                           [J-46-2016] [MO: Donohue, J.]
                   IN THE SUPREME COURT OF PENNSYLVANIA
                                 MIDDLE DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                :   No. 66 MAP 2015
                                             :
                    Appellee                 :   Appeal from the Order of the Superior
                                             :   Court at No. 386 MDA 2014 dated
                                             :   February 9, 2015 Reversing the Order
             v.                              :   of the Clinton Court of Common Pleas,
                                             :   Criminal Division, at No. CP-18-CR-
                                             :   0000415-2013, dated February 26,
RAHIEM CARDEL FANT,                          :   2014.
                                             :
                    Appellant                :   SUBMITTED: March 16, 2016


                                DISSENTING OPINION


JUSTICE BAER                                           DECIDED: September 28, 2016
      I dissent from the majority’s conclusion that communications between an inmate

and his visitor at a correctional facility that are effectuated through the use of a

telephone handset do not constitute a “telephone call” subject to the exception to the

general prohibition against interception in Section 5704(14) of the Pennsylvania

Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), 18 Pa.C.S. §

5704(14).   The majority reasons that the common sense meaning of “telephone”

“requires both the dialing of a telephone number and the involvement of a telephone

company in connecting a caller to his or her call recipient.”          Slip. Op. at 18.

Respectfully, I do not read the Wiretap Act as containing these requisites. In my view,

the plain and ordinary meaning of a telephone call encompasses what occurred here,

i.e., the utilization of a telephone to transmit communications from one party to another.

Accordingly, I would affirm the order of the Superior Court, which reversed the trial

court’s order suppressing the challenged communications.
       The record establishes that Appellant was charged with aggravated assault and

related offenses after he allegedly stabbed an individual outside a bar in Clinton County.

To demonstrate Appellant’s consciousness of guilt, the Commonwealth sought to

introduce two recorded conversations, both of which occurred while Appellant and his

visitor were in the prison visitation room, separated by a glass partition, and speaking to

each other on a telephone. The Commonwealth relied upon Section 5704(14) of the

Wiretap Act, which allows officials of a “county correctional facility” to “intercept, record,

monitor or divulge any telephone calls from or to an inmate in a facility,” and states that

such recordings “shall be divulged,” inter alia, “in the prosecution or investigation of any

crime.” 18 Pa.C.S. § 5704(14).

       Appellant sought suppression of the recorded conversations (and any evidence

discovered as a result of such recordings) on the grounds that a visitor communication

that occurred without the aid of a telephone company when the parties are face-to-face

in the correctional facility, separated only by a glass partition, is not a telephone call,

particularly where the inmate does not dial a number but, rather, dials his prison

identification number to operate the telephone. The trial court agreed with Appellant

and granted suppression.

       The Superior Court reversed, finding that the trial court erred as a matter of law

in concluding that the “apparatus that resembles a telephone” is not a telephone and

that the challenged conversations are not subject to Section 5704(14)’s exception to the

prohibition against interception. Commonwealth v. Fant, 109 A.3d 775, 781 (Pa. Super.

2015). It reasoned that the Wiretap Act does not distinguish between external and

internal telephone calls from or to an inmate in a county correctional facility, and that the

motion to suppress was based upon an unwarranted distinction between the two.




                             [J-46-2016] [MO: Donohue, J.] - 2
       I would affirm the ruling of the Superior Court. I acknowledge that Appellant did

not dial a telephone number, in the conventional sense, to call his visitor on the other

side of the glass partition in the prison visitation room, but rather, inserted his prison

identification number to operate the telephone.       I further recognize that a common

carrier telephone company was not involved in the placement of Appellant’s call to his

prison visitor, although the prison’s internal telephone system was so involved.

Contrary to the majority, however, I do not interpret Section 5704(14) as setting forth

such requirements. That provision states only that “telephone calls from or to an inmate

in a facility” may be intercepted and recorded by the correctional facility and then

forwarded to law enforcement for the prosecution or investigation of any crime. It does

not require the dialing of a telephone number or the involvement of a common carrier

and does not in any way limit application of the Section 5704(14) exception to inmate

calls made to recipients outside the prison.1

1
  In support of its conclusion that the participation of a telephone company is necessary
for a telephone call to occur, the majority asserts, inter alia, that under the Wiretap Act,
a telephone call is a “wire communication” and that a “wire communication” requires the
involvement of a “telephone . . . company for hire as a communication common carrier.”
18 Pa.C.S. § 5702. See Slip Op. at 14. Section 5702’s definition of “wire
communication” does not, however, mandate that a telephone company be involved,
but rather describes a wire communication as aural transfers made through the use of
facilities for the transmission of communication by wire or cable “including the use of
such a connection in a switching station, furnished or operated by a telephone,
telegraph or radio company for hire as a communication common carrier.” 18 Pa.C.S. §
5702. Thus, a “wire communication” includes a communication facilitated by a
telephone company, but does not require a telephone company’s participation. Here,
the communication was undoubtedly a wire communication using the prison’s phone
system. See Notes of Testimony, Feb. 25, 2014, at 16 (providing that the inmate phone
company, as opposed to Verizon, records both visitor telephone calls and telephone
calls to recipients outside the facility).
       Additionally, the majority opines that because Section 5712 of the Wiretap Act
(“Issuance of order and effect”) provides that an order may direct the participation of a
telephone company in an authorized interception, “the legislature understood the term
‘telephone call,’ ordinarily, to be the sort of communication that relies on the operation of
(continuedH)

