J-S72045-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES LEE HANKINS                          :
                                               :
                       Appellant               :   No. 651 MDA 2018

             Appeal from the Judgment of Sentence March 16, 2018
    In the Court of Common Pleas of Lackawanna County Criminal Division at
                       No(s): CP-35-CR-0002596-2016

BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.

MEMORANDUM BY BOWES, J.:                                 FILED JUNE 11, 2019

        James Lee Hankins appeals from the aggregate judgment of sentence

of fifty-two to 114 months of imprisonment imposed after he was convicted of

nine crimes related to a drug sale and its aftermath. We affirm.

        The trial court summarized the underlying facts as follows.

              Detectives John Munley and Harold Zech, on September 15,
        2016, met with a confidential informant, Sean Gaiduli (hereinafter
        [referred to] as “CI”). He reported he could purchase heroin and
        crack cocaine from [Appellant]. The CI was able to give a brief
        physical description of [Appellant], as well as [Appellant]’s
        telephone number.

              [O]n September 19th the CI placed a phone call to
        [Appellant] in order to arrange the purchase quantity of heroin
        and crack cocaine. Detective Zech intercepted and recorded the
        phone conversation. Text messages were exchanged between the
        CI and [Appellant] and were shown to the detectives. Finally, the
        detectives placed an audio recording device on the CI to record
        conversations between [Appellant] and the CI. Arrangements
____________________________________________


   This matter was reassigned to this author on May 10, 2019.
J-S72045-18


      were made for the CI to make a controlled buy from [Appellant]
      at Goodfellas Pizza in the city of Scranton. Detectives and
      Scranton police officers set up surveillance at Goodfellas Pizza.
      Detective Zech drove the CI to the back of the restaurant. After
      arriving at Goodfellas, Detective Zech saw a male, later identified
      as [Appellant], arrive on scene.

            [Appellant] and the CI met behind Goodfellas Pizza. The
      police and detectives listened to their conversation via the audio
      recording device. After the transaction was completed, the CI
      gave the drugs to Detective Vincent Butkiewicz. The drugs were
      then field tested and determined to be opiates and cocaine.

            The police initiated a stop of [Appellant]. He ran from the
      police. He was ultimately arrested when the Scranton police
      chased after him. He ran into the residence of an individual
      named Kayla Askew. . . . While running [Appellant] threw his cell
      phone on the ground and the police recovered it.           It was
      determined that the cell phone number matched the number used
      to set up the drug purchase. [Appellant] was taken into custody
      in the basement of Ms. Askew’s residence. The buy money was
      found hidden in [a] Tupperware container in the basement.

Trial Court Opinion, 6/26/18, at 2-3 (citations and unnecessary capitalization

omitted).

      Appellant filed an omnibus pretrial motion seeking, inter alia, to

suppress the intercepted communications between the CI and himself, as well

as the   physical evidence seized from Appellant’s person and Ms. Askew’s

residence. The suppression motion was denied after a hearing.        The case

proceeded to a non-jury trial at which, inter alia, the CI and Detectives Zech

and Butkiewicz testified. The trial court convicted Appellant of two counts

each of delivery of a controlled substance, possession of a controlled

substance, and possession of drug paraphernalia, as well as one count each




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of criminal use of a communications facility, tampering with evidence, and

resisting arrest.

      Appellant     was   sentenced   as   noted   above   following   a   pretrial

investigation. He filed no post-sentence motion, but filed a timely notice of

appeal and court-ordered statement of errors complained of on appeal. The

trial court authored an opinion pursuant to Pa.R.A.P. 1925(a), and this matter

is ripe for our review.

      Appellant presents the following questions for our consideration, which

we have reordered for ease of disposition.

      A.    Whether the evidence was insufficient as a matter of law
            with regards to the charges of resisting arrest and
            tampering with or fabricating evidence.

      B.    Whether the suppression court erred when it denied
            Appellant’s omnibus pre-trial motion to exclude/suppress all
            evidence    derived    from    electronic   surveillance of
            conversations between Appellant and [the CI] recorded on
            September 19, 2016 under the Wiretapping and Electronic
            Surveillance Control Act, 18 Pa.C.S.A. § 5701, et seq.
            [(“Wiretap Act”)], for [various] reasons[.]

      C.    Whether the suppression court erred in refusing to suppress
            all evidence obtained from Appellant’s person and from the
            warr[a]ntless search of [Ms. Askew’s residence], when it
            was obtained as a result of a wiretap violation, and therefore
            “fruit of the poisonous tree.”

