                                [J-82-2019]
                  IN THE SUPREME COURT OF PENNSYLVANIA
                             WESTERN DISTRICT

  SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.


COMMONWEALTH OF PENNSYLVANIA,                :   No. 34 WAP 2018
                                             :
                    Appellee                 :   Appeal from the Order of the Superior
                                             :   Court entered March 26, 2018 at No.
                                             :   1818 WDA 2016, reversing the Order
             v.                              :   of the Court of Common Pleas of
                                             :   Allegheny County entered October 31,
                                             :   2016 at No. CP-02-CR-0003369-2016
JAMES T. BYRD, A/K/A AL-TARIQ                :   and remanding.
SHARIF ALI BYRD,                             :
                                             :   SUBMITTED: October 15, 2019
                    Appellant                :


                                      OPINION


JUSTICE MUNDY                                               DECIDED: JULY 29, 2020
      In this appeal, we are asked to examine the mutual consent exception to the

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

§ 5704(4). For the reasons that follow, we hold that prior consent under the mutual

consent exception is based on whether an individual knew or should have known they

were being recorded.

      In April 2015, Appellant, James T. Byrd, a/k/a/ Al-Tariq Sharif Ali Byrd, moved in

with Dana Heaps after being released on bail for charges filed in February, 2015 that

are unrelated to this case. While residing with Heaps, Appellant learned she was taking

Seroquel, a prescription anti-psychotic medication.      Appellant observed that the

medication made her drowsy, and told Heaps that he did not approve of her taking the

medicine. He thereupon took the Seroquel away from her in order to control when she
could take the medication. Unbeknownst to Heaps, on an occasion in mid-May 2015,

Appellant apparently gave Heaps a larger dose than was prescribed, causing Heaps to

become unconscious.

      Later in May, Appellant showed Heaps, and her friend, Carlos Dukes, a cell

phone video of Heaps in her state of unconsciousness on the aforementioned occasion.

As recounted by Heaps, the video showed Appellant removing her clothes, rubbing his

penis on her face, inserting his penis in her mouth, and engaging in vaginal and anal

intercourse with her, all while she remained unconscious. Heaps later told investigating

officers that Appellant told her the video should serve as a warning to her on the

dangers of taking Seroquel.

      On June 9, 2015, Appellant was arrested on a parole violation warrant issued by

the State of Ohio and recommitted to the Allegheny County Jail. Between June 2015

and February 2016, while incarcerated at the jail, Appellant received several visits from

Heaps.   At the time, all visits at the Allegheny County Jail were conducted over a

closed-circuit system using telephone-like handsets. The visitor entered the visitor’s

room, and sat at a glass partition with a handset. The inmate receiving the visitor was

seated on the other side of the partition with a second handset. To communicate, an

inmate picked up the handset and typed in his or her jail identification number. The

system then produced a verbal alert that said, “your call is being processed.” Before the

parties were connected to speak, another verbal alert advised, “this call may be

monitored or recorded.” Suppression Hearing, N.T., 10/31/16 at 12. Appellant and

Heaps communicated via this system each time Heaps visited him at the jail.

      In early 2016, Heaps, her boyfriend, and her family, contacted the Duquesne

Police Department to report that Appellant was threatening them through phone calls




                                     [J-82-2019] - 2
from the Allegheny County Jail.1 As part of its investigation, officers from the Duquesne

Police Department interviewed Heaps.        During the interview, Heaps indicated she

feared Appellant and had only allowed him to live with her because she felt she had no

choice. Heaps also recounted to police details of the video Appellant had showed her

of the sexual assaults he committed against her while she was unconscious.            The

officers subsequently interviewed Dukes, who corroborated Appellant’s account. In its

investigation of these new allegations, the Commonwealth obtained the recordings of

the conversations between Appellant and Heaps made during her jail visits. In one

particular conversation from a visit on February 17, 2016, Appellant and Heaps

discussed the May 2015 assault.

