*1 11/10/09, at 35. Hearing, Suppression N.T. no that he had Morgan testified
Detective any negative was there to believe
reason from prevent Appellant would
feelings that T.T., when her stat- especially
speaking pre- him was to contacting reason for
ed about their of rumors spread
vent that Appel- had testified T.T.
sexual acts. him first speak with her to
lant had asked their sexual to discuss
if she ever wanted Further, anyone with else.
encounters also noted he did Morgan
Detective reporting in the sexual delay
find T.T.’s common in very “it is
acts unusual as long periods cases that
sexual assault actual incident is go
time before Id. at various reasons.”
reported, due to result, find the detectives
39. As a we ap- for the a reasonable basis
provided wiretap.5 consensual
proval of the reasons, we find aforementioned
For the denying Ap- did not err
the trial court and we affirm suppression motion
pellant’s judgment of sentence.
Affirmed. Pennsylvania,
COMMONWEALTH
Appellee
Gary PRISK, Appellant. E. Pennsylvania.
Superior Court of Nov. 2010.
Submitted
Filed Jan. 2011. was that he noting pellant's defense at trial that sole Even if was correct age T.T. was not the of con- wiretap, failed to realize there no reasonable basis for was from the The information obtained it been harmless error for the sent. would have Appellant had wiretap only intercepted conversa- established trial court to admit the T.T., inappropriate which he he had contact tion admitted at trial that alleged by Ap- at trial. T.T. conceded committed the sexual acts *2 older, escalat- the abuse grew
As Victim to perform forced Victim ed. give and to and re- mutual masturbation *3 gave also Victim Appellant ceive oral sex. camera, ordering photo- her to take nude sexually explicit poses. graphs of herself twelve approximately was When Victim old, her for the first raped years Appellant occasion, plied Appellant time. On her watch with alcohol and made Victim told Vic- Appellant videos. pornographic the sex acts perform have to tim she would Thereafter, Appel- in the videos. depicted sexually rape to and assault lant continued basis, when daily an almost often Victim on at brother were not Victim’s mother and Defender, McClain, Public Casey M. disobeyed Appellant’s If home. Victim Bellefonte, appellant. for commands, physically would Appellant Wilson, At- Assistant District Yvette L. physical abuse included abuse her. The Commonwealth, Bellefonte, ap- torney, stomach, holding her burning Victim’s pellee. bathtub, plac- in the and head under water her plastic bags over head. STEVENS, GANTMAN, BEFORE: *, JJ. 2006, and FITZGERALD imprisoned was Appellant In Facility County Correctional the Centre GANTMAN, BY J.: OPINION Appellant partici- for unrelated offenses. which program, in work release Prisk, pated Gary appeals E. from Appellant, him continue his abuse of Vic- enabled to in the of sentence entered judgment 2007, longer no Pleas, Appellant tim. In when County Court Common Centre release, in work Victim first participated trial convictions for jury following his police mother and the about offenses, informed her in- three fourteen hundred investigation part the abuse. As rape, involun- multiple counts of cluding police con- allegations, into intercourse, Victim’s and inde- tary sexual deviate Appellant visit vinced Victim to affirm. cent assault.1 We on March 2008. Victim county prison procedural and histo- The relevant facts visit, during the recording wore a device Between are as follows. ry appeal of this Appellant. her conversation with capturing sexually abused Appellant 2001 and did not obtain an or- The Commonwealth (“Victim”). The abuse stepdaughter his prior Pleas der from the Court Common years was ten commenced when Victim intercepting this conversation. time, would force Appellant old. At that filed July the Commonwealth presence. Appel- On Victim to undress charging Appellant family criminal informations lant to kill threatened Victim’s separate of- with three hundred fourteen anyone about these members if she told physical fenses related to sexual incidents. * assigned Supe- specially respective- Former Justice 1. 18 Pa.C.S.A. ly- rior Court. 3, 2008, On abuse Victim. November CONVERSATION WITHIN THE suppress filed motion to the WALLS OF THE PRISON IN WHICH recording jailhouse of his conversation APPELLANT RESIDED? Victim. claimed the Com- THE WAS COURT’S AGGREGATE the recording monwealth obtained in viola- SENTENCE OF 633 YEARS TO 1500 Wiretapping tion of the and Electronic YEARS’ INCARCERATION A MANI- Act”).2 Surveillance Control Act (“Wiretap FESTLY EXCESSIVE SENTENCE? Specifically, Appellant argued the Com- 27). (Appellant’s Brief at monwealth had to obtain an order from the *4 of prior Court Common Pleas to intercept- issue, In his first Appellant com ing a conversation inside of his “home.” plains the Commonwealth cannot a record By 16, opinion order and entered January conversation in the home of a nonconsent-
