J-S06025-20



NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                             :        PENNSYLVANIA
                                             :
              v.                             :
                                             :
                                             :
 MARCUS MYERS                                :
                                             :
                    Appellant                :   No. 2505 EDA 2019

             Appeal from the PCRA Order Entered July 31, 2019
    In the Court of Common Pleas of Monroe County Criminal Division at
                      No(s): CP-45-CR-0002291-2015


BEFORE: LAZARUS, J., McLAUGHLIN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                           FILED MAY 22, 2020

      Marcus Myers appeals from the denial of his petition filed under the Post

Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. Myers claims that

his trial counsel was ineffective for failing to file a suppression motion. We

affirm.

      A previous panel of this Court set forth the relevant facts and procedural

history underlying this matter as follows:


          On September 7, 2015, while conducting a stationary speed
          detail, Patrolman Aaron Anglemyer of the Pocono Township
          Police Department observed [Myers] driving a 2005 Honda
          Motorcycle erratically and at a high rate of speed through a
          residential neighborhood. When Patrolman Anglemyer
          attempted to conduct a traffic stop, [Myers] failed to stop
          his motorcycle and fled. Patrolman Anglemyer gave chase,
          but was unable to catch [Myers]. Shortly thereafter, another
          officer located a motorcycle and helmet matching the
          description of the one driven and worn by [Myers] during
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       the chase. PENNDOT records revealed that [Myers] owned
       the motorcycle, and that both the motorcycle’s registration
       and [Myers’] driver’s license had expired. PENNDOT records
       also identified 191 Cherry Lane Road, Tannersville, Monroe
       County, Pennsylvania as [Myers’] address.

          Patrolman Anglemyer commenced surveillance at 191
       Cherry Lane and spoke with two individuals standing in
       [Myers’] driveway, one of whom was Robert Gerhold.
       Gerhold advised him that [Myers] “is and has been using
       methamphetamine regularly and that this has been causing
       [Myers] to act irrationally.” Anglmeyer’s [sic] Affidavit of
       Probable Cause, 10/8/15, at 2.

          On September 17, 2015, pursuant to the Wiretap Act,
       the Commonwealth filed an Application for an Order
       Authorizing    the    Consensual      Interception  of  Oral
       Communications in a Home to permit the recording of oral
       communications between Gerhold and [Myers] at [Myers’]
       residence at 191 Cherry Lane Road. Wiretap Application,
       9/17/15, at 1 (unpaginated). The Commonwealth’s
       application included the Affidavit of Detective James Wagner
       of the Pocono Township Police Department.

          The Honorable Margherita Patti-Worthington granted the
       Application. Relevant to the instant appeal, the court’s Order
       [“Authorizing Order”] provided:

       (4) The residence of [Myers] is located at 191 Cherry Lane
       Road, Tannersville, Monroe County, Pennsylvania.

       (5) As a result of the foregoing, the Pennsylvania State
       Police are hereby authorized to intercept the oral and/or
       visual communications of Robert Gerhold, [Myers,] and
       others yet unknown within the business described in
       paragraph 4 for 30 days from the date of September 17,
       2015.

       (6) The Monroe County District Attorney shall assume
       custody and control of any resultant original recordings as
       required by 18 Pa.C.S. 5704(2).

       [Authorizing Order], 9/17/15 (emphasis added).

          Gerhold agreed to permit police to record a conversation
       between him and [Myers] using a key chain digital audio and


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       video recorder.    During a recorded conversation on
       September 22, 2015, Gerhold accused [Myers] of setting
       him up for a drug arrest and [Myers] made incriminating
       statements that identified himself as the driver of the
       motorcycle on the night of September 7, 2015 [“Audio
       Recording”]. Anglemyer Affidavit of Probable Cause,
       10/8/15, at 4. See Memorandum of Interception, 9/22/15.

