J-S15023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    MARCUS MYERS                               :
                                               :   No. 3121 EDA 2017
                       Appellant               :

            Appeal from the Judgment of Sentence January 19, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                       No(s): CP-45-CR-0002290-2015,
                           CP-45-CR-0002291-2015


BEFORE: STABILE, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY DUBOW, J.:                                  FILED APRIL 26, 2018

        Appellant, Marcus Myers, appeals from the Judgment of Sentence

entered in the Monroe County Court of Common Pleas following his conviction

by a jury of Retaliation Against Witness, Victim or Party and Harassment1 at

Docket No. 2290 and of Fleeing or Attempting to Elude a Police Officer2 at

Docket No. 2291.3,    4   Appellant challenges the admission of evidence obtained

by wiretap interception. After careful review, we conclude Appellant waived

____________________________________________


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

2   75 Pa.C.S. § 3733(a).

3 The trial court joined these cases by Order following the Commonwealth’s
oral Motion at Appellant’s final pre-trial conference.

4 The court also convicted Appellant of nine summary traffic offenses related
to Appellant’s unsafe driving.
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his challenge by failing to raise it in a Motion to Suppress as required by

Section 5721.1 of the Wiretapping and Electronic Surveillance Control Act

(“The Wiretap Act”), 18 Pa.C.S, §§ 5703, et seq. Accordingly, we affirm.

     The facts and procedural history are as follows. On September 7, 2015,

while conducting a stationary speed detail, Patrolman Aaron Anglemyer of the

Pocono Township Police Department observed Appellant 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, Appellant failed to stop his motorcycle and fled. Patrolman Anglemyer

gave chase, but was unable to catch Appellant. Shortly thereafter, another

officer located a motorcycle and helmet matching the description of the one

driven and worn by Appellant during the chase. PENNDOT records revealed

that Appellant owned the motorcycle, and that both the motorcycle’s

registration and Appellant’s driver’s license had expired. PENNDOT records

also identified 191 Cherry Lane Road, Tannersville, Monroe County,

Pennsylvania as Appellant’s address.

     Patrolman Anglemyer commenced surveillance at 191 Cherry Lane and

spoke with two individuals standing in Appellant’s driveway, one of whom was

Robert Gerhold. Gerhold advised him that Appellant “is and has been using




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methamphetamine regularly and that this has been causing [Appellant] to act

irrationally.” Anglmeyer’s Affidavit of Probable Cause, 10/8/15, at 2.5

       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 Appellant at Appellant’s 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.6

       The Honorable Margherita Patti-Worthington granted the Application.

Relevant to the instant appeal, the court’s Order provided:

       (4) The residence of [Appellant] 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, [Appellant,] and others yet



____________________________________________


5 From speaking to Gerhold, Patrolman Anglemyer came to believe that
Gerhold may have narcotics in his car; Gerhold consented to a search of his
vehicle; and Patrolman Anglemyer found 56 grams of crystal
methamphetamine in the car, which Gerhold admitted he intended to sell to
Appellant. Police, thus, arrested Gerhold for Possession with Intent to Deliver
a Controlled Substance. N.T. Trial, 9/15/16, at 81, 126. Gerhold pleaded
guilty to this charge. Id. at 83.

6 In his Affidavit of Probable Cause, Wagner attested to the facts as set forth
supra.      See Wagner Affidavit of Probable Cause, 9/17/15, at 1-2
(unpaginated).



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       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).

Order, 9/17/15 (emphasis added).

       Gerhold agreed to permit police to record a conversation between him

and Appellant using a key chain digital audio and video recorder.7 During a

recorded conversation on September 22, 2015, Gerhold accused Appellant of

setting him up for a drug arrest and Appellant made incriminating statements

that identified himself as the driver of the motorcycle on the night of

September 7, 2015. 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 Appellant for felony Fleeing or Attempting to Elude a

Police Officer. At his arraignment that same day, Appellant 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, Appellant 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,

____________________________________________


7 See Written Consent, 9/17/15. Gerhold testified at Appellant’s trial that
Patrolman Anglemyer “brought up the possibility of [Gerhold] wearing a
wire[,]” and Gerhold “said yes.” N.T., 9/15/16, at 128.