      As a result of its investigation, the Commonwealth charged Appellant in the

instant case with one count of rape of an unconscious victim, two counts of involuntary

deviate sexual intercourse of an unconscious victim, two counts of aggravated indecent

assault of an unconscious victim, two counts of terroristic threats, and one count each of

stalking, indecent assault of an unconscious person, invasion of privacy, and persons

not to possess firearms.2

      Appellant filed a motion to suppress the recordings of the jail visit conversations

obtained by the Commonwealth.        Appellant averred the recordings were made in

violation of the Wiretap Act, 18 Pa.C.S. §§ 5703-5728. Section 5703 of the Wiretap Act

prohibits a person from intercepting “any wire, electronic or oral communication,” except

1 No phone calls placed by Appellant from the jail to anyone outside the jail are at issue
in this matter. The issue in this appeal is confined to the validity of suppression of
conversations that took place at the Allegheny County Jail between Appellant and
Heaps during her visits.
2 18 Pa.C.S. §§ 3121(a)(3), 3123(a)(3), 3125(a)(4), 2706(a)(1), 2709.1(a)(1),
3126(a)(4), 7507.1(a)(1), and 6105(a)(1), respectively.




                                     [J-82-2019] - 3
as provided elsewhere in the Act. 18 Pa.C.S. § 5703.3 Section 5704 enumerates the

exceptions to the Act. Relevant to this appeal are Section 5704(4), the mutual consent

exception,     and   Section   5704(14),   the     correctional   facility   exception.4   The


3   § 5703. Interception, disclosure or use of wire, electronic or oral communications

                Except as otherwise provided in this chapter, a person is
                guilty of a felony of the third degree if he:

                (1) intentionally intercepts, endeavors to intercept, or
                procures any other person to intercept or endeavor to
                intercept any wire, electronic or oral communication;

                (2) intentionally discloses or endeavors to disclose to any
                other person the contents of any wire, electronic or oral
                communication, or evidence derived therefrom, knowing or
                having reason to know that the information was obtained
                through the interception of a wire, electronic or oral
                communication; or

                (3) intentionally uses or endeavors to use the contents of
                any wire, electronic or oral communication, or evidence
                derived therefrom, knowing or having reason to know, that
                the information was obtained through the interception of a
                wire, electronic or oral communication.

18 Pa.C.S. § 5703.
4   § 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:

                                             ...

                      (4) A person, to intercept a wire, electronic or oral
                      communication,     where    all   parties    to   the
                      communication have given prior consent to such
                      interception.

                                             ...

(continued…)

                                       [J-82-2019] - 4
(…continued)
            (14) An investigative officer, a law enforcement officer or
            employees of a county correctional facility to intercept,
            record, monitor or divulge any telephone calls from or to an
            inmate in a facility under the following conditions:

                   (i) The county correctional facility shall adhere to the
                   following    procedures       and    restrictions   when
                   intercepting, recording, monitoring or divulging any
                   telephone calls from or to an inmate in a county
                   correctional facility as provided for by this paragraph:

                          (A) Before the implementation of this
                          paragraph, all inmates of the facility shall be
                          notified in writing that, as of the effective date
                          of     this    paragraph,      their    telephone
                          conversations may be intercepted, recorded,
                          monitored or divulged.

                          (B) Unless otherwise provided for in this
                          paragraph, after intercepting or recording a
                          telephone       conversation,         only    the
                          superintendent, warden or a designee of the
                          superintendent or warden or other chief
                          administrative official or his or her designee, or
                          law enforcement officers shall have access to
                          that recording.

                          (C) The 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.

                   (ii) So as to safeguard the attorney-client privilege, the
                   county correctional facility shall not intercept, record,
                   monitor or divulge any conversation between an
                   inmate and an attorney.

                   (iii) Persons who are calling into a facility to speak to
                   an inmate shall be notified that the call may be
                   recorded or monitored.

