Lead Opinion
OPINION
On October 22, 2013, Rahiem Cardel Fant (“Fant”) pled not guilty to various charges related to an incident during which he allegedly stabbed a man in the abdomen and arm. Awaiting trial, he was detained at the Clinton County Correctional Facility (the “Facility”). On or about February 20, 2014, approximately one week before his scheduled trial, Fant’s counsel received from the Commonwealth a production of recordings made at the Facility. All but two of the recordings consisted of conversations that occurred between Fant and his visitors in the Facility’s visitation room, where inmates converse with visitors, face-to-face, through a glass partition, using a telephone-like handset apparatus (“visit conversations”). As a result of these recorded visit conversations, law enforcement personnel retrieved additional evidence they sought to use at trial.
On February 21, 2014, Fant filed a motion in limine seeking to exclude at trial the visit conversation recordings and the evidence discovered as a result of them. He argued that the recordings violated Pennsylvania’s Wiretapping and Electronic Surveillance Control Act (the “Wiretap Act” or the “Act”). The Commonwealth countered that Section 5704(14) of the Act permits these recordings because it authorizes county correctional facilities to record “any telephone calls from or to an inmate,” as long as certain conditions are met. Trial Court Opinion, 2/26/2014, at 2.
The Wiretap Act generally prohibits intercepting, using, or disclosing communications except pursuant to specified procedures.
Section 5704 of the Wiretap Act provides eighteen exceptions to the general prohibition on intercepting communications, including an exception, the interpretation of which is at issue in the present case, allowing employees of county correctional facilities to monitor and record inmate “telephone calls” as long as inmates are notified in writing that such calls may be recorded and anyone calling into the facility is also told that their call may be monitored and recorded. 18 Pa.C.S. § 5704(14). Specifically, the Act provides:
It shall not be unlawful and no prior court approval shall be required under this chapter for:
(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:
*140 (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.A. § 5704(14).
During a suppression hearing on February 25, 2014, the Commonwealth presented testimony, in relevant part, from
The Court: [Visit conversations] is when I sit across the glass from you and pick it up?
The Witness: Yes.
The Court: Do you have to hit any number?
The Witness: Yes. You use your personal ID number.3
The Court: And it goes through there?
The Witness: Yes.
The Court: And it rings on the other side?
The Witness: I don’t think it rings. You just punch your number in and—
The Court: It activates it?
The Witness: Yes.
The Court: It doesn’t go through a telephone company?
The Witness: Well, if it’s on the computer they would have access. Oh, through a telephone company, no.
N.T., 2/25/2014, at 14 (footnote added).
Following the Warden’s testimony, the suppression court engaged in further discussion about the visit conversations with counsel for the Commonwealth, Karen Kuebler.
The Court: But it never hits a telephone company?
*142 Ms. Kuebler: It doesn’t—it doesn’t get recorded by the telephone company. It gets recorded by the inmate phone company. It doesn’t get recorded by Verizon.
Id. at 16.
Following the hearing, the suppression court granted Fant’s motion to suppress, making several findings of fact before concluding that the visit conversations were not “telephone calls” because the “every day common sense use of the word telephone does not include this scenario.” See Trial Court Opinion, 2/26/2014, at 2. In articulating its findings of fact, as required by Pennsylvania Rule of Criminal Procedure 581(1),
The Commonwealth appealed the suppression court’s decision and the Superior Court reversed. First, it properly enunciated the standard of review governing suppression court rulings:
In reviewing the ruling of a suppression court, our task is to determine whether the factual findings are supported by the record. If so, we are bound by those findings. Where, as here, it is the Commonwealth who is appealing the decision of the suppression court, we must consider only the evidence for the prosecution as read in the context of the record as a whole remains uncontradicted. Moreover, if the evidence supports the factual findings of the suppression court, this Court will reverse only if there is an error in the legal conclusion drawn from those findings.
Then, of relevance to the issue before this Court, the Superior Court held that “the [suppression] court’s finding that the recordings in question did not involve a telephone company is not supported by the evidence.” Id.,
Next, the Superior Court embarked on an effort to ascertain the meaning of “telephone” as used in the Wiretap Act. Id. at 780. Noting that the word is not statutorily defined, the Superior Court considered four different dictionary definitions including, (1) “an instrument for reproducing sounds, especially articulate speech, at a distance;" (2) “an electrical device for transmitting speech, consisting of a microphone and receiver mounted on a handset;” (3) “a device that is connected to a telephone system and that you use to listen or speak to someone who is somewhere else;” and (4) a “telephone consists of two essential parts; a microphone and a speaker. This allows the user to speak into the device and also hear transmissions from the other user.” Id. The first two definitions were offered by the Commonwealth, the third was offered by Fant, and the Superior Court offered the fourth.