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Appellant 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 Appellant’s

arrest on charges of Intimidation of a Witness, Retaliation Against Witness,

Victim, or Party, and Harassment.8

       On October 27, 2015, Appellant waived his arraignment and preliminary

hearing on the Intimidation of a Witness charge.9 In his signed Waiver of

Arraignment, Appellant acknowledged that the last day for him to file a timely

Omnibus Pretrial Motion was December 12, 2015. Appellant 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 Appellant became aware that

Gerhold had recorded the incriminating conversation with Appellant—

Appellant filed a Motion in Limine to Exclude the Gerhold Recording. Appellant

averred that the recording should be excluded at trial because the

Commonwealth’s intercept of the communication between Appellant and

____________________________________________


8See Anglemyer Affidavit of Probable Cause, 10/13/15, at 1 (where Patrolman
Anglemyer explained that at Appellant’s October 9, 2015 arraignment on the
Fleeing and Eluding a Police Officer charge, Appellant received a copy of the
Arrest Warrant and Affidavit of Probable Cause, which identified Gerhold as
having cooperated with the police investigation and described the contents of
the recorded September 22, 2015 conversation between Gerhold and
Appellant).

9That same day, Appellant also waived his preliminary hearing on the Fleeing
or Attempting to Elude a Police Officer charge. The trial court consolidated
Appellant’s cases for trial.

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Gerhold was illegal. He based this conclusion on alleged errors on the face of

the Wiretap Order, contending that it: (1) authorized the wiretap for

Appellant’s 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. Appellant argued that the Commonwealth’s failure to adhere

strictly to the Wiretap Order, i.e., by having the Pocono Township Police,

rather than the PSP, record the conversation at Appellant’s residence, rather

than at his business, invalidated the recording and the court should exclude it

from trial.10

       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 Wiretap Order upon which Appellant based his argument were merely

typographical in nature. Id. at 6-7. Last, the court also found that any errors

in the Order were harmless, observing that the authorizing court concluded

the Commonwealth demonstrated probable cause for the wiretap, Gerhold

consented freely to the recording, and Gerhold testified to the contents of the




____________________________________________


10Appellant does not dispute that his residential and business addresses are
one in the same. Appellant’s Brief at 7-8.


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recording at Appellant’s trial.       Id. at 8-9.    The court, thus, admitted the

recorded conversation between Appellant and Gerhold at trial.

       Following a two-day jury trial, the jury convicted Appellant of Retaliation

Against Witness, Victim or Party; Harassment; and Fleeing or Attempting to

Allude a Police Officer. On January 19, 2017, the court sentenced Appellant

to two to six years’ incarceration.            Appellant filed timely Post-Sentence

Motions, which the trial court denied on March 29, 2017.11

       On April 5, 2017, Appellant’s trial counsel filed a Petition for Withdrawal

of Appearance, which the court denied the next day, subject to reconsideration

after “perfection of any appeal filed on behalf of” Appellant. Order, 4/6/17.

On April 21, 2017, Appellant filed a counselled Notice of Appeal.

       On May 4, 2017, trial counsel renewed his request for leave to withdraw

as counsel. The trial court granted counsel’s Petition to Withdraw on May 16,

2017, and advised Appellant of his option to obtain other counsel, make an

application for counsel to the Monroe County Public Defender’s Office, or

proceed pro se.       Appellant obtained alternate counsel, who filed a timely

Pa.R.A.P. 1925(b) Statement on Appellant’s behalf. On June 19, 2017, the




____________________________________________


11 Appellant also filed a Motion for Transcripts of his trial, which the court
granted by Order dated February 2, 2017. However, after Appellant failed to
pay the transcript deposit, the court vacated the Order without prejudice on
February 17, 2017. The court noted in its March 29, 2016 Order and Opinion
denying Appellant’s Post-Sentence Motions that, at the time of its disposition,
the court did not have the benefit of the Notes of Testimony.


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trial court indicated that it would rely on its March 29, 2017 Order and Opinion

denying Appellant’s Post-Sentence Motion in lieu of a Rule 1925(a) Opinion.

      Appellant raises the following issue on appeal:

      Whether evidence obtained by wiretap interception should have
      been precluded at trial where the wiretap application and order
      were defective and, therefore, whether [Appellant] should be
      granted a new trial[?]

Appellant’s Brief at 4.