(continued…)

                                    [J-82-2019] - 5
Commonwealth asserted the jail visit conversations were admissible under the mutual

consent exception.

           In his suppression motion, Appellant principally relied on Commonwealth v. Fant,

146 A.3d 1254 (Pa. 2016), decided one month prior to Appellant’s suppression hearing,

in which this Court held that a jail visit conversation conducted via a telephone-like

handset does not constitute a “telephone call” as that term was used in the prior version

of the correctional facility exception. Fant, 146 A.3d at 1260. In a divided decision, this

Court held jail visit conversations do not constitute telephone calls. In reaching that

conclusion, the Majority focused on the non-involvement of a telephone company as

well as the ordinary definition of telephone call. Following our decision in Fant, the

General Assembly amended Section 5704(14), replacing the “telephone calls” phrase

throughout the exception with language permitting law enforcement or correctional

facility    employees     to   intercept   an   inmate’s     “oral   communication,   electronic

communication or wire communication” as long as the specified criteria in the Section is

met. 18 Pa.C.S. § 5704(14) (effective September 5, 2017). Nevertheless, the prior

version of the correctional facility exception was still in effect at the time the recording in

the instant matter was made.          Thus, in an attempt to analogize this case to Fant,

Appellant asserted, “Allegheny County jail uses a substantially similar system for

recording jail visit conversations and consequently any recordings of the defendant’s jail



(…continued)
                        (iv) The superintendent, warden or a designee of the
                        superintendent or warden or other chief administrative
                        official of the county correctional system shall
                        promulgate guidelines to implement the provisions of
                        this paragraph for county correctional facilities.

18 Pa.C.S. § 5704(4), (14) (effective prior to September 5, 2017).




                                           [J-82-2019] - 6
visit conversations must be suppressed.”        Motion to Suppress, 10/11/16 at 5.      A

suppression hearing was held on October 31, 2016.5 Appellant refused to leave his jail

cell to attend the hearing, and the defense did not put on any evidence.         Defense

counsel argued the Allegheny County Jail inmate visit system was substantially similar

to the Clinton County system at issue in Fant, and thus suppression was warranted

under Fant. The Commonwealth argued that the Clinton County District Attorney had

proceeded under the correctional facility exception of the Wiretap Act in Fant, and thus

it was inapplicable.    The Commonwealth asserted that under the mutual consent

exception, recording of the jail visit conversations was not unlawful when the parties had

given their prior consent.

       At the conclusion of the hearing, the suppression court granted Appellant’s

motion to suppress in its entirety. The suppression court held that based on this Court’s

decision in Fant, the Commonwealth failed to prove Appellant’s prior consent to the

interception of his jail visit conversations. Suppression Hearing, N.T., 10/31/16, at 38.

The court provided no further explanation or discussion of how it determined that Fant

controlled the question of consent.6

       On November 9, 2016, the Commonwealth filed a “Motion to Reconsider Order of

Suppression” which reasserted its argument that pursuant to the mutual consent

exception to the Wiretap Act, “inmates and visitors at the Allegheny County Jail consent

5Appellant’s suppression motion was heard in a consolidated hearing with his related
suppression motion in his case for the February 2015 charges. In that case the court
partially granted Appellant’s motion. The Commonwealth filed a separate appeal in that
matter at Docket 1817 WDA 2016. The Superior Court, in a published opinion, reversed
and remanded. See Commonwealth v. Byrd, 185 A.3d 1015 (Pa. Super. 2018).
Appellant did not file for any further appeal of that case.
6 The suppression court also failed to make any findings of fact as required by
Pennsylvania Rule of Criminal Procedure 581(I); however, the Commonwealth has not
challenged this omission.



                                       [J-82-2019] - 7
by their conduct to the interception of their conversations.” Motion to Reconsider Order

of Suppression, 11/9/16 at 7.       The Commonwealth’s motion was denied by the

suppression court.

