 n.4 (Pa. 2010) (Saylor, J., dissenting); Vicari v.

Spiegel, 989 A.2d 1277, 1287 (Pa. 2010) (Castille, C.J., concurring) (“Arguably, as the

party prevailing below, appellee is free to raise properly preserved alternative

arguments, and the Court is then free to determine which arguments to discuss (or to

determine to dismiss the appeal on prudential grounds.”).          Having lost in the

suppression court, the Commonwealth had the obligation to preserve the issue when it

was the appellant in the Superior Court. See Pa.R.A.P. 302(a). In that court, it did not

raise the interception question. Fant, 109 A.3d at 777. Accordingly, there is no basis

for the Majority to engage the Commonwealth’s alternative argument, however briefly.

Maj. Slip Op. at 19-21, n.13.




                            [J-46-2016] [MO: Donohue, J.] - 4
