J-A32033-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                         Appellee

                    v.

JEROME SHERWIN GRIER,

                         Appellant                   No. 1429 EDA 2013


           Appeal from the Judgment of Sentence April 24, 2013
              In the Court of Common Pleas of Chester County
            Criminal Division at No(s): CP-15-CR-0001348-2011

BEFORE: PANELLA, OLSON AND FITZGERALD,* JJ.

CONCURRING AND DISSENTING MEMORANDUM BY OLSON, J.:
FILED OCTOBER 15, 2015

      I agree with the learned majority that the trial court correctly denied

Appellant’s motion to suppress. My reasoning, however, differs from that of

the learned majority.    I also agree that the trial court did not abuse its

discretion in admitting evidence relating to cocaine not directly associated

with Appellant. I do so not only for the reasons expressed in the trial court’s

opinion (which the learned majority adopts as to this issue) but for an

additional reason as well.      I fully join the majority’s disposition on

Appellant’s claim under Alleyne v. United States, 133 S.Ct. 2151 (2013).

I dissent, however, from the majority’s holding that Appellant is eligible to

participate in the Recidivism Risk Reduction Initiative (“RRRI”). In my view,

the trial court should apply the modified categorical approach upon remand



* Former Justice specially assigned to the Superior Court
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when determining if Appellant is RRRI eligible.        I therefore respectfully

concur in part and dissent in part.

      As the learned majority correctly states, the order authorizing

interception of co-defendant Philip DiMatteo’s (“DiMatteo’s”) telephone calls

was required to list Appellant if there were probable cause to believe that

Appellant’s    communications   would   be     intercepted.    See   Majority

Memorandum at 8-9, citing Commonwealth v. Whitaker, 546 A.2d 6, 8

(Pa. 1988). The learned majority concludes that “the Commonwealth lacked

knowledge that Appellant—and not KL Bugg—was communicating with

DiMatteo.” Majority Memorandum at 10. I disagree. After careful review

of the documents submitted to the Honorable Paula Francisco Ott, I conclude

that the Commonwealth was fully aware that Appellant, and not KL Bugg,

was communicating with DiMatteo.

      As the learned majority notes, the probable cause affidavit submitted

with the Chester County District Attorney’s (“DA’s”) original application to

Judge Ott listed Appellant’s telephone number along with the subscriber

information.     Majority Memorandum at 3-4, quoting Exhibit A to

Application for an Order Authorizing the Interception of Electronic and Wire

Communications, 3/19/10, at 34-36.      Although the subscriber information

listed KL Bugg as the subscriber, the three affiants stated that their search

returned no results for a KL Bugg.          The affiants noted, however, that

Appellant was known to use the address listed for KL Bugg.         The affiants



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therefore listed Appellant’s prior drug related offenses in a (successful)

attempt to establish probable cause that DiMatteo used his telephone to

engage in drug transactions. On March 19, 2010, Judge Ott signed the DA’s

proposed order authorizing the interception of electronic communications.

That order never referenced Appellant nor did it incorporate the probable

cause affidavit.     See generally Order Authorizing the Interception of

Electronic and Wire Communications, 3/19/10.

      More importantly, on April 20, 2010, the DA submitted an application

to Judge Ott seeking an order extending the wiretap authorization. In that

application, the DA stated “[t]here is probable cause to believe that . . .

[Appellant has] committed and [is] committing offenses involving the

distribution and possession of controlled substances[.]”        Application for an

Order Extending the Authorization for the Interception of Electronic and Wire

Communications, 4/20/10, at 16-17.          The DA then averred that Appellant

and   DiMatteo     discussed   illegal   drug   transactions   during   intercepted

communications.      Id. at 17-18.       The DA contemporaneously submitted a

proposed order to Judge Ott with his application. After carefully reviewing

the application, probable cause affidavit, and status updates, Judge Ott

signed the DA’s proposed order on April 20, 2010.                That order was

unchanged from the version submitted by DA.