Discounting the suppression court’s finding that the visit conversations do not involve a telephone company, the Superi- or Court pointed instead to “the additional uncontradicted fact” not found by the suppression court that the apparatus
We granted Fant’s petition for allowance of appeal and the case was submitted to us on the briefs. The issue presented is whether the Superior Court erred in holding that the visit conversations constitute telephone calls subject to the exception set forth in Section 5704(14) of the Wiretap Act. See id. To answer this question, we first determine the meaning of “telephone” under the Act and then apply that meaning to the suppression court’s findings of facts. Ultimately, we hold that the term “telephone call” in Section 5704(14) does not include the visit conversations and conclude that the suppression court’s decision to suppress the recordings of those conversations was proper.
The meaning of “telephone call” in Section 5704(14) is a question of statutory interpretation. “Because statutory interpretation is a matter of law,” our standard of review is de novo. See Commonwealth v. Wright,
As the Wiretap Act does not define the term “telephone call,” we must give the term its ordinary meaning. See Centolanza v. Lehigh Valley Dairies, Inc.,
We have explained, however, that statutory context also matters. We must read a section of a statute in conjunction with other sections, construing them always with reference to the entire statute. See Watts v. Manheim Twp. Sch. Dist.,
As an initial matter, we note that one would not ordinarily consider face-to-face conversations at a prison between an inmate and his visitor to be “telephone calls.” Although the inmate and his visitor use handsets to communicate through glass, this is an in-person visit bearing few characteristics of what is commonly considered to be a telephone call. And there is no indication that the Wiretap Act carries a buried implication that the term “telephone call” should be given a broader definition than the one that is commonly understood. See 1 Pa.C.S.A § 1903; accord Mohamad,
As noted, supra, the Superior Court cites various dictionary definitions in its quest to identify the “common meaning” of “telephone.” See Fant,
To begin, we interpret the word “telephone” in the context of the words that surround it. See Masters,
Similarly, the inclusion of the phrase “from or to an inmate in a facility” immediately following “telephone calls” indicates that the legislature understood a “telephone” to be a device that is capable of reciprocal functionality, i.e., each apparatus is associated with a telephone number such that both caller and recipient have the potential to dial one another. The procedural requirement that people “calling into a facility” must be notified that their calls can be recorded reinforces this definitional characteristic. Use of the word “into” contem
Although the Act does not define the term telephone call, it makes clear that a telephone call requires the involvement of a telephone company, or “communication common carrier,” by situating a telephone call, amongst other types of “aural transfers,” within the definition of wire communication.
Any aural transfer made in whole or in part through the use of facilities for the transmission of communication by wire, cable or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier.
18 Pa.C.S.A. § 5702 (emphasis added).
Absent the exception set forth in Section 5704(14), intercepting telephone calls to or from an inmate in a county correctional facility would require an application for a wiretap order, and that order would enlist a telephone company to assist in the interception. See id. Section 5704(14) removes the need for court approval with respect to intercepting telephone calls to or from inmates, but its reference to “telephone calls” must be read consistently with other provisions of the Act. See Watts,
Therefore, we hold that the common sense, plain meaning of a “telephone call,” as understood in the context of the Wiretap Act, is a communication that involves the (1) dialing of a telephone number, and; (2) an apparatus that is connected by wire or the like to a telephone company. By virtue of these features, a “telephone call” (8) permits a caller to converse
As an analytical matter, ascertaining the meaning of “telephone” under the Act does not fully resolve the issue before us. The second question in this case is whether the record supports the suppression court’s finding that the visit conversations do not, in fact, “involve the use of a telephone company... outside the [Facility].” See Trial Court Opinion, 2/26/2014, at 3. The Superior Court concluded that “the [suppression court’s] finding that the recordings in question did not involve a telephone company is not supported by the evidence.” Fant,
First, the Warden’s testimony was clear that the visit conversations “[do not] go through a telephone company.” See N.T., 2/25/2014, at 14 (“Oh, through a telephone company, no.”). Furthermore, her testimony that only a “personal ID number”—not a telephone number—is required to “activate” the visit conversation is additionally supportive of the trial court’s finding of fact that the visit conversations do not use a “telephone company, telephone lines or equipment outside the [Facility].” See id. The “personal ID number,” as we under
Moreover, evidence as to the non-involvement of a telephone company remains uncontradicted throughout the record. The Superior Court’s citation to a statement by Attorney Kuebler, the prosecutor representing the Commonwealth, is inapposite. See N.T., 2/25/2014, at 16. A statement by counsel during a suppression hearing is not evidence of record and the Superior Court may not consider such a statement when analyzing whether the record supports the suppression court’s findings of fact. See Commonwealth v. Montgomery,
We can speculate that the “inmate phone company,” referenced by Attorney Kuebler as distinct from a “telephone company,” is Inmate Telephone Inc. (ITI), the entity that provides the Facility with its Inmate Telephone Management System (ITM). ITM receives a brief description in the Facility’s “Telephone Regulations for Inmates,” which were admitted as evidence. See Telephone Regulations at 1. These Regulations state that ITM “empowers [the Facility] in the area of
Neither the Warden nor Attorney Kuebler considered the inmate phone company to be a “telephone company.” See N.T., 2/25/2014, at 14, 16. Moreover, given its limited functionality related only to monitoring and recording, the suppression court accurately found that the visit “conversations do not involve the use of a telephone company, telephone lines or equipment outside the [Facility].” Nor does the fact that ITM is also used to record actual telephone calls, which require the inmate to enter his personal ID number and to dial a telephone number, contradict the trial court’s finding that visit conversations occur without the use of an outside telephone company.
