J-A31032-14

2015 PA Super 28

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellant

v.

RAHIEM CARDEL FANT

Appellee No. 386 MDA 2014

Appeal from the Order Entered February 26, 2014

In the Court of Common Pleas of Clinton County

Criminal Division at No: CP-18-CR-0000415-2013

BEFORE: BOWES, OTT, and STABILE, JJ.

OPINION BY STABILE, J.: FILED FEBRUARY 09, 2015

The Commonwealth appeals from the February 26, 2014 order entered 

in the Court of Common Pleas of Clinton County granting the suppression 

motion filed by Rahiem Cardel Fant (Appellee).1 Following review, we 

reverse.

In its opinion accompanying the order, the trial court explained:

[Appellee] is charged with four (4) counts of alleged criminal 

conduct, i.e., Aggravated Assault, a felony of the first degree, 

Aggravated Assault, a felony of the second degree, Simple 

Assault, a misdemeanor of the second degree, and Recklessly 

Endangering Another Person, a misdemeanor of the second 

degree. All allegations of [Appellee’s] criminal conduct arise out 

of an incident that occurred on North Grove Street in the City of 

____________________________________________

1 Appellee’s motion was titled “Motion in Limine to Exclude Evidence Relating 

to Telephone Recordings and Personal Belongings.” It was properly treated 

by the trial court as a suppression motion. 
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Lock Haven on May 11, 2013, wherein [Appellee] allegedly 

stabbed an adult male in the abdomen and the arm. [Appellee] 

is scheduled for jury trial to commence on Thursday, February 

27, 2014. [Appellee] filed a Motion in Limine to Exclude 

Evidence Relating to Telephone Recordings and Personal 

Belongings on February 21, 2014. This [c]ourt conducted a 

hearing on February 25, 2014. At the hearing, the 

Commonwealth offered the testimony of Jackie Motter, Warden 

of the Clinton County Correctional Facility and Jenifer Bottorf, 

Victim/Witness Coordinator of Clinton County. The 

Commonwealth also offered four (4) exhibits which were entered 

into evidence.

[Appellee’s] Motion seeks the exclusion of recordings made at 

the Clinton County Correctional Facility between [Appellee] and 

unknown persons and the subsequent receipt by law 

enforcement personnel of a bag of clothing and other personal 

belongings formerly owned by [Appellee] which were in the 

basement of Angela Monks, the previous paramour of [Appellee]. 

[Appellee] argues numerous reasons why these items should not 

be admitted into evidence. 

Trial Court Opinion (T.C.O.), 2/26/14, at 1-2.

The trial court granted Appellee’s suppression motion and prohibited 

the introduction of, and references to, recordings made during Appellee’s 

visitation sessions at the Clinton County Correctional Facility (the facility) as 

well as the introduction of, and references to, personal belongings 

discovered as a result of the recordings. Trial Court Order, 2/26/14, at 1. 

The Commonwealth filed this timely appeal from the February 26, 2014 

order. On March 16, 2014, in accordance with the trial court’s directive, the 

Commonwealth filed its Rule 1925(b) statement of errors complained of on 

appeal asserting five errors, which are condensed into the three issues 

presented to this Court as follows:
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I. Did the court err in finding that the recordings made of 

Appellee’s correctional facility visitation calls were not 

telephone calls which fell within the exception to the 

Wiretap Act?

II. Did the court err in suppressing evidence without finding 

that Appellee had a reasonable expectation of privacy in 

the correctional facility visitation calls?

III. Did the court err in suppressing the personal belongings of 

Appellee seized as the seizure was based upon lawfully 

obtained information?

Commonwealth Brief at 5.2

We begin by setting forth our scope and standard of review. As this 

Court has recognized:

When reviewing a grant of a suppression motion, the appropriate 

scope and standard of review are as follows:

[W]here a motion to suppress has been filed, the burden is 

on the Commonwealth to establish by a preponderance of 

the evidence that the challenged evidence is admissible. 

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 of the defendant’s witnesses and so much of 

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 conclusions drawn from those 

findings.

