J-S25040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                  :     IN THE SUPERIOR COURT OF
                                                  :           PENNSYLVANIA
                                                  :
                v.                                :
                                                  :
                                                  :
    DAVID DARR,                                   :
                                                  :
                       Appellant                  :        No. 1997 MDA 2018

       Appeal from the Judgment of Sentence Entered November 8, 2017
             in the Court of Common Pleas of Lackawanna County
             Criminal Division at No(s): CP-35-CR-0001695-2016

BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                           FILED: JULY 25, 2019

        David Darr (“Darr”) appeals from the judgment of sentence imposed

following his conviction of possession with intent to deliver (“PWID”), delivery

of a controlled substance, and criminal use of a communication facility.1

Additionally, Kurt J. Lynott, Esquire (“Attorney Lynott”), has filed a Petition to

Withdraw as counsel, and an accompanying brief pursuant to Anders v.

California, 386 U.S. 738 (1967).               We grant Attorney Lynott’s Petition to

Withdraw, and affirm Darr’s judgment of sentence.

        In its Opinion, the trial court set forth the relevant factual history as

follows:

              On July 14, 2016, Lackawanna County Detectives met with
        a confidential informant (C.I.) regarding the sale of narcotics in
        the city of Scranton by a white male known as “Dave,” later
____________________________________________


1   35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 7512.
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       identified as … Darr. The C.I. provided police with a description
       of [] Darr, his cell phone number, and the address of his
       apartment, 430 Phelps Street, where he conducted drug
       transactions. The C.I. informed police that when [] Darr was
       unavailable, he/she would be directed to contact another drug
       associate, a male known as “B,” later identified as … Brandon
       Maxie (“Maxie”).[2] The C.I. provided a description of [] Maxie, his
       cell phone number, and the address of his apartment, 139 Main
       Street in Old Forge.

              As a result, the C.I. was consensualized and then contacted
       [] Darr regarding a possible drug transaction, but was instructed
       to contact [] Maxie instead. The C.I. arranged a drug transaction
       with [] Maxie[,] with the meet location established at [] Maxie’s
       apartment. The police searched the C.I., provided him/her with
       prerecorded buy money, and established surveillance. Police
       witnessed [] Darr exit [] Maxie’s apartment, enter a silver Chrysler
       300, and drive to 430 Phelps Street and enter his apartment.
       Police observed the C.I. arrive at [] Maxie’s apartment[,] meet
       briefly with [] Maxie on the porch, and enter his apartment.
       Within a few minutes, the C.I. exited the apartment and
       immediately turned over to police a quantity of crack cocaine
       packaged in plastic twist baggies. … [T]he C.I. was searched, and
       he/she informed police that the drug transaction occurred inside
       the apartment[,] with [] Maxie selling him/her the crack cocaine.

              Later that day, the C.I. placed intercepted text messages to
       [] Darr and arranged a drug transaction[,] with the meet location
       at [] Darr’s apartment. Police searched the C.I., provided him/her
       with prerecorded buy money, and established surveillance. Police
       observed the C.I. arrive and enter [] Darr’s apartment. Within a
       few minutes, the C.I. exited the apartment and immediately
       turned over to police a quantity of crack cocaine and powder
       cocaine packaged in plastic twist baggies. The C.I. was searched,
       and he/she informed police that while [] Maxie was present inside
       the apartment, [] Darr sold him/her the drugs. On July 15, 2016,
       Detectives met with the C.I. and arranged another controlled buy
       with [] Darr. Police went through the same procedures[,] and the
       meet location was established at [] Darr’s apartment. While under
       surveillance, the C.I. arrived at the meet location and entered []
____________________________________________


2Darr was tried with co-defendant Maxie, who is not a party to the instant
appeal.

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J-S25040-19


      Darr’s apartment. After a few minutes, the C.I. exited the
      apartment and immediately turned over to police twenty glassine
      bags of heroin and a plastic twist baggie of crack cocaine.