          Pursuant to an arrest warrant, on October 9, 2015,
       Patrolman Anglemyer arrested [Myers] for felony Fleeing or
       Attempting to Elude a Police Officer. At his arraignment that
       same day, [Myers] received a copy of the Arrest Warrant
       and Patrolman Anglemyer’s Affidavit of Probable Cause,
       which identified Gerhold as having cooperated with the
       police investigation. Id.

          Almost immediately thereafter, [Myers] began sending
       Gerhold threatening and vulgar text messages. Anglemyer
       Affidavit of Probable Cause, 10/13/15, at 1. Between
       October 9, 2015, and October 11, 2015, [Myers] sent
       Gerhold several text messages, at all hours of the day and
       night. Based on the threatening nature of the text
       messages, on October 13, 2015, Patrolman Anglemyer
       sought, and received, a warrant for [Myers’] arrest on
       charges of Intimidation of a Witness, Retaliation Against
       Witness, Victim, or Party, and Harassment.

          On October 27, 2015, [Myers] waived his arraignment
       and preliminary hearing on the Intimidation of a Witness
       charge. In his signed Waiver of Arraignment, [Myers]
       acknowledged that the last day for him to file a timely
       Omnibus Pretrial Motion was December 12, 2015. [Myers]
       did not file an Omnibus Pretrial Motion on or before the
       deadline.

           On September 13, 2016, two days before the start of his
       consolidated jury trial—and more than eleven months after
       [Myers] became aware that Gerhold had recorded the
       incriminating conversation with [Myers]—[Myers] filed a
       Motion in Limine to Exclude the [Audio Recording]. [Myers]
       averred that the [Audio Recording] should be excluded at
       trial because the Commonwealth’s intercept of the
       communication between [Myers] and Gerhold was illegal. He
       based this conclusion on alleged errors on the face of the
       [Authorizing Order], contending that it: (1) authorized the


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           wiretap for [Myers’] business, not his residence; (2) granted
           authority to conduct the intercept to the Pennsylvania State
           Police (“PSP”) and not the Pocono Township Police
           Department; and (3) did not grant wiretapping authority
           specifically to Detective James Wagner of the Pocono
           Township Police. Motion, 9/13/16, at ¶ 10. [Myers] argued
           that the Commonwealth’s failure to adhere strictly to the
           [Authorizing Order], i.e., by having the Pocono Township
           Police, rather than the PSP, record the conversation at
           [Myers’] residence, rather than at his business, invalidated
           the recording and the court should exclude it from trial.

              The court heard argument on the Motion in chambers
           prior to the start of trial on September 15, 2016, and denied
           the Motion as untimely. See Trial Ct. Op., 3/29/17, at 5-6.
           The trial judge further concluded that the “errors” in the
           [Authorizing Order] upon which [Myers] based his argument
           were merely typographical in nature. Id. at 6-7. Last, the
           court also found that any errors in the [Authorizing Order]
           were harmless, observing that the authorizing court
           concluded the Commonwealth demonstrated probable
           cause for the wiretap, Gerhold consented freely to the
           [Audio Recording], and Gerhold testified to the contents of
           the [Audio Recording] at [Myers’] trial. Id. at 8-9. The court,
           thus, admitted the [Audio Recording] between [Myers] and
           Gerhold at trial.

Commonwealth v. Myers, 190 A.3d 745 (Table) (Pa.Super. 2018)

(footnotes omitted).

        On September 16, 2015, the jury found Myers guilty of attempting to

elude a police officer1 (2291 CR 2015), which is instantly at issue, and also

convicted him of retaliation against witness, victim or party and harassment2


____________________________________________


1   75 Pa.C.S.A. § 3733(a).
2   18 Pa.C.S.A. §§ 4953(a) and 2709(a)(4), respectively.




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(2290 CR 2015).3 The trial court sentenced Myers to 16 to 24 months’

incarceration for attempting to elude a police officer, to be served consecutive

to the sentence imposed on his other convictions in case 2290 CR 2015 for a

total aggregate sentence of 24 to 72 months’ incarceration.

