Commonwealth v. Byrd, 1817 WDA 2016

185 A.3d 1015

COMMONWEALTH of Pennsylvania, Appellant

v.Al–Tariq Sharif Ali BYRD, a/k/a James T. Byrd

No. 1817 WDA 2016

Superior Court of Pennsylvania.

Argued July 19, 2017

Filed April 30, 2018

Kevin F. McCarthy, Assistant District Attorney, Pittsburgh, for Commonwealth, appellant.

Brandon M. Herring, Allegheny County Office of Conflict Counsel, Pittsburgh, appellee.

BEFORE: BOWES, J., LAZARUS, J., and OTT, J.

OPINION BY OTT, J.:

The Commonwealth appeals¹ from the orders entered October 31, 2016, in the Court of Common Pleas of Allegheny County, granting, in part, and denying, in part, Al–Tariq Sharif Ali Byrd, a/k/a James T. Byrd's motion to suppress. The Commonwealth claims the trial court erred in finding that: (1) certain jail visitation recordings were made in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act ("the Wiretap Act")² and the two-party consent exception did not apply; and (2) the warrantless search of Byrd's vehicle was not within the parameters of the Pennsylvania Supreme Court's newly recognized vehicle exception.³ After a thorough review of the submissions by the parties, the certified record, and relevant law, we reverse the court's suppression of the jail visitation recordings and certain evidence (the 20 bags of heroin, lockbox, vest, and cell phone) seized from Byrd's vehicle, and remand for further proceedings.

The trial court set forth the factual history as follows:

The uncontradicted evidence presented at the suppression hearing established that on February 23, 2015 at approximately 6:00 p.m., Officer Ross Weimer of the McKeesport Police Department was dispatched to 807 Leech Street for a call of a female receiving threatening calls with a suspect parked outside the residence in a grey F–150 truck. When Officer Weimer arrived at the residence, he noted a grey F–150 truck parked a few houses away. Upon entering the residence, he spoke to Ms. Velez, who told him that a man known to her as "Reek" had threatened to kill her, had a gun and was parked outside her house. Ms. Velez pointed out the grey truck previously referenced. Officer Weimer approached the truck, which initially drove directly at him but did stop on command. The driver, later identified as [Byrd], initially opened the window 2– 3 inches and eventually opened it all the way. Officer Weimer detected a strong odor of marijuana through the open window. Officer Weimer described [Byrd] as acting in a nervous manner with shaking hands and rapid breathing and called for back-up. When Officer Krejdovsky arrived, Officer Weimer asked [Byrd] to exit the vehicle and although he eventually opened the door, [Byrd] refused to get out. Officer Weimer pulled him out of the truck and a struggle ensued during which Officer Krejdovsky slipped on some ice and fell down a small hill. [Byrd] continued to struggle with Office[r] Weimer and was eventually able to break free after shedding his coat and shirt. [Byrd] ran and Officer Weimer chased him and attempted to use his taser, but he missed [Byrd]. [Byrd] eventually slipped on some ice near Officer Weimer's police vehicle and suffered a seizure while on the ground. Medics were called to attend to [Byrd]. Officer Krejdovsky testified that he observed a gun magazine under a piece of cloth on the front seat of the truck and he lifted the cloth to discover a .40 caliber handgun.

Also introduced into evidence was a stipulation that 20 stamp bags of heroin were found in an unlocked lockbox on the passenger seat of the vehicle, a bulletproof vest was found in the back seat of the vehicle and two (2) cell phones and a scale were also found in the vehicle (their location was not specified). Also stipulated to was that upon his arrest, 44 individually wrapped bags of marijuana, 10 individually wrapped bags of powder cocaine, four (4) bags of crack cocaine and $205.00 were found in [Byrd]'s pockets. The Commonwealth did not present any evidence regarding how the search of the truck was effectuated, but rather argued that it was appropriate due to the automobile exception to the search warrant requirement or, alternately, a search incident to arrest.

Trial Court Opinion, 1/12/2017, at 3–4 (footnote omitted).

