J-S45010-18

                                   2018 PA Super 328

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    CEDRIC ANTONIO GLASS,                      :
                                               :
                       Appellant               :       No. 130 MDA 2018

          Appeal from the Judgment of Sentence December 13, 2017
            in the Court of Common Pleas of Lackawanna County
            Criminal Division at No(s): CP-35-CR-0001003-2016

BEFORE:      OTT, J., MUSMANNO, J., and PLATT*, J.

OPINION BY MUSMANNO, J.:                            FILED DECEMBER 03, 2018

       Cedric Antonio Glass (“Glass”) appeals from the judgment of sentence

imposed following his conviction of one count each of delivery of a controlled

substance, possession with intent to deliver a controlled substance,

possession of a small amount of marijuana, possession of drug paraphernalia,

criminal use of a communication facility, and fleeing or attempting to elude a

police officer.1 We affirm.

       On April 19, 2016, Detectives Conrad Zech (“Detective Zech”) and John

Munley (“Detective Munley”) (collectively, “the Detectives”) met with a

confidential informant (“CI”) regarding the sale of cocaine in Scranton,

Pennsylvania. The CI told the Detectives that a black male, who used the

name “Country,” was selling cocaine in the area. The CI additionally provided


____________________________________________


1See 35 P.S. § 780-113(a)(30), (31), (32); 18 Pa.C.S.A. § 7512; 75 Pa.C.S.A.
§ 3733.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S45010-18


the telephone number used by Country and a description of Glass’s vehicle.

The Detectives had knowledge that Glass used the name “Country.” When

shown a photograph of Glass, the CI identified the person in the photograph

as “Country.” On that same date, by telephone, Deputy District Attorney Mike

Ossont (“DDA Ossont”) consensualized the CI for the purpose of having the

CI’s telephone calls, face-to-face conversations, and text messages to and

from Glass intercepted by authorities.

     The next day, in the presence of the Detectives, the CI called Glass,

using the provided telephone number, and arranged to purchase $100.00

worth of cocaine. After searching the CI, the Detectives provided $100.00 in

pre-recorded and serialized U.S. currency, and equipped the CI with an

electronic surveillance device. The CI arranged to conduct the transaction at

his home on Maple Street in Scranton. Under surveillance, the CI drove to his

house. After the CI entered his house, Glass telephoned the CI, and directed

him to get inside of a red maroon Lincoln parked outside. The CI complied.

Glass, who was inside of the Lincoln, drove the CI around the block, and

thereafter dropped the CI off at the CI’s house. Afterwards, the CI met with

Detective Munley and surrendered a cigar/blunt-type package, with a clear

plastic twist of suspected cocaine inside of the package, which the CI had

purchased from Glass.

     Detective Munley contacted other detectives to effectuate an arrest of

Glass. A vehicle chase ensued, after which Glass crashed his vehicle. After


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apprising Glass of his rights pursuant to Miranda v. Arizona, 384 U.S. 436

(1966), the officers searched Glass, finding $1,321.00 in U.S. currency and

five grams of suspected marijuana on his person. Inside of the vehicle, the

officers found the cell phone used to call the CI, a small amount of marijuana,

and packaging similar to the cigar/blunt packaging used to wrap the cocaine

purchased by the CI.

      Prior to trial, Glass filed pre-trial Motions to suppress the evidence,

which the suppression court denied. Following a bench trial, the trial court

found Glass guilty of the above-described charges. The trial court sentenced

Glass to an aggregate prison term of 36-84 months, followed by 2 years of

special probation. Glass filed a post-sentence Motion, which the trial court

denied. Thereafter, Glass filed the instant timely appeal, followed by a court-

ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on

appeal.

