J. A04019/16

2016 PA Super 269

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

DENNIS ANDREW KATONA, : No. 1995 WDA 2014

:

 Appellant :

Appeal from the Judgment of Sentence, November 10, 2014,

in the Court of Common Pleas of Westmoreland County

Criminal Division at No. CP-65-CR-0002549-2011

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND STRASSBURGER,* JJ.

OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 02, 2016

Dennis Andrew Katona appeals from the November 10, 2014 judgment 

of sentence from the Court of Common Pleas of Westmoreland County 

following his conviction for two counts each of possession with intent to 

deliver (“PWID”) and possession of a controlled substance.1 This case 

presents an issue of first impression, which we are confident will ultimately 

be resolved by the Pennsylvania Supreme Court or the legislature. As for 

our review, we vacate and remand.

Appellant’s charges were the result of the execution of a search 

warrant at his home on June 29, 2011. Following the denial of his motion to 

 

* Retired Senior Judge assigned to the Superior Court.

1 35 P.S. §§ 780-113(a)(30) and (a)(16), respectively.
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suppress the contraband discovered in the search, appellant was convicted 

of the aforementioned offenses on November 10, 2014. That same day, the 

trial court sentenced appellant to an aggregate term of 40 to 80 months’ 

imprisonment. On November 20, 2014, appellant filed a motion to modify 

his sentence, which the trial court denied on November 24, 2014. On 

December 8, 2014, appellant filed a timely notice of appeal. On December 

19, 2014, the trial court ordered appellant to file a concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant 

complied with the trial court’s order on January 13, 2015. Thereafter, on 

February 11, 2015, the trial court issued an opinion in support of its order 

denying appellant’s motion to suppress evidence. On February 13, 2015, 

the trial court issued an opinion pursuant to Rule 1925(a).

On appeal, appellant raises the following issues for our review:

I. Whether the June 29, 2011 search warrant for 

appellant’s home was rendered invalid because 

it relied almost exclusively on an order or 

search warrant as described in 

Commonwealth v. Brion, [652 A.2d 287 (Pa. 

1994),] and as codified in 18 Pa.C.S.[A.] 

§ 5704(2)(iv) which order or warrant allowed 

for, inter alia, unlimited intercepts over a 

period of thirty days, as opposed to allowing 

only a single intercept?

II. Whether the June 29, 2011 search warrant was 

invalid because it failed to meet the specific 

requirements of an anticipatory warrant?

III. Whether the Commonwealth presented 

insufficient evidence of possession to sustain 

the conviction against appellant?
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Appellant’s brief at 3 (capitalization omitted).

The crux of appellant’s suppression claim is whether the June 29th

search was unconstitutional because it was based on a May 16, 2011 order 

signed by Judge John Blahovic that authorized consensual intercepts by a 

confidential informant (“CI”) over a 30-day period in appellant’s home. 

Specifically, as a result of numerous in-home intercepts, probable cause was 

established for the full search of appellant’s home. Appellant asserts that 

the May 16th order violated our Supreme Court’s decision in Brion, in that it 

allowed for unlimited intercepts in his home over a period of 30 days. (See

appellant’s brief at 17-34.)

Our standard of review in addressing a challenge to the denial of a 

motion to suppress is as follows:

Our standard of review in addressing a challenge to 

the denial of a suppression motion is limited to 

determining whether the suppression court’s factual 

findings are supported by the record and whether 

the legal conclusions drawn from those facts are 

correct. Because the Commonwealth prevailed 

before the suppression court, we may consider only 

the evidence of the Commonwealth and so much of 

the evidence for the defense as remains 

uncontradicted when read in the context of the 

record as a whole. Where the suppression court’s 

factual findings are supported by the record, we are 

bound by these findings and may reverse only if the 

court’s legal conclusions are erroneous. Where . . . 

the appeal of the determination of the suppression 

court turns on allegations of legal error, the 

suppression court’s legal conclusions are not binding 

on an appellate court, whose duty it is to determine 

if the suppression court properly applied the law to 
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the facts. Thus, the conclusions of law of the courts 

below are subject to our plenary review.

Commonwealth v. Best, 120 A.3d 329, 346 (Pa.Super. 2015), quoting 

Commonwealth v. Perel, 107 A.3d 185, 188 (Pa.Super. 2014), appeal 

denied, 124 A.3d 309 (Pa. 2015) (citations omitted).

Both the United States Constitution and the Pennsylvania Constitution 

guarantee that individuals shall not be subject to unreasonable searches or 

seizures.