      The Commonwealth filed a timely notice of appeal.7 The suppression court filed

an opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925(a)

outlining its basis for granting Appellant’s motion to suppress. The suppression court

first recounted the procedure used at the Allegheny County Jail during inmate visits and

the communication over a closed-circuit system using telephone-like handsets. The

court noted a recording is played stating the visit “may be monitored or recorded” but

emphasized “[t]here is nothing in the inmate handbook which indicates that the visits are

recorded and there was no testimony regarding whether [Appellant] heard the recording

before each visit.” Trial Ct. Op., 1/11/17, at 8. The suppression court credited Heaps’

testimony that she heard the recording at each visit. Accordingly, the court accepted

the presumption urged by the Commonwealth “that by beginning to speak after the

recorded statement, [Heaps] signified her consent.”          Id. at 11.     However, the

suppression court found that the Commonwealth failed to present any evidence that

Appellant heard the recording, noting “[i]t is not outside the realm of possibility that

[Appellant] did not have the receiver to his ear when the recording played, and therefore

may not have heard it.”       Id.   The suppression court also emphasized that the

Commonwealth conceded that Appellant was not given written notice that he was being

recorded, and that there was no such provision in the inmate handbook. Id. at 11-12.

Therefore, the suppression court concluded that “[b]y failing to establish that [Appellant]


7 At the conclusion of the suppression hearing, the Commonwealth indicated on the
record “that the court’s ruling substantially handicaps the prosecution . . . and the
Commonwealth intends to seek appellate review[.]” Id. at 64-65; see also Pa.R.A.P.
311(d)



                                     [J-82-2019] - 8
was aware of the recording and consented to it, the Commonwealth has not satisfied

the requirements of the mutual consent exception to the Wiretap Act.” Id. at 12. Thus,

the court urged that its decision to grant Appellant’s motion to suppress must be

affirmed.

       On appeal, the Superior Court reversed and remanded for further proceedings.

In so doing, the Superior Court noted it was limited to considering “only the evidence

from the defendant’s witnesses together with the evidence of the prosecution that, when

read in the context of the entire record, remains uncontradicted.” Commonwealth v.

Byrd, 2018 WL 1465219, at *2 (Pa. Super. Mar. 26, 2018) (unpublished memorandum)

(citing Commonwealth v. Korn, 139 A.3d 249 (Pa. Super. 2016), appeal denied, 159

A.3d 933 (Pa. 2016)).     The court further noted that the suppression court’s factual

findings are binding on the appellate court if supported by the record, but its conclusions

of law are not. Id. Ultimately, the Superior Court determined the suppression court’s

factual findings were belied by the record, and the suppression court committed an error

of law. Id. at *5.

       Specifically, the court looked to the record evidence which demonstrated

Appellant and Heaps knew they were being recorded. “We reiterate that, as the trial

court noted: (1) before an inmate and visitor can converse with one another, a recording

stating that the visit ‘may be monitored or recorded’ is played; and (2) Heaps

acknowledged at the suppression hearing that during every one of her visits . . . she

heard a recorded message that those visits would be recorded or monitored[.]”               Id.

Further, “one can readily infer that [Appellant] was aware the conversations were being

recorded as evidenced by his statements and behavior.”              Id.   For example, he

specifically told Heaps, “I’m gonna say it on the phone. I don’t give a fuck.” Id. at *3.




                                      [J-82-2019] - 9
       The Superior Court also concluded the suppression court committed an error of

law because “[t]he mutual consent exception permits interception of conversations in

instances where the defendant ‘knew or should have known, that the conversation was

being recorded.’” Id. at *5 (citing Commonwealth v. Diego, 119 A.3d 370, 377 (Pa.

