Commonwealth v. Byrd
| Decision Date | 29 July 2020 |
| Docket Number | No. 34 WAP 2018,34 WAP 2018 |
| Citation | 235 A.3d 311 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. James T. BYRD, a/k/a Al-Tariq Sharif Ali Byrd, Appellant |
| Court | Pennsylvania Supreme Court |
Hugh J. Burns Jr., Esq., for Amicus Curiae.
Frankie C. Walker II, Esq., Frank Walker Law, for Appellant.
Kevin Francis McCarthy, Esq., Allegheny County District Attorney's Office, for Appellee.
Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.
OPINION
In this appeal, we are asked to examine the mutual consent exception to the Wiretapping and Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S. § 5704(4). For the reasons that follow, we hold that prior consent under the mutual consent exception is based on whether an individual knew or should have known they were being recorded.
In April 2015, Appellant, James T. Byrd, a/k/a/ Al-Tariq Sharif Ali Byrd, moved in with Dana Heaps after being released on bail for charges filed in February, 2015 that are unrelated to this case. While residing with Heaps, Appellant learned she was taking Seroquel, a prescription anti-psychotic medication. Appellant observed that the medication made her drowsy, and told Heaps that he did not approve of her taking the medicine. He thereupon took the Seroquel away from her in order to control when she could take the medication. Unbeknownst to Heaps, on an occasion in mid-May 2015, Appellant apparently gave Heaps a larger dose than was prescribed, causing Heaps to become unconscious.
Later in May, Appellant showed Heaps, and her friend, Carlos Dukes, a cell phone video of Heaps in her state of unconsciousness on the aforementioned occasion. As recounted by Heaps, the video showed Appellant removing her clothes, rubbing his penis on her face, inserting his penis in her mouth, and engaging in vaginal and anal intercourse with her, all while she remained unconscious. Heaps later told investigating officers that Appellant told her the video should serve as a warning to her on the dangers of taking Seroquel.
On June 9, 2015, Appellant was arrested on a parole violation warrant issued by the State of Ohio and recommitted to the Allegheny County Jail. Between June 2015 and February 2016, while incarcerated at the jail, Appellant received several visits from Heaps. At the time, all visits at the Allegheny County Jail were conducted over a closed-circuit system using telephone-like handsets. The visitor entered the visitor's room, and sat at a glass partition with a handset. The inmate receiving the visitor was seated on the other side of the partition with a second handset. To communicate, an inmate picked up the handset and typed in his or her jail identification number. The system then produced a verbal alert that said, "your call is being processed." Before the parties were connected to speak, another verbal alert advised, "this call may be monitored or recorded." Suppression Hearing, N.T., 10/31/16 at 12. Appellant and Heaps communicated via this system each time Heaps visited him at the jail.
In early 2016, Heaps, her boyfriend, and her family, contacted the Duquesne Police Department to report that Appellant was threatening them through phone calls from the Allegheny County Jail.1 As part of its investigation, officers from the Duquesne Police Department interviewed Heaps. During the interview, Heaps indicated she feared Appellant and had only allowed him to live with her because she felt she had no choice. Heaps also recounted to police details of the video Appellant had showed her of the sexual assaults he committed against her while she was unconscious. The officers subsequently interviewed Dukes, who corroborated Appellant's account. In its investigation of these new allegations, the Commonwealth obtained the recordings of the conversations between Appellant and Heaps made during her jail visits. In one particular conversation from a visit on February 17, 2016, Appellant and Heaps discussed the May 2015 assault.
As a result of its investigation, the Commonwealth charged Appellant in the instant case with one count of rape of an unconscious victim, two counts of involuntary deviate sexual intercourse of an unconscious victim, two counts of aggravated indecent assault of an unconscious victim, two counts of terroristic threats, and one count each of stalking, indecent assault of an unconscious person, invasion of privacy, and persons not to possess firearms.2
Appellant filed a motion to suppress the recordings of the jail visit conversations obtained by the Commonwealth. Appellant averred the recordings were made in violation of the Wiretap Act, 18 Pa.C.S. §§ 5703 - 5728. Section 5703 of the Wiretap Act prohibits a person from intercepting "any wire, electronic or oral communication," except as provided elsewhere in the Act. 18 Pa.C.S. § 5703.3 Section 5704 enumerates the exceptions to the Act. Relevant to this appeal are Section 5704(4), the mutual consent exception, and Section 5704(14), the correctional facility exception.4 The Commonwealth asserted the jail visit conversations were admissible under the mutual consent exception.