      Glass presents the following issues for our review:

      A. Whether the suppression court erred when it denied [Glass’s]
         Omnibus Pre-trial Motion to exclude/suppress all evidence
         derived from electronic surveillance of conversations between
         [Glass] and [the CI,] recorded on April 20, 2016[,] under the
         Wiretapping and Electronic Surveillance Control Act
         [(hereinafter, the “Wiretap Act”)], 18 Pa.C.S.A. § 5701, et
         seq., for the following reasons:

          a. The intercept was not supported by reasonable grounds to
             suspect criminal activity[,] as required by 18 Pa.C.S.A.
             § 5704;

          b. The intercept was not supported by valid consent;


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       c. The intercept was based upon a defective Memorandum;
          and

       d. Since [Glass] had a reasonable expectation of privacy inside
          [of] his vehicle, a Memorandum of Approval was insufficient
          to support the intercept, thus, the intercept violated the
          [c]onstitutional protection afford[ed] under the Fourth
          Amendment of the U.S. Constitution[,] and Article I, Section
          8 of the Pennsylvania Constitution?

     B. Whether the suppression court erred when it denied [Glass’s]
        Motion to Suppress all of the evidence obtained from his person
        and from the search of his vehicle since the Commonwealth did
        not obtain the necessary authorization for the covert audio
        recording device with the GPS tracker device for the following
        reasons:

       a. Failure to establish the required probable cause for its use[,]
          as mandated by [Commonwealth] v. Burgos, … 64 A.3d
          641 ([Pa. Super.] 2013)[,] and 18 Pa.C.S.A. § 5761;

       b. Failure to comply with 18 Pa.C.S.A. § 5761 of the Wiretap
          Act[,] which, inter alia, requires a statutorily prescribed
          court order; and

       c. [The use of the devices] constituted a search based upon
          United States v. Jones, 565 U.S. 400 … (2012), thus
          violated the protection against unreasonable searches and
          seizures afforded under the Fourth Amendment of the U.S.
          Constitution and Article I, Section 8 of the Pennsylvania
          Constitution?

     C. Whether the search of [Glass’s] vehicle without a warrant
        constituted an unreasonable search and seizure?

     D. Whether the verdicts on the possession with intent to deliver,
        delivery of a controlled substance, and possession of a
        controlled substance-cocaine charges were contrary to the
        weight of the evidence?

     E. Whether the verdicts on possession with intent to deliver,
        delivery of a controlled substance, and possession of a
        controlled substance-cocaine charges were supported by
        sufficient evidence?

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J-S45010-18



Brief for Appellant at 4-5.

      In Issue “A,” Glass first challenges the suppression court’s failure to

exclude at trial evidence derived from the electronic surveillance of

conversations between Glass and the CI. Id. at 21. Glass argues that the

Memorandum of Approval executed by DDA Ossont, and its supporting

documents, failed to establish reasonable grounds to suspect Glass of criminal

activity. Id. at 24-25. Glass contends that the Memorandum of Approval

failed to include any information establishing that Glass was involved in the

distribution of controlled substances. Id. Glass asserts that the Memorandum

of Approval failed to state that the CI previously had purchased controlled

substances from Glass, or that the CI had provided accurate and reliable

information in the past. Id. Glass contends that the Memorandum of Approval

failed to identify the type or types of controlled substances that were being

delivered by Glass, or when illegal activity had taken place.      Id. at 26.

Further, Glass argues, DDA Ossont merely stated that he had reviewed the

Memorandum of Approval, but he provided no information upon which a

finding of reasonable grounds for authorizing the wiretap could be made. Id.

Glass acknowledges the Memorandum of Approval’s statement that charges

were pending against him. Id. However, Glass challenges the Memorandum

of Approval’s failure to identify the pending charges. Id.

      When reviewing the denial of a defendant’s suppression motion,




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        [an appellate court] 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.

Commonwealth v. Witmayer, 144 A.3d 939, 948 (Pa. Super. 2016)

(citation omitted).

        Glass’s first claim requires this Court to interpret provisions of the

Wiretap Act.      Our interpretation of statutory provisions is guided by the

Statutory Construction Act,2 “under which our paramount interpretive task is

to give effect to the intent of our General Assembly in enacting the particular

legislation under review.” Commonwealth v. Wright, 14 A.3d 798, 814 (Pa.