The right of the people to be secure in their persons, 

houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no 

Warrants shall issue, but upon probable cause, 

supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons 

or things to be seized.

U.S. Const. Amend. IV.

The people shall be secure in their persons, houses, 

papers and possessions from unreasonable searches 

and seizures, and no warrant to search any place or 

to seize any person or things shall issue without 

describing them as nearly as may be, nor without 

probable cause, supported by oath or affirmation 

subscribed to by the affiant.

Pa. Const. Art. I, § 8.

Evidence obtained as a result of an unlawful 

search is subject to the fruit of the poisonous tree 

doctrine. The United States Supreme Court has 

stated that any material, tangible, or verbal evidence 

“obtained either during or as a direct result of an 

unlawful invasion” is inadmissible at trial. Wong 

Sun v. United States, 371 U.S. 471, 485 (1963).

Our supreme court further stated:
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We need not hold that all evidence 

is “fruit of the poisonous tree” simply 

because it would not have come to light 

but for the illegal actions of the police. 

Rather, the more apt question in such a 

case is “whether, granting establishment 

of the primary illegality, the evidence to 

which instant objection is made has been 

come at by exploitation of that illegality 

or instead by means sufficiently 

distinguishable to be purged of the

primary taint.”

Commonwealth v. Cunningham, 370 A.2d 1172, 

1176-1177 (Pa. 1977), quoting Wong Sun, 371 U.S. 

at 487-488.

Commonwealth v. Loughnane, 128 A.3d 806, 815 (Pa.Super. 2015).

Both appellant and the Commonwealth cite and discuss the seminal 

case of Brion. In Brion, our Supreme Court considered a case in which an 

informant agreed to wear a body wire when he purchased marijuana from 

Mr. Brion in his home. Brion, 652 A.2d at 287. The use of the informant 

wearing the wire was approved by the Lycoming County First Assistant 

District Attorney, but was not approved by any judicial authority. Id. This 

court reversed the trial court’s order granting Mr. Brion a new trial. Id. at 

288.

Our Supreme Court subsequently reversed this court, stating the 

controlling issue as follows:

[W]hether, under the Pennsylvania Constitution, the 

police can send a confidential informer into the home 

of an individual to electronically record his 

conversations and transmit them back to the police. 
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Because the right to privacy in one’s domain is 

sacrosanct, we hold that Article 1 § 8 of the 

Pennsylvania Constitution precludes the police from 

sending a confidential informer into the home of an 

individual to electronically record his conversations.

Id. at 287.

While recognizing that 18 Pa.C.S.A. § 5704 of the Pennsylvania 

Wiretap Act (“the Act”) specifically allows for consensual intercepts without 

prior court approval, the Brion court reasoned as follows:

In accordance with the analysis articulated by 

Judge Cirillo in Schaeffer I, see 370 Pa.Super. at 

207-214, 536 A.2d at 368-372 we hold that an 

individual can reasonably expect that his right to 

privacy will not be violated in his home through the 

use of any electronic surveillance. In so holding, 

. . . . “[A] reasonable construction of the Act allows 

the conclusion that the General Assembly's 

exemption of participant monitoring from the 

prohibitions and requirements of the Act was not 

necessarily a legislative declaration that the practice 

was free of state constitutional constraints as well.” 

370 Pa.Super. at 185, 536 A.2d at 357. With 

respect to oral communications occurring within 

one’s home, interception pursuant to 18 Pa.C.S. 

§ 5704(2)(ii) can only be deemed constitutional 

under Article 1, Section 8 if there has been a prior 

determination of probable cause by a neutral, judicial 

authority. 

Id. at 289 (some citations omitted).

The General Assembly later codified the Brion court’s holding.

§ 5704. Exceptions to prohibition of 

interception and disclosure of communications

It shall not be unlawful and no prior court approval 

shall be required under this chapter for:
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. . . .

(2) Any investigative or law enforcement 

officer or any person acting at the 

direction or request of an investigative or 

law enforcement officer to intercept a 

wire, electronic or oral communication 

involving suspected criminal activities 

. . . where:

. . . .

(ii) one of the parties to the 

communication has given 

prior consent to such 

interception. However, no 

interception under this 

paragraph shall be made 

unless the Attorney General 

or a deputy attorney general 

designated in writing by the 

Attorney General, or the 

district attorney, or an 

assistant district attorney 

designated in writing by the 

district attorney, of the 

county wherein the 

interception is to be initiated, 

has reviewed the facts and is 

satisfied that the consent is 

voluntary and has given prior 

approval for the interception 

. . .

. . . .

