Summary
holding inmate visit conversations using a telephone device "are not ‘telephone calls,’ and they are not subject to the county correctional facility ‘telephone’ exception under the Wiretap Act."
Summary of this case from Commonwealth v. ByrdOpinion
No. 66 MAP 2015
09-28-2016
Commonwealth of Pennsylvania, Appellee v. Rahiem Cardel Fant, Appellant
Robert Thompson Rosamillia, Esq., Rosamillia & Brungard, for Appellant. Hugh J. Burns Jr., Esq., Karen Elizabeth Kuebler, Esq., for Appellee.
Robert Thompson Rosamillia, Esq., Rosamillia & Brungard, for Appellant.
Hugh J. Burns Jr., Esq., Karen Elizabeth Kuebler, Esq., for Appellee.
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.
OPINION
JUSTICE DONOHUE
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. See 18 Pa.C.S.A. § 5703 ; see also Karoly v. Mancuso, 619 Pa. 486, 65 A.3d 301, 303 (2013). It is designed to safeguard individual privacy while also giving law enforcement authorities a tool to combat crime. See Karoly, 65 A.3d at 303. Consistent with the Act's emphasis on privacy, its provisions are to be strictly construed. See Boettger v. Miklich, 534 Pa. 581, 633 A.2d 1146, 1148–49 (1993) (cautioning that “[n]o violations of any provisions of the Act will be countenanced, nor will the failure of prosecutors to diligently follow the strict requirements of the Act be lightly overlooked”) (emphasis in original); see also Commonwealth v. Spangler, 570 Pa. 226, 809 A.2d 234, 237 (2002) (explaining that the Act provides an exclusionary remedy that extends to non-constitutional violations).
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 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.
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:
(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.
During a suppression hearing on February 25, 2014, the Commonwealth presented testimony, in relevant part, from Jackie Motter, Warden at the Facility (the “Warden”). The suppression court questioned the Warden as to how the visit conversation apparatus works.
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) the 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 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.
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 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”).
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?
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(I), the suppression court found that the visit conversations utilize “an apparatus that resembles a telephone,” that requires Fant to “punch[ ] in an i.d. number,” after which point Fant's visitor “across the glass from [him] picks up that apparatus and a discussion ensues.” Id. Furthermore, the suppression court found that “these conversations do not involve the use of a telephone company, telephone lines or equipment outside the correctional facility.” Trial Court Opinion, 2/26/2014, at 2-3. In the suppression court's subsequent 1925(a) opinion, it reiterated that “the facts are clear that the [visit] conversations occurred without the use of a telephone company, transmission of voices through telephone lines or anything that would resemble what this [c]ourt would determine to be a ‘telephone call’.” See Trial Court Opinion, 4/1/2014, at 1.
Pennsylvania Rule of Criminal Procedure 581(I) 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(I). 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(I). See Brief for the Commonwealth at 14. We disagree.
The purpose of Rule 581(I) 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, 585 Pa. 237, 888 A.2d 680, 688–89 (2005) (finding error where suppression court had neither issued findings of fact before adjourning the suppression hearing nor in an opinion filed prior to the losing party's appeal). A suppression court opinion issued the day after a suppression hearing in no way undermines these dual purposes.
Additionally, the Commonwealth's citation to Pennsylvania Rule of Appellate Procedure 1921 and Commonwealth v. Young, 456 Pa. 102, 317 A.2d 258 (1974), which provide, respectively, that an opinion is not part of the record on appeal and that “an appellate court may consider only the facts which have been duly certified in the record on appeal,” is inapposite. See id.It is certainly true that an appellate court may consider only the factswhich have been certified on the record, but this does not prohibit a trial court from making its findingsof fact in a timely subsequent opinion, i.e. outside the record. Even the Superior Court, whose opinion the Commonwealth now asks us to affirm, held that the trial court made findings of fact pursuant to Rule 581(I). See Commonwealth v. Fant, 109 A.3d 775, 778 (Pa.Super.2015).
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.
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.
Commonwealth v. Fant, 109 A.3d 775, 777 (Pa.Super.2015) (citations omitted).