2011). See also 1 Pa.C.S.A. § 1921(a) (providing that “[t]he object of all

interpretation and construction of statutes is to ascertain and effectuate the

intention of the General Assembly.             Every statute shall be construed, if

possible, to give effect to all its provisions.”).      “The best indication of the

General Assembly’s intent may be found in the plain language of the statute.”

Commonwealth v. Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018).

Consequently, “[w]hen the words of a statute are clear and free from all

ambiguity, the letter of it is not to be disregarded under the pretext of

pursuing its spirit.” 1 Pa.C.S.A. § 1921(b); see also Dep’t of Transp. v.


____________________________________________


2   See 1 Pa.C.S.A. §§ 1501-1991.

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J-S45010-18


Taylor, 841 A.2d 108, 111-12 (Pa. 2004) (cautioning that, “[a]s a general

rule[,] courts do not have the power to ignore clear and unambiguous

statutory language in pursuit of a statute’s alleged or perceived purpose.”).

Additionally, our Supreme Court has recognized that expanding the terms of

a statute is an act reserved for the General Assembly, and should not be

accomplished through judicial action. See, e.g., Commonwealth v. Scott,

532 A.2d 426, 429 (Pa. 1987) (wherein the Supreme Court refused to add

exceptions to the spousal witness incompetency statute, even after

recognizing legitimate criticisms).

      “Both the Fourth Amendment of the United States Constitution[,] and

Article 1 Section 8 of the Pennsylvania Constitution[,] protect citizens from

unreasonable, searches and seizures.”       Burgos, 64 A.3d at 648 (quoting

Commonwealth v. Cook, 735 A.2d 673, 674 (Pa. 1999)).              “Warrantless

searches and seizures are therefore unreasonable per se, unless conducted

pursuant to a specifically established and well-delineated exception to the

warrant requirement.” Burgos, 64 A.3d at 648.

      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. The statute sets forth clearly and
      unambiguously by whom and under what circumstances these
      otherwise illegal practices and their derivative fruits may be used.

      However, the Wiretap Act contains an exception allowing law
      enforcement to utilize wiretaps without obtaining prior judicial

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       approval when one of the parties to the conversation consents to
       the interception:

         § 5704. Exceptions to prohibition of interception and
         disclosure of communications

         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 [initiated3], 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.

       In determining whether the approval of a consensual wiretap was
       proper, ... police officers must articulate “reasonable grounds” for
       the monitoring and the Attorney General or the district attorney
       must verify [] that these reasonable grounds exist.



____________________________________________


3In 2012, the Pennsylvania legislature changed the term “made” to “initiated.”
See Act 2012-202 (H.B. 2400), P.L. 1634, § 2, approved Oct. 25, 2012.

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J-S45010-18


Commonwealth v. McMillan, 13 A.3d 521, 524-25 (Pa. Super. 2011)

(citations and some emphasis omitted, footnote added).

       As set forth above, the express language of the statute includes no

requirement that the Memorandum of Understanding set forth, in writing, the

reasonable grounds to suspect criminal activity. Rather, the statute provides

that no interception is permitted “unless … an assistant district attorney … has

reviewed the facts and is satisfied that the consent is voluntary[.]” 18

Pa.C.S.A. § 5704(2)(ii) (emphasis added).         Although our Supreme Court has

required that police     officers   “articulate   ‘reasonable   grounds’   for   the

monitoring,” and that the reasonable grounds be verified by the designated

authority, the Supreme Court did not require that the articulation be in writing,

or included in the Memorandum of Understanding. See McMillan, 13 A.3d at

525.   Thus, Glass’s contention, i.e., that the Memorandum of Approval is

deficient for not including the reasonable grounds relied upon for the

interception, lacks merit.

       In Issue A(b), Glass again argues that the CI’s consent for electronic

surveillance was invalid because the Memorandum of Approval was defective.

Brief for Appellant at 27. Glass asserts that the CI did not consent to the

electronic tracking of the CI’s location. Id. Glass posits that the CI’s consent

was not voluntary because of this deficiency. Id.

