J-S01040-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellant               :
                                               :
                                               :
                v.                             :
                                               :
                                               :
    BETH ANN MASON                             :   No. 1091 MDA 2018

                 Appeal from the Order Entered June 26, 2018
      In the Court of Common Pleas of Franklin County Criminal Division at
                        No(s): CP-28-CR-0002352-2017


BEFORE:      PANELLA, P.J., MURRAY, J., and PELLEGRINI*, J.

MEMORANDUM BY PELLEGRINI, J.:                           FILED MARCH 07, 2019

        The Commonwealth appeals from an order from the Court of Common

Pleas of the Thirty-Ninth Judicial District-Franklin County Division (trial court)

excluding an audio and video recording that it found was obtained in violation

of the Wiretapping and Electronic Surveillance Control Act (the Wiretap Act).1

Based on the pertinent facts and applicable law, we affirm in part and reverse

in part the trial court’s order.2


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1   18 Pa.C.S. §§ 5701-5782.

2 “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. Korn, 139 A.3d 249, 253 (Pa. Super. 2016) (quoting
Commonwealth v. Brown, 996 A.2d 473, 476 (Pa. 2010) (citation
omitted)). As with a trial court’s factual findings, rulings on a motion’s


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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                                               I.

       Appellee Beth Ann Mason (Mason) was hired by Eric Valle (Valle) to work

as a nanny for his six children. About a month into Mason’s tenure, Valle’s

three-year-old son told him that Mason had been striking the other children.

The son also reported that Mason was “thumbing” him in the face. Valle saw

occasional marks on his son’s face which seemed to corroborate the account.

At some point, Valle noticed that his two-year-old daughter had a split lip and

that his other children were uncomfortable around Mason.

       Valle confronted Mason about his children’s injuries and was unsatisfied

with her denials. Approximately two months later, after he spoke to his son

about Mason, Valle installed a hidden recording device in the children’s

bedroom without informing Mason. The device eventually captured audio and

video footage of Mason yelling at one of the young children before shoving her

into a crib where Mason purportedly struck her several times.

       Valle turned over the recording of this incident to the police.     The

Commonwealth charged Mason with aggravated assault, simple assault and

child endangerment. After her arraignment, she filed a habeas corpus motion,

which was granted in part as to the sufficiency of the evidence for the

aggravated assault count. Over 30 days after her arraignment, Mason filed



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timeliness are reviewed under an abuse of discretion standard. See
Commonwealth v. Cooke, 394 A.2d 1271, 1274 (Pa. Super. 1978).


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her omnibus pretrial motion, which included her grounds for excluding from

trial all audio and video footage captured by Valle’s hidden recording device.

      At the evidentiary hearing, the trial court overruled the Commonwealth’s

objections under Pennsylvania Rules of Criminal Procedure 578 and 579. In

its written opinion, the trial court also reasoned that the audio and video

footage captured by Valle’s recording device had to be completely excluded

because by capturing audio and video of Mason without her knowledge, Valle

made the recording in contravention of Section 5721.1(a) of the Wiretap Act.

      The Commonwealth then filed this interlocutory appeal, certifying that

the trial court’s ruling would substantially handicap or effectively terminate its

prosecution of Mason.     See Pa.R.A.P. 311(d).      In its appellate brief, the

Commonwealth raised the following issues:

       Whether the trial court erred in overruling its objections under
      Rules 578 and 579 based on the lack of prejudice to the
      Commonwealth.

       Whether the video and non-verbal audio portions of the subject
      recording qualify as a protected “communication” under the
      Wiretap Act.

       Whether Mason had a justified expectation that she would not
      be recorded while working as a nanny in Valle’s home.

       Whether the Commonwealth satisfied the Wiretap Act’s “crime
      exception” for admitting into evidence recordings which were not
      pre-authorized by court order.




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                                               II.

       The Commonwealth objected to Mason’s omnibus pretrial motion on two

procedural grounds. The Commonwealth argued that the omnibus motion was

(a) improperly filed under Pennsylvania Rule of Criminal Procedure 578 since

Mason had previously filed a habeas corpus motion, and (b) untimely under

Rule 579 because it was filed over 30 days after the date of Mason’s

arraignment.3 The trial court overruled those procedural objections because

the record contained no evidence that the Commonwealth suffered prejudice

due to the time and manner in which Mason filed her omnibus motion.

       The Commonwealth has taken this appeal pursuant to Pennsylvania Rule

of Appellate Procedure 311(d), certifying that the trial court’s order “will

terminate or substantially handicap the prosecution.” The Commonwealth is

appealing the trial court’s decision to hear the motion as well as to grant it.

