Commonwealth v. McMillan

13 A.3d 521, 2011 Pa. Super. 21, 2011 Pa. Super. LEXIS 20
CourtSuperior Court of Pennsylvania
DecidedJanuary 24, 2011
StatusPublished
Cited by11 cases

This text of 13 A.3d 521 (Commonwealth v. McMillan) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. McMillan, 13 A.3d 521, 2011 Pa. Super. 21, 2011 Pa. Super. LEXIS 20 (Pa. Ct. App. 2011).

Opinion

OPINION BY

STEVENS, J.:

This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Lancaster County after Appellant Norman McMillan, III, was convicted of involuntary deviate sexual intercourse,1 statutory sexual assault,2 indecent assault,3 and corruption of minors.4 Appellant claims the trial court erred in refusing to suppress wiretap evidence gathered through an unlawful search and seizure which violated the Wiretapping and Electronic Surveillance Control Act, 18 Pa. C.S.A. § 5704(2) (“Wiretap Act”), and the United States and Pennsylvania constitutions. We affirm.

The aforementioned charges resulted from allegations that Appellant engaged in an inappropriate sexual relationship with a minor victim, T.T. In 2004, fourteen year old T.T. joined the McCaskey High School Choir where Appellant was employed as choir director. T.T. testified that she developed a close student/teacher relationship with Appellant which allowed T.T. to “confide” in Appellant and become “com[523]*523fortable” around him. Appellant would often give T.T. rides home from choir practice. On one occasion when Appellant drove T.T. home, Appellant asked if he could give T.T. a “hickey.” Surprised and nervous, T.T. testified that she “asked if he’d rather kiss me than give me a hickey.” Appellant agreed and kissed T.T.

After this initial encounter, T.T. and Appellant’s relationship became increasingly sexual in a short amount of time. In November 2005, after a choir event, Appellant took T.T. into his office in the school where they talked and kissed. After Appellant began touching T.T. and asked to perform oral sex on her, T.T. complied. The next encounter occurred sometime between January and March 2006, when T.T. met Appellant behind her home in his car. After a short period of kissing and rubbing, Appellant asked T.T. to perform oral sex on him and she complied.

Shortly thereafter, Appellant asked T.T. to go with him to his friend’s home after a gospel choir concert. Once there, Appellant and T.T. performed oral sex on each other and engaged in vaginal intercourse. In the next several weeks, T.T. testified that, on three other occasions, she had oral sex and sexual intercourse with Appellant at his friend’s home or at Appellant’s home.

As rumors spread about their sexual encounters, Appellant and T.T. ceased seeing each other. Appellant told T.T. if she ever wanted to talk to anyone about their relationship, she should let him know before she told anyone. When Appellant’s employment with McCaskey High School ended in 2006, T.T. lost contact with Appellant. T.T. testified that she did not tell anyone about her sexual encounters with Appellant because she was scared that the release of such information would ruin her reputation and would cause her to become depressed. After T.T.’s aunt, C.T., repeatedly questioned her about these allegations, T.T. finally told C.T. about all the events that had occurred. C.T. promptly notified police.

T.T. and C.T. met with Detective Andrew Morgan to report the aforementioned allegations. Detective Morgan contacted wiretap-certified Detectives Robert Deeter and Matthew Blake to set up a phone interception with Appellant. The three detectives compiled an Officers’ Memorandum which contained T.T.’s allegations and set forth the reasons a wiretap was necessary. On May 1, 2008, Detective Deeter set up a meeting with T.T., C.T., and Assistant District Attorney Todd Kriner. ADA Kriner reviewed the detectives’ memorandum, spoke with the detectives and the victim, and met with the victim privately to ensure that her consent to the wiretap interception was knowing, voluntary, and of her free will.

After ADA Kriner approved the wiretap, the detectives intercepted a phone call between T.T. and Appellant on May 9, 2008. After T.T. indicated she was upset about the rumors circulating about their sexual encounters, she asked Appellant if he had told anyone about them. Appellant repeatedly denied telling anyone, but empathized with T.T.’s feelings, especially since people were discussing the situation four years later. When asked if he had sex with any other students, Appellant answered in the negative. Appellant asked T.T. to keep him updated on the situation.

On July 21, 2008, Appellant was charged with the aforementioned offenses. Appellant filed a motion to suppress the evidence obtained from the wiretap, claiming it was unreasonable to believe that Appellant would reveal any evidence of criminal activity when Appellant had not spoken to T.T. in nearly two years. On November 10, 2009, the trial court held a suppression hearing in which Detectives Morgan, Deet[524]*524er, and Blake, ADA Kriner, T.T. and C.T. testified. As the trial court found the Commonwealth’s witnesses to be credible, the trial court subsequently denied the suppression motion. Appellant proceeded to a jury trial in which Appellant was found guilty on all counts. On March 15, 2010, Appellant received an aggregate sentence of five (5) to ten (10) years imprisonment. On April 13, 2010, Appellant filed this timely appeal.

Appellant raises one issue for our review:

DID THE [TRIAL] COURT ERR IN REFUSING TO SUPPRESS EVIDENCE THAT WAS DERIVED FROM ELECTRONIC SURVEILLANCE WHEN THE MEMORANDUM OF INTERCEPTION ISSUED PURSUANT TO THE WIRETAPPING AND ELECTRONIC SURVEILLANCE CONTROL ACT WAS NOT BASED ON REASONABLE GROUNDS?

Appellant’s Brief, at 4.

In reviewing a trial court’s denial of a suppression motion, our standard of review is well-established:

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.

Commonwealth v. Jones, 605 Pa. 188, 988 A.2d 649, 654 (2010) (citing Commonwealth v. Bomar, 573 Pa. 426, 445, 826 A.2d 831, 842 (2003)).

Our Supreme Court has recognized that Pennsylvania’s Wiretap Act seeks to uphold constitutional protection of an individual’s privacy:

Pennsylvania’s Wiretapping and Surveillance Control Act, 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.

Commonwealth v. Cruttenden, 976 A.2d 1176, 1179 (Pa.Super.2009) (quoting Boettger v. Loverro, 521 Pa.

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Cite This Page — Counsel Stack

Bluebook (online)
13 A.3d 521, 2011 Pa. Super. 21, 2011 Pa. Super. LEXIS 20, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mcmillan-pasuperct-2011.