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Commonwealth v. Katona

Superior Court of Pennsylvania

June 14, 2018


          Appeal from the Judgment of Sentence November 10, 2014 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0002549-2011



          BOWES, J.

         Dennis Andrew Katona appeals from the judgment of sentence of forty to eighty months incarceration, imposed following his stipulated non-jury trial convictions for two counts of possession with intent to deliver and two counts of possession of a controlled substance. Appellant attacks the constitutionality of the search warrant, which led to the recovery of drugs, currency, and other items, as well as the sufficiency of the evidence. We affirm.

         The facts germane to Appellant's issues largely concern the affidavit of probable cause for the anticipatory search warrant, which was executed at Appellant's residence on June 29, 2011. That application set forth the following. Beginning in 2009, the Pennsylvania State Police ("PSP") utilized a confidential informant ("CI") who was a member of the Pagan Motorcycle Club, and who had previously provided reliable information. On April 28, 2011, the CI informed the lead investigator, Pennsylvania State Police Trooper Matthew Baumgard, that Appellant, whom the CI identified as a member of the Pagan Motorcycle Club, unexpectedly arrived at his home and offered to sell him three one-half ounce packages of cocaine for $650 per package. The CI declined, stating that he had just purchased cocaine from "Tony" and was dissatisfied with the quality. The CI contacted the authorities to report this development.

         On May 16, 2011, the CI informed Trooper Baumgard that Appellant had invited him to Appellant's home. Upon arrival, Appellant showed the CI one-half pounds of cocaine. Appellant said he obtained the package due to the CI's dissatisfaction with Tony's product, and offered him the entire package in exchange for $5, 000 paid over time. The CI agreed and took the cocaine, which he then turned over to the authorities.

         Based on this information, the authorities applied for an order authorizing a consensual wiretap of conversations occurring inside Appellant's residence pursuant to 18 Pa.C.S. § 5704(2)(iv), with the CI agreeing to wear a recording device.[1] The order was granted later that day, and, significant to Appellant's challenges on appeal, authorized continuous interception of all in-home conversations for a period of thirty days. The Commonwealth also obtained an extension of the order after the thirty days expired.

         Thereafter, the CI made several visits to Appellant's home and recorded the ensuing conversations. On May 16, 20, 25, and 31, 2011, the CI went to Appellant's home and delivered cash provided by the authorities to Appellant in installments. Officers surveilled Appellant's home during each meeting, and met with the CI afterwards to discuss what occurred and retrieve the recordings.

         Next, on June 9, 2011, Appellant gave the CI two more ounces of cocaine in exchange for his agreement to deliver payment over time. Additionally, Appellant offered to sell the CI methamphetamine for $1, 300 per ounce. Later that evening, Appellant arrived at the CI's doorstep and delivered the methamphetamine.

         On June 13, 2011, the CI paid cash to Appellant for the cocaine that was supplied on June 9, 2011. Additionally, on June 15, 2011, Appellant supplied more cocaine, which the CI then paid for on June 20, 2011.[2]Similarly, on June 22, 2011, Appellant gave the CI more cocaine at Appellant's residence.

          On June 27, 2011, the CI visited Appellant's home and paid for the cocaine received five days prior. During this meeting, Appellant indicated that he would once again have a quantity of cocaine and methamphetamine available for pickup on June 29, 2011. On the basis of the foregoing information, Trooper Baumgard requested an anticipatory search warrant for Appellant's home, which was to be executed upon Appellant's contact with the CI on the 29th.

         On June 29, 2011, Appellant called the CI and informed him that he was at home. Trooper Baumgard authorized the execution of the search warrant, which yielded the following items from the master bedroom: a United American bank bag containing drugs, a briefcase containing drugs in a separate bank bag, a digital scale, and a black accordion file next to the bed containing documents and mail establishing that Appellant and his wife lived at the home. A total of 84.2 grams of cocaine was seized in addition to 99.64 grams of methamphetamine. The parties stipulated to the recovery of these items following the search warrant, as well as to expert testimony that, based on all the circumstances, the drugs were possessed with the intent to deliver. Appellant was found guilty of all charges and received the aforementioned sentence. Appellant presents the following issues for our review.

