Com. v. Johnson, K. ( 2017 )


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  • J-S52009-17
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :       IN THE SUPERIOR COURT OF
    :             PENNSYLVANIA
    v.                             :
    :
    KHALIL JOHNSON,                            :
    :
    Appellant                :            No. 375 MDA 2017
    Appeal from the Judgment of Sentence January 25, 2017
    in the Court of Common Pleas of Lackawanna County,
    Criminal Division, No(s): CP-35-CR-0001002-2016
    BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
    MEMORANDUM BY MUSMANNO, J.:                      FILED OCTOBER 12, 2017
    Khalil Johnson (“Johnson”) appeals from the judgment of sentence
    imposed following his convictions of criminal use of a communication facility,
    possession of a controlled substance, delivery of a controlled substance, and
    possession of drug paraphernalia.      See 18 Pa.C.S.A. § 7512(a); 35 P.S.
    § 780-113(a)(16), (30), (32). We affirm.
    The trial court set forth the relevant underlying facts as follows:
    On October 18, 2016, following a jury trial, [Johnson] was
    convicted of [the above-mentioned crimes], and acquitted of
    false identification to law enforcement officers. These charges
    arose on March 15, 2016, when the Lackawanna County District
    Attorney’s Office Drug Unit conducted a controlled buy of heroin
    from [Johnson]. A confidential informant contacted [Johnson]
    and arranged to meet him in the parking lot of the Dollar Store
    in West Scranton. [Johnson] entered her car, and she made the
    controlled buy. The confidential informant had consented to
    having her text messages, phone calls, and conversations with
    [Johnson] intercepted by the District Attorney’s office, so the
    interaction between [Johnson] and the confidential informant
    was recorded by the District Attorney’s Office.            [The
    Memorandum of Approval (“Memorandum”) to intercept
    J-S52009-17
    communications was executed on February 17, 2016, and stated
    that the proposed interception would occur between February
    17, 2016, and March 17, 2016. Prior to trial, Johnson filed a
    Motion in Limine, seeking to exclude evidence of his recorded
    conversation with the confidential informant. The trial court
    denied the Motion.]
    On January 25, 2017, [Johnson] was sentenced to 33 months to
    12 years [in prison], followed by 2 years of probation.
    Trial Court Opinion, 4/21/17, at 1-2.
    Johnson filed a timely Notice of Appeal, and a court-ordered
    Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.
    On appeal, Johnson raises the following question for our review:
    A. Whether the trial court erred when it denied [Johnson’s]
    Motion in Limine to exclude evidence of the recorded in-
    person conversation between [Johnson] and a [c]onfidential
    [i]nformant taken inside the [c]onfidential [i]nformant’s
    vehicle on March 15, 2016[,] for the following reasons:
    1. The intercept was not supported by reasonable grounds to
    suspect criminal activity;
    2. The intercept was based upon stale information;
    3. The intercept was based upon a defective Memorandum [];
    4. The Memorandum [] was not supported by valid consent;
    and
    5. Because [Johnson] had a reasonable expectation of
    privacy, [the] Memorandum [] was insufficient to support
    the intercept[?]
    Brief for Appellant at 4.
    “When reviewing a trial court’s denial of a motion in limine, this Court
    applies   an   evidentiary   abuse      of   discretion   standard   of   review.”
    -2-
    J-S52009-17
    Commonwealth v. Schley, 
    136 A.3d 511
    , 514 (Pa. Super. 2016).                 “An
    abuse of discretion will not be found based on a mere error of judgment, but
    rather exists where the court has reached a conclusion which overrides or
    misapplies the law, or where the judgment exercised is manifestly
    unreasonable, or the result of partiality, prejudice, bias or ill-will.”     
    Id. (citation omitted).
    Pennsylvania’s Wiretapping and Surveillance Control Act
    [(“Wiretap Act”)],[1] is a pervasive scheme of legislation which
    suspends an individual’s constitutional rights to privacy only for
    the limited purpose of permitting law enforcement officials, upon
    a showing of probable cause, to gather evidence necessary to
    bring about a criminal prosecution and conviction. The statute
    sets forth clearly and unambiguously by whom and under what
    circumstances these otherwise illegal practices and their
    derivative fruits may be used.
    However, the Wiretap Act contains an exception allowing
    law enforcement to utilize wiretaps without obtaining prior
    judicial approval when one of the parties to the conversation
    consents to the interception:
    § 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:
    ***
    (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:
    1   See 18 Pa.C.S.A. § 5701, et seq.
    -3-
    J-S52009-17
    ***
    (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 made, has reviewed the facts and is satisfied that the
    consent is voluntary and has given prior approval for the
    interception ....
    18 Pa.C.S.A. § 5704 (emphasis added).
    In determining whether the approval of a consensual
    wiretap was proper, … police officers must articulate “reasonable
    grounds” for the monitoring and the Attorney General or the
    district attorney must verify [] that these reasonable grounds
    exist.
    Commonwealth v. McMillan, 
    13 A.3d 521
    , 524–25 (Pa. Super. 2011)
    (citations and emphasis omitted, footnote added).       Section 5704 does not
    contain any temporal restrictions such as “current” or “contemporaneous”
    with regard to “suspected criminal activities.” 
    Id. at 525.
    Additionally, “for the purposes of 18 Pa.C.S.[A.] § 5704(2)(ii), one’s
    consent must be given voluntarily in order for the governmental actions to
    be lawful.”   Commonwealth v. Rodriguez, 
    548 A.2d 1211
    , 1213 (Pa.
    1988).
    The voluntariness of one’s consent must be the product of an
    essentially free and unconstrained choice by its maker. His will
    must not have been overborne and his capacity for self-
    determination critically impaired. Each case must be determined
    from the totality of the circumstances. Furthermore, consent is
    not voluntary where it is the product of coercion or duress[,]
    -4-
    J-S52009-17
    either express or implied. However, a decision to consent is not
    rendered involuntary merely because it is induced by a desire to
    avoid the possibility of a well[-]founded prosecution.
    