       Myers    filed   post-sentence      motions   challenging,   inter   alia,   the

admissibility of the Audio Recording obtained by the Pocono Township Police

Department from the concealed device worn by Gerhold. On March 29, 2017,

the trial court denied Myers’ motion, concluding that the issue was waived

because Myers’ did not file a timely omnibus pre-trial motion to suppress the

evidence and instead only filed a motion in limine two days prior to trial. The

trial court reasoned that even if the issue had been preserved, any

discrepancies on the face of the Authorizing Order were only “typographical

errors.”

       Myers filed a timely appeal on April 21, 2017. After the trial court

granted trial counsel’s petition to withdraw, Meyer obtained alternate counsel

who ultimately filed a timely Pa.R.A.P. 1925(b) statement on Myers’ behalf.

This Court affirmed Myers’ judgment of sentence concluding that Myers’ issue

regarding the Audio Recording was waived for failure to file a pre-trial motion

to suppress and indicated that, in any case, such issue lacked merit because

any errors within the Authorizing Order were harmless.

____________________________________________


3Prior to trial, the trial court consolidated the two cases via an order dated
August 31, 2016.



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       Myers filed the instant, timely PCRA petition pro se on January 14,

2019.4 Appointed counsel filed an amended PCRA petition alleging that trial

counsel was ineffective for failing to file a pre-trial motion to suppress the

Audio Recording. The PCRA court denied Myers’ petition on July 31, 2019.

Myers filed the instant timely appeal and court-ordered Pa.R.A.P. 1925(b)

statement. The PCRA court filed a Pa.R.A.P. 1925(a) opinion adopting its

opinion and order dated July 31, 2019.

       Myers raises the following issues on appeal:

          1. Whether the trial court erred in finding [Myers’] claim of
          ineffective assistance of counsel meritless based on its
          ultimate determination that trial counsel was not ineffective
          for failing to timely file a suppression motion.

          2. Whether the trial court erred in applying the harmless
          error doctrine and finding [Myers] was not prejudiced by
          trial counsel’s failure to timely file a suppression motion.

Myers’ Br. at 4.

       The crux of Myers’ first issue is his contention that his trial counsel was

ineffective for failing to file a motion to suppress the Audio Recording.

Specifically, he argues that because the Audio Recording was made at his

home and without his knowledge, the Pocono Police Department was required,

pursuant to 18 Pa.C.S.A. § 5704(2)(ii),(iv), to obtain an order issued by the


____________________________________________


4  Myers originally filed two notices of appeal, in accordance with
Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), to reflect the two
separate docket numbers in this case. However, Myers is instantly only
pursuing his appeal under 2291 CR 2015, because his issues on appeal only
concern his convictions under that docket number.

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President Judge of a Court of Common Pleas establishing probable cause

existed for the recording. In this case, Myers argues that the Authorizing Order

was deficient because it listed “the Pennsylvania State Police” rather than the

“Pocono Township Police” as the designated law enforcement body authorized

to obtain the interception. As such, Myers argues that the Authorizing Order

did not comply with 18 Pa.C.S.A. § 5712(a)(1) (an order authorizing a

recording shall state “[t]he identity of the investigative or law enforcement

officers or agency to whom the authority to intercept wire, electronic, or oral

communications is given and the name and official identity of the person who

made an application”).

      To this end, Myers asserts that had his trial counsel filed a pre-trial

motion to suppress, that motion would have been granted pursuant to 18

Pa.C.S.A. § 5721.1 (providing the exclusive remedy for the exclusion of

evidence due to nonconstitutuional violations of the Wiretap Act). Accordingly,

Myers claims that his counsel was ineffective for failing to file a motion to

suppress, which had underlying merit and his counsel was ineffective because

he had no possible reasonable basis for failing to file the motion. Further,

Myers maintains that he was prejudiced by counsel’s failure to file a

suppression motion because the motion would have resulted in the exclusion

of the Audio Recording, which contained his confession.