Super. 2015), appeal denied, 129 A.3d 1240 (Pa. 2015)).          The court criticized the

suppression court’s “hyper-technical analysis . . . that in these instances, the

Commonwealth must always establish on the record that the inmate had the telephone

to his ear, listened to the message that announced the conversation may be recorded,

and then consented to the message.” Id. The court concluded this type of requirement

is unreasonable because “an inmate could easily avoid the consent element by simply

holding the phone away from his ear for a period of time prior to speaking with a visitor,

in order to evade hearing that message.” Id. Accordingly, the Superior Court held the

suppression court’s decision was misplaced in relation to both its findings of fact and

conclusions of law, and that the mutual consent exception to the Wiretap Act applied.

Id.   Therefore, the Superior Court reversed the order granting suppression, and

remanded the matter for further proceedings. Id.

       Appellant filed a petition for allowance of appeal, which we granted to determine

the following issues:

              i. Where an inmate defendant seeks to suppress recordings
              of his jail visit communications in a criminal proceeding, must
              the Commonwealth demonstrate that the inmate had actual
              knowledge that he was being recorded to satisfy the “prior
              consent” requirement of the [mutual] consent exception to
              the Wiretapping and Electronic Surveillance Control Act
              (“Wiretap Act”), 18 Pa.C.S. § 5704(4)?

              ii. If actual knowledge is required by the statute, did the
              Superior Court err in concluding that [Appellant] had actual
              knowledge that he was being recorded?
Commonwealth v. Byrd, 194 A.3d 561 (Pa. 2018) (per curiam).


                                     [J-82-2019] - 10
      Appellant argues the mutual consent exception to the Wiretap Act is clear and

unambiguous. Appellant’s Brief at 11. He asserts that under a plain reading of the

statute, all parties to the communication must give prior consent to such interception,

not implied consent by their purported actions. Id. at 12. Appellant asserts the cases

set forth by the Commonwealth presenting arguable exceptions to the Wiretap Act

under the mutual consent exception are distinguishable because they each involve

factual situations distinct from this case. Id. He further posits that the Commonwealth

must prove his prior consent before recording his conversations. Id. at 13. Appellant

avers, “[i]nherent in the definition of consent is the awareness and actual knowledge to

appreciate the consequences of the decision to consent, and the Commonwealth must

prove actual knowledge to avail themselves of the exception.” Id. at 13-14. Appellant

argues that neither he nor Heaps had an interest in having their conversations recorded,

but the system did not allow Appellant to deny his consent. Id. at 14. Accordingly,

Appellant argues the narrow and plain reading of the mutual consent exception to the

Wiretap Act must be construed in his favor.

      The Commonwealth responds that the “appellate courts of this Commonwealth

have ruled that the mutual consent exception permits interception of communications

where the parties knew, or reasonably should have known, that their communication

was being recorded.” Commonwealth’s Brief at 12-13.

      First, the Commonwealth cites Commonwealth v. DeMarco, 578 A.2d 942 (Pa.

Super. 1990), which involved the suppression of incriminating messages left on an

answering machine. In DeMarco, the Superior Court held that the very act of leaving a

message on an answering machine was evidence of “express consent by conduct to the

taping of that message.” Id. at 948. Next, the Commonwealth cites Commonwealth v.

Proetto, 837 A.2d 1163 (Pa. 2003), wherein the Superior Court applied the reasoning in




                                    [J-82-2019] - 11
DeMarco to email communications. In Proetto, the Court ultimately decided the emails

were not “intercepted,” but the printing of the emails for the police fell within the mutual

consent exception because anyone sending a communication over the internet would

be aware that it will be recorded and consents by conduct to the recording. This Court

affirmed the Superior Court’s holding by per curiam order. Finally, the Commonwealth

cites Commonwealth v. Diego, 119 A.3d 370 (Pa. Super. 2015), where the Superior

Court revisited the holding of DeMarco regarding text messages turned over to police.