      The April 20, 2010 order did not mention Appellant. Furthermore, the

order did not incorporate by reference the DA’s application. Therefore, it is



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evident that the order only applied to DiMatteo despite the fact that the DA

argued in his application that there was probable cause that Appellant’s

communications with DiMatteo would be intercepted.           Judge Ott did not

reject this averment by the DA. Instead, she signed the order requested by

the DA. Based upon the evidence presented in the March 19, 2010 probable

cause affidavit, the April 20, 2010 probable cause affidavit, and the

intervening progress reports, I believe there was probable cause that

Appellant’s   drug-related   communications        with   DiMatteo   would   be

intercepted. Although there was no record of KL Bugg, Appellant used the

address associated with the KL Bugg telephone line. Police then intercepted

numerous conversations between Appellant and DiMatteo in which they

discussed drug transactions.      This easily satisfied the probable cause

standard.

      Having determined that Appellant should have been named in the

wiretap orders, I turn to whether suppression is the appropriate remedy. It

is well-settled that intercepted wire communications can only be suppressed

on six non-constitutional grounds. Commonwealth v. Steward, 918 A.2d

758, 760 (Pa. Super. 2007), appeal denied, 945 A.2d 170 (Pa. 2008).

Specifically, the evidence can be suppressed if:

      (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 issuance of order and effect) or an
      order of approval under section 5713(a) (relating to emergency


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     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).

     In this case, none of those six situations apply.     First, there were

orders entered pursuant to section 5712. Second, there was probable cause

to issue the orders. Third, the interception did not materially deviate from

the requirements of the orders. Fourth, the orders were not issued pursuant

to section 5704(2).      Thus, the only colorable argument supporting

suppression is that the orders were materially insufficient on their face.   I

conclude, however, that suppression is not warranted on this ground.

     Pertinent federal case law supports this conclusion. In United States

v. Donovan, 429 U.S. 413 (1977), the government had probable cause that

the defendant would be overheard on a wiretap, however, it failed to include


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the defendant, a known individual, in the wiretap authorization order. The

Supreme Court of the United States held that such error did not require

suppression of the evidence against the defendant.           Id. at 436 n.24.

Instead, it concluded that the order was valid and that the defect was not

material. Although Donovan dealt with a Title III wiretap under federal law,

I find its rationale persuasive.   The orders in this case listed everything

necessary to lawfully intercept Appellant’s communications with DiMatteo.

Although the orders failed to list Appellant as a known individual, this was a

minor error in drafting the orders and did not rise to the level of a material

defect.   Finally, to the extent that Appellant argues that exclusion of his

name from the orders violated his constitutional rights, Donovan makes

clear that such an omission does not constitute an unconstitutional search.

Therefore, I would affirm the trial court’s suppression ruling on this basis.

      As to the second issue raised on appeal, I fully concur with the

reasoning set forth in the trial court opinion and adopted by the learned

majority. I write separately on this issue, to emphasize my belief that the

evidence of DiMatteo’s other drug deals was admissible notwithstanding Rule

404(b).   In this connection, I note that a substantial component of the

Commonwealth’s theory in this case was that Appellant committed, by way

of telephone, dozens of crimes involving the solicitation of delivery of

controlled substances by DeMatteo. To meet its burden of proof, then, the

Commonwealth needed to prove that DeMatteo was a viable source of the



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drugs Appellant sought to acquire for resale. Thus, in this case, the cocaine

showed to the jury, and other evidence Appellant objected to, was

admissible to prove that DeMatteo was such a viable source. Accordingly, I

would affirm on this basis in addition to the basis set forth in the trial court’s

opinion.

      As to Appellant’s last issue, I agree with the learned Majority that our

Supreme Court has “specifically rejected [Appellant’s] suggestion to apply

the maxim of expression unius est exclusion alterius.” Majority Memorandum

at 20 (citation omitted).       I also agree that 61 Pa.C.S.A. § “4503(1)

encompasses all violent behavior in addition to the enumerated crimes

contained in [s]ection 4503(2)-(6)[.]”      Id. (citation and internal quotation

marks omitted; emphasis removed). I respectfully disagree, however, with

the learned Majority’s holding that the trial court erred or abused its

discretion in finding that Appellant was not eligible to receive an RRRI

reduced sentence.

      Two prior appellate decisions in Pennsylvania have addressed a

question similar to that which we confront in the present case.                In

Commonwealth v. Chester, 101 A.3d 56 (Pa. 2014), our Supreme Court

concluded that a prior conviction for first-degree burglary constituted violent

behavior that disqualified a defendant’s eligibility for a reduced minimum

sentence under the RRRI statute.       In reaching this conclusion, the Court

noted the historical treatment of burglary as a crime of violence in



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Pennsylvania.   Id. at 64.   In addition, the Court noted that all burglaries

qualify as aggravating circumstances for capital sentencing purposes.     Id.