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., 109 A.3d at 779 n. 3. Without citation to authority, the Superior Court announced that it “must consider” from the record “additional uncontradicted facts not enunciated by the [suppression] court” in order to determine whether the suppression court committed legal error. Id. at 779. Included in these additional “facts” was the Superior Court's own finding that the visit conversations “go through and are recorded by the inmate phone company.” Id.(citing N.T., 2/25/2014, at 14,16). The Superior Court then indicated that this “uncontradicted fact” required it to conclude that “the [suppression] court's finding that the recordings in question did not involve a telephone company is not supported by the evidence.” See id. at 779 n. 4 (citing id. at 779 n. 3 ).
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 Superior Court pointed instead to “the additional uncontradicted fact” not found by the suppression court that the apparatus used for visit conversations is “connected to the ‘inmate phone company’.” Id. at 779, 780–81 (citing N.T., 2/25/2014, at 14,16). The Superior Court then concluded that “under any of the [four] ‘common [dictionary] meanings',” including the third definition put forth by Fant, the apparatus in question is a telephone. Id. at 781. In the Superior Court's view, the visit conversations are telephone calls because the “Act does not distinguish between external and internal telephone calls from or to an inmate in a county correctional facility.” Id.
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, 609 Pa. 22, 14 A.3d 798, 814 (2011). “The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S.A § 1921(a). The best indication of the legislature's intent may be found in the plain language of the statute. Wright, 14 A.3d at 814.
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., 540 Pa. 398, 658 A.2d 336, 340 (1995) (“Absent a definition in the statute, statutes are presumed to employ words in their popular and plain everyday sense, and the popular meaning of such words must prevail.”); Commonwealth v. Harner, 533 Pa. 14, 617 A.2d 702, 705 (1992) (noting that clear and unambiguous statutory language must be given effect in accordance with its plain and common meaning). Similarly, “it is not for the courts to add, by interpretation ... a requirement which the legislature did not see fit to include. Consequently ... although one is admonished to listen attentively to what a statute says[;][o]ne must also listen attentively to what it does not say.” Wright, 14 A.3d at 814 ; accord Mohamad v. Palestinian Auth., –––U.S. ––––, 132 S.Ct. 1702, 1707, 182 L.Ed.2d 720 (U.S. 2012) (favoring a definition that matches “how we use the word in everyday parlance” and observing that the legislature “remains free, as always, to give the word a broader or different meaning. But before we will assume it has done so, there must be some indication [the legislature] intended such a result”) (emphasis in original).
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., 121 A.3d 964, 972 (Pa.2015). By the same token, we cannot arrive at the meaning of a word, even the “ordinary” meaning, without considering the surrounding words and provisions. See 1 Pa.C.S.A § 1903 ; Horosko v. Sch. Dist. of Mount Pleasant Twp., 335 Pa. 369, 6 A.2d 866, 869 (1939) (explaining that a statutory term's “common and approved usage” must be construed “having regard, of course, [for] the context in which the legislature used [it]”). Indeed, “a statute cannot be dissected into individual words, each one being thrown onto the anvil of dialectics to be hammered into a meaning which has no association with the words from which it has violently been separated.” Bertera's Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A.2d 197, 204 (1967)overruled on other grounds by Goodman v. Kennedy, 459 Pa. 313, 329 A.2d 224 (1974) ; accord Dolan v. U.S. Postal Service, 546 U.S. 481, 486–87, 126 S.Ct. 1252, 163 L.Ed.2d 1079 (2006) (noting that “ ‘[a] word is known by the company it keeps'—a rule that ‘is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended [legislative] breadth’ ”).
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, 132 S.Ct. at 1707. Moreover, as discussed in detail infra, reading the term “telephone calls” in Section 5704(14) to encompass the visit conversations is in tension with how the legislature refers to the concept of a telephone call elsewhere in the Act. See, e.g., 18 Pa.C.S.A. § 5702.
As noted, supra, the Superior Court cites various dictionary definitions in its quest to identify the “common meaning” of “telephone.” See Fant, 109 A.3d at 781. The Superior Court's collection of definitions suggests that the word “telephone” has a definitional breadth encompassing almost any instrument that facilitates a transfer of the human voice between two points, regardless of whether the instrument is capable of making or receiving a call. As our analysis demonstrates, the Wiretap Act, read as a whole with attention to its purpose and various provisions, reflects that the drafters did not understand the term “telephone call” to be imbued with such broad meaning. To begin, we interpret the word “telephone” in the context of the words that surround it. See Masters, 236 A.2d at 204. Section 5704(14) permits recording “any telephone calls from or to an inmate in a facility,” so long as the prison follows prescribed procedures. 18 Pa.C.S.A. § 5704(14) (emphasis added). Section 5704(14)(iii) provides that “[p]ersons who are calling into a facility to speak to an inmate shall be notified that the call may be recorded or monitored.” 18 Pa.C.S.A. § 5704(14)(iii) (emphasis added). The use of the word “calls” alongside “telephone” indicates that the popular meaning of a telephone is a device capable of making a telephone “call.” In addition to requiring the involvement of a telephone company to connect the caller to the call recipient, making a telephone “call” also requires the dialing of a telephone number, not merely the “punch[ing] of an ID number.”
