Commonwealth v. Shreffler

201 A.3d 757

COMMONWEALTH of Pennsylvania

v.Scott Allen SHREFFLER, Appellant

Commonwealth of Pennsylvania

v.Scott Allen Shreffler, Appellant

No. 1375 MDA 2017

No. 1376 MDA 2017

Superior Court of Pennsylvania.

Submitted May 14, 2018

Filed December 21, 2018

Michael S. Gingerich, Belleville, for appellant.

Mark J. Remy, Assistant District Attorney, Lewistown, for Commonwealth, appellee.

BEFORE: PANELLA, J., NICHOLS, J., and PLATT, J.^*

OPINION BY NICHOLS, J.:

Appellant Scott Allen Shreffler appeals from the judgment of sentence following a jury trial and his convictions for three counts of delivery of a controlled substance.¹ He claims the trial court erred by not suppressing the Commonwealth's wiretap recordings of his conversations with a confidential informant based on the Commonwealth's failure to comply with the disclosure provisions of Pa.R.Crim.P. 573(B)(1)(g) and the Wiretapping and Electronic Surveillance Control Act (Wiretap Act).² We are constrained to vacate the judgment of sentence and remand for a new suppression hearing due to the Commonwealth's insufficiently justified failure to comply.

We glean the facts from the record that existed at the time of the suppression hearing.³ On March 28, 2016, the police arranged a controlled buy between a then-confidential informant (CI)⁴ and Appellant that occurred at Appellant's home. Aff. of Probable Cause, 4/5/16. The CI was wired and recorded their conversation. Id. The CI purchased two Buprenorphine pills, a controlled substance, from Appellant. Id. As a result of the buy, the police obtained a search warrant that evening and searched Appellant's home, recovering a bottle of Buprenorphine. Id. The police arrested Appellant and charged him with multiple counts of delivery of a controlled substance.⁵

On June 10, 2016, Appellant's counsel informally requested the Commonwealth's discovery. Omnibus Pretrial Mot., 8/22/16, at 4. On August 22, 2016, Appellant filed an omnibus pretrial motion seeking, among other things, to compel the Commonwealth to disclose the identity of the confidential informant. Id. Appellant acknowledged that the Commonwealth provided some discovery materials, but none of the materials pertained to the informant. Id. The court scheduled a hearing for November 16, 2016.

On the day of the hearing, but before it started, Appellant filed a supplemental omnibus pretrial motion requesting that the court suppress evidence obtained as a result of the wiretap. Suppl. Omnibus Pretrial Mot. to Suppress, 11/16/16, at 1. Appellant averred that he had been provided the March 25 and 28, 2016 recordings from the second and third controlled buys. Id. at 1. Appellant asserted the Commonwealth failed to comply with various provisions of the Wiretap Act, including approval of the wiretap by the district attorney and president judge "based upon a sufficient Affidavit of Probable Cause of the investigative or law enforcement officer establishing probable cause for the issuance of said Order." Id. at 2.

The trial court held the November 16, 2016 hearing on Appellant's initial omnibus pretrial motion, but did not address his supplemental motion. The court denied the initial motion on November 17, 2016, and scheduled a hearing on Appellant's supplemental motion.

At the January 5, 2017 evidentiary hearing on the supplemental motion, Appellant argued that the recordings should be suppressed because the Commonwealth allegedly failed to fully comply with the Wiretap Act. N.T. Mot. Hr'g, 1/5/17, at 8. As examples, Appellant claimed the Commonwealth bore the burden of establishing the CI's consent to be recorded and that any wiretap must be justified with an affidavit of probable cause.⁶ Id. at 8-9. The Commonwealth countered that the order authorizing a wiretap was under seal and that only the trial court had possession of it. Id. at 9.

During the hearing, the Commonwealth called Detective Craig Snyder. Id. at 13. Detective Snyder testified that he prepared the application for the in-home wiretap and a trial judge approved it. Id. at 17. As noted above, the in-home recordings were provided to Appellant during discovery. Id. at 21. After further testimony, Appellant again objected that documents pertaining to the wiretap application were not provided. Id. at 23; see also id. at 16-17 (objecting on the basis of the best evidence rule regarding the wiretap documents).

Appellant again contended that he cannot assail the sufficiency of the wiretap application absent the documents. Id. The Commonwealth reiterated that these documents were under seal and absent a court order, it would not turn over the documents to Appellant. Id. at 24. At the conclusion of the hearing, the trial court requested Appellant to file a letter brief. Id. at 28-29. On January 12, 2017, Appellant filed a letter brief, which argued, among other things, that the Commonwealth failed to comply with the statutory disclosure requirements of 18 Pa.C.S. § 5720.⁷ Appellant's Ltr. Br. in Supp. of Suppl. Mot. in Limine , 1/12/17.

