J-S52009-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

v. :

:

KHALIL JOHNSON, :

:

Appellant : No. 375 MDA 2017

Appeal from the Judgment of Sentence January 25, 2017

in the Court of Common Pleas of Lackawanna County,

Criminal Division, No(s): CP-35-CR-0001002-2016

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 12, 2017

Khalil Johnson (“Johnson”) appeals from the judgment of sentence 

imposed following his convictions of criminal use of a communication facility, 

possession of a controlled substance, delivery of a controlled substance, and 

possession of drug paraphernalia. See 18 Pa.C.S.A. § 7512(a); 35 P.S. 

§ 780-113(a)(16), (30), (32). We affirm.

The trial court set forth the relevant underlying facts as follows:

On October 18, 2016, following a jury trial, [Johnson] was 

convicted of [the above-mentioned crimes], and acquitted of 

false identification to law enforcement officers. These charges 

arose on March 15, 2016, when the Lackawanna County District 

Attorney’s Office Drug Unit conducted a controlled buy of heroin 

from [Johnson]. A confidential informant contacted [Johnson] 

and arranged to meet him in the parking lot of the Dollar Store 

in West Scranton. [Johnson] entered her car, and she made the 

controlled buy. The confidential informant had consented to 

having her text messages, phone calls, and conversations with 

[Johnson] intercepted by the District Attorney’s office, so the 

interaction between [Johnson] and the confidential informant 

was recorded by the District Attorney’s Office. [The 

Memorandum of Approval (“Memorandum”) to intercept 
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communications was executed on February 17, 2016, and stated 

that the proposed interception would occur between February 

17, 2016, and March 17, 2016. Prior to trial, Johnson filed a 

Motion in Limine, seeking to exclude evidence of his recorded 

conversation with the confidential informant. The trial court 

denied the Motion.]

On January 25, 2017, [Johnson] was sentenced to 33 months to 

12 years [in prison], followed by 2 years of probation.

Trial Court Opinion, 4/21/17, at 1-2.

Johnson filed a timely Notice of Appeal, and a court-ordered 

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement.

On appeal, Johnson raises the following question for our review:

A. Whether the trial court erred when it denied [Johnson’s] 

Motion in Limine to exclude evidence of the recorded inperson conversation between [Johnson] and a [c]onfidential 

[i]nformant taken inside the [c]onfidential [i]nformant’s 

vehicle on March 15, 2016[,] for the following reasons:

1. The intercept was not supported by reasonable grounds to 

suspect criminal activity;

2. The intercept was based upon stale information;

3. The intercept was based upon a defective Memorandum [];

4. The Memorandum [] was not supported by valid consent; 

and

5. Because [Johnson] had a reasonable expectation of 

privacy, [the] Memorandum [] was insufficient to support 

the intercept[?]

Brief for Appellant at 4.

“When reviewing a trial court’s denial of a motion in limine, this Court 

applies an evidentiary abuse of discretion standard of review.” 
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Commonwealth v. Schley, 136 A.3d 511, 514 (Pa. Super. 2016). “An 

abuse of discretion will not be found based on a mere error of judgment, but 

rather exists where the court has reached a conclusion which overrides or 

misapplies the law, or where the judgment exercised is manifestly 

unreasonable, or the result of partiality, prejudice, bias or ill-will.” Id. 

(citation omitted).

Pennsylvania’s Wiretapping and Surveillance Control Act 

[(“Wiretap Act”)],[1]is a pervasive scheme of legislation which 

suspends an individual’s constitutional rights to privacy only for 

the limited purpose of permitting law enforcement officials, upon 

a showing of probable cause, to gather evidence necessary to 

bring about a criminal prosecution and conviction. The statute 

sets forth clearly and unambiguously by whom and under what 

circumstances these otherwise illegal practices and their 

derivative fruits may be used.

However, the Wiretap Act contains an exception allowing 

law enforcement to utilize wiretaps without obtaining prior 

judicial approval when one of the parties to the conversation 

consents to the interception:

§ 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:

* * *

(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, 

including, but not limited to, the crimes enumerated in 

section 5708 (relating to order authorizing interception of 

wire, electronic or oral communications), where:

 

1 See 18 Pa.C.S.A. § 5701, et seq.
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* * *

(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 made, has reviewed the facts and is satisfied that the 

consent is voluntary and has given prior approval for the 

interception ....

18 Pa.C.S.A. § 5704 (emphasis added).

In determining whether the approval of a consensual 

wiretap was proper, ... police officers must articulate “reasonable 

grounds” for the monitoring and the Attorney General or the 

district attorney must verify [] that these reasonable grounds 

exist.

Commonwealth v. McMillan, 13 A.3d 521, 524–25 (Pa. Super. 2011) 

(citations and emphasis omitted, footnote added). Section 5704 does not 

contain any temporal restrictions such as “current” or “contemporaneous” 

with regard to “suspected criminal activities.” Id. at 525.