The Court also observed that first-degree burglary, unlike its second-degree

counterpart, is listed as a crime of violence under the recidivist minimum

sentencing provision in 42 Pa.C.S.A. § 9714(g) and that first-degree

burglary precludes an offender from participation in motivational boot camp

pursuant to 61 Pa.C.S.A. § 3903. Id. Lastly, based upon its determination

that first-degree burglary “contemplates [a] potential for confrontation [that

second-degree burglary does not],” the Court concluded that first-degree

burglary constitutes “violent behavior” under § 4503(1). Id. at 65.

      Prior to Chester, this Court considered whether second-degree

burglary constituted disqualifying violent behavior in Commonwealth v.

Gonzalez, 10 A.3d 1260 (Pa. Super. 2010).        In Gonzalez, we observed

that second-degree burglary was not included as a crime of violence under

42 Pa.C.S.A. § 9714, that it did not disqualify an offender from participation

in motivational boot camp under 61 Pa.C.S.A. § 3903, and that it did not

constitute a personal injury crime within the definition of 18 Pa.C.S.A.

§ 11.103.   Gonzalez, 10 A.3d at 1263.      Accordingly, we found Gonzalez




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eligible to receive a reduced RRRI sentence notwithstanding his second-

degree burglary conviction.1

      My review of Chester and Gonzalez leads me to conclude that

Appellant is not eligible to participate in the RRRI program. A conviction for

resisting arrest presupposes a situation in which an offender’s conduct

invites a forceful response on the part of a law enforcement officer.     This

circumstance draws into play the concerns surrounding first-degree burglary,

not second-degree burglary.    Where resisting arrest has been charged, no

fewer than two individuals, with wholly divergent goals, are presently

engaged in a confrontation.     On one hand, the suspect seeks to avoid

capture and arrest.   On the other hand, the officer(s) seek to subdue the

subject.   A conviction results where the defendant either creates a

substantial risk of bodily injury to the officer or anyone else or employs

means that require substantial force to overcome. See 18 Pa.C.S.A. § 5104.

The statute clearly contemplates the potential for confrontation and, as

such, the risk of a violent encounter is direct and immediate and neither

remote nor speculative.    For this reason, I agree with the trial court that

Appellant should be excluded from the RRRI program.

      I am unpersuaded by the Majority’s efforts to demonstrate that a

conviction for resisting arrest does not involve a history of violent behavior.

1
 In Chester, the Supreme Court stated that it would not consider whether a
second-degree burglary conviction demonstrated a history of violent
behavior for purposes of § 4503.



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Among other things, the Majority reviews the emergence of the current

resisting arrest statute and points out that the statute now does not impose

liability for minor scuffles or efforts to flee from an officer.   See Majority

Memorandum at 26-27.        If the Majority offers this analysis to prove that

resisting arrest somehow does not involve violent behavior, then these

observations miss the mark. By definition, a conviction for resisting arrest

excludes instances involving only minor scuffles or efforts to flee from an

officer.    Thus, an individual convicted of resisting arrest has previously

created a substantial risk of bodily injury to an officer or someone else or

engaged in conduct that required substantial force to overcome.           I am

unable to agree that this conduct does not involve a history of violent

behavior.

      Moreover, while I understand that there may be situations in which

individuals employ so-called “passive resistance” in which they do not

overtly or aggressively attack an arresting officer, I cannot agree that this

conduct salvages their eligibility for participation in the RRRI program.    In

Chester, our Supreme Court noted that, “the fact that [a]ppellant did not

actually engage in any violent acts while committing first-degree burglary

does not render the crime ‘non-violent.’”        Chester, 101 A.3d at 65.

Instead, it is the offender’s conduct in merely committing a crime that

“invites dangerous resistance” and the potential for a forceful response that

makes the offense a violent one.       Id.    By every metric, then, a prior



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conviction for resisting arrest disqualifies an offender for RRRI participation.

For each of these reasons, I respectfully dissent from the Majority’s decision

to remand this case for resentencing.




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