      Appellant claims the trial court should have granted his Motion for a New

Trial because the Commonwealth violated his constitutional rights by obtaining

the intercept evidence admitted at trial with an Order that did not conform to

the requirements of 18 Pa.C.S. § 5712. Appellant’s Brief at 11. Our standard

of review for a trial court’s denial of a motion for a new trial is well settled.

      We will reverse a trial court’s decision to deny a motion for a new
      trial only if the trial court abused its discretion. . . . An abuse of
      discretion exists when the trial court has rendered a judgment
      that is manifestly unreasonable, arbitrary, or capricious, has failed
      to apply the law, or was motivated by partiality, prejudice, bias,
      or ill will.

Gbur v. Golio, 932 A.2d 203, 206–07 (Pa. Super. 2007) (citations and

quotation marks omitted).

      “When reviewing a trial court’s denial of a motion in limine, this Court

applies an [ ] abuse of discretion standard of review.” Commonwealth v.

Schley, 136 A.3d 511, 514 (Pa. Super. 2016). “An abuse of discretion will

not be found based on a mere error of judgment, but rather exists where the

court has reached a conclusion which overrides or misapplies the law, or where


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the judgment exercised is manifestly unreasonable, or the result of partiality,

prejudice, bias or ill-will.” Id. (citation omitted).

       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.

       (2) The identity of, or a particular description of, the person, if
       known, whose communications are to be intercepted.

       (3) The character and location of the particular communication
       facilities as to which, or the particular place of the communication
       as to which, authority to intercept is granted.

       (4) A particular description of the type of the communication to
       be intercepted and a statement of the particular offense to which
       it relates.

       (5) The period of time during which such interception is
       authorized, including a statement as to whether or not the
       interception shall automatically terminate when the described
       communication has been first obtained.

18 Pa.C.S. §5712(a).

       Most relevant to this appeal, the Act also provides that a defendant who

wishes to challenge the constitutionality of a communications intercept must

file a Motion to Suppress.12 18 Pa.C.S § 5721.1(b), (c), (e). Here, Appellant
____________________________________________


12 See also Pa.R.Crim.P. 581 cmt. (explaining that Rule 581 “is designed to
provide one single procedure for the suppression of evidence alleged to have
been obtained in violation of the defendant’s rights). Rule 581 works in
tandem with Section 5721.1(c)(1), which provides that where, as here, a
defendant seeks to exclude evidence obtained by an allegedly materially
insufficient wiretap authorization order, the motion to exclude the evidence



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concedes that he did not file a Motion to Suppress.13 Rather, two days before

the commencement of his trial, he filed a Motion in Limine.

        We note the distinction between a motion in limine and a suppression

motion:
     A motion in limine is used before trial to obtain a ruling on the
     admissibility of evidence. It gives the trial judge the opportunity
     to weigh potentially prejudicial and harmful evidence before the
     trial occurs, thus preventing the evidence from ever reaching the
     jury. [A] suppression motion is designed to preclude evidence
     that was obtained in violation of a defendant’s constitutional
     rights, while a motion in limine precludes evidence that was
     constitutionally obtained but which is prejudicial to the moving
     party.

Commonwealth v. Reese, 31 A.3d 708, 715 (Pa. Super. 2011) (citation

omitted).

        Here, the crux of Appellant’s argument is that, because the Wiretap

Order contained the errors noted supra, the Commonwealth obtained the

wiretap evidence in violation of his constitutional rights. Appellant’s Brief at

10.     Appellant summarily concludes, therefore, that the court should have

suppressed the evidence because “such an error may not be disregarded when

ones’ fundamental constitutional rights are at stake.”     Id. at 10.14    While
____________________________________________


“shall be made in accordance with the applicable rules of procedure governing
such proceedings.” 18 Pa.C.S. § 5721.1(c)(1).

13   Appellant’s Brief at 8-9.

14 Appellant also disputes the trial court’s characterization of the Order
granting the intercept Application as containing “mere typographical errors,”
and its conclusion that any error was harmless. Appellant’s Brief at 9-10.