       In criminal cases, such a certification permits an interlocutory appeal as

a matter of right. Although a certification of hardship under Rule 311(d) must

be afforded deference, we do not have to accept the certification if the issue

does not substantially handicap the prosecution of the Commonwealth’s



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3 Rule 578 provides that, “[u]nless otherwise required in the interests of
justice, all pretrial requests for relief shall be included in one omnibus
motion.” Mason’s omnibus pretrial motion, which included her grounds for
excluding the subject recording, was filed only after she had filed a separate
pretrial motion for habeas corpus relief. Mason admits that her omnibus
motion was filed beyond the time allotted by Rule 579.


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case. Because the operation of Rule 311(d) concerns our jurisdiction, we may

address it sua sponte. See Fried v. Fried, 501 A.2d 211, 212-13 (Pa. 1985).

       Here, the granting of Mason’s motion to exclude the recording is clearly

the type of order that could impact the prosecution for the purposes of Rule

311(d), but the discrete decision to hear the motion is clearly not. See

Commonwealth v. Woodard, 136 A.3d 1003 (Pa. Super. 2016) (ruling on a

motion to join informations is not reviewable under Rule 311(d) because it

had no effect on the Commonwealth’s ability to prosecute); Commonwealth

v. Smith, 544 A.2d 943, 945 (Pa. 1988) (holding that severance of two

informations was not reviewable under Rule 311(d)). Accordingly, because

we cannot review the trial court’s procedural rulings on interlocutory appeal,

the only issue we have jurisdiction to hear is the subject recording’s

admissibility at trial.

                                           III.

       The question now before us is whether and to what extent the audio and

video recordings of Mason are excludable under the Wiretap Act. 4 Generally,

the Wiretap Act provides that “no person shall disclose the contents of any

wire, electronic or oral communication, or evidence derived therefrom, in any

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4 The parties agree that in the absence of government action, Mason suffered
no constitutional violation of her privacy rights. The crux of their dispute is
whether, as an evidentiary matter, the Wiretap Act makes Valle’s recordings
inadmissible.




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proceeding in any court, board or agency of this Commonwealth.” 18 Pa.C.S.

§ 5721.1(a).5      “Any aggrieved party in a court proceeding may move to

exclude the contents of any wire, electronic or oral communication, or

evidence     derived    therefrom[.]”      18       Pa.C.S.   §   5721.1(b).   An   “oral

communication” is “uttered by a person possessing an expectation that such

communication is not subject to interception under circumstances justifying

such expectation.” 18 Pa.C.S. § 5702. “Intercept” is defined in pertinent part

as “aural or other acquisition of the contents of any wire, electronic or oral

communication through the use of any electronic, mechanical or other device.”

Id.

                                               A.

       The Wiretap Act’s definitional section controls the scope of Mason’s

protections and the admissibility of her recorded activity. To the extent that

Valle’s hidden recording device captured words which Mason uttered, the

Wiretap Act clearly encompasses them. Assuming that Mason had a justified

expectation that she was speaking privately (which we analyze in more detail

below), her verbal utterances are considered “oral communications” which

were “intercepted” by Valle’s device.               Without judicial authorization or an




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5 The enumerated grounds for exclusion include, in pertinent part, (1) making
the recording without “a court order of authorization under section 5712, and
no exception to that requirement in section 5704 applied.”


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applicable exception, the communications are subject to exclusion under the

Wiretap Act. See 18 Pa.C.S. § 5721.1(b).

       There are also some non-verbal sounds on the recording which may

inform a fact-finder of the excluded words’ substance, purport or meaning.

These include the purported sounds of Mason shoving or hitting a child. The

Commonwealth argues that even if Mason’s words are excludable, the

remaining audio is admissible because it would not reveal anything about what

she orally communicated.

       However, the Wiretap Act provides that if an oral communication is

rendered inadmissible, then so is the “evidence derived therefrom.”              18

Pa.C.S. § 5721.1(a)(1). Also rendered inadmissible are the “contents” of such

a   communication,       which    includes     “any   information   concerning   the

substance, purport, or meaning of that communication.” 18 Pa.C.S. § 5702

(emphasis added).        Because the verbal and non-verbal sounds which the

device captured from Mason are protected by the Wiretap Act, we find no basis

in the record or in the applicable law to disturb the order excluding all of the

audio content in the subject recording.6


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6 The dissent would find the non-verbal sounds to be admissible at trial on the
ground that they are totally independent of Mason’s oral communications.
However, the trial court assessed the contents of the audio recording as a
whole and found them to be so intertwined that admitting the non-verbal
portion would necessarily reveal to the jury the substance, purport, or
meaning of what Mason said. We must defer to the trial court’s finding of fact
in this regard because it was supported by record evidence.


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                                               B.