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, 611 Pa. 531, 28 A.3d 898, 909 (2011) (suggesting only that a word's “common and approved usage maybe ascertained by examining its dictionary definition”) (emphasis added); see also Commonwealth v. Central Pennsylvania Quarry Stripping & Const. Co., 37 Pa. D. & C.2d 53, 83 Dauph. 192 (1964), aff'd 422 Pa. 573, 222 A.2d 728 (1966) (declining to adopt a dictionary definition where “dictionary definitions are not in accord”); accord Dolan, 546 U.S. at 495, 126 S.Ct. 1252 (rejecting a dictionary definition because “[t]he definition of words in isolation ... is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities,” depending on the “purpose and context of the statute”).
The Commonwealth argues that “an ordinary user, who simply makes 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 and ordinary meaning of the word. See Dissenting Op. at 1268.
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” contemplates a call originating outside the prison. Visit conversations may be initiated only by an inmate entering his personal ID number. A visitor, on the other hand, cannot use the apparatus to dial or call anyone, let alone from outside the Facility; he merely sits in the Facility, behind a glass partition in the visitation room waiting to “pick up” and speak. See Trial Court Opinion, 2/26/2014, at 2.
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. A wire communication is:
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 n. 3. We look to the definition of “wire communication” merely to help us understand the plain meaning of the term “telephone call,” in context of the Act. We find that the definition of “wire communication” encompasses, among other things, a communication that involves a “telephone ... company for hire as a communication common carrier,” see 18 Pa.C.S.A. § 5702, which can only refer to what is commonly understood as a “telephone call.”
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). That the ordinary meaning of “telephone call” necessarily involves the use of a telephone company is similarly reflected in the Act's basic requirement for lawfully intercepting telephone calls. Typically, in order to intercept a telephone call, law enforcement must apply to the Superior Court for a wiretap order, which, in part, is an order directing a telephone company to place a tap on a specific line of communication. See 18 Pa.C.S.A. § 5712(f) ; see also Boettger v. Loverro, 526 Pa. 510, 587 A.2d 712, 718 (1991) (making reference to the “mandatory cooperation by telephone companies” under the Act); see also Superior Court Operating Procedures §§ 65.65(I) (“If requested by the applicant, the order shall direct the pertinent communications common carrier to furnish the applicant with all information, facilities and technical assistance necessary to accomplish the interception...”), 65.68 (“At the time the original order is signed, a duplicate original should also be signed for presentation to the communication common carrier.”).
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.
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, 121 A.3d at 972. The legislature's determination that the Superior Court may order the participation of a telephone company in an authorized interception indicates that the legislature understood the term “telephone call,” ordinarily, to be the sort communication that relies on the operation of a telephone company.
The Dissent appears to suggest that we are engaging the rules of statutory construction relevant to “ambiguous” terms. See Dissenting Op. at 1270. We are not. We find the term telephone call to be unambiguous and engage only the rules of statutory interpretation relevant to determining the term's plain and ordinary meaning as understood in the context of the Wiretap Act.
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” (3) permits a caller to converse with a call recipient whose similar apparatus is associated with the dialed telephone number.
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, 109 A.3d at 779 n.3. (emphasis added). The Superior Court erred in this regard. The uncontradicted evidence in the record supports the suppression court's finding; the Superior Court was therefore bound by it, and so are we. See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1080–85 (2013) (explaining that if the suppression court's factual findings are supported by the record, a reviewing court may only reverse the suppression court's ruling if the suppression court erred in applying the law to those factual findings).