Appellant’s brief at 4-5 (unnecessary capitalization omitted).

      We begin with Appellant’s sufficiency challenge, setting forth the

relevant legal principles. Evidentiary sufficiency is a question of law, for which

our standard and scope of review are de novo and plenary, respectively.


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Commonwealth v. Williams, 176 A.3d 298, 305-06 (Pa.Super. 2017). In

order to preserve a sufficiency-of-the-evidence claim for appellate review,

when directed to file a Rule 1925(b) statement by the trial court, an appellant

“must specify the element or elements upon which the evidence was

insufficient in order to preserve the issue for appeal.”   Commonwealth v.

Hoffman, 198 A.3d 1112, 1125 (Pa.Super. 2018) (internal quotation marks

omitted). “Such specificity is of particular importance in cases where, as here,

the appellant was convicted of multiple crimes each of which contains

numerous elements that the Commonwealth must prove beyond a reasonable

doubt.” Id. (cleaned up).

      In his Rule 1925(b) statement, the only sufficiency challenge Appellant

raised was “Whether the verdicts were supported by sufficient evidence?”

Concise Statement, 5/9/18, at ¶ 4. The trial court opined that this generic

allegation of evidentiary sufficiency was inadequate to preserve any

sufficiency challenges for appeal. Trial Court Opinion, 6/26/18, at 10-11. We

agree.

      Appellant’s bald claim that the evidence was insufficient, without

identifying which element or elements of the nine different convictions he was

challenging, results in waiver. See, e.g., Commonwealth v. Williams, 959

A.2d 1252, 1258 n.9 (Pa.Super. 2008) (holding sufficiency challenge was not

preserved where appellant was convicted of murder, robbery, possessing

instruments of crime, and firearms violations, and failed to specify which


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elements he was challenging or why the evidence was insufficient). Indeed,

given that Appellant in his brief challenges only two of his nine convictions, it

would have been a substantial waste of judicial resources to have required the

trial court to have gone through the elements of all of the other convictions

and detailed where in the record the Commonwealth produced evidence to

satisfy every element of each.        As such, no relief is due on Appellant’s

sufficiency challenges.

         Appellant next claims the suppression court erred in denying his motion

to exclude all statements obtained through electronic surveillance of his

conversations with the CI. The following principles guide our review of this

issue.

               An appellate court’s standard of review in addressing a
         challenge to the denial of a suppression motion 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. Where the suppression court’s factual
         findings are supported by the record, the appellate court is bound
         by those findings and may reverse only if the court’s legal
         conclusions are erroneous. Where the appeal of the determination
         of the suppression court turns on allegations of legal error, the
         suppression court’s legal conclusions are not binding on an
         appellate court, whose duty it is to determine if the suppression
         court properly applied the law to the facts. Thus, the conclusions
         of law of the courts below are subject to plenary review.

Commonwealth v. Smith, 164 A.3d 1255, 1257 (Pa.Super. 2017) (cleaned

up).


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       Appellant claims that the suppression court erred in failing to rule that

the Commonwealth did not comply with various requirements of the Wiretap

Act. Specifically, Appellant notes the following deficiencies: “1. the intercept

was not supported by reasonable grounds to suspect criminal activity; 2. the

intercept was based upon to[o] stale information; 3. the intercept was based

upon a defective memorandum of approval; [and] 4. the memorandum of

approval was not supported by valid consent[.]”             Appellant’s brief at 4

(unnecessary capitalization omitted).          Appellant further contends that the

failure to suppress the statements was not harmless error. Id.

       The suppression court addressed Appellant’s contentions as follows.1

              The Wiretap Act generally prohibits intercepting, using or
       disclosing private communications between individuals, however,
       there are exceptions. One such exception allows for investigative
       or law enforcement officers or a 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 activity where one of the parties to the communication
       has given prior consent to such interception.           Despite this
       exception, in order to make such an interception under the
       Wiretap Act the district attorney, or an assistant district attorney
       designated in writing by the district attorney of the county wherein
       the interception is to be instituted, must review the facts and be
       satisfied that the consent is voluntary, and give their prior
       approval for the interception. Police officers must articulate
       reasonable grounds for the monitoring or the assistant district
____________________________________________


1 The suppression court noted that Appellant’s Wiretap Act claims were vague,
but addressed them nonetheless. Suppression Court Opinion, 12/15/17, at
14. We conclude that Appellant sufficiently identified challenges to the
voluntariness of the CI’s consent and the adequacy of the paperwork in the
lower court to preserve them for our review. See, e.g., Brief in Support of
Amended Omnibus Pretrial Motion, 8/3/17, at 14-15; N.T. Omnibus Hearing,
9/29/17, at 16-19.