    Id. (citations, quotation
    marks, brackets, and ellipses omitted).
    We will address Johnson’s claims together. Johnson contends that the
    trial court erred in denying his Motion in Limine to suppress the intercepted
    communications with the confidential informant. Brief for Appellant at 10,
    12.     Johnson   argues    that   the   Commonwealth,     in   executing   the
    Memorandum, violated the requirements of the Wiretap Act, and that any
    evidence seized from the recordings should have been excluded at trial. 
    Id. at 12-13.
    First, Johnson asserts that the Memorandum failed to articulate
    reasonable grounds for monitoring communications, as it was vague and
    only stated that there was an investigation of the distribution of a controlled
    substance.    
    Id. at 10,
    13-14; see also 
    id. at 13-14
    (claiming that the
    Memorandum did not identify Johnson or the type of controlled substance
    under investigation).
    Second, Johnson asserts that the authorization of the intercept was
    based upon stale information. 
    Id. at 10,
    14-15. Johnson argues that the
    intercept was authorized on February 17, 2016, but the sale that led to his
    convictions did not occur until March 15, 2016. 
    Id. at 14.
    Johnson further
    points out that in the Memorandum, the confidential informant did not
    specify that she had previously bought drugs from Johnson. 
    Id. -5- J-S52009-17
    Next, Johnson contends that the Memorandum was defective because
    Deputy District Attorney Mike Ossont (“Ossont”) failed to adhere to the
    requirements set forth in section       5704(2), which safeguard against
    unauthorized wiretaps. 
    Id. at 10,
    18. Johnson claims that Ossont failed to
    sign the Memorandum.        
    Id. at 10,
    15-19.    Johnson further argues that
    Ossont did not interview or question the confidential informant in person to
    determine whether the informant’s consent to be recorded was freely given.
    