            As a result of these three controlled buys, police obtained
      two search warrants for both [Darr’s and Maxie’s] apartments.
      Police established surveillance around [] Darr’s apartment. After
      police observed [] Darr driving the silver Chrysler in that area,
      police conducted a traffic stop on [] Darr’s vehicle and detained
      him. While [] Darr was present, police conducted a search of his
      apartment, and [] Darr admitted to the presence of heroin. Police
      found over 300 glassine bags of heroin and drug paraphernalia.
      Police executed the search warrant on [] Maxie’s apartment and
      found quantities of crack cocaine and powder cocaine, Klonopin
      tablets, and prerecorded buy money. Police also obtained written
      statements from both [Darr and Maxie] admitting that the drugs
      belonged to them[,] and that they conducted drug transactions.
      …

See Opinion and Order, 5/5/17, at 2-4 (footnote added). Darr was arrested

and charged with various drug-related offenses.

      On January 12, 2017, Darr filed an Omnibus Pre-Trial Motion, including,

inter alia, a Motion to suppress evidence, alleging violations of the Wiretapping

and Electronic Surveillance Control Act (the “Wiretap Act”), 18 Pa.C.S.A.

§ 5701 et seq. The Commonwealth filed an Answer. The suppression court

conducted a hearing, and ultimately denied Darr’s Omnibus Pre-Trial Motion

on May 5, 2017.

      Following a stipulated bench trial, Darr was convicted of the above-

mentioned crimes. The trial court sentenced Darr to an aggregate term of 4

to 8 years in prison, with credit for time served. Darr filed a timely Notice of

Appeal and a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters




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complained of on appeal. However, on July 31, 2018, this Court dismissed

Darr’s appeal due to his failure to file an appellate brief.

        Darr filed a Petition for relief pursuant to the Post Conviction Relief Act

(“PCRA”),3 acknowledging that his counsel had failed to file an appellate brief

on his behalf, and requesting reinstatement of his direct appeal rights, nunc

pro tunc. The PCRA court appointed Attorney Lynott as Darr’s counsel. On

November 15, 2018, the PCRA court granted Darr’s Petition and reinstated his

direct appeal rights, nunc pro tunc. Darr, through Attorney Lynott, filed a

timely Notice of Appeal and a court-ordered Concise Statement. On March 4,

2019, Attorney Lynott filed a Petition to Withdraw as counsel, and an

accompanying Anders Brief.

        We must first determine whether Attorney Lynott has complied with the

dictates    of   Anders     in   petitioning   to   withdraw   from   representation.

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa. Super. 2007) (en

banc) (stating that “[w]hen faced with a purported Anders brief, this Court

may not review the merits of any possible underlying issues without first

examining counsel’s request to withdraw.”) (citation omitted). Pursuant to

Anders, when an attorney believes that an appeal is frivolous and wishes to

withdraw as counsel, he or she must

        (1) petition the court for leave to withdraw stating that after
        making a conscientious examination of the record and
        interviewing the defendant, counsel has determined the appeal
____________________________________________


3   42 Pa.C.S.A. §§ 9541-9546.

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       would be frivolous, (2) file a brief referring to any issues in the
       record of arguable merit, and (3) furnish a copy of the brief to
       defendant and advise him of his right to retain new counsel or to
       raise any additional points that he deems worthy of the court’s
       attention. The determination of whether the appeal is frivolous
       remains with the [appellate] court.

Commonwealth v. Burwell, 42 A.2d 1077, 1083 (Pa. Super. 2012)

(citations omitted).