       Our review of the record discloses that Detective Munley prepared the

Memorandum of Approval, and received approval to use electronic surveillance


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of the CI and Glass on April 19, 2016.        See N.T., 11/28/16, at 7-8.     The

Memorandum of Approval, prepared by Detective Munley for DDA Ossont’s

signature, provided as follows:

      I, [DDA Ossont], … having been officially designated by District
      Attorney Shane Scanlon, Lackawanna County District Attorney,
      pursuant to Section 5704 and related sections of the Pennsylvania
      Wiretapping and Electronic Surveillance Control Act, have
      reviewed the Memorandum of [Detective Munley], dated
      3/30/2016[,] and the Memorandum of Consent signed by [the CI],
      I have also taken the following steps to determine whether or not
      the consent [of the CI] was freely given.

      -Oral Interview

            As a result of the foregoing, I find that the consent of the
      above-named person was freely and voluntarily given and that the
      proposed interception involves suspected criminal activities and
      appear [sic] to be otherwise in accord with the law. The proposed
      interception is approved and authorization is given for the
      issuance of such devices as are necessary to accomplish the
      interception in the manner described in the Officer’s
      Memorandum.

             In regard to [] Glass, phone number [number omitted], and
      any other person who is under criminal charges, I have directed
      the officers to take particular care to avoid the interception of any
      conversation of that person which pertains to his culpability in
      relation to those pending criminal charges or the strategy which
      he contemplates using in his defense of those pending criminal
      charges.

Memorandum of Approval, 4/19/16 (some emphasis added, phone number

omitted). The signature line denotes the name “Mike Ossont,” followed by the

words “via phone.”     See id.    The Officer’s Memorandum, completed by

Detective Munley, expressly requested authorization for “cellular phone,

induction microphone and digital recorder[,]” and “Sure-Tec digital audio


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transmitter recorder” (the “Sur-Tec device”).         Officer’s Memorandum,

4/19/16, at 1.

      According to Detective Munley’s testimony at the suppression hearing,

he specifically explained to the CI that the Sur-Tec device would show the

location of that device to the investigators, and that the CI was consensualized

regarding its intended use. N.T., 4/4/17, at 4. According to Detective Munley,

the location tracking system was used for the safety of the CI. Id. Detective

Munley testified that the tracking system showed the location of the device in

real time, but did not make a record of its location. Id. at 4-5.

      Thus, our review discloses that the         Memorandum of Approval

encompassed surveillance devices, as set forth in the Officer’s Memorandum.

See Memorandum of Approval, 4/19/16.              The Officer’s Memorandum

specifically identified the Sur-Tec device as one of the devices to be used in

the surveillance of the CI. See Officer’s Memorandum, 4/19/16, at 1. Further,

the record reflects that Detective Munley explained the location-tracking

feature of the Sur-Tec device to the CI, who then consented to being equipped

with the Sur-Tec device. See N.T., 4/4/17, at 4. Under these circumstances,

Glass’s challenge to the use of the Sur-Tec device’s tracking system lacks

merit.

      In Issue A(c), Glass argues that the Memorandum of Approval is

defective, because it lacked the personal signature of DDA Ossont. Brief for

Appellant at 27.     In this regard, Glass points out that the Officer’s


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Memorandum was misdated for March 30, 2016, and Detective Munley

admitted that he had used a template when completing the Officer’s

Memorandum.         Id. at 28.   According to Glass, “[t]he use of a template

eviscerates the specific and detailed analysis of the purported criminal

activity[,] as is required by the statute and appellate courts’ application of this

exception.”   Id.    Glass further takes exception to DDA Ossont’s use of a

telephone interview of the CI, instead of an in-person interview. Id. Glass

also challenges DDA Ossont’s failure to personally sign the Memorandum of

Approval. Id. Glass compares the facts in this case to those presented in

Commonwealth v. Clark, 542 A.2d 1036 (Pa. Super. 1988).