       The Commonwealth contends that even if the audio portion of Valle’s

recording is generally subject to exclusion, the Wiretap Act only protects oral

communications made when the speaker has “an expectation that such

communication is not subject to interception under circumstances justifying

such expectation.” 18 Pa.C.S. § 5702; see Commonwealth v. Dewar, 674

A.2d 714, 718 (Pa. Super. 1996) (“[T]he Act requires that the person uttering

the words [has] a justifiable expectation that such words are not intercepted,

using similar principles employed to determine whether the utterer had an

expectation of privacy.”); Commonwealth v. Spangler, 809 A.2d 234, 236-

38 (Pa. 2002) (analogizing constitutional privacy interests with the “justified

expectation” analysis of the Wiretap Act).7         Under the Wiretap Act, courts

apply an objective standard when assessing the reasonableness of an

expectation of non-interception. See Agnew v. Dupler, 717 A.2d 519, 523

(Pa. 1998).

       The recording here took place inside a child’s bedroom in Valle’s home.

While in her capacity as a nanny, that area functioned as Mason’s place of

work. There is no evidence that Mason was ever told that she would be audio


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7Because the subject video recording falls outside of the Wiretap Act, it is
unnecessary to determine whether Mason had a justified expectation that she
was not being video recorded.




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monitored. Objectively, the record does not suggest that she had any reason

to think that any of her personal communications would be intercepted in the

home.8

       “Appellate courts have held that employees have a reasonable

expectation of privacy in certain areas of their workplace.” Commonwealth

v. Cruz, 166 A.3d 1249, 1255 (Pa. Super. 2017); see City of Ontario v.

Quon, 560 U.S. 746 (2010) (recognizing a heightened level of privacy in the

workplace); O'Connor         v.    Ortega,     480   U.S.   709   (1987) (“As   with

the expectation of privacy in one’s home, [an expectation of privacy] in one’s

place of business is ‘based upon societal expectations that have deep roots in

the [Fourth] Amendment.’”) (quotation omitted).               Overnight guests in

another’s home also have a long-recognized expectation of privacy.              See

Minnesota v. Olson, 495 U.S. 91, 98 (1990).

       Based on Mason’s status as an employee and regular guest in Valle’s

home, she had a justified expectation that she would not be audio recorded.9

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8 Mason may have discovered the hidden recording device at some point, but
the record does not indicate when that discovery occurred, making it irrelevant
for present purposes.

9 The dissent posits that Mason had the burden of establishing this expectation
of non-interception for the purposes of the Wiretap Act, and would hold that
she failed to carry that burden. We conclude that, regardless of who bears
the initial burden of proof, the record facts and analogous case law establish
that Mason had such an expectation. See People v. Moreno, 2 Cal.App.4th
577, 583-85 (Cal. Ct. App. 1992) (recognizing that since babysitters have the
right to exclude others from the household, they enjoy a level of privacy in a



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Her personal conversations had nothing to do with child care and there was

no reason for Mason to suspect that Valle would intercept them.         Mason’s

communications and any non-verbal sounds she made or caused in Valle’s

home are within the purview of the Wiretap Act.

                                               C.

       The Commonwealth also contends that the circumstances of this case

satisfy a “crime exception” to the Wiretap Act. Under Section 5704(17), a

victim of a crime or a witness does not need prior judicial approval to intercept

a communication if they have “reasonable suspicion” that the surveilled

person is committing or is about to commit a “crime of violence,” and there is

“reason to believe” that “the evidence of the crime may be obtained from the

interception.” Section 5704(17) refers only to particular “crimes of violence,”

as defined in Section 5702. In that latter provision, the class of offenses is

narrowly defined to include crimes such as murder, rape, kidnapping or

robbery. As the responding party here, the Commonwealth has the burden of

proof under a preponderance standard. See 18 Pa.C.S. § 5721.1(c)(4).


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home beyond even that of an overnight guest); State v. Anonymous, 480
A.2d 600, 608-09 (Conn. Sup. Ct. 1984) (reasoning that “[a]s the caretaker
of the child, [the babysitter] undoubtedly had a socially acceptable
expectation of privacy [in the home].”); see also State v. Elrod, 395 S.W.3d
869, 878 (Tex. Ct. App. 2013) (holding that a babysitter had an expectation
of privacy because she “had dominion and control over the residence and had
the right, perhaps even the duty, to exclude others from the home”).




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        The Commonwealth attempts to meet its burden by contending that

Valle had reasonable suspicion of an attempted or completed “aggravated

assault” as defined in Sections 2702(a)(1) and (2). These are the only two

provisions for aggravated assault enumerated in the definition of “crime of

violence” in Section 5702.10 Elements of the offenses include an attempt “to

cause serious bodily injury” and causing serious bodily injury through “an

extreme indifference to the value of human life.” 18 Pa.C.S. § 2702(a)(1).