I. Whether the June 29, 2011 search warrant for Appellant's home was rendered invalid because it relied almost exclusively on an order or search warrant as described in Commonwealth v. Brion, 539 Pa. 256, 652 A.2d 287 (1994) and as codified in 18 Pa.C.S. § 5704(2)(iv) which order or warrant allowed for, inter alia, unlimited intercepts over a period of thirty days, as opposed to allowing only a single intercept?
II. Whether the June 29, 2011 search warrant was invalid because it failed to meet the specific requirements of an anticipatory warrant?
III. Whether the Commonwealth presented sufficient evidence of possession to sustain the conviction against appellant?

         Appellant's brief at 3.

         We address Appellant's third issue first, since a successful sufficiency of the evidence charge requires discharge. Commonwealth v. Toritto, 67 A.3d 29 (Pa.Super. 2013). Our standard of review is well-settled. Whether the evidence was sufficient to sustain the charge presents a question of law. Our standard of review is de novo and our scope of review is plenary. Commonwealth v. Walls, 144 A.3d 926 (Pa.Super. 2016). In conducting our inquiry, we

examine whether the evidence admitted at trial, and all reasonable inferences drawn therefrom, viewed in the light most favorable to the Commonwealth as verdict winner, support the jury's finding of all the elements of the offense beyond a reasonable doubt. The Commonwealth may sustain its burden by means of wholly circumstantial evidence.

Commonwealth v. Doughty, 126 A.3d 951, 958 (Pa. 2015).

         Herein, Appellant's sufficiency challenge is limited to whether the Commonwealth presented sufficient facts to sustain a finding that he possessed the drugs beyond a reasonable doubt. Appellant argues that the evidence only establishes that he was present in the same residence where the drugs were found. It is true that mere presence cannot sustain a finding of possession. However, the Commonwealth is not required to show actual physical possession of the drugs. Constructive possession is sufficient, which is an inference arising from a set of facts that possession of the contraband was more likely than not. We have

defined constructive possession as "conscious dominion." We subsequently defined "conscious dominion" as the power to control the contraband and the intent to exercise that control. To aid application, we have held that constructive possession may be established by the totality of the circumstances.

Commonwealth v. Muniz, 5 A.3d 345, 348-49 (Pa.Super. 2010) (citation omitted); Commonwealth v. Harvard, 64 A.3d 690, 699 (Pa.Super. 2013) ("In order to prove that a defendant had constructive possession of a prohibited item, the Commonwealth must establish that the defendant had both the ability to consciously exercise control over it as well as the intent to exercise such control."). The intent to exercise control over a piece of contraband can be proven by circumstantial evidence and all the circumstances in question. Muniz, supra.

         Appellant argues that the Commonwealth could not establish possession because he was merely present and "there is no evidence regarding how long [Appellant] had been at the residence prior to law enforcement's arrival." Appellant's brief at 54 (emphasis in original). We do not find that this fact precludes a finding of possession. It would be rather remarkable to conclude that an unknown party secreted, without Appellant's knowledge, approximately 200 grams worth of drugs in his master bedroom. Additionally, Appellant highlights that his wife was present, suggesting that she may have possessed the drugs without Appellant's knowledge. However, our law holds that two persons may constructively possess the same item. See Commonwealth v. Macolino, 469 A.2d 132 (Pa. 1983) (constructive possession in one defendant where both husband and wife had equal access to an area where the contraband was found); Commonwealth v. Valette, 613 A.2d 548, 550 (Pa. 1992) ("Constructive possession may be found in one or more actors where the item in issue is in an area of joint control and equal access."). We find that, when viewed in the light most favorable to the Commonwealth, the totality of the circumstances established that Appellant constructively possessed the drugs.