The proper statement of the suppression court's finding of fact is “these conversations did not involve the use ofa telephone company, telephone lines or equipment outside the [Facility].” See Fant, 109 A.3d at 778 (emphasis added); see also Trial Court Opinion, 2/26/2014, at 3. After initially quoting the suppression court verbatim, the Superior Court improperly reframed the suppression court's finding of fact as “the recordingsin question did not involve a telephone company.” See Fant, 109 A.3d at 779 n. 3 (emphasis added). Although there is support in the record even for the finding of fact as reframed by the Superior Court, we highlight the distinction because of its potential to be unfairly outcome determinative, and we continue our analysis based on the suppression court's actual finding of fact.
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 understand it, essentially serves to turn on the visit conversation apparatus and enable a recording function. See id. There is no dispute that recordings of the visit conversations were saved to a Facility computer server, but this evidence does not invalidate the trial court's finding that the conversations themselves did not involve the use of an outside telephone company. See id.
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, 533 Pa. 491, 626 A.2d 109, 113 (1993) (noting that “trial counsel's statement of facts are not considered evidence”), abrogated on other grounds by Commonwealth v. Burke, 566 Pa. 402, 781 A.2d 1136 (2001). Even if Attorney Kuebler's statement fell within the Superior Court's proper scope of review, however, her statement simply does not controvert the Warden's testimony and is equally supportive of the suppression court's finding of fact that the visit conversations “do not involve the use of a telephone company ... outside the Facility.” Compare Trial Court Opinion, 2/26/2014, at 3, with N.T., 2/25/2104, at 16 (Attorney Kuebler acknowledging that the visit conversations are not “recorded by a telephone company,” but instead “by the inmate phone company”).
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 security, call control, live call monitoring, call recording and long term tape archiving, and site-specific reports.” See id.
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. See infra n. 3.
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. Unsurprisingly, 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.
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, 109 A.3d at 781. As the foregoing reveals, the ordinary meaning of “telephone” under the Act 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. By contrast, the visit conversations are activated when an inmate merely “punches in an ID number,” not a telephone number. See Trial Court Opinion, 2/26/2014, at 2. There is no dispute as to this fact. Additionally, there is uncontradicted testimony that no “telephone company” is involved in facilitating the visit conversations. See N.T., 2/25/2014, at 14. For these reasons, the suppression court's decision to suppress the visit conversations was proper. They are not “telephone calls,” and they are not subject to the county correctional facility “telephone” exception under the Wiretap Act. See 18 Pa.C.S.A. § 5704(14).
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, 596 Pa. 638, 948 A.2d 752, 761 (2008). An issue arises in connection with the application of the doctrine by a discretionary review court like this one, namely whether the doctrine permits the affirmance of a trial court's decision for any reason or, conversely, that of the intermediate appellate court. See generally Thomas G. Saylor, Right for Any Reason: An Unsettled Doctrine at the Supreme Court Level and An Anecdotal Experience with Former Chief Justice Cappy, 47 Duq. L. Rev. 489, 495 (2009). While we find this to be an interesting issue, which has apparently never clearly been resolved in our prior cases, we need not address it here, as it has no application in this case.
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, 630 Pa. 357, 106 A.3d 695, 703 (2014). Here, the suppression court found that Fant was alone in a room with a visitor, although separated by glass, and that there was no evidence that Fant had been warned that the conversation was not private or could be intercepted. As such, the suppression court concluded that Fant “had an expectation of privacy in this matter.” Trial Court Opinion, 4/1/2014, at 2. The Commonwealth does not argue to the contrary, either as a matter of fact or law. Further, although it appears from the record that the Facility notified inmates and outside callers that their “telephone calls” may be recorded, these notifications related to “telephone calls,” exclusively. See Telephone Regulations at 1-2; compare Inmate Handbook at 7 (providing, under a subheading called “3001 telephone calls,” that “telephone calls are subject to monitoring, recording and may be intercepted or divulged”) with id.at 9 (under subheading called “3003 Visiting,” no mention of monitoring or recording visit conversations). There is no support in the record that inmates and visitors are notified that their visit conversations may be recorded.
Because the Commonwealth's alternative argument lacks any merit, our decision does not contravene either side of the right-for-any-reason debate referenced herein, as no basis exists to affirm the Superior Court's decision. In reversing the Superior Court's order, we are upholding the trial court's ruling on grounds that were raised, briefed and adjudicated in the courts below.