Additionally, “for the purposes of 18 Pa.C.S.[A.] § 5704(2)(ii), one’s 

consent must be given voluntarily in order for the governmental actions to 

be lawful.” Commonwealth v. Rodriguez, 548 A.2d 1211, 1213 (Pa. 

1988).

The voluntariness of one’s consent must be the product of an 

essentially free and unconstrained choice by its maker. His will 

must not have been overborne and his capacity for selfdetermination critically impaired. Each case must be determined 

from the totality of the circumstances. Furthermore, consent is 

not voluntary where it is the product of coercion or duress[,] 
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either express or implied. However, a decision to consent is not 

rendered involuntary merely because it is induced by a desire to 

avoid the possibility of a well[-]founded prosecution.

Id. (citations, quotation marks, brackets, and ellipses omitted). 

We will address Johnson’s claims together. Johnson contends that the 

trial court erred in denying his Motion in Limine to suppress the intercepted 

communications with the confidential informant. Brief for Appellant at 10, 

12. Johnson argues that the Commonwealth, in executing the 

Memorandum, violated the requirements of the Wiretap Act, and that any 

evidence seized from the recordings should have been excluded at trial. Id. 

at 12-13. 

First, Johnson asserts that the Memorandum failed to articulate 

reasonable grounds for monitoring communications, as it was vague and 

only stated that there was an investigation of the distribution of a controlled 

substance. Id. at 10, 13-14; see also id. at 13-14 (claiming that the 

Memorandum did not identify Johnson or the type of controlled substance 

under investigation).

Second, Johnson asserts that the authorization of the intercept was 

based upon stale information. Id. at 10, 14-15. Johnson argues that the 

intercept was authorized on February 17, 2016, but the sale that led to his 

convictions did not occur until March 15, 2016. Id. at 14. Johnson further 

points out that in the Memorandum, the confidential informant did not 

specify that she had previously bought drugs from Johnson. Id. 
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Next, Johnson contends that the Memorandum was defective because 

Deputy District Attorney Mike Ossont (“Ossont”) failed to adhere to the 

requirements set forth in section 5704(2), which safeguard against 

unauthorized wiretaps. Id. at 10, 18. Johnson claims that Ossont failed to 

sign the Memorandum. Id. at 10, 15-19. Johnson further argues that 

Ossont did not interview or question the confidential informant in person to 

determine whether the informant’s consent to be recorded was freely given. 

Id. at 15-16, 18, 19, 21. Johnson also asserts that Ossont was not properly 

authorized by the District Attorney to approve wiretaps. Id. at 15, 18-19. 

Johnson additionally claims that the confidential informant did not 

provide valid consent for the intercept. Id. at 10, 19-21. Johnson argues 

that the confidential informant’s consent was involuntary because she was 

paid to be an informant.2 Id. at 20-21. Johnson also asserts that the 

confidential informant did not consent to wear a wire for the drug deal. Id.

at 21. 

Finally, Johnson contends that he had a reasonable expectation of 

privacy in the confidential informant’s vehicle, as the public could not hear 

the exchange. Id. at 10, 21, 23. Johnson further argues that “he had an 

expectation of privacy in his phone conversation with the [confidential 

informant,]” and thus, the Memorandum was insufficient to support the

 

2 The confidential informant was paid $100 for the completed drug 

transaction. See N.T., 10/17/16, at 40, 88, 96.
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wiretap. Id. at 21-22. Johnson claims that the error was not harmless 

since the recorded conversations directly contributed to the verdict. Id. at 

23-24.

The trial court addressed Johnson’s claims as follows:

[Johnson] argues that the recorded in-person conversation 

between [Johnson] and the confidential informant[,] taken inside 

of her vehicle[,] should have been excluded from evidence 

because it was not supported by reasonable grounds to suspect 

criminal activity, not supported by valid consent[,] and taken 

pursuant to stale information. However, the confidential 

informant ... testified at trial that she was not forced or coerced 

to be a confidential informant, or to have a recording device 

placed in her car. [N.T., 10/17/16, at 40, 51, 69-71.] [The 

confidential informant] also testified that she had purchased 

heroin from [Johnson] in the past and could identify his voice 

because she had heard it before many times. Id. at 43, 56, 63[; 

see also Memorandum, 2/17/16, at 1 (identifying an unknown 

black male, known to the confidential informant as “Slim,” as the 

target of the intercept, and stating that the intercept involved 

“suspected criminal activities.”)]. She testified that while she 

consented to the recording on February 17, 2016, she was 

unable to make a purchase until March 15, 2016[,] because she 

attempted to buy heroin from him in that time period[,] but was 

unable to do so. [N.T., 10/17/16,] at 71. Thus, [Johnson’s] 

assertions that the confidential informant did not consent to the 

recording, and that the police did not have reasonable grounds 

to suspect criminal activity are incorrect. Moreover, while there 

is not a requirement that the suspected criminal activity is 

ongoing or current, the gap of three weeks between the 

confidential informant’s consent and the actual recording did not 

cause the information to become stale. [See Memorandum of 

Consent, 2/17/16, at 1 (wherein the confidential informant 

voluntarily consented to interceptions of communications with 

Johnson between February 17, 2016, and March 17, 2016); 