____________________________________________

2 We remind the Commonwealth of the requirement to include a copy of the 

statement of errors complained of on appeal in briefs filed with this Court. 

Pa.R.A.P. 2111(a)(11).
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Commonwealth v. Burgos, 64 A.3d 641, 647 (Pa. Super. 2013) (quoting 

Commonwealth v. Powell, 994 A.2d 1096, 1101 (Pa. Super. 2010) 

(citations omitted)).

As noted, this Court is bound by the findings of the suppression court 

that are supported by the record. Because this is an appeal by the 

Commonwealth, we must consider only the evidence of Appellee’s witnesses 

and the evidence of the Commonwealth that remains uncontradicted in the 

context of the record. Id.

Here, Appellee did not present any witnesses at the suppression 

hearing. The only two witnesses who testified were the facility’s warden and 

the Clinton County victim/witness coordinator, both of whom were called by 

the prosecution. Four exhibits were admitted in the course of their 

testimony. The exhibits included Policy Number 100:15, “Telephone 

Regulations for Inmates,” from the Clinton County Correctional Facility Policy 

and Procedure Manual; the Clinton County Correctional Facility Inmate 

Handbook; The Inmate I.D. Card Agreement and Acknowledgement of 

Inmate Rules and Regulations, both of which were signed by Appellee; and 

the Clinton County Correctional Facility Inmate Telephone ID Number 

Release Form signed by Appellee. Absent any witnesses for Appellee, this 

Court must determine whether the suppression court’s factual findings are 

supported by the evidence of the Commonwealth that remains 

uncontradicted in the context of the record.
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At issue are recordings of conversations that took place between 

Appellee and visitors in the facility’s visitation room and whether the 

recorded calls were “telephone calls” under § 5704(14) the Pennsylvania 

Wiretap Act, 18 Pa.C.S.A. § 5704(14). Regarding the suppression court’s 

factual findings, no Findings of Fact or Conclusions of Law were announced 

at the conclusion of the suppression hearing. Instead, the court “ordered 

that [the court] will take this matter under advisement, attempt to do some 

legal research, and reach a decision tomorrow morning.” N.T., 2/25/14, at 

38. In its opinion and order issued the following day, the court stated:

[Appellee’s] first argument in support of excluding the recordings 

is that it violates § 5704 of the Pennsylvania Wiretap Statute. 18 

PaC.S.A. § 5704. The Commonwealth has argued that 

§ 5704(14) permits these recordings. A close examination 

indicates that “telephone calls” may be intercepted and recorded 

by the correctional facility and then forwarded to law 

enforcement for the prosecution or investigation of any crime. 

Initially, although this [c]ourt attempted to seek clarifications 

throughout the proceedings because of the intricacies of the 

Wiretap Statute, this [c]ourt must note that all the recordings 

but two (2) are not what this [c]ourt would refer to as 

“telephone calls.” The District Attorney admitted at the hearing 

on February 25, 2014 that no case law exists regarding this 

case.

The system in place at the Clinton County Correctional Facility 

for visitation is that Defendant picks up an apparatus that 

resembles a telephone and punches in an i.d. number and the 

other individual across the glass from Defendant picks up that 

apparatus and a discussion ensues. These are the discussions 

except for two (2) short phone calls that were intercepted. This 

[c]ourt does not believe that this was what the Legislature 

contemplated when it indicated that it was allowing telephone 

calls from the correctional facility to be intercepted and 

recorded. Clearly, the conversation is between a visitor at a 

correctional facility and an inmate. These conversations do not 
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involve the use of a telephone company, telephone lines or 

equipment outside the correctional facility. The every day 

common sense use of the word telephone does not include this 

scenario. Therefore, this Court rules that the “visit” 

conversations are not telephone calls and are not subject to the 

Wiretap accession under § 5704(14). Therefore, the 

Commonwealth has offered no other argument for any exception 

and therefore, those calls must be suppressed. 

T.C.O., 2/26/14, at 2-3.

