Commonwealth v. Fant, R., Aplt.

[J-46-2016] [MO: Donohue, J.]
IN THE SUPREME COURT OF PENNSYLVANIA
MIDDLE DISTRICT
COMMONWEALTH OF PENNSYLVANIA, : No. 66 MAP 2015
:
Appellee : Appeal from the Order of the Superior
: Court at No. 386 MDA 2014 dated
: February 9, 2015 Reversing the Order
v. : of the Clinton Court of Common Pleas,
: Criminal Division, at No. CP-18-CR-
: 0000415-2013, dated February 26,
RAHIEM CARDEL FANT, : 2014.
:
Appellant : SUBMITTED: March 16, 2016
CONCURRING OPINION
JUSTICE WECHT DECIDED: September 28, 2016
I join the Majority opinion with the exception of footnote 13. Maj. Slip Op. at 19-
21, n.13. The Pennsylvania Wiretapping and Electronic Surveillance Control Act (the
“Wiretap Act” or “the Act”), 18 Pa.C.S. §§ 5701-82, establishes a general prohibition
barring interception of wire, electronic, or oral communications,1 subject to several
specific exceptions. The question presented by today’s case is whether certain “visit
conversations,” as described by the Majority, fall within the exception in Subsection
5704(14) of the Wiretap Act, 18 Pa.C.S. § 5704(14), which, under certain conditions,
permits interception of “telephone calls from or to an inmate in a facility.”2 Because the
1
See 18 Pa.C.S. § 5703.
2
Section 5704 provides, in relevant part, that “[i]t shall not be unlawful and no prior
court approval shall be required under this chapter for” the following:
(continuedD)
Wiretap Act does not define “telephone calls,” it is necessary to discern the ordinary
(Dcontinued)
(14) An investigative officer, a law enforcement officer or employees of a
county correctional facility to intercept, record, monitor or divulge any
telephone calls from or to an inmate in a facility under the following
conditions:
(i) The county correctional facility shall adhere to the following
procedures and restrictions when intercepting, recording,
monitoring or divulging any telephone calls from or to an inmate in
a county correctional facility as provided for by this paragraph:
(A) Before the implementation of this paragraph, all
inmates of the facility shall be notified in writing that, as of
the effective date of this paragraph, their telephone
conversations may be intercepted, recorded, monitored or
divulged.
(B) Unless otherwise provided for in this paragraph, after
intercepting or recording a telephone conversation, only the
superintendent, warden or a designee of the superintendent
or warden or other chief administrative official or his or her
designee, or law enforcement officers shall have access to
that recording.
(C) The contents of an intercepted and recorded
telephone conversation shall be divulged only as is
necessary to safeguard the orderly operation of the facility,
in response to a court order or in the prosecution or
investigation of any crime.
(ii) So as to safeguard the attorney-client privilege, the county
correctional facility shall not intercept, record, monitor or divulge
any conversation between an inmate and an attorney.
(iii) Persons who are calling into a facility to speak to an inmate
shall be notified that the call may be recorded or monitored.
(iv) The superintendent, warden or a designee of the
superintendent or warden or other chief administrative official of the
county correctional system shall promulgate guidelines to
implement the provisions of this paragraph for county correctional
facilities.
18 Pa.C.S § 5704(14).
[J-46-2016] [MO: Donohue, J.] - 2
meaning of this term. I agree with the Majority’s resolution of the meaning of “telephone
calls” and its application of the statutory exception to the facts found by the suppression
court herein. However, I distance myself from the Majority’s consideration of the
Commonwealth’s alternative argument.
The Commonwealth has argued in the alternative that we should affirm the
Superior Court’s decision because there was no “interception” under the Wiretap Act.
Although this issue was not raised below, the Commonwealth asserts that we can reach
it through application of the “right-for-any-reason doctrine.”3 However, the
Commonwealth is seeking to uphold the judgment of the intermediate appellate court,
rather than that of the fact-finding tribunal. Although the Majority is correct that we have
never resolved whether the doctrine may be invoked to uphold the intermediate
appellate court’s order, I am inclined to agree with Chief Justice Saylor’s narrow
understanding of the doctrine’s focus in Pennsylvania. See Commonwealth v. DiNicola,
866 A.2d 329, 346 n.7 (Pa. 2005) (Saylor, J., concurring) (“Significantly, the focus of the
right-for-any-reason doctrine in Pennsylvania is on upholding the judgment of the fact-
finding tribunal, not that of the intermediate appellate court.” (citing E.J. McAleer & Co.,
Inc. v. Iceland Products Inc., 381 A.2d 441, 443 n.4 (Pa. 1977); Commonwealth v.
Katze, 658 A.2d 345, 349 (Pa. 1995))).
3
As we have explained, “[u]nder the right-for-any-reason doctrine, an order or
judgment may be affirmed for any reason appearing as of record.” Freed v. Geisinger
Med. Ctr., 5 A.3d 212, 222 n.4 (Pa. 2010) (Saylor, J., dissenting); see generally Thomas
G. Saylor, Right for Any Reason: An Unsettled Doctrine at the Supreme Court Level and
An Anecdotal Experience with Former Chief Justice Cappy, 47 Duq. L. Rev. 489, 490
n.2 (2009) (collecting cases).
[J-46-2016] [MO: Donohue, J.] - 3
Moreover, under any iteration, application of the right-for-any-reason doctrine is
questionable when the appellee before this Court was the appellant in the intermediate
appellate court, such as the Commonwealth herein. Under such circumstances, any
matter not raised and preserved in the intermediate appellate court is unavailable for
appellate review. See In re J.M., 726 A.2d 1041, 1051 n.15 (Pa. 1999); Freed v.
Geisinger Med. Ctr., 5 A.3d 212, 222 n.4 (Pa. 2010) (Saylor, J., dissenting); Vicari v.
Spiegel, 989 A.2d 1277, 1287 (Pa. 2010) (Castille, C.J., concurring) (“Arguably, as the
party prevailing below, appellee is free to raise properly preserved alternative
arguments, and the Court is then free to determine which arguments to discuss (or to
determine to dismiss the appeal on prudential grounds.”). Having lost in the
suppression court, the Commonwealth had the obligation to preserve the issue when it
was the appellant in the Superior Court. See Pa.R.A.P. 302(a). In that court, it did not
raise the interception question. Fant, 109 A.3d at 777. Accordingly, there is no basis
for the Majority to engage the Commonwealth’s alternative argument, however briefly.
Maj. Slip Op. at 19-21, n.13.
[J-46-2016] [MO: Donohue, J.] - 4