                            [J-46-2016] [MO: Donohue, J.] - 3
       Notably, the trial court used the phrase “apparatus that resembles a telephone”

to describe the instrument that visitors and inmates use to converse through the glass

partition.   In my opinion, an instrument that resembles a telephone and acts as a

telephone as it transmits the parties’ wire communications, is a telephone. The fact that

the inmate and visitor can see each other through the glass partition is of little relevance

to our inquiry when considering that the parties could not hear each other absent use of

the telephone provided.

       The majority accurately recognizes that the Wiretap Act is to be strictly

construed. However, “[t]he need for strict construction does not require that the words

of a penal statute be given their narrowest possible meaning or that legislative intent be

disregarded . . . nor does it override the more general principle that the words of a

statute must be construed according to their common and approved usage.”

Commonwealth v. Booth, 766 A.2d 843, 846 (Pa. 2001) (explaining that the rule of strict

construction only gives the offender the benefit of ambiguity and otherwise has no

effect). Here, I do not believe the term “telephone call” is ambiguous, and thus, the

Court need afford it only the fair import of the term.

       Even if one were to find the phrase “telephone call” ambiguous and proceed to

divine legislative intent, I would reach the same conclusion -- that the General Assembly

did not intend to carve an exception that would protect wire communications taking

place in a prison visitation room. The purpose of authorizing interception of the inmate’s

telephone calls is clear, i.e., to safeguard the orderly operation of the facility and the

(Hcontinued)
a telephone company.” Slip. Op. at 15. To the contrary, I do not view the General
Assembly’s authorization to direct a “provider of communication services” to cooperate
with law enforcement authorities as a limitation on the ordinary meaning of a “telephone
call.” In fact here, as noted, all internal and external calls were monitored by or through
the prison’s phone system.



                             [J-46-2016] [MO: Donohue, J.] - 4
prosecution or investigation of any crime. See 18 Pa.C.S. § 5704(14)(i)(C) (providing

that “[t]he contents of an intercepted and recorded telephone conversation shall be

divulged only as is necessary to safeguard the orderly operation of the facility, in

response to a court order or in the prosecution or investigation of any crime”). As the

Commonwealth points out, if visitor telephone calls could not be monitored and

recorded, inmates could freely use them to conspire with others to hide or destroy

evidence, influence witnesses, smuggle contraband, or plot an escape.

      Finally, even assuming the challenged recordings do not fall under the inmate

telephone call exception to the general rule against interception, I do not believe that

reinstatement of the trial court’s suppression order is the appropriate remedy at this

stage of the proceeding. In its appeal to the Superior Court, the Commonwealth raised

two issues in addition to challenging the trial court’s ruling that the conversations were

not telephone calls. One of the additional issues was whether the trial court erred in

granting suppression absent a finding that Appellant had an expectation of privacy in

the correctional facility visitation calls.2 Because the Superior Court found that the

recordings at issue constituted inmate telephone calls that could be lawfully intercepted,

the court declined to address the Commonwealth’s additional issues.                  See

Commonwealth v. Fant, 109 A.3d at 781 n.5 (noting that “[b]ecause our resolution of the

Commonwealth's first issue enables us to dispose of the matter before us, it is not

necessary to address separately the Commonwealth's remaining issues”). Thus, upon

reversal of the Superior Court’s ruling that the recordings constitute inmate telephone




2
  The third issue concerned whether the trial court erred in suppressing Appellant’s
personal belongings.



                           [J-46-2016] [MO: Donohue, J.] - 5
calls that were lawfully intercepted, a remand to that court is warranted to allow for

disposition of the Commonwealth’s remaining issues.3

      Justice Mundy joins this dissenting opinion.




3
   In footnote twelve, the majority references the suppression court’s conclusion that
Appellant had an expectation of privacy and notes that the Commonwealth does not
argue to the contrary. See Slip. Op. at 20 n.13. The Superior Court, however, has held
that any expectation of privacy that an inmate has in a conversation taking place in a
prison visitation room, when separated from the visitor by a glass partition and speaking
with the visitor through a closed-circuit telephone system, is unreasonable. See
Commonwealth v. Prisk, 13 A.3d 526, 532 (Pa. Super. 2011) (holding that it is
unreasonable for an inmate to expect privacy in his conversations that take place in the
prison visitation room as such an expectation of privacy is not one that society is
prepared to recognize). Moreover, whether an individual has a reasonable expectation
of privacy is a conclusion of law subject to plenary review by an appellate court.
Commonwealth v. Duncan, 817 A.2d 455, 459 (Pa. 2003).



                           [J-46-2016] [MO: Donohue, J.] - 6
