J-S72036-17

                                   2017 PA Super 417


    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    PATRICK CLINE                              :
                                               :   No. 641 EDA 2017
                       Appellant

             Appeal from the Judgment of Sentence August 22, 2016
       In the Court of Common Pleas of Lehigh County Criminal Division at
                        No(s): CP-39-CR-0000271-2015


BEFORE:      BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.

OPINION BY STEVENS, P.J.E.:                          FILED DECEMBER 29, 2017

        Appellant, Patrick Cline, appeals from the judgment of sentence entered

in the Court of Common Pleas of Lehigh County after a jury found him guilty

of intercepting and disclosing a wire, electronic, or oral communication, in

violation of the Wiretapping and Electronic Surveillance Control Act.1

Appellant levels a sufficiency of the evidence challenge in which he asserts

that the Commonwealth failed to prove he knowingly or intentionally violated

the Wiretap Act when he recorded a custody hearing attended by his ex-wife

and him at the Lehigh County Courthouse. We affirm.

        The trial court aptly sets forth pertinent facts, as follows:

        On September 2, 2014, the defendant [hereinafter “Appellant”]
        and his ex-wife, Jennifer Kibler, were in the Lehigh County
        Courthouse for a custody conference. The conference was held in
____________________________________________


1   18 Pa.C.S.A. § 5703(1) & (2).
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S72036-17


      the office of custody master Don Klein, Esquire. Also present in
      the room was Lehigh County Deputy Sheriff Peter Tirado.
      Approximately 20 to 30 minutes into the conference, Appellant
      stood up and announced that he was recording the hearing with
      his cell phone. Master Klein advised Appellant that he could not
      record in there and asked Deputy Tirado to take Appellant’s
      phone. Appellant put the phone in his pocket, ran out of the room,
      and left the courthouse. Appellant ultimately posted the recording
      on Facebook.

      At [Appellant’s June 15, 2016,] trial, Ms. Kibler, Master Klein,
      [and] Deputy Tirado testified that they never gave Appellant
      permission to record the conference[, and there were signs posted
      prohibiting the use of cell phones]. Master Klein and Deputy
      Tirado testified that the conference room is accessed by swiping a
      key card and is not accessible by the public. Appellant testified
      and admitted to recording the hearing and posting it on Facebook,
      but [he] maintained he did not do anything illegal.

Trial Court Opinion, dated 5/4/17, at 1-2.

      The jury convicted Appellant of violating the Wiretap Act, and the court

ordered a pre-sentence investigation report and scheduled a sentencing date.

On August 22, 2016, the court sentenced Appellant to a term of incarceration

of 11 ½ to 23 months, followed by three years’ probation.         Appellant filed

post-sentence motions, which were denied following a hearing. This timely

appeal followed.

      Appellant presents the following question for our review:

      WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
      VERDICT FOR THE FOLLOWING REASONS:

      A. THERE WAS NO EVIDENCE THAT APPELLANT KNEW THAT
         RECORDING THE HEARING AND/OR POSTING IT ONLINE
         WAS AGAINST THE LAW AS THE SIGNS MERELY SAID
         “NO CELL PHONES” BUT DID NOT PROHIBIT
         RECORDING. IT WAS THEREFORE NOT PROVEN THAT HE
         HAD THE REQUIRED MENS REA.


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J-S72036-17


      B. PROHIBITING DEFENDANT FROM RECORDING THE
         PROCEEDINGS AND/OR POSTING IT ONLINE VIOLATED
         HIS DUE PROCESS RIGHTS UNDER THE UNITED STATES
         AND PENNSYLVANIA CONSTITUTIONS SINCE THE
         INFORMATION     RECEIVED   AT   THE   CUSTODY
         CONFERENCE WAS RECEIVED AND UTILIZED BY THE
         JUDGE AT A SUBSEQUENT CUSTODY TRIAL.


