Commonwealth v. Katona
| Decision Date | 21 October 2020 |
| Docket Number | No. 1 WAP 2019,1 WAP 2019 |
| Citation | 240 A.3d 463 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Dennis Andrew KATONA, Appellant |
| Court | Pennsylvania Supreme Court |
We granted discretionary review in this case to consider the Superior Court's application of the Independent Source Doctrine as a basis for upholding the trial court's order denying the suppression motion filed by appellant Dennis Andrew Katona. We also granted review to consider, as a secondary matter, the validity of an intercept order issued under Section 5704(2)(iv) of the Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"),2 which permits the recording of in-home conversations when only one party consents, so long as the intercept is approved by an authorized prosecutor and the president judge of a court of common pleas finds that probable cause supports the order. Upon review, we conclude the Superior Court properly invoked the Independent Source Doctrine, and therefore do not reach the various statutory and constitutional challenges appellant raises relative to the Wiretap Act.
As appellant's claims concern only the admissibility of the evidence discovered as a result of the execution of a search warrant at his residence on June 29, 2011, we focus our discussion on the facts as set forth in the affidavit of probable cause supporting the issuance of the warrant. That affidavit, which is twenty-one pages long and divided into forty-seven numbered paragraphs, established the following.
In 2009, the Pennsylvania State Police ("PSP") began working with a confidential informant ("CI") who was a member of the Pagan Motorcycle Club. The CI, who had previously provided reliable evidence in other criminal investigations, informed Trooper Matthew Baumgard that appellant was also a member of the Pagans, including serving as its National President in 2009. This information corroborated PSP's own knowledge of appellant as a longtime member of the Pagans who had previously been convicted for organizing an attack in Long Island, New York, against a rival motorcycle club known as Hells Angels.
On April 28, 2011, the CI contacted Trooper Baumgard to alert him appellant had unexpectedly arrived at his house that evening and offered to sell him three one-half ounce packages of cocaine for $650 per package. The CI declined the offer, informing appellant he had just purchased cocaine from "Tony" and that he was dissatisfied with the price and quality of that purchase. The following day, the CI again reached out to Trooper Baumgard, this time to inform him appellant had made a similar unsolicited stop at another Pagan member's house in an attempt to sell the cocaine.
Several weeks later, on May 16, 2011, the CI phoned Trooper Baumgard to inform him appellant had invited the CI to appellant's home. Shortly after arriving, appellant told the CI he had something to show him and directed the CI to a bedroom at the top of the stairs. There, appellant retrieved a package containing one-half pound of cocaine from a dresser drawer, and explained to the CI he had obtained it specifically for him given his dissatisfaction with "Tony's" product. Appellant offered the entire package to the CI in exchange for $9,800, with the expectation he would pay $5,000 for it later that night with the remainder to be paid over time. The CI took the cocaine, left appellant's home, immediately called Trooper Baumgard and turned it over to the PSP.
Based on this information and the fact the product tested positive for cocaine, the Commonwealth, represented by the Office of the Attorney General ("OAG"), applied for an order authorizing a consensual wiretap that would allow the CI to wear a recording device inside appellant's residence, pursuant to 18 Pa.C.S. § 5704(2)(iv).3 The Honorable John Blahovec of the Court of Common Pleas of Westmoreland County granted the order later that day. Of relevance here, the order authorized continuous interceptions of all in-home conversations for a period of thirty days. See Order Authorizing the Consensual Interception of Oral Communications in a Home, 5/16/2011, at 4.
Pursuant to the wiretap order, the CI visited appellant in his home multiple times over the following month and a half and recorded the ensuing conversations.4
On May 16, 20, 25, and 31, 2011, the CI made various controlled payments to appellant in his home, with the cash having been provided to the CI by the authorities. During each encounter, Trooper Baumgard and his team surveilled appellant's home and, thereafter, met with the CI to retrieve the recording device.