As is evident from the excerpt quoted above, the trial court made few 

“factual findings.” Cf. Pa.R.Crim.P. 581(I) (“At the conclusion of the 

hearing, the judge shall enter on the record a statement of findings of fact . 

. . .”). Essentially, the findings of fact were limited to (a) describing the 

facility’s visitation system as one in which the inmate and his visitor carry on 

a discussion through a glass partition using an apparatus that resembles a 

telephone activated by the inmate punching in an I.D. number, and (b) 

announcing that all but two of the recorded conversations did not involve the 

use of a telephone company, telephone lines or equipment outside the 

correctional facility. A fair reading of the trial court’s opinion does not reveal 

any additional findings of fact. To the extent those findings are supported 

by the record, we are bound by them.3 However, our review of the 

suppression hearing transcript reveals additional uncontradicted facts not 

____________________________________________

3 As noted below, the trial court’s finding that the recordings in question did 

not involve a telephone company is not supported by the evidence. The 

evidence supports the remaining findings. 
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enunciated by the trial court that must be considered to determine whether 

error in the trial court’s legal conclusions warrants reversal of its order. 

From our review of the suppression hearing transcript, we glean the 

following. The uncontradicted testimony of the facility’s warden established 

that the facility’s Inmate Handbook contains information regarding the 

recording of telephone calls. N.T. Suppression Hearing (N.T.), 2/25/14, at 

6; Commonwealth Exhibit 2. Section 3001 on page 7 of the handbook 

provides in bold typeface that “[t]elephone calls are subject to monitoring, 

recording, and may be intercepted or divulged.” Id. at 6-7. Appellee signed 

an acknowledgement of receipt of his Inmate ID Card Agreement and an 

acknowledgement of the Inmate Rules and Regulations on his booking date, 

May 12, 2013. Id. at 7-8; Commonwealth Exhibit 3. Appellee also signed a 

release form on the same date that explains the inmate telephone system 

and the unique telephone ID number assigned to him. Id. at 8; 

Commonwealth Exhibit 4. The form includes an acknowledgement that 

telephone calls are subject to monitoring, recording and interception. Id. 

An inmate uses his telephone ID number to initiate calls outside the 

facility as well as visitation calls within the facility for face-to-face visits 

using a telephone to communicate through glass. Id. at 13-17. Both 

external and internal calls are recorded on the same system and are stored 

on the prison’s computer server. Id. at 9-10; 12-14. Calls are designated 

as calls to an outside number or a visitation call. Id. at 14. Visitation calls 
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go through and are recorded by the inmate phone company. Id. at 14; 16.4 

Those having access to the stored calls include the warden, the deputy 

warden, the lieutenants, and the office and records manager who has been 

designated to record phone calls during the warden’s one year tenure as 

warden and during the 13 years she served as deputy warden. Id. at 10-

12. According to the uncontradicted testimony of the victim/witness 

coordinator, the recordings in question here, with the possible exception of 

two outside calls, were from visitation calls within the facility during face-toface visits using a telephone activated by Appellee entering his telephone ID 

number. Id. at 25. The request for the recordings stemmed from a 

February 3, 2014 call from a Commonwealth witness who expressed concern 

about “the players involved and the possibility of somebody reaching out to 

her to . . . talk to her about what she was going to say.” Id. at 19. 

In his motion to suppress, Appellee contended that “[b]y letter dated 

February 18, 2014, the office of the District Attorney provided [Appellee’s] 

counsel with three (3) CDs containing recordings of telephone 

conversations taken during various visits at the Clinton County 

Correctional Facility between [Appellee] and various visitors.” Motion in 

Limine to Exclude Evidence Relating to Telephone Recordings and 

Personal Belongings, 2/21/14 at ¶ 4 (emphasis added). Much of Appellee’s 

____________________________________________

4 See footnote 3.
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motion focused on the Commonwealth’s delay in producing voluminous 

amounts of discovery material relating to the recordings and the burden on 

the defense of reviewing the materials in the short time remaining before 

trial. Id. at ¶¶ 5-8 and ¶¶ 11-19. However, Appellee also challenged the 

anticipated use of the recordings at trial based on the alleged failure of 

officials at the facility to follow the process and regulations outlined in the 

Pennsylvania Wiretap Act with respect to the recordings. Id. at ¶ 10. 

