Com. v. Shreffler, S. ( 2018 )

J-S32029-18 & J-S32030-18
2018 Pa. Super. 302
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SCOTT ALLEN SHREFFLER :
:
Appellant : No. 1375 MDA 2017
Appeal from the Judgment of Sentence May 26, 2017
in the Court of Common Pleas of Mifflin County
Criminal Division at No.: CP-44-CR-0000247-2016
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
SCOTT ALLEN SHREFFLER :
:
Appellant : No. 1376 MDA 2017
Appeal from the Judgment of Sentence May 26, 2017
in the Court of Common Pleas of Mifflin County
Criminal Division at No.: CP-44-CR-0000250-2016
BEFORE: PANELLA, J., NICHOLS, J., and PLATT*, J.
CONCURRING OPINION BY PLATT, J.: FILED: NOVEMBER 5, 2018
Because the Commonwealth failed to obtain an order unsealing the
memorandum of consent and approval, the court order authorizing the in-
home interception, and the affidavit of probable cause, as required by 18
Pa.C.S.A. § 5704(2)(iv), I concur in the result. I believe it unnecessary to
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S32029-18 & J-S32030-18
address the additional provisions of the Wiretap Act set forth in the learned
Majority Opinion. The Act itself, at 18 Pa.C.S.A. § 5721.1(b)(5) and (6), limits
a motion to exclude in one-party in-home consents to claims that: “the
consent to the interception was coerced by the Commonwealth” and “the
interception was made without prior procurement of a court order or without
probable cause.” 18 Pa.C.S.A. § 5721.1(b)(5), (6).1
Implicit in the Majority Opinion and this Concurrence is the requirement
that, on remand, the Commonwealth move to unseal these documents, and
provide them to Appellant’s counsel. Appellant also should be given an
opportunity to amend his motion to suppress, based on anything revealed in
this discovery, and, a new suppression hearing should be held, if required.
I agree that, by failing to provide discovery, the Commonwealth
prejudiced Appellant in his ability to challenge the probable cause requirement
for the wiretap, thus necessitating that we vacate his sentence and remand.
Accordingly, I respectfully concur in the learned Majority’s disposition.
____________________________________________
1 In Commonwealth v. Fetter, 770 A.2d 762 (Pa. Super. 2001), this Court
observed that “18 Pa.C.S.[A.] § 5704 is not subject to other sections of the
Wiretap Act, unless specifically enumerated; instead, it lists exceptions to the
generally stringent requirements for wiretaps when the interception occurs at
the direction of a law enforcement officer and one party voluntarily consents
to the interception.” Fetter, supra at 766.
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