While ultimately decided on an alternative basis, the opinion noted that Appellant had

knowledge the communication would be automatically recorded.                As such, the

Commonwealth asserts that “[b]y engaging in a conversation after receiving notice that

the conversation may be monitored or recorded, the participants consent to the

interception.” Commonwealth’s Brief at 17.

       Pertaining to the second part of Appellant’s argument, the Commonwealth

provides several examples of recordings that demonstrate Appellant had actual

knowledge that he was being recorded. Id. at 18-20. Specifically, during a jail visit with

Heaps, Appellant stated “I be wanting you to be apprised of everything and know what’s

going on, but I really can’t communicate with you like that, not here anyway[.]” Id. at 18

(citing 7/30/15 Recording). He also stated “I swear to God, and - and - I’m gonna say it

on the phone, I don’t give a fuck.”     Id. at 19 (citing 8/1/15 Recording).     Further, a

recording demonstrated Appellant and Heaps began to speak before the message

warning them it was recorded, and Heaps had to repeat herself.

              Recorded Message: Please enter your . . . (interrupted by
              touch tone entry)

              Recorded Message: Your call is being processed.

              Heaps: You look like you gaining some weight.




                                     [J-82-2019] - 12
             Recorded Message:          This call may be monitored or
             recorded.

             Heaps: You look like you gaining some weight.

             [Appellant]: Not really.
Id. at 19-20 (citing 10/26/15 Recording).          The Commonwealth asserts these

conversations indicate Appellant had actual knowledge he was being recorded. Based

on these prior cases, the Commonwealth concludes the interceptions were lawful under

the mutual consent exception to the Wiretap Act.

      Additionally, the Office of the Attorney General (OAG) filed an amicus curiae brief

in support of the Commonwealth. The OAG cites to Proetto, arguing this Court by per

curiam order held that consent under the Wiretap Act may be established by conduct

and that there was no burden to prove actual knowledge of the recording to prove

consent.   The very act of making the communication is demonstrative of express

consent. OAG’s Brief at 11 (citing Proetto, 771 A.2d at 829). The OAG also notes that

Proetto relied on DeMarco which held “any reasonably intelligent person leaving a

message on an ordinary answering machine would have to be aware of, and consented

by conduct to, the recording of the message[.]” DeMarco, 578 A.2d at 948. The OAG

further asserts a “reasonably intelligent person” is an objective standard, not a

subjective standard, thus it is not what the person “actually knew.” OAG’s Brief at 12.

Finally, the OAG notes that the Wiretap Act has been revised many times following the

aforementioned decisions, and the General Assembly has never altered the mutual

consent exception to require proof of actual knowledge. Id.

      We note “[o]ur review is limited to determining whether the record supports the

findings of fact of the suppression court and whether the legal conclusions drawn from

those findings are correct . . . . We are bound by the factual findings of the suppression

court, which are supported by the record, but we are not bound by the suppression



                                    [J-82-2019] - 13
court's legal rulings, which we review de novo.” Commonwealth v. James, 69 A.3d 180,

186 (Pa. 2013) (citing Commonwealth v. Briggs, 12 A.3d 291, 320-21 (Pa. 2011)).

       We necessarily begin our analysis with the Wiretap Act. In general, the Wiretap

Act “prohibits the interception, disclosure or use of any wire, electronic or oral

communication.” Commonwealth v. Deck, 954 A.2d 603 (Pa. Super. 2008), appeal

denied, 964 A.2d 1 (Pa. 2009). In his suppression motion, Appellant challenged the

recording of his jail visit conversations as a violation of Section 5703 of the Wiretap Act.

On appeal, the Commonwealth argued the recording was validly obtained under the

mutual consent exception to the Wiretap Act.

       Under the plain language of the mutual consent exception, “[i]t shall not be

unlawful and no prior court approval shall be required under this chapter for . . . [a]

person, to intercept a wire, electronic or oral communication, where all parties to the

communication have given prior consent to such interception.” 18 Pa.C.S. § 5704(4).