2009, the court denied Appellant’s suppres- ing party unless the Court of Common sion motion. Pleas first issues an order authorizing the trial, Following jury Appel- convicted interception. Appellant contends the 9, 2010, charges. lant of all On April the county prison his “home” at the was time Appellant sentenced to an aggregate 11, of the March 2008 interception, be term thirty-three of six hundred to cause it was his place de of abode. facto one years’ thousand five hundred Appellant asserts he pris lived at the has 14, imprisonment. April Appel- On on since paid and has per day $10.00 motions, timely post-séntence lant filed in- in fees to “rent” Appellant his cell. also cluding modify a motion to Ap- sentence. maintains he ability has the to restrict pellant conceded his sentence fell within visitors’ prison; access to the a visitation nevertheless, the statutory guidelines; Ap- only could occur Appellant after places the pellant argued the court imposed a mani- visitor’s name on a approval. list for festly excessive sentence. Appellant in- Additionally, Appellant maintains the sisted he “will never live even a fraction of prison does not record or otherwise moni- sentence,” the total and the sentence “goes tor the conversations occurring inside the far beyond the bounds of protecting the Appellant visitation room. emphasizes (Post-Sentence community....” Motions, prison officials monitor types some 5). 4/14/10, 13, 2010, May filed On communications, inmate including tele- Appellant’s court denied post-sentence mo- phone conversations, others, but not such tions. outgoing mail. Under these circum- Appellant timely filed the instant notice stances, Appellant argues he had a sub- appeal May on 2010. On June jective belief that his conversation in the 2010, the court ordered Appellant to-file a visitation private. room was Appellant concise statement of matters complained of argues: further “If there are distinctions 1925(b). on appeal, pursuant to Pa.R.A.P. being made in what communica- [inmate] 1925(b) timely filed his Rule monitored, tions being are society is tacit- statement on June ly recognizing very limited expectation
Appellant raises two issues for our re- privacy as reasonable.” (Appellant’s view: 40). Brief concludes the
DID THE ERR BY COURT FAILING court suppressed should have the record- TO SUPPRESS AN INTERCEPTED of the March 2008 conversation in seq. 2. 18 Pa.C.S.A. 5701 et communications), or oral electronic ground. room on this visitation prison where: disagree.
We subject to this issue examine We following principles: (iv) requirements of this sub- addressing of review standard Our met. If an oral inter- paragraph are court’s denial of a a trial challenge to authorized under ception otherwise to deter- motion is limited suppression in the paragraph place will take this findings factual are mining whether then, nonconsenting party, of a home and whether by the record supported of sub- requirements in addition to the from those conclusions drawn legal (ii), interception shall paragraph facts are correct. be conducted until an order is first only evidence may consider [W]e president judge, from the or obtained and so much of prosecution judge, also be a designee who shall remains for the defense as
evidence pleas, common authoriz- of a court of *5 in the con- when read uncontradicted interception, in-home based ing such record as a whole. Where text of the investigative an upon by an affidavit findings of the supports the record or law enforcement officer that estab- court, by we are bound suppression for the issuance probable lishes cause may only reverse if facts and those an order. No such order or of such legal in reaching erred its the court prob- where required affidavit shall be upon based the facts. conclusions exigent able cause and circumstances Williams, A.2d purposes para- v. 941 exist. For the of this Commonwealth (en banc) (internal interception shall be (Pa.Super.2008) graph, an oral 26-27 omitted). a place marks deemed to take in the home of quotation citations and nonconsenting only if both the party [Wiretap purpose “The focus and nonconsenting parties consenting and privacy.” of Com- protection isAct] physically present are in the home at Spence, Pa.Super. v. 428 monwealth interception. the time of the (1993). Wiretap 668 The Act 681 A.2d part: provides pertinent in 5704(2)(iv). Wiretap § The 18 Pa.C.S.A. Exceptions prohibition § to of 5704. Act defines “home” as: “The residence of interception commu- and disclosure of nonconsenting party interception, a to an nications that access to the residence is not provided generally permitted to members of the prior unlawful no
It shall not be and ex- public party and the has a reasonable required shall be under approval in the residence under pectation privacy of chapter this for: 18 Pa.C.S.A. 5702. circumstances.” [Wiretap] requires law enforce- Act that Any investigative “[T]he or communication, any person acting person uttering or at the a an oral ment officer Act, that term defined under request investigative direction or of an as is that the intercept specific expectation officer a must have a or law enforcement to wire, of a discussion will not be elec electronic or oral communication contents activities, tronically recorded.” Commonwealth v. involving suspected criminal Brion, 256, 259-60, to, A.2d but not limited the crimes 539 Pa. including, (1994). “However, expectation this (relating in to 288 enumerated section wire, existing cir- justifiable of must be under authorizing interception order visitors; Implicit any of three seats for discussion inmates and eumstances. will separated that a communication are visi- expectation an inmates’ seats from the recorded, right is a discussion of in- glass partition, not be tors’ seats and at Id. at 652 A.2d privacy.” to with their speak through mates visitors telephone system. closed-circuit one’s ac “To determine whether right privacy, within the we tivities fall not have to Inmates do unlimited access first, defen examine: whether [the must room, the visitation and their visitation expectation pri exhibited an has dant] be privileges can revoked. Inmates are second, vacy; expecta whether that week, permitted per have one visit as to society to prepared tion is one (See “special” per well as one visit month. recognize reasonable.” Id. at 5.) 12/4/08, Suppression Hearing, N.T. “To first re satisfy A.2d at 288-89. opens “Central Control” the door to the quirement, the individual demon must room, allowing visitation inmates to enter sought preserve that he some strate (Id. they when have scheduled visit. second, private. satisfy To thing as 4). twenty- must schedule Inmates visits expectation privacy the individual’s advance, four must hours and visitors justifiable must be under the circum provide photo identification to the visita- Moore, stances.” upon tion officer arrival. Food and other 1092, 1098(Pa.Super.2007). A.2d permitted contraband are in the visita- determining In whether a ex- person’s tion room. *6 privacy of or rea-
pectation
legitimate
is
Additionally, the visitation rooms are not
sonable,
totality
the
of the circumstances
part
housing
of the
unit the inmates inhab-
must be considered and the determina-
it.
housing
The
unit includes the inmates’
ultimately
upon balancing
tion will
rest
beds,
toilets,
cells. The cells contain
societal
of the
interests involved. The
mirrors,
desks,
and sinks.
keep
Inmates
legitimacy
expecta-
constitutional
of an
items,
personal
their
such as
and
clothes
privacy
on
dependent
tion of
is not
the
brushes,
tooth
inside the cells.
subjective intent of the
assert-
individual
right but
ing
expec-
the
on whether the
the
court
Consequently,
suppression
tation is reasonable in
all the
light of
did not
Appellant
concluded
have a reason-
surrounding circumstances.
privacy
of
con-
expectation
during
able
his
versation in the visitation room:
Viall,
(quoting
Id.
Commonwealth v.
890
(Pa.Super.2005)).
A.2d
[Appellant]
ready
does not have
access
Instantly, at
the suppression hearing,
to the
room. He
visitation
does
the
presented
Commonwealth
Lieutenant
control when he comes
and
goes,
and
County
Jeanna Ananea of the Centre
Cor-
what he can do when in the visitation
Facility.
instance,
rectional
Lieutenant Ananea tes-
room
restricted.
is
For
he
food,
regarding
policies
proce-
drink,
tified
and
cannot consume
or alcohol.