       In Clark, this Court addressed, inter alia, whether the provisions of

Section 5704(2)(ii) had been followed where neither the district attorney nor

the designated district attorney had reviewed the facts and indicated that the

consent was voluntary. See Clark, 542 A.2d at 1038. This Court explained

that

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

intercepted communications, where a statutorily designated person “never




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performed these preparatory duties.             Rather, these duties were wrongly

delegated to and undertaken by the Pennsylvania State Police.” Id.

       By contrast, in the instant case, the Commonwealth presented ample

evidence that ADA Ossont had reviewed the details of the case with Detective

Munley, and was satisfied that the consent was voluntary. Detective Munley

testified that he had telephoned DDA Ossont, “explained the details of the

case, the details of the interview with the CI, who we were going to call, what

phone number we were going to call, the drugs we were going to purchase[,]

and the details of the [Memorandum of Approval]. That was approved via

phone ….”      N.T., 11/28/16, at 8. Detective Munley further confirmed that

DDA    Ossont     had   spoken     directly    with   the   CI,   and   personally   had

consensualized the CI over the telephone. Id. at 18. Finally, DDA Ossont

specifically authorized Detective Munley to place DDA Ossont’s signature on

the Memorandum of Approval. Id.

       The record establishes that DDA Ossont performed in accordance with

the statute by personally reviewing the facts, ascertaining directly from the CI

the voluntariness of his/her consent, and approving the interceptions.4 See

Clark, 542 A.2d at 1040. Thus, Glass’s claim in this regard lacks merit.



____________________________________________


4 While we acknowledge that the statute did not require that DDA Ossont
interview the CI in person, or personally place his signature on the
Memorandum of Approval, we would recommend that the better practice
would be to ascertain the CI’s consent in person, and to personally sign the
Memorandum of Approval.

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       In Issue A(d), Glass claims that, “since he had a reasonable expectation

of privacy inside of his vehicle, a Memorandum of Approval was insufficient to

support the intercept[.]” Brief for Appellant at 32. According to Glass, the

electronic surveillance was not in compliance with Section 5704(2)(ii), and,

therefore, the interception of the CI’s communication with Glass violated the

United States and Pennsylvania Constitutions. Id. Glass further asserts that,

because he had a subjective expectation of privacy, and his expectation was

reasonable, the interception of any communications taking place inside of the

vehicle violated Article I, Section 8 of the Pennsylvania Constitution. Id. at

33. Therefore, Glass asserts, all evidence seized as a result of the surveillance

must be suppressed as the “fruits of the poisonous tree.” Id. at 34.

       In the seminal case of Commonwealth v. Blystone, 549 A.2d 81 (Pa.

1988),5 the Pennsylvania Supreme Court addressed the constitutionality of a

warrantless recording, made by a confidential informant, while inside of the

defendant’s truck.      Id. at 86.     The defendant argued that the warrantless

consensual monitoring, as authorized by Section 5704(2)(ii), violated his

rights as guaranteed by Article I, Section 8 of the Pennsylvania Constitution.

Id. The Blystone Court acknowledged that the broader protection extended

under the Article I, Section 8, extends to “to those zones where one has a

reasonable     expectation     of    privacy.”     Blystone,   549   A.2d   at   87.


____________________________________________


5Blystone was affirmed on other grounds by Blystone v. Pennsylvania,
494 U.S. 299 (1990).

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Notwithstanding, our Supreme Court upheld the constitutionality of Section

5704(2)(ii), opining that the defendant had no reasonable expectation of

privacy once he had chosen to disclose his confidence to an informant. Id. at

87-88.

       Here, Glass not only chose to disclose his confidence to the CI, he did

so after voluntarily inviting the CI into his vehicle. As our Supreme Court has

long recognized, “one’s expectation of privacy with respect to an automobile

is   significantly   less   than    that    relating   to   one’s   home   or   office.”

Commonwealth v. Holzer, 389 A.2d 101, 106 (Pa. 1978) (emphasis in

original); accord Commonwealth v. Bosworth, 456 A.2d 661, 663-64 (Pa.