Section 5704(14) of the Wiretap Act provides, in pertinent part, that:

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 
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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. 

18 Pa.C.S.A. § 5704(14) (emphasis added). 

The Commonwealth and Appellee both acknowledge that the Wiretap 

Act does not define the word “telephone.” Commonwealth Brief at 12; 

Appellee Brief at 7. The Commonwealth offers the Webster’s Dictionary

definition of a telephone as “[a]n instrument for reproducing sounds, 

especially articulate speech, at a distance,” and an alternate definition of “an 

electrical device for transmitting speech, consisting of a microphone and

receiver mounted on a handset,” from Collins English Dictionary – Complete 

& Unabridged 10th Edition 2009. Appellee offers a Merriam-Webster Online 

Dictionary definition indicating that a telephone is “a device that is 

connected to a telephone system and that you use to listen or speak to 

someone who is somewhere else.” (http://www.merriamwebster.com/dictionary/telephone?show=0&t=1409159323.) Another online 

source, BusinessDictionary.com, explains that 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.” 
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(http://www.businessdictionary.com/definition/telephone.html#ixzz3O4MV4

vqJ).

Appellee argues that the Commonwealth’s selected definitions are selfserving and suggests that his definition should be accepted because it 

includes an important distinction, i.e., that a telephone must be connected 

to a telephone system and used to listen or speak to someone who is 

somewhere else. Appellee Brief at 7. However, the uncontradicted evidence 

from the suppression hearing reveals that the telephones in the facility’s 

visitation room are connected to the “inmate phone company.” N.T., 

2/25/14, at 16. Calls on both the inmate phone system and the facility’s 

Verizon telephone system are recorded by the same computer system. Id. 

Further, the telephones in the visitation room are used to listen or speak to 

someone who is somewhere else, i.e., on the other side of a glass partition 

that would otherwise prevent prisoners and their visitors from 

communicating audibly. Those facts bring the visitation calls within 

Appellee’s proffered definition. 

Under any of the “common meanings” of telephone, as listed above, 

we conclude 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. The Act does not distinguish 

between external and internal telephone calls from or to an inmate in a 
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county correctional facility. Because the motion to suppress was granted 

based on an unwarranted distinction between the two, we reverse the trial 

court’s order suppressing the recorded conversations as well as the evidence 

obtained as a result of those conversations.5 

Order reversed. Case remanded. Jurisdiction relinquished.6

____________________________________________

5

 Because 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.

6 We note and agree with Appellee’s contention that this Court lacked 

jurisdiction to entertain this appeal under Pa.R.A.P. 341 relating to final 

orders. Although the Commonwealth’s brief suggests the appeal is taken 

pursuant to Rule 341, the Commonwealth certified in its notice of appeal 

that the trial court’s order “will terminate or substantially handicap the 

prosecution,” satisfying the requirement of Pa.R.A.P. 311(d) (“In a criminal 

case, under the circumstances provided by law, the Commonwealth may 

take an appeal as of right from an order that does not end the entire case 

where the Commonwealth certifies in the notice of appeal that the order will 

terminate or substantially handicap the prosecution.”). While the trial court 

suggests that it would be “extremely difficult” for this Court to determine 

whether the prosecution would be substantially handicapped by the 

suppression order, Trial Court 1925(a) Opinion, 4/1/14 at 3-4, our Supreme 

Court has recognized that the grant of a suppression motion is a proper 

basis for invoking Rule 311(d). See, e.g., Commonwealth v. Cosnek, 836 

A.2d 871, 875 (Pa. 2003) (“When a pretrial motion removes evidence from 

the Commonwealth’s case, only the prosecutor can judge whether that 

evidence substantially handicaps his ability to prove every essential element 

of his case.”).
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/9/2015