Commonwealth v. Cline , 177 A.3d 922 ( 2017 )

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2017 PA Super 417COMMONWEALTH OF : IN THE SUPERIOR COURT OF
PENNSYLVANIA : PENNSYLVANIA
:
:
v. :
:
:
PATRICK CLINE :
: No. 641 EDA 2017
Appellant
Appeal from the Judgment of Sentence August 22, 2016
In the Court of Common Pleas of Lehigh County Criminal Division at
No(s): CP-39-CR-0000271-2015
BEFORE: BENDER, P.J.E., MUSMANNO, J., and STEVENS*, P.J.E.
OPINION BY STEVENS, P.J.E.: FILED DECEMBER 29, 2017
Appellant, Patrick Cline, appeals from the judgment of sentence entered
in the Court of Common Pleas of Lehigh County after a jury found him guilty
of intercepting and disclosing a wire, electronic, or oral communication, in
violation of the Wiretapping and Electronic Surveillance Control Act.1
Appellant levels a sufficiency of the evidence challenge in which he asserts
that the Commonwealth failed to prove he knowingly or intentionally violated
the Wiretap Act when he recorded a custody hearing attended by his ex-wife
and him at the Lehigh County Courthouse. We affirm.
The trial court aptly sets forth pertinent facts, as follows:
On September 2, 2014, the defendant [hereinafter “Appellant”]
and his ex-wife, Jennifer Kibler, were in the Lehigh County
Courthouse for a custody conference. The conference was held in
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1 18 Pa.C.S.A. § 5703(1) & (2).
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* Former Justice specially assigned to the Superior Court.
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the office of custody master Don Klein, Esquire. Also present in
the room was Lehigh County Deputy Sheriff Peter Tirado.
Approximately 20 to 30 minutes into the conference, Appellant
stood up and announced that he was recording the hearing with
his cell phone. Master Klein advised Appellant that he could not
record in there and asked Deputy Tirado to take Appellant’s
phone. Appellant put the phone in his pocket, ran out of the room,
and left the courthouse. Appellant ultimately posted the recording
on Facebook.
At [Appellant’s June 15, 2016,] trial, Ms. Kibler, Master Klein,
[and] Deputy Tirado testified that they never gave Appellant
permission to record the conference[, and there were signs posted
prohibiting the use of cell phones]. Master Klein and Deputy
Tirado testified that the conference room is accessed by swiping a
key card and is not accessible by the public. Appellant testified
and admitted to recording the hearing and posting it on Facebook,
but [he] maintained he did not do anything illegal.
Trial Court Opinion, dated 5/4/17, at 1-2.
The jury convicted Appellant of violating the Wiretap Act, and the court
ordered a pre-sentence investigation report and scheduled a sentencing date.
On August 22, 2016, the court sentenced Appellant to a term of incarceration
of 11 ½ to 23 months, followed by three years’ probation. Appellant filed
post-sentence motions, which were denied following a hearing. This timely
appeal followed.
Appellant presents the following question for our review:
WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE
VERDICT FOR THE FOLLOWING REASONS:
A. THERE WAS NO EVIDENCE THAT APPELLANT KNEW THAT
RECORDING THE HEARING AND/OR POSTING IT ONLINE
WAS AGAINST THE LAW AS THE SIGNS MERELY SAID
“NO CELL PHONES” BUT DID NOT PROHIBIT
RECORDING. IT WAS THEREFORE NOT PROVEN THAT HE
HAD THE REQUIRED MENS REA.
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B. PROHIBITING DEFENDANT FROM RECORDING THE
PROCEEDINGS AND/OR POSTING IT ONLINE VIOLATED
HIS DUE PROCESS RIGHTS UNDER THE UNITED STATES
AND PENNSYLVANIA CONSTITUTIONS SINCE THE
INFORMATION RECEIVED AT THE CUSTODY
CONFERENCE WAS RECEIVED AND UTILIZED BY THE
JUDGE AT A SUBSEQUENT CUSTODY TRIAL.
C. PROHIBITING APPELLANT FROM RECORDING THE
PROCEEDINGS AND/OR POSTING IT ONLINE VIOLATED
HIS DUE PROCESS RIGHTS UNDER THE UNITED STATES
AND PENNSYLVANIA CONSTITUTIONS SINCE LEGAL
PROCEEDINGS ARE SUPPOSED TO BE PUBLIC AND NOT
HELD IN SECRET.
Appellant’s brief at 5.
Our standard of review of a challenge to the sufficiency of the evidence
is well-settled:
[i]n reviewing sufficiency of evidence claims, we must determine
whether the evidence admitted at trial, as well as all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all the
elements of the offense. Additionally, to sustain a conviction, the
facts and circumstances which the Commonwealth must prove,
must be such that every essential element of the crime is
established beyond a reasonable doubt. Admittedly, guilt must be
based on facts and conditions proved, and not on suspicion or
surmise. Entirely circumstantial evidence is sufficient so long as
the combination of the evidence links the accused to the crime
beyond a reasonable doubt. Any doubts regarding a defendant's
guilt may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The fact
finder is free to believe all, part, or none of the evidence presented
at trial.
Commonwealth v. Moreno, 14 A.3d 133, 136 (Pa.Super. 2011).
Section 5703 of the Crimes Code provides, in pertinent part, that a
person is guilty of a felony of the third degree if he:
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(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. . . .
18 Pa.C.S.A. § 5703(1) and (2). The Wiretap Act defines “intercept” as
“[a]ural or other acquisition of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or other device.”