      “Our standard of review of a PCRA court's dismissal of a PCRA petition

is limited to examining whether the PCRA court's determination is supported

by the evidence of record and free of legal error.” Commonwealth v. Wilson,

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824 A.2d 331, 333 (Pa.Super. 2003) (en banc). Further, “[t]he PCRA court’s

credibility determinations, when supported by the record, are binding on this

court.” Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011).

      “Counsel is presumed effective, and [a petitioner] has the burden of

proving otherwise.” Commonwealth v. Brown, 161 A.3d 960, 965

(Pa.Super. 2017). To overcome this presumption, a petitioner must plead and

prove that: “(1) the underlying claim has arguable merit; (2) counsel had no

reasonable basis for his or her action or inaction; and (3) the petitioner

suffered prejudice because of counsel’s ineffectiveness.” Commonwealth v.

Paddy, 15 A.3d 431, 442 (Pa. 2011). Failing to satisfy even one of these

factors requires this Court to reject the claim. Commonwealth v. Dennis,

950 A.2d 945, 954 (Pa. 2008).

      This Court has explained that 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.” Commonwealth v. Glass, 200 A.3d 477, 483

(Pa.Super. 2018) (citation omitted). In Commonwealth v. Brion, 652 A.2d

287, 289 (Pa. 1994), our Supreme Court considered a one-party consensual,

in-home wiretap and held that the Commonwealth must obtain a prior

determination of probable cause by a neutral, judicial authority. In response

to Brion the Legislature amended the Wiretap Act to include § 5704(2)(iv):




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         (iv) the requirements of this subparagraph are met. If an
         oral interception otherwise authorized under this paragraph
         will take place in the home of a nonconsenting party, then,
         in addition to the requirements of subparagraph (ii), the
         interception shall not be conducted until an order is first
         obtained from the president judge, or his designee who shall
         also be a judge, of a court of common pleas, authorizing
         such in-home interception, based upon an affidavit by an
         investigative or law enforcement officer that establishes
         probable cause for the issuance of such an order. No such
         order or affidavit shall be required where probable cause
         and exigent circumstances exist. For purposes of this
         paragraph, an oral interception shall be deemed to take
         place in the home of a nonconsenting party only if both the
         consenting and nonconsenting parties are physically present
         in the home at the time of the interception.

18 Pa.C.S.A. § 5704(2)(iv).

      The Wiretap Act requires an order authorizing the intercept of an oral

communication to include the following information:

         (1) The identity of the investigative or law enforcement
         officers or agency to whom the authority to intercept wire,
         electronic or oral communications is given and the name and
         official identity of the person who made the application.

18 Pa.C.S.A. § 5712(a)(1).

      Also significant in this case is 18 Pa.C.S.A. § 5721.1, which governs the

available remedies for nonconstitutional violations of the Wiretap Act:

         (b) Motion to exclude.--Any aggrieved person who is a
         party to any proceeding in any court, board or agency of
         this Commonwealth may move to exclude the contents of
         any wire, electronic or oral communication, or evidence
         derived therefrom, on any of the following grounds:

         (1) Unless intercepted pursuant to an exception set forth in
         section 5704 (relating to exceptions to prohibition of
         interception and disclosure of communications), the
         interception was made without prior procurement of an
         order of authorization under section 5712 (relating to

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         issuance of order and effect) or an order of approval under
         section 5713(a) (relating to emergency situations) or
         5713.1(b) (relating to emergency hostage and barricade
         situations).

         (2) The order of authorization issued under section 5712 or
         the order of approval issued under section 5713(a) or
         5713.1(b) was not supported by probable cause with
         respect to the matters set forth in section 5710(a)(1) and
         (2) (relating to grounds for entry of order).

         (3) The order of authorization issued under section 5712 is
         materially insufficient on its face.

         (4) The interception materially deviated         from   the
         requirements of the order of authorization.

         (5) With respect to interceptions pursuant to section
         5704(2), the consent to the interception was coerced by the
         Commonwealth.

         (6) Where required pursuant to section 5704(2)(iv), the
         interception was made without prior procurement of a court
         order or without probable cause.