    Id. at 15-16,
    18, 19, 21. Johnson also asserts that Ossont was not properly
    authorized by the District Attorney to approve wiretaps. 
    Id. at 15,
    18-19.
    Johnson additionally claims that the confidential informant did not
    provide valid consent for the intercept. 
    Id. at 10,
    19-21. Johnson argues
    that the confidential informant’s consent was involuntary because she was
    paid to be an informant.2      
    Id. at 20-21.
       Johnson also asserts that the
    confidential informant did not consent to wear a wire for the drug deal. 
    Id. at 21.
    Finally, Johnson contends that he had a reasonable expectation of
    privacy in the confidential informant’s vehicle, as the public could not hear
    the exchange. 
    Id. at 10,
    21, 23. Johnson further argues that “he had an
    expectation of privacy in his phone conversation with the [confidential
    informant,]” and thus, the Memorandum was insufficient to support the
    2  The confidential informant was paid $100 for the completed drug
    transaction. See N.T., 10/17/16, at 40, 88, 96.
    -6-
    J-S52009-17
    wiretap.   
    Id. at 21-22.
      Johnson claims that the error was not harmless
    since the recorded conversations directly contributed to the verdict. 
    Id. at 23-24.
    The trial court addressed Johnson’s claims as follows:
    [Johnson] argues that the recorded in-person conversation
    between [Johnson] and the confidential informant[,] taken inside
    of her vehicle[,] should have been excluded from evidence
    because it was not supported by reasonable grounds to suspect
    criminal activity, not supported by valid consent[,] and taken
    pursuant to stale information.         However, the confidential
    informant … testified at trial that she was not forced or coerced
    to be a confidential informant, or to have a recording device
    placed in her car. [N.T., 10/17/16, at 40, 51, 69-71.] [The
    confidential informant] also testified that she had purchased
    heroin from [Johnson] in the past and could identify his voice
    because she had heard it before many times. 
    Id. at 43,
    56, 63[;
    see also Memorandum, 2/17/16, at 1 (identifying an unknown
    black male, known to the confidential informant as “Slim,” as the
    target of the intercept, and stating that the intercept involved
    “suspected criminal activities.”)]. She testified that while she
    consented to the recording on February 17, 2016, she was
    unable to make a purchase until March 15, 2016[,] because she
    attempted to buy heroin from him in that time period[,] but was
    unable to do so. [N.T., 10/17/16,] at 71. Thus, [Johnson’s]
    assertions that the confidential informant did not consent to the
    recording, and that the police did not have reasonable grounds
    to suspect criminal activity are incorrect. Moreover, while there
    is not a requirement that the suspected criminal activity is
    ongoing or current, the gap of three weeks between the
    confidential informant’s consent and the actual recording did not
    cause the information to become stale. [See Memorandum of
    Consent, 2/17/16, at 1 (wherein the confidential informant
    voluntarily consented to interceptions of communications with
    Johnson between February 17, 2016, and March 17, 2016);
    Officer’s Memorandum, 2/17/16, at 1 (requesting that “the
    proposed interception to occur on 02/17/2016 THRU
    03/17/2016.”); see also 
    McMillan, 13 A.3d at 525
    (stating that
    “[s]ection 5704 does not contain temporal restrictions such as
    ‘ongoing,’ ‘current,’ or ‘contemporaneous,’” and that for a
    consensual wiretap, only a showing of reasonable grounds is
    -7-
    J-S52009-17
    necessary); Commonwealth v. Adams, 
    524 A.2d 1375
    , 1378
    (Pa. Super. 1987) (stating that section 5704(2)(ii) does not “set
    forth a specific length of time during which a consent remains
    viable.”).     The confidential informant] testified that she
    attempted to purchase heroin in that time period but was unable
    to do so.
    [Johnson] also asserts that the Memorandum [] for the
    recording was defective because it was not signed by the
    Assistant District Attorney, was defective on its face because it
    included a date after the date of the Memorandum, and because
    the Assistant District Attorney was not authorized to approve the
    Memorandum.         [Johnson] made this assertion during the
    argument on the [M]otion in [L]imine, but [the trial] court
    denied the [M]otion and found that the questionable date in the
    Memorandum was almost certainly a clerical error, and that