We therefore conclude that the Superior Court erred in holding that “the record does not support the trial court’s legal conclusion that the ‘apparatus that resembles a telephone’ is not a telephone and that the recorded telephone ‘visit’ conversations are not subject to the exception set forth in § 5704(14) of the Wiretap Act.” See Fant,
Order reversed. Jurisdiction relinquished.
Justice Wecht files a concurring opinion.
Justice Todd files a concurring and dissenting opinion.
Justice Baer files a dissenting opinion in which Justice Mundy joins.
Notes
. Section 5703 of the Wiretap Act provides:
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he: (1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to*139 intercept any wire, electronic or oral communication; (2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or (3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.
18 Pa.C.S.A. § 5703.
. The Commonwealth also introduced the following exhibits: (1) Telephone Regulations for Inmates, Policy Number 100-15 from the Clinton County Correctional Facility Policy and Procedure Manual ("Telephone Regulations"); (2) the Clinton County Correctional Facility Inmate Handbook ("Inmate Handbook”); (3) die Inmate I.D. Card Agreement and Acknowledgement of Inmate Rules and Regulations; and (4) the Clinton County Correctional Facility Inmate Telephone I.D. Number Release Form ("Telephone ID Form”).
. The Warden also testified that the "personal ID number” used for visit conversations is the same “personal ID number” used for the inmate telephone system. N.T., 2/25/2014, at 15; see also Telephone Regulations at 1-2 (providing that an "inmate may call a person of his or her choice outside the facility on a telephone provided for that purpose” and "inmate will be given a Telephone Identification Number (TID)” which will be "entered into the system by the Intake Officer upon commitment of a new lock-up”).
. Pennsylvania Rule of Criminal Procedure 581(1) provides that "[a]t the conclusion of the hearing, the judge shall enter on the record a statement of findings of fact and conclusions of law as to whether the evidence was obtained in violation of the defendant’s rights, or in violation of these rules or any statute, and shall make an order granting or denying the relief sought.” Pa.R.Crim.P. 581(1). Although the suppression court did not enter findings of fact and conclusions of law on the record before adjourning the suppression hearing, see N.T., 2/25/2014, at 44-45, it took the matter under advisement overnight, and issued factual findings and conclusions of law in an opinion the very next day. See id; Trial Court Opinion, 2/26/2014, at 2-3. The Commonwealth argues that the suppression court’s next-day opinion does not fulfill the mandate of Rule 581(1). See Brief for the Commonwealth at 14. We disagree.
The purpose of Rule 581(1) is to (1) permit a "losing party to make a more intelligent assessment of whether or not to burden the appellate justice system with an appeal of the suppression ruling” and (2) ensure that the trial judge and the appellate courts will have a record upon which they can timely and meaningfully discharge their responsibilities, especially in cases where the trial judge responsible for issuing a subsequent Rule 1925 opinion may be different than the suppression judge. See Commonwealth v. Millner,
Additionally, the Commonwealth’s citation to Pennsylvania Rule of Appellate Procedure 1921 and Commonwealth v. Young,
. We note here that the final segment of this statement by the suppression court, i.e. “or anything that would resemble what this [c]ourt would determine to be a 'telephone call’,” is not a finding of fact, but instead a conclusion of law. Findings of fact supported by the record are binding on this Court; conclusions of law are not.