       Additionally, the Pennsylvania Supreme Court has determined that a

proper Anders brief must

       (1) provide a summary of the procedural history and facts, with
       citations to the record; (2) refer to anything in the record that
       counsel believes arguably supports the appeal; (3) set forth
       counsel’s conclusion that the appeal is frivolous; and (4) state
       counsel’s reasons for concluding that the appeal is frivolous.
       Counsel should articulate the relevant facts of record, controlling
       case law, and/or statutes on point that have led to the conclusion
       that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

       In the instant case, Attorney Lynott has complied with the requirements

set forth in Anders by indicating that he made a conscientious review of the

record and determined that Darr’s appeal would be wholly frivolous. Further,

the record contains a copy of the letter that Attorney Lynott sent to Darr,

informing him of Attorney Lynott’s intention to withdraw, and advising him of

his right to proceed pro se, retain counsel, and file additional claims.4 Finally,

Attorney Lynott’s Anders Brief meets the standards set forth in Santiago.


____________________________________________


4 Darr did not file a pro se appellate brief, nor did he retain alternate counsel
for this appeal.

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Because Attorney Lynott has complied with the procedural requirements for

withdrawing from representation, we will independently review the record to

determine whether Darr’s appeal is, in fact, wholly frivolous.

      In the Anders Brief, Attorney Lynott raises the following issue for our

review:   “Did the [t]rial [c]ourt err as a matter of law and/or abuse its

discretion in determining that the Commonwealth did not violate the Wiretap

Act[,] and properly consensualized the confidential informant[?]”      Anders

Brief at 4.

      Darr challenges the suppression court’s denial of his Motion to suppress,

and claims that the Commonwealth failed to properly consensualize the C.I.,

in violation of the Wiretap Act. Id. at 7. Citing Commonwealth v. Clark,

542 A.2d 1036 (Pa. Super. 1988), Darr challenges the deputy district

attorney’s use of a telephone interview of the C.I., as opposed to an in-person

interview. Id.

            An appellate court’s 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, the appellate court is bound
      by those findings and may reverse only if the court’s legal
      conclusions are erroneous. Where the appeal of the determination
      of the suppression court turns on allegations of legal error, the
      suppression court’s legal conclusions are not binding on an
      appellate court, whose duty it is to determine if the suppression


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      court properly applied the law to the facts. Thus, the conclusions
      of law of the courts below are subject to plenary review.

Commonwealth v. Jones, 121 A.3d 524, 526-27 (Pa. Super. 2015) (citation,

brackets and ellipses omitted).

      Article 1, Section 8 of the Pennsylvania Constitution and the Fourth

Amendment      to   the   United    States   Constitution    protect    citizens   from

unreasonable searches and seizures. Commonwealth v. Richter, 791 A.2d

1181, 1184 (Pa. Super. 2002). Therefore, “[a] warrantless search or seizure

is per se unreasonable unless it falls within a specifically enumerated

exception.”   Commonwealth v. Lee, 972 A.2d 1, 3 (Pa. Super. 2009)

(citation omitted).

      As this Court has recognized, the Wiretap Act

      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.

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

in original; citation omitted).

      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



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     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:

                                    ***

           (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
           initiated, 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(2)(ii).

     In Clark, supra, this Court considered whether the requirements set

forth in Section 5704(2)(ii) had been satisfied, where the Commonwealth did

not establish that the district attorney or a designated assistant district

attorney reviewed and gave prior approval to each interception. Clark, 542

A.2d at 1038. This Court explained that

     The responsibilities outlined in the [Wiretap] Act regarding the
     duties of the Attorney General, District Attorney or their designee
     are non-del[e]gable.        Those persons responsible for
     authorizing interceptions under the [Wiretap] Act must
     personally review the facts, ascertain directly from the

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     consenting party the voluntariness of his or her consent
     and give prior approval to the interceptions.

Id. at 1040 (emphasis added).        This Court upheld the suppression of

intercepted communications, because the duties of authorizing the intercepted

communications “were wrongly delegated to and undertaken by the

Pennsylvania State Police.” Id.