    [Johnson] could cross[-]examine regarding the dates and the
    accuracy of the information. 
    Id. at 3-4.
    At trial, Detective John
    Munley [(“Detective Munley”)] testified that [] Ossont oversees
    the Drug Unit at the District Attorney’s Office and approves [the]
    electronic surveillance by the office. 
    Id. at 91.
    He testified that
    the confidential informant in this case was consensualized by []
    Ossont over the telephone and that [] Ossont went over the
    authorization to intercept communications with her to make sure
    that she was doing this of her own free will and understood
    everything else in the Memorandum[,] and that [] Ossont
    approved the interception over the telephone. 
    Id. at 90-91.
         [Detective Munley] testified that the reference in the
    Memorandum [] to the date of the Officer’s Memorandum as
    March 30, 2016, was a typographical error on his part and that
    the date should have been February 17, 2016. 
    Id. at 142.
    He
    also testified that he wrote [] Ossont’s name on the form
    because the interview with the confidential informant was
    conducted by telephone.             
    Id. [Johnson’s] attorney
         cross[-]examined Detective Munley on these points at length,
    but did not establish that the Memorandum [] was invalid and
    that the recording should have been excluded.
    Finally, [Johnson] argues that the interception of his
    conversation with the confidential informant violated his
    expectation of privacy in the confidential informant’s vehicle.
    However, a defendant does not have an expectation of privacy in
    a confidential informant’s vehicle or an expectation that the
    words spoken to a confidential informant will not be intercepted.
    -8-
    J-S52009-17
    [See] Commonwealth v. Bender, 
    811 A.2d 1016
    [, 1023] (Pa.
    Super. 2002) [(concluding that the defendant had no reasonable
    expectation of privacy during conversation in the consenting
    informant’s vehicle); see also 
    Rodriguez, 548 A.2d at 1212-13
         (stating that one-party consensual wiretapping, as authorized by
    section 5704(2)(ii), does not violate the Fourth Amendment or
    Article I, Section 8 of the Pennsylvania Constitution).] Thus, the
    recording of [Johnson’s] conversation with the confidential
    informant inside of her vehicle was not excludable[,] and th[e
    trial] court properly denied [Johnson’s] [M]otion in [L]imine.
    Trial Court Opinion, 4/21/17, at 3-5. Because the trial court’s findings are
    supported by the record, and its legal conclusions are sound, we adopt its
    reasoning for the purpose of this appeal, see 
    id., with the
    following
    addendum.
    Although the confidential informant was paid for the completed drug
    transaction, this economic incentive did not vitiate her consent and cannot
    be deemed coercive to the extent that it deprived the informant of free
    choice. See 
    Rodriguez, 548 A.2d at 1213
    . Further, the fact that Ossont
    determined the voluntariness of the confidential informant’s consent and
    approved the intercept over the phone did not violate the requirements of
    section 5702(2)(ii). See 
    Adams, 524 A.2d at 1377-78
    (concluding that the
    trial court properly denied the motion to suppress where the deputy attorney
    general interviewed the confidential informant over the phone to determine
    -9-
    J-S52009-17
    the voluntariness of the informant’s consent regarding the interceptions). 3
    Applying the above standards to the instant case, we conclude that the
    trial court did not abuse its discretion in finding that there were reasonable
    grounds for the intercept; the confidential informant voluntarily consented to
    the intercept; and Ossont properly authorized the intercept, thereby
    justifying the admission of Johnson’s statements.
    Judgment of sentence affirmed.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 10/12/2017
    3 We note that the confidential informant independently corroborated the
    information regarding the sale of heroin contained in the recordings. See
    N.T., 10/17/16, at 58, 60 (wherein the confidential informant testified that
    Johnson sold her two bags of heroin in exchange for $20 while in the
    informant’s vehicle); see also 
    id. at 46-52
    (wherein the confidential
    informant discussed the set-up of the deal, and the police providing her with
    money to buy the heroin).
    - 10 -
    

Document Info

Docket Number: 375 MDA 2017

Filed Date: 10/12/2017

Precedential Status: Non-Precedential

Modified Date: 12/13/2024