Furthermore,
governing
prison
dures
visitation room
access
is controlled
permission
where
met with
prison,
granted
Victim. Accord-
and
must be
ing
testimony,
prison
contains
to
[Appellant]
for
use the visitation
ten visitation rooms for the
of two
free
[Appellant]
use
room.
does not have
(286)
thirty-six
hundred
Each
his visitors. All
must
inmates.
access to
visitors
up
visitation room can
approval
accommodate
to
be listed on an
list ahead of
separate
[Appellant]
three
visits at one
The
in
only
time.
time and
can
remain
room
for
room
time.
visitation
contains three seats
the visitation
for a limited
(3)
an
develop
“appropriate”
indi-
rationale and
to three
may
up
be
also
There
this
in the
concludes
Court
having
visitations
sentence.
inmates
vidual
and remand the
one time.
must vacate his sentence
room at
same
re-sentencing. Appellant’s
matter
for
discretionary aspects
challenges
claim
reasons, it unreason-
foregoing
For
his sentence. See Commonwealth
of
expect privacy
inmate to
for an
able
Mastromarino, 2
(Pa.Super.2010)
A.3d 581
visitation room.
conversations in the
due
allegation of excessiveness
(explaining
not have a reasonable
[Appellant] did
im-
imposition of consecutive sentences
to
during his meet-
privacy
of
expectation
of
discretionary aspects
sentenc-
plicates
Fur-
complaining witness.
ing).
thermore,
expectation
privacy
an
of
such
recog-
society
prepared
is not one
discretionary
Challenges to the
as
have
society and our Courts
nize. While
an
sentencing
guarantee
do not
pects
privacy
a certain level
recognized
v. Si
appeal
right.
as of
inmates,
by [Ap-
expectation posited
erra,
(Pa.Super.2000).
A.2d
within that level.
pellant] is not
challenging
discretionary
appellant
An
January
Opinion, filed
(Suppression Court
his sentence must invoke this
aspects of
5-6).
applicable
In
light
a four-
jurisdiction by satisfying
Court’s
review,
accept
and standard of
we
scope
part test:
these circum-
this conclusion. Under
analysis
to de-
four-part
conduct
[W]e
stances,
any general expectation
privacy
(1)
appellant
whether
has filed
termine:
con-
Appellant’s prison
visitation room
Pa.R.A.P.
timely
appeal,
notice of
see
Thus, the
versations was unreasonable.
903;
and
whether the issue was
suppres-
properly
Appellant’s
denied
preserved
sentencing
or in a
properly
Williams, supra.
sion motion. See
modify
sen-
motion to reconsider
issue, Appellant as
his second
In
720;
tence,
whether
see Pa.R.Crim.P.
*7
manifestly
sentence is
aggregate
serts his
defect,
has a fatal
Pa.
appellant’s brief
unreasonable, because the
excessive and
(4)
2119(f);
whether there is
R.A.P.
for
imposed
consecutive sentences
that
question
a substantial
the sentence
some of his convictions.
con
appealed
appropriate
from is not
under
that a
cedes'this Court “is cautious to cede
Code, 42
Sentencing
Pa.C.S.A.
substantial
has been raised when
question
9781(b).
challenging consecutive sentence struc
Evans,
528,
v.
901 A.2d
Commonwealth
42). Appel
tures.”
Brief at
(Appellant’s
denied,
Pa.
(Pa.Super.2006), appeal
533
589
contends, however,
sentencing
lant
(2006) (internal
727,
citations
A.2d
appeal de-
Instantly, Appellant properly preserved
nied,
(2000)).
563 Pa.
The determination of what con
sentence motion and included a Rule
2119(f)
stitutes a substantial question must be
statement
in his appellate brief.
case-by-case
evaluated on a
basis. Com Although a
question
substantial
appears Paul,
(Pa.Su
monwealth v.
But see
Dodge,
Commonwealth v.
957 A.2d
CONCURRING AND DISSENTING
denied,
1198 (Pa.Super.2008), appeal
by FITZGERALD,
Statement
J.:
Pa.
that his Sec- Sentencing Code.
objectives Code, 9721(b) Gen- Sentencing of the
tion Standards, that “the court provides
eral that the general principle
shall follow confine- call for imposed should
sentence protection with the consistent
ment that is offense as gravity of the public, life impact on the
it relates community, and the re-
victim and on of the defendant.” needs
habilitative 9721(b). find that the § I would
Pa.C.S. policies achieved the could have
trial court 9721(b) imposing a mini- without
of section than six times that is more
mum sentence lifetime, which I find is natural person’s clearly unreason-
manifestly excessive 9781(c)(2).
able. 42 Pa.C.S. See & GUARANTY
FIDELITY COMPANY,
INSURANCE
Petitioner WORKERS’ COMPEN-
BUREAU OF (Community Medical
SATION
Center), Respondent. Pennsylvania. Court of 13, 2010.
Argued Sept. Oct.
Decided