In his suppression motion, Appellant principally relied on Commonwealth v. Fant , 637 Pa. 135, 146 A.3d 1254 (2016), decided one month prior to Appellant's suppression hearing, in which this Court held that a jail visit conversation conducted via a telephone-like handset does not constitute a "telephone call" as that term was used in the prior version of the correctional facility exception. Fant , 146 A.3d at 1260. In a divided decision, this Court held jail visit conversations do not constitute telephone calls. In reaching that conclusion, the Majority focused on the non-involvement of a telephone company as well as the ordinary definition of telephone call. Following our decision in Fant , the General Assembly amended Section 5704(14), replacing the "telephone calls" phrase throughout the exception with language permitting law enforcement or correctional facility employees to intercept an inmate's "oral communication, electronic communication or wire communication" as long as the specified criteria in the Section is met. 18 Pa.C.S. § 5704(14) (effective September 5, 2017). Nevertheless, the prior version of the correctional facility exception was still in effect at the time the recording in the instant matter was made. Thus, in an attempt to analogize this case to Fant , Appellant asserted, "Allegheny County jail uses a substantially similar system for recording jail visit conversations and consequently any recordings of the defendant's jail visit conversations must be suppressed." Motion to Suppress, 10/11/16 at 5. A suppression hearing was held on October 31, 2016.5 Appellant refused to leave his jail cell to attend the hearing, and the defense did not put on any evidence. Defense counsel argued the Allegheny County Jail inmate visit system was substantially similar to the Clinton County system at issue in Fant , and thus suppression was warranted under Fant . The Commonwealth argued that the Clinton County District Attorney had proceeded under the correctional facility exception of the Wiretap Act in Fant , and thus it was inapplicable. The Commonwealth asserted that under the mutual consent exception, recording of the jail visit conversations was not unlawful when the parties had given their prior consent.
At the conclusion of the hearing, the suppression court granted Appellant's motion to suppress in its entirety. The suppression court held that based on this Court's decision in Fant , the Commonwealth failed to prove Appellant's prior consent to the interception of his jail visit conversations. Suppression Hearing, N.T., 10/31/16, at 38. The court provided no further explanation or discussion of how it determined that Fant controlled the question of consent.6
On November 9, 2016, the Commonwealth filed a "Motion to Reconsider Order of Suppression" which reasserted its argument that pursuant to the mutual consent exception to the Wiretap Act, "inmates and visitors at the Allegheny County Jail consent by their conduct to the interception of their conversations." Motion to Reconsider Order of Suppression, 11/9/16 at 7. The Commonwealth's motion was denied by the suppression court.
The Commonwealth filed a timely notice of appeal.7 The suppression court filed an opinion in accordance with Pennsylvania Rule of Appellate Procedure 1925(a) outlining its basis for granting Appellant's motion to suppress. The suppression court first recounted the procedure used at the Allegheny County Jail during inmate visits and the communication over a closed-circuit system using telephone-like handsets. The court noted a recording is played stating the visit "may be monitored or recorded" but emphasized "[t]here is nothing in the inmate handbook which indicates that the visits are recorded and there was no testimony regarding whether [Appellant] heard the recording before each visit." Trial Ct. Op., 1/11/17, at 8. The suppression court credited Heaps’ testimony that she heard the recording at each visit. Accordingly, the court accepted the presumption urged by the Commonwealth "that by beginning to speak after the recorded statement, [Heaps] signified her consent." Id. at 11. However, the suppression court found that the Commonwealth failed to present any evidence that Appellant heard the recording, noting "[i]t is not outside the realm of possibility that [Appellant] did not have the receiver to his ear when the recording played, and therefore may not have heard it." Id. The suppression court also emphasized that the Commonwealth conceded that Appellant was not given written notice that he was being recorded, and that there was no such provision in the inmate handbook. Id. at 11-12. Therefore, the suppression court concluded that "[b]y failing to establish that [Appellant] was aware of the recording and...
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