Appellant asserts to prove “prior consent” the Commonwealth must show that an inmate

has actual knowledge that he or she is being recorded. Despite this averment the

phrase “actual knowledge” does not appear in the statutory language of the mutual

consent exception and Appellant fails to argue any basis for its application as the

standard. Rather, our case law illustrates that “prior consent” can be demonstrated

when the person being recorded “knew or should have known, that the conversation

was being recorded.” Diego, 119 A.3d at 377. This standard is one of a reasonable

person, and not proof of the subjective knowledge of the person being recorded as

Appellant advocates.

       We find several previous cases on the mutual consent exception instructive. In

DeMarco, the Superior Court held “we take judicial notice of the irrefutable fact that any

reasonably intelligent person leaving a message on an ordinary answering machine




                                     [J-82-2019] - 14
would have to be aware of, and consented by conduct to, the recording of the message

on the answering machine tape.” DeMarco, 578 A.2d at 948 (emphasis in original).

This reasoning was based in part on its conclusion that, “we cannot imagine how one

could not know and intend that the message placed upon the answering machine tape

be taped, and by the very act of leaving a message, expressly consent by conduct to

the taping of that message.” Id.     As such, the court held consent can be given by

conduct, when the parties knew or should have known they would be recorded.

      Similarly, in Commonwealth v. Cruttenden, 58 A.3d 95, 98 (Pa. 2012), this Court

noted the Superior Court in Cruttenden held that “no violation of the [Wiretap] Act had

occurred by the female's saving, printing, and forwarding the communications because

the communications had been made under the mutual consent exceptions contained in

Section 5704 . . . ‘by the very act of sending a communication over the Internet, the

party expressly consents to the recording of the message.’” Id. (citing Proetto at 829).

Again, the objective reasonable person consents by proceeding with the communication

knowing it will be recorded.

      The objective standard of a “reasonably intelligent person,” who “consent[s] by

conduct” through “the very act of leaving a message” set forth in DeMarco can be

applied herein. Id. at 948. The court was not required to examine DeMarco’s subjective

knowledge prior to leaving the message on the answering machine. Similarly, our focus

is not on Appellant’s subjective knowledge before proceeding to speak with Heaps.

Rather, the standard is the objective knowledge of a reasonably intelligent person

following the warning that the call “may be monitored or recorded.” After receiving such

warning, proceeding to speak into the receiver is consent by conduct and therefore, the

recording of such interceptions are not unlawful. Notably, this is also the standard the

suppression court correctly applied in determining Heaps consented to be recorded. As




                                    [J-82-2019] - 15
such, this standard should be applied mutually to both parties’ actions acknowledging

consent to the call. Based on this conclusion, the recording warning Appellant he “may

be monitored or recorded,” and Appellant’s conduct in speaking after the warning,

satisfies the mutual consent exception to the Wiretap Act.

       Additionally, the Superior Court correctly held that the suppression court’s

reliance on Fant was inapposite. While it is true that the factual scenario in Fant is

similar to the instant matter, to wit Fant was incarcerated in a county jail and

participated in jail visits that occurred face-to-face through glass partitions using

telephone-like handsets, the recordings were suppressed as inadmissible under

5704(14) of the Wiretap Act.     Fant, 146 A.3d at 1256.     In the instant matter, the

suppression court found Fant inapplicable but then proceeded to apply the reasoning of

Fant pertaining to Section 5704(14) instead of looking to the application of Section

5704(4). As such, both Fant and the proof required under Section 5704(14) are not

relevant to our discussion.

       Based on the foregoing, we affirm Superior Court’s order reversing the order

granting Appellant’s motion to suppress and remanding for further proceedings.



       Chief Justice Saylor and Justices Baer, Todd, Donohue, Dougherty, and Wecht

join the opinion.




                                    [J-82-2019] - 16