      C. PROHIBITING APPELLANT FROM RECORDING THE
         PROCEEDINGS AND/OR POSTING IT ONLINE VIOLATED
         HIS DUE PROCESS RIGHTS UNDER THE UNITED STATES
         AND PENNSYLVANIA CONSTITUTIONS SINCE LEGAL
         PROCEEDINGS ARE SUPPOSED TO BE PUBLIC AND NOT
         HELD IN SECRET.

Appellant’s brief at 5.

      Our standard of review of a challenge to the sufficiency of the evidence

is well-settled:

      [i]n reviewing sufficiency of evidence claims, we must determine
      whether the evidence admitted at trial, as well as all reasonable
      inferences drawn therefrom, when viewed in the light most
      favorable to the verdict winner, are sufficient to support all the
      elements of the offense. Additionally, to sustain a conviction, the
      facts and circumstances which the Commonwealth must prove,
      must be such that every essential element of the crime is
      established beyond a reasonable doubt. Admittedly, guilt must be
      based on facts and conditions proved, and not on suspicion or
      surmise. Entirely circumstantial evidence is sufficient so long as
      the combination of the evidence links the accused to the crime
      beyond a reasonable doubt. Any doubts regarding a defendant's
      guilt may be resolved by the fact-finder unless the evidence is so
      weak and inconclusive that as a matter of law no probability of
      fact may be drawn from the combined circumstances. The fact
      finder is free to believe all, part, or none of the evidence presented
      at trial.

Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa.Super. 2011).

      Section 5703 of the Crimes Code provides, in pertinent part, that a

person is guilty of a felony of the third degree if he:

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      (1)   intentionally intercepts, endeavors to intercept, or procures
            any other person to intercept or endeavor to intercept any
            wire, electronic or oral communication;

      (2)   intentionally discloses or endeavors to disclose to any other
            person the contents of any wire, electronic or oral
            communication, or evidence derived therefrom, knowing or
            having reason to know that the information was obtained
            through the interception of a wire, electronic or oral
            communication. . . .

18 Pa.C.S.A. § 5703(1) and (2).      The Wiretap Act defines “intercept” as

“[a]ural or other acquisition of the contents of any wire, electronic or oral

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

18 Pa.C.S. § 5702. “Oral communication” is defined in relevant part as “[a]ny

oral communication uttered by a person possessing an expectation that such

communication is not subject to interception under circumstances justifying

such expectation.” Id.

      Initially, we understand Appellant’s sufficiency challenge to assert only

that the Commonwealth failed to prove he “knew that recording the hearing

and/or posting it online was against the law, as the signs merely said ‘no cell

phones’ but did not prohibit recording.” Appellant’s brief at 5. To support his

position, Appellant points to his own trial testimony that he did not know he

was not allowed to record the custody conference, N.T. 6/15/16 at 83, and

did not consider the communications taking place therein to be classified, N.T.

at 85, but only sought, instead, to disclose what he perceived to be a corrupt

proceeding, N.T. at 87.      To this end, he cites the sheriff’s testimony




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acknowledging that Appellant asked, when apprehended, whether what he did

was against the law, N.T. at 50.

      Appellant, therefore, posits that the “Commonwealth failed to prove that

[he] knew he was not allowed to record the Custody Conference,” and, as

such, the Commonwealth “did not prove the element of mens rea as required.”

Appellant’s brief at 11.

      Critically in this regard, Appellant fails to advance any argument that

the custody conference did not involve protected “oral communications” for

purposes of the Wiretap Act.       Instead, he argues only that it was the

Commonwealth’s burden to prove he knew the Wiretap Act proscribed the

conduct in which he engaged, and absent such proof, his misunderstanding of

the Wiretap Act’s scope could serve as a viable defense.