     In its Opinion, the trial court aptly addressed Darr’s claim as follows:

            Here, Detective [Corey] Conrad [(“Detective Conrad”)]
     detailed the process used by law enforcement to consensualize
     the C.I. and obtain his/her consent for purposes of interception.
     Detective Conrad testified that after police met with the C.I. on
     July 14, 2016[,] and obtained information regarding the purchase
     of drugs from [Darr and Maxie], Lackawanna County Deputy
     District Attorney Michael Ossont (“DDA Ossont”), who is
     authorized to approve interception, was contacted by phone.
     Detective Conrad stated that he discussed the information with
     [DDA] Ossont, and then [DDA] Ossont interviewed the C.I. over
     the phone. Detective Conrad testified that he observed the C.I.
     during the consensualization process, and that based on his
     training and experiences, the C.I. was not coerced in any way.
     Detective Conrad again spoke to [DDA] Ossont over the phone
     and was given approval for interception. After approval was
     given, Detective Conrad executed the Memorandums of Consent,
     which indicated the C.I.’s consent to freely and voluntarily allow
     the Lackawanna County District Attorney’s Office to intercept and
     record his/her communications with [Darr and Maxie]. The
     Memorandums of Consent were signed and dated by the C.I. and
     witnessed by Detective Conrad. Detective Conrad then executed
     the Memorandums of Approval, indicating that the approval was
     given by [DDA] Ossont “via phone,” which acknowledged that
     [DDA] Ossont interviewed the C.I. and obtained his/her consent
     over the phone. Both Memorandums specifically stated the
     subjects to be [] Darr and … Maxie, and that the interception may
     occur on or about 7-14-2016 to 8-14-2016.

          The interception and recording in this case were legally
     sound. The facts here are distinguishable from Clark, because
     [DDA] Ossont directly interviewed the C.I. over the phone

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       regarding his/her willingness to consent to the interception of
       cellular communications with [Darr and Maxie], then indicated to
       Detective Conrad that he was satisfied the C.I. was freely and
       voluntarily consenting.     Police provided the C.I. with a
       Memorandum of Consent[,] which the C.I. read and signed, and
       [DDA] Ossont executed a Memorandum of Approval over the
       phone, which approved the interception. These steps by the
       Commonwealth meet the requirements of the [Wiretap] Act.

Trial Court Opinion, 5/5/17, at 10-13 (citations omitted); see also id. at 13

(wherein the trial court also specifically credited Detective Conrad’s

testimony).

       Upon review, we conclude that the trial court’s factual findings are

supported by the record. See Arnold, supra. Additionally, we agree with

the trial court’s determination that DDA Ossont complied with the Wiretap Act,

because Detective Conrad provided him with the relevant information; he

spoke directly with the C.I.; and he personally consensualized the C.I. over

the telephone.       See Trial Court Opinion, 5/5/17, at 12-13; see also

Commonwealth v. Glass, 200 A.3d 477, 485-86 (Pa. Super. 2018)

(concluding that the deputy district attorney’s actions conformed with the

dictates of the Wiretap Act, where he personally reviewed the facts and

ascertained the voluntariness of the C.I.’s consent via a telephone interview).

Thus, Darr’s claim lacks merit.5

____________________________________________


5Darr also briefly argues that his counsel was ineffective for allowing him to
agree to a stipulated bench trial, and for failing to file an appellate brief.
Anders Brief at 8. However, challenges to trial counsel’s effectiveness may
not be raised until collateral review. Commonwealth v. Grant, 813 A.2d
726, 738 (Pa. 2002). Therefore, even if these arguments had been properly
preserved in his Concise Statement and developed in the Anders Brief, we
would decline to address them.

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     Finally, our independent review of the record discloses no additional

non-frivolous issues that Darr could raise on appeal.   We therefore grant

Attorney Lynott’s Petition to Withdraw, and affirm Darr’s judgment of

sentence.

     Petition to Withdraw granted. Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/25/2019




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