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Appellant concedes that the proper and exclusive remedy to challenge the

interception of a wire, electronic, or oral communication is by filing a timely

motion to suppress, he nevertheless argues that the court can consider an

untimely challenges when, as in the instant matter, it is in the “interests of

justice.” Id. at 9.15

       As discussed above, the Wiretap Act required Appellant to file a Motion

to Suppress. See 18 Pa.C.S § 5721.1(b),(c), (e). Moreover, any such Motion

should have been filed within 30 days after arraignment pursuant to

Pa.R.Crim.P. 579(A).16 Appellant’s eleventh-hour Motion in Limine was, thus,

an improper vehicle for obtaining the relief he sought.      Because Appellant

failed to file a timely “motion to the court to suppress any evidence alleged to


____________________________________________


15 Appellant cites Commonwealth v. Micklos, 672 A.2d 796 (Pa. Super.
1996) (en banc), in support of this argument; however, we find Appellant’s
reliance on Micklos misplaced. In Micklos, the Commonwealth objected to
an oral suppression motion presented by defense counsel at the close of
evidence in the defendant’s bench trial. Micklos, 672 A.2d at 802. At the
time, the trial court “questioned the timeliness of the motion[,]” but
“considered it in the interests of justice[,]” suppressed the Commonwealth’s
evidence, and dismissed the charges against the defendant. Id.

On appeal, this Court concluded that the trial court did not abuse its discretion
in allowing the defendant to present an untimely motion to suppress after both
parties had rested, but did abuse its discretion in “failing to provide the
Commonwealth with an opportunity to re-open its case.” Id. at 804. Our
review of Miklos, indicates that, although it mentions the general concept of
the “interest of justice,” it is factually and procedurally dissimilar from the
instant case and does not lend any support to the argument Appellant asserts
in this appeal.

16Pa.R.Crim.P. 579(A) requires a defendant to file an Omnibus Pretrial Motion
within 30 days after arraignment unless certain exceptions are met.

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have been obtained in violation of [his] rights[,]” Appellant waived this issue.

Pa.R.Crim.P. 581(A), (B).

      We acknowledge that Appellant attempts to overcome his waiver

problem by alleging that the “interests of justice,” as provided in Pa.R.Crim.P.

578, should excuse his having failed to file an Omnibus Pretrial Motion to

suppress the Commonwealth’s evidence.         Appellant’s Brief at 9-10, citing

Pa.R.Crim.P. 578.

      Pa.R.Crim.P. 578 requires a defendant to include all pretrial requests for

relief, including for the suppression of evidence, in one omnibus motion,

“unless otherwise required in the interests of justice.”     Pa.R.Crim.P. 578,

cmt.3.     Although the rule specifically provides that “the omnibus pretrial

motion is not intended to limit other types of motions,” including motions in

limine, it emphasizes that the “earliest feasible submissions” are encouraged.

Id. at cmt.

      Pa.R.Crim.P. 579 provides additional guidance on requests to suppress

evidence. It requires a defendant to file an Omnibus Pretrial Motion within 30

days after arraignment unless any of the following three circumstances are

present:

      (1) opportunity therefor did not exist; or

      (2) the defendant or defense attorney, or the attorney for the
      Commonwealth, was not aware of the grounds for the motion; or

      (3) the time for filing has been extended by the court for cause
      shown

See Pa.R.Crim.P. 579(A).


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       Appellant does not argue in his Brief that he did not have an opportunity

prior to September 13, 2016, to file a Motion to Suppress, that he or his

attorney was not aware of grounds for a Motion to Suppress, or that the court

permitted him an extension of time to file such Motion. Nor does he explain

how consideration of his Motion in Limine is in the interests of justice beyond

baldly claiming that errors of the kind in the court’s Wiretap Order “may not

be disregarded when one’s fundamental constitutional rights are at stake.”

Appellant’s Brief at 10.

       Following our review of the record, we conclude that none of the Rule

579(A) circumstances, which would support Appellant’s “interests of justice”

argument, were present. There is nothing in the record to justify Appellant’s

failure to file an Omnibus Pretrial Motion to suppress the Commonwealth’s

evidence.17

       Judgment of Sentence affirmed.




____________________________________________


17We agree with the trial court that, given the record in this case, even if
Appellant had not waived his issue on appeal, his claim would not merit relief
because any errors in the Authorizing Order were harmless. See Trial Ct. Op.,
3/29/16, at 8-9. See also Commonwealth v. Katze, 658 A.2d 345, 348
(Pa. 1995) (confirming that this Court may employ a harmless error analysis
when reviewing the admission of evidence obtained in violation of the Wiretap
Act and noting that “a determination that an error is harmless is not an
approval of the behavior which may have led to the error.”).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/18




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