         We now address Appellant's averment that the search warrant was defective. "The ultimate issue in a suppression hearing is whether the police officer affiants had probable cause at the time they applied for a search warrant." Commonwealth v. Luton, 672 A.2d 819 (Pa.Super. 1996).

[T]he Commonwealth has the burden of proving that the facts presented to the magistrate demonstrate probable cause. The standard for evaluating whether probable cause exists for the issuance of a search warrant is the "totality of the circumstances" test as set forth in Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983), which was adopted by the Pennsylvania Supreme Court in Commonwealth v. Gray, 509 Pa. 476, 484, 503 A.2d 921, 925 (1985). A magistrate is to make a "practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." The information offered to establish probable cause must be viewed in a common sense, non-technical manner and deference must be given to the issuing magistrate. It must be remembered that probable cause is based on a finding of the probability of criminal activity, not a prima facie showing of criminal activity.

Id. at 821-22 (some citations omitted).

         Appellant's primary issue concerns whether the warrant application could lawfully include the information learned from the in-home conversations which were recorded by the CI. Appellant challenges the statutory authorization for the consensual recordings, which Appellant maintains were necessary to sustain the warrant. "When the . . . paragraphs which specifically rely upon the illegal in-home intercepts are redacted from the affidavit, no present probable cause exists[.]" Appellant's brief at 33 (emphasis in original).

         We agree that if the information gleaned from Appellant's conversations with the CI was obtained in violation of Appellant's constitutional rights, those portions must be excised from the warrant. See Commonwealth. v. Gindlesperger, 706 A.2d 1216, 1224 (Pa.Super. 1997), affirmed, 743 A.2d 898 (Pa. 1999) (use of thermal imaging device was unconstitutional search and therefore that information must be omitted when examining whether search warrant was valid). Appellant's challenge to the recordings relies on both statutory and constitutional grounds. We first turn our attention to the Wiretapping and Electronic Surveillance Control Act (hereinafter "the Act"), 18 Pa.C.S. §§ 5701-5782.


         The Wiretap Act

         The Act prohibits the intentional interception of any oral communication unless all parties consent to the recording. 18 Pa.C.S. § 5703. The Act sets forth a number of exceptions, including an exception for consensual interceptions authorized by one party to the conversation, subject to the following requirements:

It shall not be unlawful and no prior court approval shall be required under this chapter for:
. . . .
(2) Any investigative or law enforcement officer or any 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 activities, including, but not limited to, the crimes enumerated in section 5708 (relating to order authorizing interception of wire, electronic or oral communications), where:
(i) Deleted.
(ii) one of the parties to the communication has given prior consent to such interception. However, no interception under this paragraph shall be made unless the Attorney General or a deputy attorney general designated in writing by the Attorney General, or the district attorney, or an assistant district attorney designated in writing by the district attorney, of the county wherein the interception is to be initiated, has reviewed the facts and is satisfied that the consent is voluntary and has given prior approval for the interception[.]
. . . .
(iv) the requirements of this subparagraph are met. If an oral interception otherwise authorized under this paragraph will take place in the home of a nonconsenting party, then, in addition to the requirements of subparagraph (ii), the interception shall not be conducted until an order is first obtained from the president judge, or his designee who shall also be a judge, of a court of common pleas, authorizing such in-home interception, based upon an affidavit by an investigative or law enforcement officer that establishes probable cause for the issuance of such an order[.]

18 Pa.C.S. § 5704 (emphasis added).[3] Therefore, § 5704(2)(ii) permits the recording of a conversation when only one party consents, if approved by an authorized prosecutor. However, when that recording is to take place inside a home, additional requirements are imposed as established by § 5704(2)(iv); namely, that the president judge of a court of common pleas must authorize the intercept after probable cause has been established. We have previously stated that this statutory amendment codified the holding of Commonwealth v. Brion, 652 A.2d 287 (Pa. 1994), discussed in detail infra. See Commonwealth v. Fetter, 770 A.2d 762, 766 (Pa.Super. 2001) ("In response to Brion the Legislature amended the Wiretap Act to include § 5704(2)(iv)[.]").