. Dictionaries do not necessarily provide the "ordinary” meaning of a word under a statute, and should not conclude the interpretative search. See Commonwealth v. Hart,
. The Commonwealth argues that "an ordinary user, who simply malees a call and carries on a conversation, ... neither knows nor cares whether this use involves wires, radio, microwaves, satellites, or Voice over internet protocol’ (VOIP). Talking over a telephone is a telephone call.” See Commonwealth’s Brief at 9. We find it to be irrelevant to our determination of the “common meaning" of "telephone” whether a user "knows” or "cares” how a telephone works. Moreover, we note that many of the Commonwealth’s arguments are conclusory and circular, and therefore unhelpful. "Talking over a telephone is a telephone call” only if one assumes that the apparatus being used is in fact a telephone. As to the apparatus used for visit conversations, we make no such assumption. Similarly, the Dissent’s proposed definition of the term telephone call—"the utilization of a telephone to transmit communications from one party to another—does nothing to clarify the plain
. In holding that a telephone call requires the involvement of a telephone company, we do not conclude "that a ‘wire communication’ requires the involvement of a 'telephone ... company,’ ” contrary to the Dissent’s suggestion. See Dissenting Op. at 160 n. 1,
. A "communication common carrier” is "[a]ny person engaged as a common carrier for hire, in intrastate, interstate or foreign communication by wire or radio or in intrastate, interstate or foreign radio transmission of energy; however, a person engaged in radio broadcasting shall not, while so engaged, be deemed a common carrier.” 18 Pa.C.S.A. § 5702.
. The Dissent appears to suggest that we are engaging the rules of statutory construction relevant to "ambiguous” terms. See Dissenting Op. at 161,
. The proper statement of the suppression court's finding of fact is "these conversations did not involve the use of a telephone company, telephone lines or equipment outside the [Facility].” See Fant,
. We note that the Pennsylvania Public Utility Commission (the "Commission”), regulates and assesses telephone companies or carriers in Pennsylvania. A "telephone company” is defined under Commission regulations as "[a] public utility which provides regulated telecommunication services subject to Commission jurisdiction.” 52 Pa. Code § 63.132. The Commission’s website publishes a list of telephone companies servicing every county in the Commonwealth. Unsuiprisingly, Inmate Telephone Inc., the company that enables the recording of visit conversations at the Facility, does not appear anywhere on this list. See Telephone Carriers by County, http://www.puc.state.pa.us/consumer_ info/telecommunications/telephone_companies.aspx (last visited June 2, 2016). We find the contention that the "inmate phone company” is a "telephone company” to be disingenuous at best. It is certainly not a "telephone company” pursuant to 52 Pa. Code § 63.132 or a "communication common carrier” as defined under the Act. See 18 Pa.C.S.A. § 5702.
. Referencing the "right-for-any-reason” doctrine, the Commonwealth urges us to affirm the Superior Court on an alternative ground, not raised or argued by the Commonwealth below, specifically that there was no "interception” as that term is defined in the Wiretap Act. Brief of the Commonwealth at 17-19. According to the “right-for-any-reason” doctrine, appellate courts are not limited by the specific grounds raised by the parties or invoked by the court under review, but may affirm for any valid reason appearing as of record. See, e.g., Pennsylvania Dep't of Banking v. NCAS of Delaware, LLC,
Even if we were to consider the Commonwealth's proposed alternative ground on its merits, it provides no basis for affirming the Superior Court’s decision. If the visit conversation recordings do not meet the statutory definition of "interception,” we would be left with a scenario involving the recording by law enforcement of ostensibly private communications. Absent a showing that Fant lacked a reasonable expectation of privacy in these visit conversations, suppression is still appropriate to remedy a constitutional violation, if not a statutory one. See Commonwealth v. Enimpah,
Finally, the Dissent largely ignores the trial court’s finding that Appellant "had an expectation of privacy in this matter,” see Trial Court Opinion, 4/1/2014, at 2, when it posits that, even if the visit conversations are not telephone calls, we should remand to the Superior Court to address "whether the trial court erred in granting suppression absent a finding that Appellant had an expectation of privacy” in the visit conversations. See Dissenting Op. at 162, n. 3,
Concurrence Opinion
concurring
I join the Majority opinion with the exception of footnote 13. Maj. Op. at 154-55, n.13,
The Commonwealth has argued in the alternative that we should affirm the Superior Court’s decision because there was
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.,
. See 18 Pa.C.S. § 5703.
. 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:
(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).
