Com. v. Hankins, J. ( 2019 )


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  • J-S72045-18
    NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
    :        PENNSYLVANIA
    :
    v.                             :
    :
    :
    JAMES LEE HANKINS                          :
    :
    Appellant               :   No. 651 MDA 2018
    Appeal from the Judgment of Sentence March 16, 2018
    In the Court of Common Pleas of Lackawanna County Criminal Division at
    No(s): CP-35-CR-0002596-2016
    BEFORE: BOWES, J., SHOGAN, J., and KUNSELMAN, J.
    MEMORANDUM BY BOWES, J.:                                 FILED JUNE 11, 2019
    James Lee Hankins appeals from the aggregate judgment of sentence
    of fifty-two to 114 months of imprisonment imposed after he was convicted of
    nine crimes related to a drug sale and its aftermath. We affirm.
    The trial court summarized the underlying facts as follows.
    Detectives John Munley and Harold Zech, on September 15,
    2016, met with a confidential informant, Sean Gaiduli (hereinafter
    [referred to] as “CI”). He reported he could purchase heroin and
    crack cocaine from [Appellant]. The CI was able to give a brief
    physical description of [Appellant], as well as [Appellant]’s
    telephone number.
    [O]n September 19th the CI placed a phone call to
    [Appellant] in order to arrange the purchase quantity of heroin
    and crack cocaine. Detective Zech intercepted and recorded the
    phone conversation. Text messages were exchanged between the
    CI and [Appellant] and were shown to the detectives. Finally, the
    detectives placed an audio recording device on the CI to record
    conversations between [Appellant] and the CI. Arrangements
    ____________________________________________
       This matter was reassigned to this author on May 10, 2019.
    J-S72045-18
    were made for the CI to make a controlled buy from [Appellant]
    at Goodfellas Pizza in the city of Scranton. Detectives and
    Scranton police officers set up surveillance at Goodfellas Pizza.
    Detective Zech drove the CI to the back of the restaurant. After
    arriving at Goodfellas, Detective Zech saw a male, later identified
    as [Appellant], arrive on scene.
    [Appellant] and the CI met behind Goodfellas Pizza. The
    police and detectives listened to their conversation via the audio
    recording device. After the transaction was completed, the CI
    gave the drugs to Detective Vincent Butkiewicz. The drugs were
    then field tested and determined to be opiates and cocaine.
    The police initiated a stop of [Appellant]. He ran from the
    police. He was ultimately arrested when the Scranton police
    chased after him. He ran into the residence of an individual
    named Kayla Askew. . . . While running [Appellant] threw his cell
    phone on the ground and the police recovered it.           It was
    determined that the cell phone number matched the number used
    to set up the drug purchase. [Appellant] was taken into custody
    in the basement of Ms. Askew’s residence. The buy money was
    found hidden in [a] Tupperware container in the basement.
    Trial Court Opinion, 6/26/18, at 2-3 (citations and unnecessary capitalization
    omitted).
    Appellant filed an omnibus pretrial motion seeking, inter alia, to
    suppress the intercepted communications between the CI and himself, as well
    as the   physical evidence seized from Appellant’s person and Ms. Askew’s
    residence. The suppression motion was denied after a hearing.        The case
    proceeded to a non-jury trial at which, inter alia, the CI and Detectives Zech
    and Butkiewicz testified. The trial court convicted Appellant of two counts
    each of delivery of a controlled substance, possession of a controlled
    substance, and possession of drug paraphernalia, as well as one count each
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    of criminal use of a communications facility, tampering with evidence, and
    resisting arrest.
    Appellant     was   sentenced   as   noted   above   following   a   pretrial
    investigation. He filed no post-sentence motion, but filed a timely notice of
    appeal and court-ordered statement of errors complained of on appeal. The
    trial court authored an opinion pursuant to Pa.R.A.P. 1925(a), and this matter
    is ripe for our review.
    Appellant presents the following questions for our consideration, which
    we have reordered for ease of disposition.
    A.    Whether the evidence was insufficient as a matter of law
    with regards to the charges of resisting arrest and
    tampering with or fabricating evidence.
    B.    Whether the suppression court erred when it denied
    Appellant’s omnibus pre-trial motion to exclude/suppress all
    evidence    derived    from    electronic   surveillance of
    conversations between Appellant and [the CI] recorded on
    September 19, 2016 under the Wiretapping and Electronic
    Surveillance Control Act, 18 Pa.C.S.A. § 5701, et seq.
    [(“Wiretap Act”)], for [various] reasons[.]
    C.    Whether the suppression court erred in refusing to suppress
    all evidence obtained from Appellant’s person and from the
    warr[a]ntless search of [Ms. Askew’s residence], when it
    was obtained as a result of a wiretap violation, and therefore
    “fruit of the poisonous tree.”
    Appellant’s brief at 4-5 (unnecessary capitalization omitted).
    We begin with Appellant’s sufficiency challenge, setting forth the