18 Pa.C.S. § 5702. “Oral communication” is defined in relevant part as “[a]ny
oral communication uttered by a person possessing an expectation that such
communication is not subject to interception under circumstances justifying
such expectation.” Id.
Initially, we understand Appellant’s sufficiency challenge to assert only
that the Commonwealth failed to prove he “knew that recording the hearing
and/or posting it online was against the law, as the signs merely said ‘no cell
phones’ but did not prohibit recording.” Appellant’s brief at 5. To support his
position, Appellant points to his own trial testimony that he did not know he
was not allowed to record the custody conference, N.T. 6/15/16 at 83, and
did not consider the communications taking place therein to be classified, N.T.
at 85, but only sought, instead, to disclose what he perceived to be a corrupt
proceeding, N.T. at 87. To this end, he cites the sheriff’s testimony
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acknowledging that Appellant asked, when apprehended, whether what he did
was against the law, N.T. at 50.
Appellant, therefore, posits that the “Commonwealth failed to prove that
[he] knew he was not allowed to record the Custody Conference,” and, as
such, the Commonwealth “did not prove the element of mens rea as required.”
Appellant’s brief at 11.
Critically in this regard, Appellant fails to advance any argument that
the custody conference did not involve protected “oral communications” for
purposes of the Wiretap Act. Instead, he argues only that it was the
Commonwealth’s burden to prove he knew the Wiretap Act proscribed the
conduct in which he engaged, and absent such proof, his misunderstanding of
the Wiretap Act’s scope could serve as a viable defense.
That Appellant may have believed he lawfully recorded the custody
conference and posted the recording on Facebook was not a defense to the
Wiretap Act charge he faced. See 18 Pa.C.S. § 304, Official Comment
(“Generally speaking, ignorance or mistake of law is no defense.”). The
prosecution of the Wiretap Act charge against Appellant turned, instead, on
proof that Appellant knowingly or intentionally intercepted and disclosed
discussions that qualified as “oral communications” under the statute. That
is, the Commonwealth was required to prove Appellant knowingly or
intentionally committed the acts proscribed under the statute; it was not
required to prove Appellant knew the law proscribed such acts, as a
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defendant’s knowledge of the law is not an element of the offense. For this
reason, we reject Appellant’s sufficiency challenge as articulated.2
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2The hallmark of an “oral communication” protected under the Wiretap Act is
a communication for which the “speaker had a specific expectation that the
contents of the discussion would not be intercepted, and whether that
expectation was justifiable under the existing circumstances.” Agnew v.
Dupler, 717 A.2d 519, 523 (Pa. 1998).
Given the lack of advocacy on whether the custody conference involved oral
communications protected under the Wiretap Act, we refrain from sua sponte
deciding this legal question. However, we note the Commonwealth made an
extensive proffer at trial in support of its position that Appellant’s ex-wife held
a reasonable expectation that her communications would not be intercepted
and disclosed.
The evidence demonstrated that the custody conference took place at the
county courthouse, which displays signs at the entrance requiring all visitors
to turn off cell phones during their visit. N.T. at 32. The conference, itself,
took place in a room that was inaccessible to the public, required a swipe-card
to gain entry, and was guarded by a deputy. N.T. at 24, 50. Only the parties,
the master, and, in cases where the need for a security presence is
anticipated, a deputy are present at the closed-door conference. N.T. 24-25.
The conference was not recorded, the office was not wired for recording, and,
according to Master Don Klein who presided over the parties’ conference, no
one was permitted to record the proceedings. N.T. at 25. This is so, Master
Klein explained, because the Master will often elicit very personal information
during the conference with the objective of assisting the parties to reach an
agreement that is in the best interest of their children. N.T. at 27, 28. As
such, the parties expect confidentiality and privacy when they are asked to
reveal candidly these emotional and personal aspects of their lives, the Master
explained. N.T. at 27.
Appellant’s ex-wife corroborated this point, as she testified at the criminal trial
that privacy was always maintained during the parties’ previous conferences
before Master Klein; indeed, she testified that she would have refused to
participate if she knew her comments were to be recorded and publicized. N.T.
at 7-9, 20.
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In Appellant’s remaining two issues, he contends his prosecution under
the Wiretap Act violated his due process rights to record and publish the
custody conference in question when the information obtained therein would
be utilized by a trial judge at a subsequent hearing and were, in any event,
public and not private in nature. Careful review of the record, however,
reveals that Appellant did not raise these discrete issues first with the trial
court.
The law is clear that “issues, even those of constitutional dimension, are
waived if not raised in the trial court. A new and different theory of relief may
not be successfully advanced for the first time on appeal.” Commonwealth
v. Santiago, 980 A.2d 659, 666 (Pa.Super. 2009) (citations omitted), appeal
denied, 605 Pa. 712, 991 A.2d 312 (2010), cert. denied, 131 S.Ct. 155 (U.S.
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At the conference in question, Appellant did not ask either Master Klein’s or
his ex-wife’s permission to record, but did it surreptitiously, positioning his
cell phone behind papers and a bible he brought to the conference. N.T. at
26-27, 29. When Master Klein became aware of Appellant’s conduct, he
informed him “you’re not permitted to record anything in here,” and he asked
the deputy to confiscate Appellant’s cell phone. N.T. at 29. Regardless of the
Master’s admonition and directive, Appellant grabbed all his belongings and
ran out of the conference room before the deputy could approach. N.T. at 29.
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2010); see also Pa.R.A.P. 302(a) (“Issues not raised in the lower court are
waived and cannot be raised for the first time on appeal”). Because these due
process issues were not preserved in the first instance before the trial court,
they are waived.
For the foregoing reasons, judgment of sentence is affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/17
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