. 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.,
Dissenting Opinion
dissenting
I dissent from the majority’s conclusion that communications between an inmate and his visitor at a correctional facility that are effectuated through the use of a telephone handset do not constitute a “telephone call” subject to the exception to the general prohibition against interception in Section 5704(14) of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), 18 Pa.C.S. § 5704(14). The majority reasons that the common sense meaning of “telephone” “requires both the dialing of a telephone number and the involvement of a telephone company in connecting a caller to his or her call recipient.” Op. at 153,
The record establishes that Appellant was charged with aggravated assault and related offenses after he allegedly stabbed an individual outside a bar in Clinton County. To demonstrate Appellant’s consciousness of guilt, the Commonwealth sought to introduce two recorded conversations, both of
Appellant sought suppression of the recorded conversations (and any evidence discovered as a result of such recordings) on the grounds that a visitor communication that occurred without the aid of a telephone company when the parties are face-to-face in the correctional facility, separated only by a glass partition, is not a telephone call, particularly where the inmate does not dial a number but, rather, dials his prison identification number to operate the telephone. The trial court agreed with Appellant and granted suppression.
The Superior Court reversed, finding that the trial court erred as a matter of law in concluding that the “apparatus that resembles a telephone” is not a telephone and that the challenged conversations are not subject to Section 5704(14)’s exception to the prohibition against interception. Commonwealth v. Fant,
I would affirm the ruling of the Superior Court. I acknowledge that Appellant did not dial a telephone number, in the conventional sense, to call his visitor on the other side of the glass partition in the prison visitation room, but rather, inserted his prison identification number to operate the telephone. I further recognize that a common carrier telephone company was not involved in the placement of Appellant’s call to his prison visitor, although the prison’s internal telephone system was so involved. Contrary to the majority, however, I do not interpret Section 5704(14) as setting forth such requirements.
Notably, the trial court used the phrase “apparatus that resembles a telephone” to describe the instrument that visitors and inmates use to converse through the glass partition. In my opinion, an instrument that resembles a telephone and acts as a telephone as it transmits the parties’ wire communications, is a telephone. The fact that the inmate and visitor can see each other through the glass partition is of little relevance
The majority accurately recognizes that the Wiretap Act is to be strictly construed. However, “[t]he need for strict construction does not require that the words of a penal statute be given their narrowest possible meaning or that legislative intent be disregarded ... nor does it override the more general principle that the words of a statute must be construed according to their common and approved usage.” Commonwealth v. Booth,
Even if one were to find the phrase “telephone call” ambiguous and proceed to divine legislative intent, I would reach the same conclusion—that the General Assembly did not intend to carve an exception that would protect wire communications taking place in a prison visitation room. The purpose of authorizing interception of the inmate’s telephone calls is clear, ie., to safeguard the orderly operation of the facility and the prosecution or investigation of any crime. See 18 Pa.C.S. § 6704(14)(i)(C) (providing that “[t]he 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”). As the Commonwealth points out, if visitor telephone calls could not be monitored and recorded, inmates could freely use them to conspire with others to hide or destroy evidence, influence witnesses, smuggle contraband, or plot an escape.
Finally, even assuming the challenged recordings do not fall under the inmate telephone call exception to the general rule against interception, I do not believe that reinstatement of the trial court’s suppression order is the appropriate remedy at this stage of the proceeding. In its appeal to the Superior Court, the Commonwealth raised two issues in addition to
Justice Mundy joins this dissenting opinion.
. In support of its conclusion that the participation of a telephone company is necessary for a telephone call to occur, the majority asserts, inter alia, that under the Wiretap Act, a telephone call is a "wire communication” and that a "wire communication” requires the involvement of a "telephone ... company for hire as a communication common carrier.” 18 Pa.C.S. § 5702. See Op. at 149,
Additionally, the majority opines that because Section 5712 of the Wiretap Act ("Issuance of order and effect”) provides that an order may direct the participation of a telephone company in an authorized interception, "the legislature understood the term 'telephone call,’ ordinarily, to be the sort of communication that relies on the operation of a telephone company.” Op. at 150,
. The third issue concerned whether the trial court erred in suppressing Appellant’s personal belongings.
. In footnote twelve, the majority references the suppression court’s conclusion that Appellant had an expectation of privacy and notes that the Commonwealth does not argue to the contrary. See Op. at 154-55 n.13,
Concurrence Opinion
concurring and dissenting
I join the Majority Opinion, except for its mandate. For the reasons expressed by Justice Baer, see Dissenting Opinion (Baer, J.) at 161-62,
