from the Judgment of Sentence November 10, 2014 In the Court
of Common Pleas of Westmoreland County Criminal Division at
BEFORE: GANTMAN, P.J., BENDER, P.J.E., BOWES, J., SHOGAN, J.,
LAZARUS, J., OLSON, J., OTT, J., STABILE, J. AND DUBOW, J.
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.
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
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.
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. 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
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.
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
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.Similarly, on June 22, 2011, Appellant gave
the CI more cocaine at Appellant's residence.
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.
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
III. Whether the Commonwealth presented sufficient evidence
of possession to sustain the conviction against appellant?
brief at 3.
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
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.
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.
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.
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.
[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
Id. at 821-22 (some citations omitted).
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).
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.
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:
(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
. . . .
(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). 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)[.]").
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).
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. 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.
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
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. 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
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