On January 17, 2017, the trial court denied Appellant's motion. In relevant part, the trial court quoted 18 Pa.C.S. § 5720 and stated that the Commonwealth notified Appellant of the existence of wiretapped conversations and provided Appellant with copies of the recorded conversations. Order, 1/17/17, at 2-3. The court further observed that the Commonwealth had not yet attempted to introduce the contents of the recordings at any proceeding. Id. at 3. For these reasons, the court denied the motion.⁸

The trial court scheduled a jury trial to begin on March 21, 2017. That morning, Appellant again filed a motion in limine objecting to, among other items, the use of the intercepted communications because the Commonwealth failed to disclose the application, supporting affidavit, order, and final report. Appellant's Mot. in Limine , 3/21/17. Appellant reasoned that the Commonwealth's failure to comply with the mandatory disclosure requirements denied him the opportunity of challenging the court's authorization of the wiretap and the ability to effectively cross-examine witnesses. Id. The court overruled Appellant's objection. N.T. Trial, 3/21/17, at 3.

Trial commenced, and a jury found Appellant guilty.⁹ Following a pre-sentence investigation, the trial court sentenced Appellant to an aggregate sentence of 106 to 212 months' imprisonment. N.T. Sentencing Hr'g, 5/26/17, at 31.¹⁰

Appellant filed a timely post-sentence motion challenging the trial court's denial of his suppression motion. Specifically, Appellant contended the court did not recognize the Commonwealth's failure to comply with the disclosure requirements of the Wiretap Act, which should have resulted in suppression of the recordings. Appellant's Post-Sentence Mot., 6/5/17, at 5. Appellant also challenged the discretionary aspects of his sentence. Id. at 2-5. The court denied the post-sentence motion on August 4, 2017.

Meanwhile, Appellant also filed a pro se motion on July 25, 2017.¹¹ In that motion, Appellant claimed that at an unrelated civil proceeding, the trial court said it had sua sponte changed his sentence because the sentence for distribution of Buprenorphine exceeded the statutory maximum. Appellant's Pro se Mot. to Clarify Court's Sua Sponte Amendment of Sentence. On August 9, 2017, the court granted Appellant's pro se motion to clarify the court's sua sponte amendment of his sentence. Order, 8/9/17. The court stated that it erred by sentencing Appellant to a term exceeding five years for distribution of Buprenorphine. Id. Thus, it corrected the original sentence of 32 to 64 months' imprisonment for delivery of Buprenorphine to 30 to 60 months' imprisonment. Id. Appellant's corrected aggregate sentence is 104 to 208 months' imprisonment.

Appellant filed a single timely counseled notice of appeal on September 1, 2017, under a caption listing both docket numbers.¹² Appellant also filed a timely counseled court-ordered Pa.R.A.P. 1925(b) statement. We add that the Rule 1925(b) statement stated that Appellant intended to raise the issues within his post-sentence motion, a copy of which was attached to the Rule 1925(b) statement. Appellant's Rule 1925(b) Statement, 9/28/17. The trial court filed a responsive Rule 1925(a) decision.

Appellant raises the following issues:

1. Did the trial court commit reversible error by failing to order suppression of the Commonwealth's electronic interception of Appellant's oral communications with the Confidential Informant in Appellant's home, due to the [C]ommonwealth's failure to comply with the disclosure provisions of the Wiretap Act?

2. Must the sentences imposed by the trial court be vacated as illegal and/or manifestly excessive and an abuse of discretion?

Appellant's Brief at 4.¹³

In support of his first issue, Appellant reiterates that he filed a motion to suppress the intercepted communications because the Commonwealth failed to comply with sections 5704¹⁴ and 5714 of the Wiretap Act. Id. at 9. In Appellant's view, the order authorizing the in-home wiretap was discoverable under Pa.R.Crim.P. 573(B)(1)(g). Id. at 10-11. Although his motion in limine sought suppression, Appellant construes his motion as seeking discovery of not only the order, but discovery of the wiretap application and affidavit of probable cause, as well. Id. at 11. Appellant contends he needed those documents in order to properly challenge the validity of the wiretap application. Id. Absent the documents, Appellant argues his cross-examination of the affiant at the suppression hearing was unduly limited. Id. Appellant points out that the affiant testified he could not recall whether the affidavit of probable cause referenced the confidential informant's reliability. Id. at 13. Appellant notes he renewed his objection to the admissibility of the recordings in a motion in limine on the basis that the Commonwealth failed to provide the documents at least ten days prior to trial. Id. at 14.

The Commonwealth counters that it complied with...