Com. v. Johnson, K. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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
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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.”
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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.
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***
(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[,]
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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.
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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.
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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
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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.
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[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
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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).
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