    relevant legal principles. Evidentiary sufficiency is a question of law, for which
    our standard and scope of review are de novo and plenary, respectively.
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    Commonwealth v. Williams, 
    176 A.3d 298
    , 305-06 (Pa.Super. 2017). In
    order to preserve a sufficiency-of-the-evidence claim for appellate review,
    when directed to file a Rule 1925(b) statement by the trial court, an appellant
    “must specify the element or elements upon which the evidence was
    insufficient in order to preserve the issue for appeal.”   Commonwealth v.
    Hoffman, 
    198 A.3d 1112
    , 1125 (Pa.Super. 2018) (internal quotation marks
    omitted). “Such specificity is of particular importance in cases where, as here,
    the appellant was convicted of multiple crimes each of which contains
    numerous elements that the Commonwealth must prove beyond a reasonable
    doubt.” 
    Id.
     (cleaned up).
    In his Rule 1925(b) statement, the only sufficiency challenge Appellant
    raised was “Whether the verdicts were supported by sufficient evidence?”
    Concise Statement, 5/9/18, at ¶ 4. The trial court opined that this generic
    allegation of evidentiary sufficiency was inadequate to preserve any
    sufficiency challenges for appeal. Trial Court Opinion, 6/26/18, at 10-11. We
    agree.
    Appellant’s bald claim that the evidence was insufficient, without
    identifying which element or elements of the nine different convictions he was
    challenging, results in waiver. See, e.g., Commonwealth v. Williams, 
    959 A.2d 1252
    , 1258 n.9 (Pa.Super. 2008) (holding sufficiency challenge was not
    preserved where appellant was convicted of murder, robbery, possessing
    instruments of crime, and firearms violations, and failed to specify which
    -4-
    J-S72045-18
    elements he was challenging or why the evidence was insufficient). Indeed,
    given that Appellant in his brief challenges only two of his nine convictions, it
    would have been a substantial waste of judicial resources to have required the
    trial court to have gone through the elements of all of the other convictions
    and detailed where in the record the Commonwealth produced evidence to
    satisfy every element of each.        As such, no relief is due on Appellant’s
    sufficiency challenges.
    Appellant next claims the suppression court erred in denying his motion
    to exclude all statements obtained through electronic surveillance of his
    conversations with the CI. The following principles guide our review of this
    issue.
    An appellate court’s standard of review in addressing a
    challenge to the denial of a suppression motion is limited to
    determining whether the suppression court’s factual findings are
    supported by the record and whether the legal conclusions drawn
    from those facts are correct.       Because the Commonwealth
    prevailed before the suppression court, we may consider only the
    evidence of the Commonwealth and so much of the evidence for
    the defense as remains uncontradicted when read in the context
    of the record as a whole. Where the suppression court’s factual
    findings are supported by the record, the appellate court is bound
    by those findings and may reverse only if the court’s legal
    conclusions are erroneous. Where the appeal of the determination
    of the suppression court turns on allegations of legal error, the
    suppression court’s legal conclusions are not binding on an
    appellate court, whose duty it is to determine if the suppression
    court properly applied the law to the facts. Thus, the conclusions
    of law of the courts below are subject to plenary review.
    Commonwealth v. Smith, 
    164 A.3d 1255
    , 1257 (Pa.Super. 2017) (cleaned
    up).
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    J-S72045-18
    Appellant claims that the suppression court erred in failing to rule that
    the Commonwealth did not comply with various requirements of the Wiretap
    Act. Specifically, Appellant notes the following deficiencies: “1. the intercept
    was not supported by reasonable grounds to suspect criminal activity; 2. the
    intercept was based upon to[o] stale information; 3. the intercept was based
    upon a defective memorandum of approval; [and] 4. the memorandum of
    approval was not supported by valid consent[.]”             Appellant’s brief at 4
    (unnecessary capitalization omitted).          Appellant further contends that the
    failure to suppress the statements was not harmless error. 
    Id.
    The suppression court addressed Appellant’s contentions as follows.1
    The Wiretap Act generally prohibits intercepting, using or
    disclosing private communications between individuals, however,
    there are exceptions. One such exception allows for investigative
    or law enforcement officers or a 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 activity where one of the parties to the communication
    has given prior consent to such interception.           Despite this
    exception, in order to make such an interception under the
    Wiretap Act the district attorney, or an assistant district attorney
    designated in writing by the district attorney of the county wherein
    the interception is to be instituted, must review the facts and be
    satisfied that the consent is voluntary, and give their prior
    approval for the interception. Police officers must articulate
    reasonable grounds for the monitoring or the assistant district