On June 9, 2011, the CI met with appellant to purchase Pagan T-shirts; Trooper Baumgard asked the CI to inquire during that meeting about purchasing two additional ounces of cocaine. Following the encounter, the CI produced several Pagan T-shirts and a clear vacuum sealed bag containing a white powdery substance which was later confirmed to be cocaine. The CI related to Trooper Baumgard that he had purchased the T-shirts from appellant and that, during their conversation, appellant retrieved the two ounces of cocaine and requested $2,200 for it. Additionally, the CI indicated to Trooper Baumgard that appellant had offered to sell him an ounce of methamphetamine for $1,300. Later that evening appellant arrived at the CI's home, which was under surveillance, and delivered an ounce of methamphetamine in exchange for $1,300.
Similar transactions occurred over the following weeks. On June 13, 2011, the CI made a controlled payment of $1,100 to appellant for the cocaine that was "fronted" on June 9, 2011. On June 15, 2011, in addition to paying another installment for the cocaine supplied on June 9, 2011, the CI purchased two more ounces of cocaine. Although this delivery occurred in a Home Depot parking lot, the CI subsequently paid for the product at appellant's home on June 20, 2011. On June 22, 2011, appellant provided the CI with still more cocaine. Immediately after the CI left appellant's home on this occasion, he provided Trooper Baumgard with four vacuum sealed bags containing two ounces of cocaine, which the CI explained had just been provided to him by appellant.
Finally, on June 27, 2011, the CI made contact with appellant via text message and in the presence of Trooper Baumgard. Arrangements were made for the CI to make a controlled payment of $1,100 for the cocaine that had been fronted to him by appellant on June 22, 2011. Following this meeting in appellant's home, the CI advised Trooper Baumgard that appellant had made statements indicating he would have a quantity of cocaine and methamphetamine in his home on June 29, 2011. On the basis of all this information — "including interviews conducted with the CI, purchases of controlled substances, controlled monetary payments and information received from members of the [PSP] involved with this investigation and others with expertise in the field of narcotics investigations," Affidavit of Probable Cause, 6/29/2011, at ¶47 — Trooper Baumgard requested and obtained an anticipatory search warrant for appellant's home.
The PSP executed the warrant at appellant's home on June 29, 2011. The search yielded 84.2 grams of cocaine and 99.64 grams of methamphetamine recovered from a United American bank bag and a briefcase located in the master bedroom, as well as an electronic digital scale and documentary proof establishing appellant lived at the home. Appellant was subsequently charged with two counts each of possession of a controlled substance and possession of a controlled substance with intent to deliver.5
Appellant filed an omnibus pre-trial motion seeking suppression of all evidence recovered from his home. Among a host of arguments raised in support of that endeavor, appellant argued the wiretap order allowing the in-home recordings of his conversations with the CI was invalid because it impermissibly permitted interception of conversations for a thirty-day period, whereas, in his view, Section 5704(2)(iv) of the Wiretap Act allows for only one intercept per authorizing order. See Omnibus Pre-Trial Motion, 3/22/2012, at 3. As such, appellant further argued that "[a]ny alleged probable cause related to the issuance of the search warrant in question was fatally tainted by the inclusion of evidence related to the illegally ... monitored conversations[.]" Id . at 6. The trial court denied appellant's suppression motion and the case proceeded to a stipulated non-jury trial. Thereafter, the trial court found appellant guilty of all charges and sentenced him to forty to eighty months' incarceration.
Appellant challenged the denial of his suppression motion on direct appeal. See Commonwealth v. Katona , 191 A.3d 8, 11 (Pa. Super. 2018) (en banc ), appeal granted , 650 Pa. 323, 200 A.3d 8 (2019) (per curiam ). As he did in his written motion, appellant argued that since Section 5704(2)(iv)6 uses the term "interception" as phrased in the singular, an order issued pursuant to that section authorizes only one intercept, as a matter of both statutory and constitutional law. Id . at 15. With respect to this latter constitutional assertion, appellant relied heavily on our decision in Commonwealth v. Brion , 539 Pa. 256, 652 A.2d 287, 289 (1994) ().7 In appellant's view, the interception of each communication after the first one was analogous to multiple executions of a single search warrant and, thus, amounted to an unconstitutional search. Katona , 191 A.3d at 15.
The OAG disagreed with appellant on all fronts. As the OAG saw it, a proper statutory analysis leads to the conclusion that a wiretap authorized under Section 5704(2)(iv) is effective for the same duration as a...
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