Super. 1983). As in Blystone, once Glass opened the automobile to the CI,

he risked that everything taking place within the vehicle would be recorded

and given to the Detectives.         Glass therefore relinquished his reasonable

expectation of privacy, and the protections of the Fourth Amendment and

Article I, Section 8 of the Pennsylvania Constitution. Accordingly, Glass is not

entitled to relief on this claim.

       In Issue (B), Glass claims that the Commonwealth failed to obtain the

necessary authorization for the Detectives’ use of a covert audio recording

device that included a GPS location tracker. Brief for Appellant at 35. Glass

relies on this Court’s holding in Burgos, Section 5761, and the decision of the

United States Supreme Court in Jones to support his claim. Brief for Appellant

at 35. Glass posits that, “[a]lthough the device used in the present matter


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was a Sur-Tec device that includes GPS tracking capabilities, and was not a

device which permits the tracking only of the movement of a person or object,

… the dual capabilities of the device should not preclude the application of the

requirements of Section 5761 [of the Wiretap Act].” Id. at 37.

      Once again, we are called upon to interpret provisions of the Wiretap

Act. Section 5761 pertaining to the use of mobile tracking devices, provides,

in relevant part, as follows:

      § 5761. Mobile tracking devices.

      (a) Authority to issue. — Orders for the installation and use of
      mobile tracking devices may be issued by a court of common
      pleas.

                                     ***

      (c) Standard for issuance of order. — An order authorizing
      the use of one or more mobile tracking devices may be issued to
      an investigative or law enforcement officer by the court of
      common pleas upon written application. Each application shall be
      by written affidavit, signed and sworn to or affirmed before the
      court of common pleas. The affidavit shall:

      (1) state the name and department, agency or address of the
      affiant;

      (2) identify the vehicles, containers or items to which, in which or
      on which the mobile tracking device shall be attached or be placed,
      and the names of the owners or possessors of the vehicles,
      containers or items;

      (3) state the jurisdictional area in which the vehicles, containers
      or items are expected to be found; and

      (4) provide a statement setting forth all facts and circumstances
      which provide the applicant with probable cause that criminal
      activity has been, is or will be in progress and that the use of a


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      mobile tracking device will yield information relevant to the
      investigation of the criminal activity.

18 Pa.C.S.A. § 5761(a), (c). The term “tracking device” is defined by the

Wiretap Act as “[a]n electronic or mechanical device which permits only the

tracking of the movement of a person or object.” Id. § 5702 (emphasis

added).

      As Detective Munley explained during the suppression hearing, the Sur-

Tec device is “a recording device and a GPS device.”       N.T. (Suppression),

4/4/17, 4 (emphasis added). The Sur-Tec device did not record the path in

which the recorder was taken. Id. The Sur-Tec device tracked the location

of the CI, “for safety purposes.” Id. The Sur-Tec device was not attached to

Glass’s car, but consensually placed “on the CI’s person.” Id.

      Thus, the Sur-Tec device is not a “tracking device,” pursuant to Section

5702, because it did not “only” track “the movement of a person or object.”

See 18 Pa.C.S.A. § 5702. We cannot disregard the legislature’s use of the

term “only,” in defining a “tracking device.” 1 Pa.C.S.A. § 1921(b); see also

Taylor, 841 A.2d at 111-12 (cautioning that, “[a]s a general rule[,] courts do

not have the power to ignore clear and unambiguous statutory language in

pursuit of a statute’s alleged or perceived purpose.”).

      In addition, Glass’s reliance upon this Court’s decision in Burgos affords

him no relief.   In Burgos, the Commonwealth challenged the grant of a

suppression motion, where evidence was derived from the use of a GPS device

placed on the defendant’s automobile.        Burgos, 64 A.3d at 643.        The

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defendant sought suppression based upon the decision of the United States

Supreme Court in Jones.6            This Court agreed that the attachment and

monitoring of a GPS device on the defendant’s vehicle constituted a “search”

under the Fourth Amendment to the United States Constitution. Burgos, 64

A.3d at 652. This Court further agreed that police officers “needed probable

cause to install and monitor the GPS tracker to the [defendant’s] car.” Id.

