J-S32029-18 & J-S32030-18


                               2018 PA Super 302

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
 SCOTT ALLEN SHREFFLER                   :
                                         :
                   Appellant             :         No. 1375 MDA 2017


           Appeal from the Judgment of Sentence May 26, 2017
              in the Court of Common Pleas of Mifflin County
            Criminal Division at No.: CP-44-CR-0000247-2016


 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
                                         :
             v.                          :
                                         :
 SCOTT ALLEN SHREFFLER                   :
                                         :
                   Appellant             :         No. 1376 MDA 2017


           Appeal from the Judgment of Sentence May 26, 2017
              in the Court of Common Pleas of Mifflin County
            Criminal Division at No.: CP-44-CR-0000250-2016


BEFORE:   PANELLA, J., NICHOLS, J., and PLATT*, J.

CONCURRING OPINION BY PLATT, J.:        FILED: NOVEMBER 5, 2018

     Because the Commonwealth failed to obtain an order unsealing the

memorandum of consent and approval, the court order authorizing the in-

home interception, and the affidavit of probable cause, as required by 18

Pa.C.S.A. § 5704(2)(iv), I concur in the result. I believe it unnecessary to

____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S32029-18 & J-S32030-18


address the additional provisions of the Wiretap Act set forth in the learned

Majority Opinion. The Act itself, at 18 Pa.C.S.A. § 5721.1(b)(5) and (6), limits

a motion to exclude in one-party in-home consents to claims that: “the

consent to the interception was coerced by the Commonwealth” and “the

interception was made without prior procurement of a court order or without

probable cause.” 18 Pa.C.S.A. § 5721.1(b)(5), (6).1

       Implicit in the Majority Opinion and this Concurrence is the requirement

that, on remand, the Commonwealth move to unseal these documents, and

provide them to Appellant’s counsel.             Appellant also should be given an

opportunity to amend his motion to suppress, based on anything revealed in

this discovery, and, a new suppression hearing should be held, if required.

       I agree that, by failing to provide discovery, the Commonwealth

prejudiced Appellant in his ability to challenge the probable cause requirement

for the wiretap, thus necessitating that we vacate his sentence and remand.

Accordingly, I respectfully concur in the learned Majority’s disposition.




____________________________________________


1 In Commonwealth v. Fetter, 770 A.2d 762 (Pa. Super. 2001), this Court
observed that “18 Pa.C.S.[A.] § 5704 is not subject to other sections of the
Wiretap Act, unless specifically enumerated; instead, it lists exceptions to the
generally stringent requirements for wiretaps when the interception occurs at
the direction of a law enforcement officer and one party voluntarily consents
to the interception.” Fetter, supra at 766.

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