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 1270–71, n. 3 (citing only a nonbinding and inapposite case, Commonwealth v. Prisk, 13 A.3d 526, 532 (Pa.Super.2011), wherein the Superior Court found that a prisoner had no expectation of privacy, pursuant to Section 5704(2)'s “home” exception, in a conversation with his victim, who wore a recording device during a visit conducted in a room in which up to three separate visits could occur at one time).
Order reversed. Jurisdiction relinquished.Chief Justice Saylor and Justice Dougherty join the opinion, Justice Todd joins the opinion except for its mandate and Justice Wecht joins the opinion except for footnote 13.
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.
JUSTICE WECHT, concurring
I join the Majority opinion with the exception of footnote 13. Maj. Op. at 1265–66, n.13. The Pennsylvania Wiretapping and Electronic Surveillance Control Act (the “Wiretap Act” or “the Act”), 18 Pa.C.S. §§ 5701 -82, establishes a general prohibition barring interception of wire, electronic, or oral communications, subject to several specific exceptions. The question presented by today's case is whether certain “visit conversations,” as described by the Majority, fall within the exception in Subsection 5704(14) of the Wiretap Act, 18 Pa.C.S. § 5704(14), which, under certain conditions, permits interception of “telephone calls from or to an inmate in a facility.” Because the Wiretap Act does not define “telephone calls,” it is necessary to discern the ordinary meaning of this term. I agree with the Majority's resolution of the meaning of “telephone calls” and its application of the statutory exception to the facts found by the suppression court herein. However, I distance myself from the Majority's consideration of the Commonwealth's alternative argument.
See18 Pa.C.S. § 5703.
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. SeeOp. at 1262. Section 5702's definition of “wire communication” does not, however, mandate that a telephone company be involved, but rather describes a wire communication as aural transfers made through the use of facilities for the transmission of communication by wire or cable “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. § 5702. Thus, a “wire communication” includes a communication facilitated by a telephone company, but does not require a telephone company's participation. Here, the communication was undoubtedly a wire communication using the prison's phone system. SeeNotes of Testimony, Feb. 25, 2014, at 16 (providing that the inmate phone company, as opposed to Verizon, records both visitor telephone calls and telephone calls to recipients outside the facility).
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 1263. To the contrary, I do not view the General Assembly's authorization to direct a “provider of communication services” to cooperate with law enforcement authorities as a limitation on the ordinary meaning of a “telephone call.” In fact here, as noted, all internal and external calls were monitored by or through the prison's phone system.
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).
The third issue concerned whether the trial court erred in suppressing Appellant's personal belongings.
The Commonwealth has argued in the alternative that we should affirm the Superior Court's decision because there was no “interception” under the Wiretap Act. Although this issue was not raised below, the Commonwealth asserts that we can reach it through application of the “right-for-any-reason doctrine.” However, the Commonwealth is seeking to uphold the judgment of the intermediate appellate court, rather than that of the fact-finding tribunal. Although the Majority is correct that we have never resolved whether the doctrine may be invoked to uphold the intermediate appellate court's order, I am inclined to agree with Chief Justice Saylor's narrow understanding of the doctrine's focus in Pennsylvania. See Commonwealth v. DiNicola, 581 Pa. 550, 866 A.2d 329, 346 n. 7 (2005) (Saylor, J., concurring) (“Significantly, the focus of the right-for-any-reason doctrine in Pennsylvania is on upholding the judgment of the fact-finding tribunal, not that of the intermediate appellate court.” (citing E.J. McAleer & Co., Inc. v. Iceland Products Inc., 475 Pa. 610, 381 A.2d 441, 443 n. 4 (1977) ; Commonwealth v. Katze, 540 Pa. 416, 658 A.2d 345, 349 (1995) )).
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., 607 Pa. 225, 5 A.3d 212, 222 n. 4 (2010) (Saylor, J., dissenting); seegenerallyThomas G. Saylor, Right for Any Reason: An Unsettled Doctrine at the Supreme Court Level and An Anecdotal Experience with Former Chief Justice Cappy, 47 Duq. L. Rev. 489, 490 n.2 (2009) (collecting cases).