Ultimately, this Court concluded that the wiretap order secured by police

served the functional equivalent of a traditional search warrant. Id. at 655.

       Here, the Detectives did not attach a GPS device to Glass’s automobile.

Rather, the CI carried a Sur-Tec device, which recorded audio and included

location tracking for the informant’s safety. Unlike the facts in Burgos, the

Sur-Tec device did not track Glass or his vehicle. Rather, it recorded the audio

and location of the CI, and the CI had consented to its use.          Thus, the

circumstances presented in Burgos are clearly distinguishable from those in

the instant case.

       Because the Sur-Tec device is not a “tracking device,” as defined by the

Wiretap Act, the requirements of 18 Pa.C.S.A. § 5761, which pertain to mobile

“tracking devices,” are inapplicable, and Glass’s contention in this regard lacks

merit. See 18 Pa.C.S.A. § 5702 (defining “tracking devices”).


____________________________________________


6 In Jones, the United States Supreme Court held that the government’s
installation of a GPS device on a target’s vehicle, and its use of that device to
monitor the vehicle’s movements, constituted a “search” under the federal
Constitution. Jones, 565 U.S. at 404.

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      In Issue (C), Glass argues that detectives’ search of his vehicle

constituted an illegal search pursuant to the Pennsylvania and United States

Constitutions. Brief for Appellant at 44. Glass contends that the authorities

lacked probable cause to search his vehicle pursuant to the vehicle exception

to the search warrant requirement. Id. at 45. Because authorities did not

first secure a search warrant, Glass asserts, the evidence seized from the

vehicle must be suppressed. Id.

      Both the Fourth Amendment of the United States Constitution, and

Article I, Section 8 of the Pennsylvania Constitution generally require that,

prior to conducting a search of an individual or his or her property, the police

must obtain a warrant, supported by probable cause and issued by a neutral

magistrate. Commonwealth v. Arter, 151 A.3d 149, 153 (Pa. 2016). “This

rule is subject to limited exceptions, such as the existence of exigent

circumstances.” Id.

      With respect to a warrantless search of a vehicle, Pennsylvania’s law is

“coextensive” with federal law under the Fourth Amendment of the U.S.

Constitution. In Commonwealth v. Gary, 91 A.3d 102 (Pa. 2014) (opinion

announcing the judgment of the court), the Pennsylvania Supreme Court

adopted the federal automobile exception to the warrant requirement, which

allows officers to search a motor vehicle when there is probable cause to do

so, and does not require any exigency beyond the inherent mobility of the




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motor vehicle. Id. at 104. Therefore, “[t]he prerequisite for a warrantless

search of a motor vehicle is probable cause to search.” Id. at 138.

      Probable cause exists where the facts and circumstances within the

officer’s knowledge are sufficient to warrant a person of reasonable caution to

believe that a defendant has or is committing an offense. Commonwealth

v. Runyan, 160 A.3d 831, 837 (Pa. Super. 2017) (citation omitted). “The

evidence required to establish probable cause for a warrantless search must

be more than a mere suspicion or a good faith belief on the part of the police

officer.” Id. The well-established standard for evaluating whether probable

cause exists is consideration of the “totality of the circumstances.” Id.

      In its Opinion, the suppression court found that the requirements of the

automobile exception had been met:

      A controlled purchase of narcotics was set up between the CI and
      [Glass] using intercepted communications. [The] Detectives
      observed the CI as the alleged narcotics transaction took place.
      [Glass] fled the scene once officers attempted to take him into
      custody. During the search of his person incident to arrest,
      [d]etectives located currency[,] which did not include the
      prerecorded “buy” money[,] and suspected marijuana. Officers
      had probable cause to believe that evidence of the narcotics
      transaction, specifically the “buy money[,] was located within
      [Glass’s] vehicle….