      That Appellant may have believed he lawfully recorded the custody

conference and posted the recording on Facebook was not a defense to the

Wiretap Act charge he faced.       See 18 Pa.C.S. § 304, Official Comment

(“Generally speaking, ignorance or mistake of law is no defense.”).       The

prosecution of the Wiretap Act charge against Appellant turned, instead, on

proof that Appellant knowingly or intentionally intercepted and disclosed

discussions that qualified as “oral communications” under the statute. That

is, the Commonwealth was required to prove Appellant knowingly or

intentionally committed the acts proscribed under the statute; it was not

required to prove Appellant knew the law proscribed such acts, as a




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defendant’s knowledge of the law is not an element of the offense. For this

reason, we reject Appellant’s sufficiency challenge as articulated.2
____________________________________________


2The hallmark of an “oral communication” protected under the Wiretap Act is
a communication for which the “speaker had a specific expectation that the
contents of the discussion would not be intercepted, and whether that
expectation was justifiable under the existing circumstances.” Agnew v.
Dupler, 717 A.2d 519, 523 (Pa. 1998).

Given the lack of advocacy on whether the custody conference involved oral
communications protected under the Wiretap Act, we refrain from sua sponte
deciding this legal question. However, we note the Commonwealth made an
extensive proffer at trial in support of its position that Appellant’s ex-wife held
a reasonable expectation that her communications would not be intercepted
and disclosed.

The evidence demonstrated that the custody conference took place at the
county courthouse, which displays signs at the entrance requiring all visitors
to turn off cell phones during their visit. N.T. at 32. The conference, itself,
took place in a room that was inaccessible to the public, required a swipe-card
to gain entry, and was guarded by a deputy. N.T. at 24, 50. Only the parties,
the master, and, in cases where the need for a security presence is
anticipated, a deputy are present at the closed-door conference. N.T. 24-25.

The conference was not recorded, the office was not wired for recording, and,
according to Master Don Klein who presided over the parties’ conference, no
one was permitted to record the proceedings. N.T. at 25. This is so, Master
Klein explained, because the Master will often elicit very personal information
during the conference with the objective of assisting the parties to reach an
agreement that is in the best interest of their children. N.T. at 27, 28. As
such, the parties expect confidentiality and privacy when they are asked to
reveal candidly these emotional and personal aspects of their lives, the Master
explained. N.T. at 27.

Appellant’s ex-wife corroborated this point, as she testified at the criminal trial
that privacy was always maintained during the parties’ previous conferences
before Master Klein; indeed, she testified that she would have refused to
participate if she knew her comments were to be recorded and publicized. N.T.
at 7-9, 20.




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J-S72036-17



         In Appellant’s remaining two issues, he contends his prosecution under

the Wiretap Act violated his due process rights to record and publish the

custody conference in question when the information obtained therein would

be utilized by a trial judge at a subsequent hearing and were, in any event,

public and not private in nature.          Careful review of the record, however,

reveals that Appellant did not raise these discrete issues first with the trial

court.

         The law is clear that “issues, even those of constitutional dimension, are

waived if not raised in the trial court. A new and different theory of relief may

not be successfully advanced for the first time on appeal.” Commonwealth

v. Santiago, 980 A.2d 659, 666 (Pa.Super. 2009) (citations omitted), appeal

denied, 605 Pa. 712, 991 A.2d 312 (2010), cert. denied, 131 S.Ct. 155 (U.S.


____________________________________________


At the conference in question, Appellant did not ask either Master Klein’s or
his ex-wife’s permission to record, but did it surreptitiously, positioning his
cell phone behind papers and a bible he brought to the conference. N.T. at
26-27, 29. When Master Klein became aware of Appellant’s conduct, he
informed him “you’re not permitted to record anything in here,” and he asked
the deputy to confiscate Appellant’s cell phone. N.T. at 29. Regardless of the
Master’s admonition and directive, Appellant grabbed all his belongings and
ran out of the conference room before the deputy could approach. N.T. at 29.




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J-S72036-17



2010); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal”). Because these due

process issues were not preserved in the first instance before the trial court,

they are waived.

     For the foregoing reasons, judgment of sentence is affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/29/17




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