         In contrast, a nonconsensual intercept, i.e. one where all parties to the conversation are ignorant of monitoring by law enforcement, is not an exception to the Act and requires approval by the Superior Court of Pennsylvania. Authorized prosecutors can make application with this Court "for an order authorizing the interception of a wire, electronic or oral communication . . . when such interception may provide evidence of the commission" of certain enumerated offenses. 18 Pa.C.S. § 5708. Additionally, orders permitting nonconsensual wiretaps pursuant to § 5708 require the Commonwealth to establish, inter alia, that "other normal investigative procedures with respect to the offense have been tried and have failed, or reasonably appear to be unlikely to succeed if tried or are too dangerous to employ." 18 Pa.C.S. § 5709. Orders granted by this Court are subject to the timing provisions set forth at 18 Pa.C.S. § 5712:

(b) Time limits.--No order entered under this section shall authorize the interception of any wire, electronic or oral communication for a period of time in excess of that necessary under the circumstances. . . . No order entered under this section shall authorize the interception of wire, electronic or oral communications for any period exceeding 30 days. The 30-day period begins on the day on which the investigative or law enforcement officers or agency first begins to conduct an interception under the order, or ten days after the order is entered, whichever is earlier.

18 Pa.C.S. § 5712 (emphasis added).[4]


         The Parties' Arguments

         Appellant acknowledges that as a matter of statutory analysis, § 5704(2)(iv) imposes no time limit on consensual wiretaps. However, he notes that the statute refers to an interception in the singular, and, consistent with pronouncements from our Supreme Court, as well as from the United States Supreme Court, he maintains that the Act therefore authorizes only one intercept as a matter of both constitutional and statutory law. "[T]he statute governing in-home consensual intercepts, like the Supreme Court decision in Brion, intended the warrant/order to be for a single intercept." Appellant's brief at 26 (emphasis added). As such, the order authorizing the consensual wiretap permitted one recording, i.e., the first recording.[5] Appellant analogizes all recordings after the first to multiple executions of one search warrant. Consequently, Appellant views each subsequent recording as an unconstitutional search without prior judicial approval.

         In supporting their respective positions, the parties' briefs extensively discuss Brion and the statutory differences between consensual and nonconsensual wiretaps. For example, the Commonwealth argues that if the Act permits a nonconsensual wiretap for thirty days, then it necessarily follows that a consensual recording is likewise constitutionally permissible for at least the same length. Moreover, the Commonwealth states that Appellant's interpretation places an onerous burden on law enforcement, as the Commonwealth would have to seek new orders if the target happened to exit and re-enter his residence while the consenting party was on site. Appellant responds that the Commonwealth's argument misses the mark, since a nonconsensual wiretap order imposes more stringent requirements, including the need for the Commonwealth to demonstrate that normal investigative techniques have failed or are too dangerous to employ. In Appellant's view, the Commonwealth effectively obtained a § 5708 wiretap order while sidestepping the requirements applicable to such orders.

         Finally, the Commonwealth advances the position that the search warrant does not rely on the actual recordings, and states that "even if no recording device had been used in this case at all, the observations of the Troopers and the information relayed to them by the CI . . . would still have established probable cause[.]" Commonwealth's brief at 12.[6] In response, Appellant counters that "there is no way to ascertain to what extent the affiant may have relied on what he heard on the illegally obtained and recorded intercepts[.]" Appellant's reply brief at 5.

         We agree with the Commonwealth with respect to its latter position, and affirm on that basis. See Commonwealth v. O'Drain,829 A.2d 316, 322, n.7 (Pa.Super. 2003) (we may affirm if there is any basis on the record to support the trial court's action, even if we rely on a different basis). In reaching this conclusion, we find that the parties have largely overlooked a critical distinction between the voluntary disclosure of information versus the recording of same. In truth, Appellant seeks to suppress information, not the recordings. For the reasons that follow, we find that this is not a mere ...

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