Suppression Court Opinion, 8/23/17, at 11. The suppression court’s findings

are supported in the record.      See id.    Thus, under the totality of the

circumstances, the search of the vehicle was supported by the requisite

probable cause. Consequently, we cannot grant Glass relief on his claim.




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      In Issues (D), Glass claims that the trial court’s verdicts as to the

charges of possession with intent to deliver and possession of controlled

substances were contrary to the weight of the evidence. Brief for Appellant

at 46. According to Glass, the authorities lacked probable cause to arrest him.

Id. at 48.   Again, Glass claims that the probable cause to arrest him was

“entirely insufficient from [authorities’] failure to investigate him beyond what

the [CI] provided and because of the illegal interception of audio from the

device place[d] on the [CI].”     Id.    Glass posits that “[i]f this evidence is

suppression, … the guilty verdicts were contrary to the evidence.” Id. Glass

analyzes the evidence excluding the intercepted communications to argue that

the verdict is against the weight of the evidence. See id. at 48 (arguing that

no witnesses observed Glass throw contraband, and no cocaine or buy money

was found on his person).

      As this Court has recognized, “[t]he weight of the evidence is exclusively

for the finder of fact[,] who is free to believe all, none or some of the evidence

and to determine the credibility of the witnesses.”         Commonwealth v.

Talbert, 129 A.3d 536, 545 (Pa. Super. 2015). Therefore,

      [a]ppellate review of a weight claim is a review of the exercise of
      discretion, not of the underlying question of whether the verdict
      is against the weight of the evidence. Because the trial judge has
      had the opportunity to hear and see the evidence presented, an
      appellate court will give the gravest consideration to the findings
      and reasons advanced by the trial judge when reviewing a trial
      court’s determination that the verdict is against the weight of the
      evidence. One of the least assailable reasons for granting or
      denying a new trial is the lower court’s conviction that the verdict


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      was or was not against the weight of the evidence and that a new
      trial should be granted in the interest of justice.

Id. at 545-46 (citation omitted).

      As set forth above, we discern no error by the suppression court in

denying Glass’s Motion to suppress the evidence. Thus, Glass’s challenge to

the weight of the evidence, premised upon the suppression of the evidence

secured as a result of the audio interception, fails.

      Finally, Glass challenges the sufficiency of the evidence underlying his

convictions. In reviewing a claim challenging the sufficiency of evidence, we

determine whether,

      viewing all the evidence admitted at trial in the light most
      favorable to the verdict winner, there is sufficient evidence to
      enable the fact-finder to find every element of the crime beyond
      a reasonable doubt. In applying the above test, we may not weigh
      the evidence and substitute our judgment for the fact-finder. In
      addition, we note that the facts and circumstances established by
      the Commonwealth need not preclude every possibility of
      innocence. 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 Commonwealth
      may sustain its burden of proving every element of the crime
      beyond a reasonable doubt by means of wholly circumstantial
      evidence. Moreover, in applying the above test, the entire record
      must be evaluated[,] and all evidence actually received must be
      considered. Finally, the finder of fact[,] while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part or none of the evidence.

Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation

omitted).




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      In support of his challenge, Glass points out that in the intercepted audio

recording, Glass agreed to sell, for $100.00, a “soft” item. Brief for Appellant

at 50. Although the CI testified that the term “soft” meant that it was not

“cooked,” Glass argues that the CI did not identify the item. Id. Glass further

argues that the officers did not see an exchange of drugs between the CI and

Glass, and the “buy money” was not found on Glass. Id. Therefore, Glass

asserts, the evidence is not sufficient to sustain his conviction. Id.

      In its Opinion, the trial court addressed Glass’s challenge to the

sufficiency of the evidence, and concluded that it lacks merit. See Trial Court

Opinion, 3/6/18, at 3-5. We agree with the sound reasoning of the trial court,

as set forth in its Opinion, and affirm on this basis with regard to Glass’s

challenge to the sufficiency of the evidence. See id.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/03/2018




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