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     attorney mast verify that these reasonable grounds exist. . . .
     [N]either the Wiretap Act or relevant case law requires that a
     memorandum of consent be executed by the proper authority.
     Surveillance conducted with the consent of a party to the
     conversation is not subject to the exacting standards of
     authorization required for non-consensual surveillance under the
     Wiretap Act.

           In regards to consent, a totality of the circumstances must
     be considered when determining whether a party freely provided
     knowing, intelligent, and voluntary consent. The fact that an
     Assistant District Attorney determines the voluntariness of the
     confidential informant’s consent and approved the intercept over
     the phone does not violate the requirements of [the Wiretap Act].

            . . . The Wiretap Act requires only that where suspected
     criminal activity is involved, the district attorney review the facts
     and be satisfied that consent is voluntary, and give prior approval
     for the interception.      As stated supra the court finds the
     Commonwealth properly adhered to the Wiretap Act
     requirements.      Detective Zech testified that upon receiving,
     information from the [CI] about a black male with a stocky build
     and dread-locked hair known as “D –Brown” selling narcotics and
     crack cocaine in the Scranton area, he had the [CI] consensualized
     so that all communications between the [CI] and D-Brown could
     be intercepted, including the phone calls, text messages, and
     covert audio recording device. The Commonwealth presented a
     memorandum of approval, a memorandum of consent, and a
     memorandum of interception. The [CI] was consensualized by
     ADA Brian Gallagher. The information was relayed to ADA
     Gallagher who interviewed the [CI] and determined his/her
     consent was voluntary. Based on his review of the facts and the
     [CI]’s consent he authorized detectives to intercept and record
     phone calls with [Appellant] and/or anyone who may be working
     with him to make the intended drug transaction. As such, the
     interception/recording of the [CI]’s phone calls were justified
     based on compliance with the Wiretap Act requirements. The
     court’s review of the facts indicates that the actions of
     Lackawanna County District Attorney’s office followed the
     directives of the statute.

Suppression Court Opinion, 12/15/17, at 13-15 (citations, quotation marks,

and unnecessary capitalization omitted).

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      Following a review of the certified record and the applicable law, we

conclude that Appellant’s Wiretap Act claims warrant no relief based upon the

suppression court’s disposition of them on the merits. See also 18 Pa.C.S.

§ 5704(2)(ii) (providing that it is not unlawful and no prior court approval is

necessary for interception of communications where one of the parties has

consented and, inter alia, the ADA “has reviewed the facts and is satisfied that

the consent is voluntary and has given prior approval for the interception”);

Commonwealth v. McMillan, 13 A.3d 521, 525 (Pa.Super. 2011) (holding

the relevant section of the Wiretap Act has no temporal restrictions, such that

police had reasonable grounds to conclude defendant would discuss past

sexual abuse of minor during consensual intercepted phone call although the

defendant had not had contact with the minor for more than one and one-half

years).

      With his last issue, Appellant contends that the physical evidence

obtained from Appellant and from the search of Ms. Askew’s residence should

have been suppressed as fruit of the poisonous tree. Appellant’s brief at 28-

30. “The fruit of the poisonous tree doctrine excludes evidence obtained from,

or acquired as a consequence of, lawless official acts.” Commonwealth v.

Torres, 177 A.3d 263, 276 (Pa.Super. 2017) (cleaned up). “A fruit of the

poisonous tree argument requires an antecedent illegality.” Id.

      Appellant cites the alleged Wiretap Act violations as the antecedent

illegality through which the Commonwealth ultimately obtained the physical


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evidence at issue. However, because Appellant failed to establish that there

were Wiretap Act violations, the fruit-of-the-poisonous-tree doctrine does not

warrant suppression of the physical evidence obtained thereafter.

      Accordingly, we conclude that Appellant has proffered no properly-

preserved claim of error that merits relief from this Court.

      Judgment of sentence affirmed.

      Judge Shogan joins the memorandum.

      Judge Kunselman concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 06/11/2019




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