18 Pa.C.S.A. § 5721.1(b)(1-6) Indeed, pursuant to subsection 5721.1(e),

“[t]he remedies and sanctions described in this subchapter with respect to the

interception of wire, electronic or oral communications are the only judicial

remedies and sanctions for nonconstitutional violations of this subchapter

involving such communications.” 18 Pa.C.S.A. § 5721.1(e).

      It is a fundamental legal precept that the Wiretap Act is to be strictly

construed as this Court has recently summarized:

         [T]he Wiretap Act is to be strictly construed to protect
         individual privacy rights because it derogates a fundamental
         Pennsylvania constitutional right—the right to privacy.
         Given that private conversations are [being] overheard by
         government authorities, courts should closely scrutinize law
         enforcement authorities for strict compliance with the Act’s


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         requirements. In establishing a violation of the Wiretap Act,
         a defendant is not required to establish actual prejudice.

Commonwealth v. Shreffler, 201 A.3d 757, 764 (Pa.Super. 2018) (citations

and footnote omitted). However, “the Commonwealth [does] not violate the

Pennsylvania Constitution for using a wiretap, even in the appellant’s home,

as long as they [establish] one party consent and probable cause to

the designated authorities. Commonwealth v. Fetter, 770 A.2d 762, 767

(Pa.Super. 2001), affirmed, 810 A.2d 637 (Pa. 2002) (emphasis added).

      In the case sub judice, it is undisputed that the Audio Recording was

made with the consent of Gerhold and without the knowledge of Myers in

Myers’ residence. Therefore, pursuant to the Wiretap Act, prior to the

interception it was necessary to obtain an order “from the president judge, or

his designee who shall also be a judge, of a court of common pleas, authorizing

such in-home interception, based upon an affidavit by an investigative or law

enforcement officer that establishes probable cause for the issuance of such

an order.” 18 Pa.C.S.A. 5704(2)(iv). Here, the Commonwealth obtained the

required order by filing an application and including an affidavit of probable

cause from Detective Wagner of the Pocono Township Police Department.

Judge Patti-Worthington concluded that probable cause supported the

Commonwealth’s application under the Wiretap Act and issued the Authorizing

Order. Thus, the Authorizing Order was supported by probable cause. See

Fetter, 770 A.2d at 767.




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      It is also undisputed that the Authorizing Order itself listed the

“Pennsylvania State Police” rather than the “Pocono Township Police

Department.” Myers baldly avers, without citation, that this error should have

required the trial court to suppress the Audio Recording pursuant to the

exclusionary provisions of 18 Pa.C.S.A. § 5721.1(b). While Myers fails to

specify the subsection he believes applies, it appears the closest applicable

provision is Section 5721.1(b)(4) (“The interception materially deviated from

the requirements of the order of authorization”). However, Myers fails to

develop any specific argument, or cite any legal authority, as to why this error

should constitute a “material deviation” under the above subsection. As the

PCRA court emphasized, the Authorizing Order in this case was supported by

probable cause, as presented by the Pocono Township Police Department.

PCRA Court Op., 7/31/19 at 10-11; see Fetter, 770 A.2d at 767. Thus,

according to the PCRA court, the error in the Authorizing Order was merely

typographical in nature and would not require the suppression of the Audio

Recording. Id. We agree and conclude that the record supports the PCRA

court’s reasoning. See Wilson, 824 A.2d at 333.

      Accordingly, we hold that the underlying issue of the suppression of the

Audio Recording does not have arguable merit. See Paddy, 15 A.3d at 442;

Dennis, 950 A.2d at 954. Hence, trial counsel was not ineffective for failing

to file a motion to suppress the Audio Recording and Myers’ first issue does

not warrant relief. See id. Further, because we deem this conclusion

dispositive, we need not discuss Myers’ second issue on appeal concerning the

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PCRA court’s consideration of the “harmless error” doctrine in regards to the

admission of the Audio Recording at trial. See Commonwealth v. Clouser,

998 A.2d 656, 661 n.3 (Pa.Super. 2010) (this Court may affirm an order on

any basis).

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/20




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