    ____________________________________________
    1 The suppression court noted that Appellant’s Wiretap Act claims were vague,
    but addressed them nonetheless. Suppression Court Opinion, 12/15/17, at
    14. We conclude that Appellant sufficiently identified challenges to the
    voluntariness of the CI’s consent and the adequacy of the paperwork in the
    lower court to preserve them for our review. See, e.g., Brief in Support of
    Amended Omnibus Pretrial Motion, 8/3/17, at 14-15; N.T. Omnibus Hearing,
    9/29/17, at 16-19.
    -6-
    J-S72045-18
    attorney mast verify that these reasonable grounds exist. . . .
    [N]either the Wiretap Act or relevant case law requires that a
    memorandum of consent be executed by the proper authority.
    Surveillance conducted with the consent of a party to the
    conversation is not subject to the exacting standards of
    authorization required for non-consensual surveillance under the
    Wiretap Act.
    In regards to consent, a totality of the circumstances must
    be considered when determining whether a party freely provided
    knowing, intelligent, and voluntary consent. The fact that an
    Assistant District Attorney determines the voluntariness of the
    confidential informant’s consent and approved the intercept over
    the phone does not violate the requirements of [the Wiretap Act].
    . . . The Wiretap Act requires only that where suspected
    criminal activity is involved, the district attorney review the facts
    and be satisfied that consent is voluntary, and give prior approval
    for the interception.      As stated supra the court finds the
    Commonwealth properly adhered to the Wiretap Act
    requirements.      Detective Zech testified that upon receiving,
    information from the [CI] about a black male with a stocky build
    and dread-locked hair known as “D –Brown” selling narcotics and
    crack cocaine in the Scranton area, he had the [CI] consensualized
    so that all communications between the [CI] and D-Brown could
    be intercepted, including the phone calls, text messages, and
    covert audio recording device. The Commonwealth presented a
    memorandum of approval, a memorandum of consent, and a
    memorandum of interception. The [CI] was consensualized by
    ADA Brian Gallagher. The information was relayed to ADA
    Gallagher who interviewed the [CI] and determined his/her
    consent was voluntary. Based on his review of the facts and the
    [CI]’s consent he authorized detectives to intercept and record
    phone calls with [Appellant] and/or anyone who may be working
    with him to make the intended drug transaction. As such, the
    interception/recording of the [CI]’s phone calls were justified
    based on compliance with the Wiretap Act requirements. The
    court’s review of the facts indicates that the actions of
    Lackawanna County District Attorney’s office followed the
    directives of the statute.
    Suppression Court Opinion, 12/15/17, at 13-15 (citations, quotation marks,
    and unnecessary capitalization omitted).
    -7-
    J-S72045-18
    Following a review of the certified record and the applicable law, we
    conclude that Appellant’s Wiretap Act claims warrant no relief based upon the
    suppression court’s disposition of them on the merits. See also 18 Pa.C.S.
    § 5704(2)(ii) (providing that it is not unlawful and no prior court approval is
    necessary for interception of communications where one of the parties has
    consented and, inter alia, the ADA “has reviewed the facts and is satisfied that
    the consent is voluntary and has given prior approval for the interception”);
    Commonwealth v. McMillan, 
    13 A.3d 521
    , 525 (Pa.Super. 2011) (holding
    the relevant section of the Wiretap Act has no temporal restrictions, such that
    police had reasonable grounds to conclude defendant would discuss past
    sexual abuse of minor during consensual intercepted phone call although the
    defendant had not had contact with the minor for more than one and one-half
    years).
    With his last issue, Appellant contends that the physical evidence
    obtained from Appellant and from the search of Ms. Askew’s residence should
    have been suppressed as fruit of the poisonous tree. Appellant’s brief at 28-
    30. “The fruit of the poisonous tree doctrine excludes evidence obtained from,
    or acquired as a consequence of, lawless official acts.” Commonwealth v.
    Torres, 
    177 A.3d 263
    , 276 (Pa.Super. 2017) (cleaned up). “A fruit of the
    poisonous tree argument requires an antecedent illegality.” 
    Id.
    Appellant cites the alleged Wiretap Act violations as the antecedent
    illegality through which the Commonwealth ultimately obtained the physical
    -8-
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    evidence at issue. However, because Appellant failed to establish that there
    were Wiretap Act violations, the fruit-of-the-poisonous-tree doctrine does not
    warrant suppression of the physical evidence obtained thereafter.
    Accordingly, we conclude that Appellant has proffered no properly-
    preserved claim of error that merits relief from this Court.
    Judgment of sentence affirmed.
    Judge Shogan joins the memorandum.
    Judge Kunselman concurs in the result.
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 06/11/2019
    -9-
    

Document Info

Docket Number: 651 MDA 2018

Filed Date: 6/11/2019

Precedential Status: Precedential

Modified Date: 6/11/2019