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. SeeOp. at 1265–66 n.13. The Superior Court, however, has held that any expectation of privacy that an inmate has in a conversation taking place in a prison visitation room, when separated from the visitor by a glass partition and speaking with the visitor through a closed-circuit telephone system, is unreasonable. SeeCommonwealth v. Prisk, 13 A.3d 526, 532 (Pa.Super.2011) (holding that it is unreasonable for an inmate to expect privacy in his conversations that take place in the prison visitation room as such an expectation of privacy is not one that society is prepared to recognize). Moreover, whether an individual has a reasonable expectation of privacy is a conclusion of law subject to plenary review by an appellate court. Commonwealth v. Duncan, 572 Pa. 438, 817 A.2d 455, 459 (2003).
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., 556 Pa. 63, 726 A.2d 1041, 1051 n. 15 (1999) ; Freed v. Geisinger Med. Ctr., 607 Pa. 225, 5 A.3d 212, 222 n. 4 (2010) (Saylor, J., dissenting); Vicari v. Spiegel, 605 Pa. 381, 989 A.2d 1277, 1287 (2010) (Castille, C.J., concurring) (“Arguably, as the party prevailing below, appellee is free to raise properly preserved alternative arguments, and the Court is then free to determine which arguments to discuss (or to determine to dismiss the appeal on prudential grounds.”). Having lost in the suppression court, the Commonwealth had the obligation to preserve the issue when it was the appellant in the Superior Court. See Pa.R.A.P. 302(a). In that court, it did not raise the interception question. Fant, 109 A.3d at 777. Accordingly, there is no basis for the Majority to engage the Commonwealth's alternative argument, however briefly. Maj. Op. at 1265–66, n.13.
JUSTICE TODD, 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 1270, I would remand the matter to the Superior Court for resolution of the remaining issues presented by the Commonwealth to, but not addressed by, that court.
JUSTICE BAER, 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 1265. Respectfully, I do not read the Wiretap Act as containing these requisites. In my view, the plain and ordinary meaning of a telephone call encompasses what occurred here, i.e. , the utilization of a telephone to transmit communications from one party to another. Accordingly, I would affirm the order of the Superior Court, which reversed the trial court's order suppressing the challenged communications.
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 which occurred while Appellant and his visitor were in the prison visitation room, separated by a glass partition, and speaking to each other on a telephone. The Commonwealth relied upon Section 5704(14) of the Wiretap Act, which allows officials of a “county correctional facility” to “intercept, record, monitor or divulge any telephone calls from or to an inmate in a facility,” and states that such recordings “shall be divulged,” inter alia, “in the prosecution or investigation of any crime.” 18 Pa.C.S. § 5704(14).
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, 109 A.3d 775, 781 (Pa.Super.2015). It reasoned that the Wiretap Act does not distinguish between external and internal telephone calls from or to an inmate in a county correctional facility, and that the motion to suppress was based upon an unwarranted distinction between the two.
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. That provision states only that “telephone calls from or to an inmate in a facility” may be intercepted and recorded by the correctional facility and then forwarded to law enforcement for the prosecution or investigation of any crime. It does not require the dialing of a telephone number or the involvement of a common carrier and does not in any way limit application of the Section 5704(14) exception to inmate calls made to recipients outside the prison.1
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 to our inquiry when considering that the parties could not hear each other absent use of the telephone provided.
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, 564 Pa. 228, 766 A.2d 843, 846 (2001) (explaining that the rule of strict construction only gives the offender the benefit of ambiguity and otherwise has no effect). Here, I do not believe the term “telephone call” is ambiguous, and thus, the Court need afford it only the fair import of the term.
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, i.e. , to safeguard the orderly operation of the facility and the prosecution or investigation of any crime. See 18 Pa.C.S. § 5704(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 challenging the trial court's ruling that the conversations were not telephone calls. One of the additional issues was whether the trial court erred in granting suppression absent a finding that Appellant had an expectation of privacy in the correctional facility visitation calls.2 Because the Superior Court found that the recordings at issue constituted inmate telephone calls that could be lawfully intercepted, the court declined to address the Commonwealth's additional issues. See Commonwealth v. Fant, 109 A.3d at 781 n.5 (noting that “[b]ecause our resolution of the Commonwealth's first issue enables us to dispose of the matter before us, it is not necessary to address separately the Commonwealth's remaining issues”). Thus, upon reversal of the Superior Court's ruling that the recordings constitute inmate telephone calls that were lawfully intercepted, a remand to that court is warranted to allow for disposition of the Commonwealth's remaining issues.3
Justice Mundy joins this dissenting opinion.