Officer’s Memorandum, 2/17/16, at 1 (requesting that “the 

proposed interception to occur on 02/17/2016 THRU 

03/17/2016.”); see also McMillan, 13 A.3d at 525 (stating that 

“[s]ection 5704 does not contain temporal restrictions such as 

‘ongoing,’ ‘current,’ or ‘contemporaneous,’” and that for a 

consensual wiretap, only a showing of reasonable grounds is 
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necessary); Commonwealth v. Adams, 524 A.2d 1375, 1378 

(Pa. Super. 1987) (stating that section 5704(2)(ii) does not “set 

forth a specific length of time during which a consent remains 

viable.”). The confidential informant] testified that she 

attempted to purchase heroin in that time period but was unable 

to do so.

[Johnson] also asserts that the Memorandum [] for the 

recording was defective because it was not signed by the 

Assistant District Attorney, was defective on its face because it 

included a date after the date of the Memorandum, and because 

the Assistant District Attorney was not authorized to approve the 

Memorandum. [Johnson] made this assertion during the 

argument on the [M]otion in [L]imine, but [the trial] court 

denied the [M]otion and found that the questionable date in the 

Memorandum was almost certainly a clerical error, and that 

[Johnson] could cross[-]examine regarding the dates and the 

accuracy of the information. Id. at 3-4. At trial, Detective John 

Munley [(“Detective Munley”)] testified that [] Ossont oversees 

the Drug Unit at the District Attorney’s Office and approves [the] 

electronic surveillance by the office. Id. at 91. He testified that 

the confidential informant in this case was consensualized by [] 

Ossont over the telephone and that [] Ossont went over the 

authorization to intercept communications with her to make sure 

that she was doing this of her own free will and understood 

everything else in the Memorandum[,] and that [] Ossont 

approved the interception over the telephone. Id. at 90-91. 

[Detective Munley] testified that the reference in the 

Memorandum [] to the date of the Officer’s Memorandum as 

March 30, 2016, was a typographical error on his part and that 

the date should have been February 17, 2016. Id. at 142. He 

also testified that he wrote [] Ossont’s name on the form 

because the interview with the confidential informant was 

conducted by telephone. Id. [Johnson’s] attorney

cross[-]examined Detective Munley on these points at length, 

but did not establish that the Memorandum [] was invalid and 

that the recording should have been excluded. 

Finally, [Johnson] argues that the interception of his 

conversation with the confidential informant violated his 

expectation of privacy in the confidential informant’s vehicle. 

However, a defendant does not have an expectation of privacy in 

a confidential informant’s vehicle or an expectation that the 

words spoken to a confidential informant will not be intercepted. 
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[See] Commonwealth v. Bender, 811 A.2d 1016[, 1023] (Pa. 

Super. 2002) [(concluding that the defendant had no reasonable 

expectation of privacy during conversation in the consenting 

informant’s vehicle); see also Rodriguez, 548 A.2d at 1212-13 

(stating that one-party consensual wiretapping, as authorized by 

section 5704(2)(ii), does not violate the Fourth Amendment or 

Article I, Section 8 of the Pennsylvania Constitution).] Thus, the 

recording of [Johnson’s] conversation with the confidential 

informant inside of her vehicle was not excludable[,] and th[e 

trial] court properly denied [Johnson’s] [M]otion in [L]imine.

Trial Court Opinion, 4/21/17, at 3-5. Because the trial court’s findings are 

supported by the record, and its legal conclusions are sound, we adopt its 

reasoning for the purpose of this appeal, see id., with the following 

addendum.

Although the confidential informant was paid for the completed drug 

transaction, this economic incentive did not vitiate her consent and cannot 

be deemed coercive to the extent that it deprived the informant of free 

choice. See Rodriguez, 548 A.2d at 1213. Further, the fact that Ossont 

determined the voluntariness of the confidential informant’s consent and 

approved the intercept over the phone did not violate the requirements of 

section 5702(2)(ii). See Adams, 524 A.2d at 1377-78 (concluding that the 

trial court properly denied the motion to suppress where the deputy attorney 

general interviewed the confidential informant over the phone to determine
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the voluntariness of the informant’s consent regarding the interceptions).3

Applying the above standards to the instant case, we conclude that the 

trial court did not abuse its discretion in finding that there were reasonable 

grounds for the intercept; the confidential informant voluntarily consented to 

the intercept; and Ossont properly authorized the intercept, thereby 

justifying the admission of Johnson’s statements.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/12/2017

 

3 We note that the confidential informant independently corroborated the 

information regarding the sale of heroin contained in the recordings. See 

N.T., 10/17/16, at 58, 60 (wherein the confidential informant testified that 

Johnson sold her two bags of heroin in exchange for $20 while in the 

informant’s vehicle); see also id. at 46-52 (wherein the confidential 

informant discussed the set-up of the deal, and the police providing her with 

money to buy the heroin).