“Serious bodily injury” is an injury “which creates a substantial risk of death

or which causes serious, permanent disfigurement or protracted loss or

impairment of the function of any bodily member or organ.” 18 Pa.C.S. §

2602.

        Valle testified at the evidentiary hearing that he learned about injuries

to his children about a month after Mason began working as a nanny in his

home. The hidden recording device was not installed until about two months

later. These facts could arguably give Valle a reason to believe that Mason

had at one point assaulted one of his children. Yet, nothing in the record

refutes the trial court’s factual finding that there is no clear evidence as to



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10 The definition of “crime of violence” under Section 5702 does not list the
offense of aggravated assault on a person under the age of 18. See 18 Pa.C.S.
§ 2702(a)(8). The Commonwealth cannot and does not rely on that offense
as a basis for satisfying the crime exception of Section 5704(17).




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when the injuries occurred, whether the injuries were ongoing, and how long

Valle waited to install his device after those injuries were noted.

       These limited facts are insufficient to show that Valle had a reasonable

basis to think that recording Mason would produce evidence of the type of

aggravated assault necessary to satisfy the Wiretap Act’s crime exception.11

The Commonwealth failed to carry its burden of proof under Section 5704(17)

and the audio portion of Valle’s recording is inadmissible. As discussed below,

however, the video portion of Valle’s recording is admissible at Mason’s trial,

and the trial court erred in excluding it.

                                               IV.

       The Commonwealth contends that even if the audio portion of Valle’s

recording is inadmissible, the trial court erred in finding that the video portion

falls within the purview of the Wiretap Act. Conversely, Mason argues that

the video footage was properly excluded under the Wiretap Act because it was

an “electronic communication.”

       The Wiretap Act’s definition of the term in Section 5702 resolves the

issue in the Commonwealth’s favor. The section defines the term as follows:


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11 The dissent concludes that Valle had reasonable suspicion of an aggravated
assault at the time he installed the camera based on reports of “thumbing,” a
split lip, and bruises on his children. We respectfully disagree and instead
defer to the trial court’s finding that the record was too vague as to the nature
and extent of the injuries at the time of installation. Moreover, since only the
circumstances known to Valle at the time of installation could give him the
reasonable suspicion necessary to satisfy the Wiretap Act’s crime exception,
the contents of Valle’s recording may not be considered in that analysis.

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      Any transfer of signs, signals, writing, images, sounds, data or
      intelligence of any nature transmitted in whole or in part by a
      wire, radio, electromagnetic, photoelectronic or photo-optical
      system, except:

              (1)   Deleted.

              (2)   Any wire or oral communication.

              (3)   Any communication made through a tone-only
                    paging device.

              (4)   Any communication from a tracking device (as
                    defined in this section).

18 Pa. C.S. § 5702 (emphasis added).

      The gist of Mason’s argument is that her image was “transferred” and/or

“transmitted” to Valle’s video recording device. However, under the above

definition, the “image” must be transferred or transmitted “by a wire, a radio,

electromagnetic, photoelectronic or photo-optical system.”     Mason’s image

was not sent to the recording device by any of those types of systems, so her

image was not an “electronic communication” or the evidence derived

therefrom. As such, Section 5721.1(a) of the Wiretap Act does not prohibit

the video’s disclosure at trial, and Section 5721.1(b) does not provide a

vehicle for the video’s exclusion.

      Our conclusion that the Wiretap Act does not encompass Valle’s video

footage is consistent with numerous federal and state court decisions, all of

which hold that video recordings are not excludable under nearly identical

wiretap statutes. See United States v. Larios, 593 F.3d 82, 90 (1st Cir.

2010); United States v. Jackson, 213 F.3d 1269, 1280 (10th Cir. 2000);

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United States v. Falls, 34 F.3d 674, 679–80 (8th Cir. 1994); United States

v. Koyomejian, 970 F.2d 536, 541 (9th Cir. 1992); United States v.

Cuevas–Sanchez, 821 F.2d 248, 251 (5th Cir.1987); United States v.

Biasucci, 786    F.2d 504, 508–09        (2d Cir.   1986); United States v.

Torres, 751 F.2d 875, 880-86 (7th Cir. 1984); see also Minotty v. Baudo,

42 So.3d 824, 829-33 (Fla. 4th DCA 2010); State v. Diaz, 706 A.2d 264,

267-68 (NJ. Super. Ct. 1998). Thus, the trial court erred in excluding the

video portion of Valle’s recording.

      For the reasons set forth, the Order is affirmed in part and reversed in

part. Jurisdiction is relinquished.

      Judge Murray concurs in the result.

      President Judge Panella files a concurring/dissenting memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/07/2019




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