(iv) . . . If an oral interception 

otherwise authorized under 

this paragraph will take place 

in the home of a 

nonconsenting party, then, in 

addition to the requirements 

of subparagraph (ii), the 

interception shall not be 
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conducted until an order is 

first obtained from the 

president judge, or his 

designee who shall also be a 

judge, of a court of common 

pleas,[2] authorizing such inhome interception, based 

upon an affidavit by an 

investigative or law 

enforcement officer that 

establishes probable cause 

for the issuance of such an 

order. No such order or 

affidavit shall be required 

where probable cause and 

exigent circumstances exist. 

For the purposes of this 

paragraph, an oral 

interception shall be deemed 

to take place in the home of 

a nonconsenting party only if 

both the consenting and 

nonconsenting parties are 

physically present in the 

home at the time of the 

interception.

18 Pa.C.S.A. § 5704(2)(ii), (iv).

In the instant matter, a CI consented to wear a wire for the purposes 

of recording conversations and transactions with appellant. Pursuant to the 

statute, Deputy Attorney General Michael M. Ahwesh, as designated by the 

Attorney General, applied for an order with the trial court authorizing the 

consensual interception of oral communications between the CI and 

 

2 Although the Brion court suggested that the order be obtained from the 

Superior Court as this court has original jurisdiction over non-consensual 

applications, the legislature opted for requesting the order from the Court of 

Common Pleas.
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appellant in appellant’s home. In an order dated May 16, 2011, the trial 

court granted the Commonwealth’s request, permitting the interceptions of 

communications between appellant and the CI over a 30-day period. The 

relevant text of the order reads as follows3:

1. Intercept conversations between Jasup 

Hoffman and Dennis Katona which may occur 

between the date of this Order and thirty (30) 

days thereafter, at the residence of 

Dennis Katona or at any other location within 

Westmoreland County where Dennis Katona 

may have an expectation of privacy such as 

one would have in one’s own home. The type 

of communications to be intercepted will 

concern the commission of offenses involving 

violations of the Controlled Substance, Drug, 

Device & Cosmetic Act, Corrupt Organization 

and conspiracy to commit said offenses, in 

violation of Section 903 of the Crimes Code, 

18 Pa. C.S. § 903.

2. Engage in such consensual interception 

pursuant to Section 5704(2)(IV) of the Act, 

18 Pa. C.S. § 5704(2)(IV), based upon the 

facts contained in the Application and Affidavit 

establishing probable cause to believe that 

additional communications of the same type 

may be obtained thereafter, and due to the 

character of the investigation, such 

interception need not automatically terminate 

when the type of communication described 

above in paragraph (1) has first been obtained 

 

3

It should be noted that a 30-day period is the permissible length of a 

non-consensual interception under Section 5710 of the Act. Additionally, 

unlike the lack of restrictions under Section 5704, non-consensual intercepts 

are presented to this court’s general jurisdiction and require a myriad of 

safeguards, such as establishing that other means to gather evidence are 

unavailable or too risky, requiring periodic progress reports be made to the 

authorizing judge, minimizing intercepts of unrelated conversations and 

ceasing interception at the earliest time once evidence is gathered.
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but may continue intercepting such 

conversations with the consent of the 

participant until communications are 

intercepted which establish and reveal the 

complete manner in which Dennis Katona and 

others either known or as yet unknown, 

conduct the criminal enterprise in violation of 

the criminal offenses set forth above and the 

identities of confederates, places and manner 

of operation, and the nature of the conspiracy 

involved therein, or at diverse times during the 

period of thirty (30) days from the date of this 

order.

Trial court order, 5/16/11 at 4-5. The Commonwealth sought, and the trial 

court granted, extensions of the trial court’s original order.

The Brion issue presented in this appeal is whether a separate finding 

of probable cause was required each time the CI intercepted a conversation 

with appellant in his home or whether permitting unlimited intercepts over a 

30-day period was constitutional. We find that, based on a clear reading 

and the intent of both the Brion decision and the statute, a separate finding 

of probable cause was required for each in-home intercept. The probable 

cause requirement addressed in Brion was very much in the nature of a 

search warrant with all of its attendant protections. Although an order 

issued by an independent judicial authority is all that is required by 

Section 5704(2)(iv), the rationale underlying the Brion decision is no less 

important. Tellingly, the order signed by Judge Blahovic clearly disregards 

the very purpose and framework of Brion’s constitutional analysis.
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We further recognize that the legislature did not set a period of time 

for intercepts in Section 5704(2)(ii). However, we cannot ignore that the 

amendment to the statute was specifically drafted to incorporate the 

decision in Brion. Certainly, the Brion court did not anticipate that a “prior 

determination of probable cause by a neutral judicial authority” for an 

intercept taking place in the “sanctity of one’s home” could continue for 

2 weeks, 30 days, or even indefinitely. Additionally, the Commonwealth has 

failed to assert that applying for additional orders based on probable cause 

to intercept conversations each time the CI entered appellant’s home 

throughout the 30-day period would have been burdensome or onerous.

