J-A04019-16

2016 PA Super 269

*Retired Senior Judge assigned to the Superior Court.

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

v.

DENNIS ANDREW KATONA,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

No. 1995 WDA 2014

Appeal from the Judgment of Sentence November 10, 2014

in the Court of Common Pleas of Westmoreland County 

Criminal Division at No(s): CP-65-CR-0002549-2011

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

DISSENTING OPINION BY: STRASSBURGER, J:FILED DECEMBER 02, 2016

I disagree with the Majority’s determination that Brion requires orders 

authorizing consensual interceptions to be “subject to the same probable 

cause determinations as a traditional search warrant” in order to maintain 

the level of privacy reasonably expected in face-to-face communications in 

one’s home. Majority Opinion at 13. Accordingly, I respectfully dissent.

As the Majority correctly notes, our General Assembly codified our 

Supreme Court’s holding in Brion at 18 Pa.C.S. § 5704. Under that Section, 

the requirements the Commonwealth must satisfy to obtain an order 

authorizing a consensual interception are far less stringent than those which 

must be satisfied in order to obtain a non-consensual 30-day wiretap. In 

creating these new standards, the legislature had the opportunity to impose 

a strict timeframe with respect to consensual interceptions. It did not do so. 
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The Majority holds that 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.” Majority Opinion, at 13 (quotation 

marks omitted). There is nothing in Brion to support this contention. 

Rather, the Brion Court was well aware of controlling precedent surrounding 

probable cause determinations and the timeframes in which the 

Commonwealth was bound to execute nonconsensual wiretaps1and failed to 

place a limit on the applicable timeframe for consensual interception orders. 

Further, the Majority concluded that the Commonwealth has “failed to 

assert that applying for additional orders based on probable cause to 

intercept conversation each time the CI entered appellant’s home 

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

The situation speaks for itself. The purpose of consensual interceptions is to 

add credibility to an investigation by recording the target’s own words. This 

should happen organically, in the course of normal conversation between the 

CI and the target. Interruptions in the CI’s interaction with the target so the 

 

1 The Brion court specifically referenced the Wiretap Act in making its 

pronouncement and had the opportunity to outline an applicable timeframe 

and procedure for determining probable cause in these cases. “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.” Brion, 652 A.2d 287, 289 (Pa. 1994).
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Commonwealth can obtain a new authorization could serve to hinder the

investigation and compromise the safety of the CI. Suppose a CI is staying 

in the target’s home. If the CI leaves for an hour to go to the store, or for 

30 minutes to walk the dog, must the Commonwealth get a new 

authorization each time the CI re-enters the home? Imposition of the rules 

for search warrants, including a 48-hour execution period, is unnecessarily 

restrictive and imposes a burden on the Commonwealth not intended by the 

legislature, or outlined by the Supreme Court. The burden is especially harsh 

when one considers the fact that the General Assembly, even after 

consideration of the privacy arguments outlined in Brion, enacted a statute 

with less stringent requirements for obtaining consensual orders. Had the 

legislature intended to impose a particular timeframe, it would have done so. 

Nonetheless, for practical purposes, guidelines for the timing of 

consensual interceptions must be considered. Consistent with the purpose, 

legislative requirements and practical execution of consensual interception 

orders, I believe the president judge authorizing such an order is in the best 

position to determine an appropriate timeframe for its execution. In my 

view, the applicable timeframe in which to execute a consensual order 

should be more than, or at least equal to, that imposed for nonconsensual 

interceptions.

Here, following the submission of an affidavit of probable cause, the 

trial court granted the Commonwealth’s request for a 30-day order, as well 
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as the Commonwealth’s requests for extensions of the original order. 

Because I believe such an order was properly within the discretion of the 

trial court, I would uphold the court’s ruling denying suppression and affirm 

Appellant’s judgment of sentence.