Byrd was charged with persons not to possess firearms, carrying a firearm without a license, three counts of possession with intent to deliver, and three counts of possession of controlled substance.⁴ Byrd filed a motion to suppress on February 10, 2016, in which he alleged the stop and subsequent search was unreasonable, illegal, and violated his constitutional rights. He filed an amended suppression motion on May 18, 2016, requesting the court exclude further evidence related to the search of his person. Subsequently, the Commonwealth notified Byrd of its intent to present certain evidence against him that was obtained as a result of recording his conversations with visitors at the Allegheny County Jail.⁵ Byrd filed a second amended motion to suppress on October 11, 2016, arguing these jail recordings violated his constitutional rights and the Wiretap Act. A hearing was held on October 31, 2016.⁶ That same day, the court entered two orders: (1) granting Byrd's suppression motion as to the 20 bags of heroin, lockbox, vests, and two cell phones that were found in the vehicle, but denying his request as to remaining evidence seized from the vehicle; and (2) granting Byrd's motion to suppress all recordings of his jail visits. The Commonwealth filed a motion to reconsider, which was denied November 29, 2016. This appeal followed.⁷

In its first issue, the Commonwealth contends the trial court erred in rejecting its argument that Byrd's jail visit recordings "were permitted under the two-party consent exception to the Wiretap Act, finding the Commonwealth failed to prove that [Byrd] heard the recording warning which was played each time an inmate used the phone system to talk to a visitor." Commonwealth's Brief at 15.

Our standard of review of a trial court's order granting a defendant/appellee's motion to suppress evidence is well established:

When the Commonwealth appeals from a suppression order, we follow a clearly defined standard of review and consider only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted. The suppression court's findings of fact bind an appellate court if the record supports those findings. The suppression court's conclusions of law, however, are not binding on an appellate court, whose duty is to determine if the suppression court properly applied the law to the facts. Commonwealth v. Miller , 2012 PA Super 251, 56 A.3d 1276, 1278–79 (Pa. Super. 2012) (citations omitted). "Our standard of review is restricted to establishing whether the record supports the suppression court's factual findings; however, we maintain de novo review over the suppression court's legal conclusions." Commonwealth v. Brown , 606 Pa. 198, 996 A.2d 473, 476 (2010) (citation omitted).

Commonwealth v. Korn , 139 A.3d 249, 252–253 (Pa. Super. 2016), appeal denied , 639 Pa. 157, 159 A.3d 933 (2016). "It is within the suppression court's sole province as factfinder to pass on the credibility of witnesses and the weight to be given to their testimony. The suppression court is free to believe all, some or none of the evidence presented at the suppression hearing." Commonwealth v. Elmobdy , 823 A.2d 180, 183 (Pa. Super. 2003) (citations omitted), appeal denied , 577 Pa. 701, 847 A.2d 58 (2004). Nevertheless, the suppression court's conclusions of law are not binding on an appellate court, and are subject to plenary review. Commonwealth v. Johnson , 969 A.2d 565, 567 (Pa. Super. 2009) (citations omitted).

Generally, the Wiretap Act "prohibits the interception, disclosure or use of any wire, electronic or oral communication." Commonwealth v. Deck , 954 A.2d 603, 607 (Pa. Super. 2008), citing 18 Pa.C.S. § 5703, appeal denied , 600 Pa. 738, 964 A.2d 1 (2009).⁸ 18 Pa.C.S. § 5704 identifies "exceptions to Section 5703's prohibitions and allows for the interception of a wire, electronic or oral communication in designated circumstances." Deck , 954 A.2d at 607.⁹ Pertinent to this case, Subsection 5404(4) states: "It shall not be unlawful and no prior court approval shall be required under this chapter for ... [a] person, to intercept a wire, electronic or oral communication, where all parties to the communication have given prior consent to such interception." 18 Pa.C.S. § 5704(4).

Turning to the present matter, the Commonwealth states:

Inmates and visitors at the Allegheny County Jail are notified that their conversations may be monitored or recorded immediately prior to each visit conversation. By engaging in a conversation after receiving notice that the conversation may be monitored or recorded, the participants consent to the interception. Each of the conversations at issue in the instant case carried the warning that the conversation could be monitored or recorded. As such, visit recordings comply with the Wiretap Act, and any incriminating statements obtained from these recordings are admissible as evidence at trial.

Commonwealth's Brief at 18. The Commonwealth points to several conversations as instances in which Byrd and his visitors "actually intimated that they knew they were being recorded:"¹⁰ (1) Byrd telling his fiancée, Dana Heaps, he could not communicate the way he wanted to because of the prison setting;¹¹ (2) Byrd talking at normal volume and then moving to whispered tones in certain conversations;¹² (3) Byrd telling Heaps, "I swear to God, and—and—I'm gonna say it on the phone, I don't give a fuck;"¹³ and (4) Heaps having to repeat herself during one visit because she spoke before the recorded message played regarding the recording and monitoring of prison phone calls.¹⁴ Id. at 18–20. Relying on Commonwealth v. Baumhammers , 599 Pa. 1, 960 A.2d 59 (2008), cert....