The Commonwealth argues that interception orders should remain in 

effect over an extended period of time because Section 5704 (2)(ii) does not 

“set forth a specific length of time during which the consent of the CI 

remains viable.” (Commonwealth’s brief at 7-8.) The consent of the CI, 

however, is not the issue in this case. The issue is whether the interception 

order can remain in effect over an extended period of time, allowing for 

unlimited interceptions to occur in appellant’s home without any additional 

determination of probable cause that incriminating conversations will occur 

upon each entry. Pursuant to Brion’s clear intent, probable cause 

determinations lack constitutional grounding when based upon unfettered 

wire-interception orders spanning an extended duration of time and, 

therefore, cannot stand.
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Our holding is also based on the level of privacy an individual can 

expect during a face-to-face conversation within the confines of his or her 

home that is subject to interception under Section 5704. Both the United 

States Constitution and the Pennsylvania Constitution recognize the 

enhanced expectation of privacy afforded to an individual inside his or her 

home. See e.g., Katz v. United States, 389 U.S. 347, 361 (1967) 

(Harlan, J., concurring) (recognizing that activities taking place inside the 

home not within the “plain view of outsiders” are entitled to Fourth 

Amendment protection); Commonwealth v. Dunnavant, 107 A.3d 29, 31-

32 (Pa. 2014) (per curiam) (Todd, J., in support of affirmance) (“We have 

long recognized the sanctity of the home in this Commonwealth as we have 

repeatedly stated that ‘[u]pon closing the door to one’s home to the outside 

world, a person may legitimately expect the highest degree of privacy known 

to our society.’”), quoting Commonwealth v. Bricker, 666 A.2d 257, 261 

(Pa. 1995) (citations omitted).

Our Supreme Court considered a similar issue in Commonwealth v. 

Rekasie, 778 A.2d 624 (Pa. 2001). The Rekasie court determined that an 

individual holds more of an expectation of privacy during a face-to-face 

conversation within the individual’s home as compared to a telephone 

conversation. Rekasie, 778 A.2d at 631-632.

Qualitatively different than a face-to-face 

interchange occurring solely within the home in 

which an individual reasonably expects privacy and 

can limit the uninvited ear, on a telephone call, an 
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individual has no ability to create an environment in 

which he or she can reasonably be assured that the 

conversation is not being intruded upon by another 

party. On the telephone, one is blind as to who is on 

the other end of the line. Thus, while society may 

certainly recognize as reasonable a privacy 

expectation in a conversation carried on face-to-face 

within one’s home, we are convinced society would 

find that an expectation of privacy in a telephone 

conversation with another, in which an individual has 

no reason to assume the conversation is not being 

simultaneously listened to by a third party, is not 

objectively reasonable.

Id. at 632. Because society places a higher expectation of privacy in a 

face-to-face conversation taking place within an individual’s home compared 

to a telephone conversation, a 30-day period of time in which to obtain such 

in-home intercepted communications does not comport with the protections 

afforded by the Fourth Amendment of the United States Constitution and 

Article I, Section 8 of the Pennsylvania Constitution.

We, therefore, hold that, because the General Assembly did not 

enumerate any time restrictions regarding how long an order authorizing the 

interception of communication involving a consenting party is to remain in 

effect, such an order is subject to the same probable cause determinations 

as a traditional search warrant in order to maintain the level of privacy 

citizens of this Commonwealth have always come to expect with face-to-face 

communications within their own homes. Accordingly, any evidence 

obtained as a result of the intercepted conversations, and the subsequent 

search warrant issued on June 29, 2011, should have been suppressed. 
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Therefore, we are constrained to vacate appellant’s judgment of sentence 

and remand for a new trial.

Any discussion of appellant’s second and third issues on appeal is not 

necessary, as the issues are now moot. As noted, we are cognizant of the 

fact that this court will not be the final word on this issue. We strongly 

advocate that our Supreme Court review this case and determine whether 

our interpretation is in line with its seminal decision in Brion. We recognize 

this decision has broad ramifications for law enforcement. 

Judgment of sentence vacated. Case remanded. Jurisdiction 

relinquished.

Shogan, J. joins this Opinion.

Strassburger, J. files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/2/2016