Commonwealth v. Prisk

13 A.3d 526, 2011 Pa. Super. 22, 2011 Pa. Super. LEXIS 23, 2011 WL 281097
CourtSuperior Court of Pennsylvania
DecidedJanuary 28, 2011
Docket846 MDA 2010
StatusPublished
Cited by262 cases

This text of 13 A.3d 526 (Commonwealth v. Prisk) 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. Prisk, 13 A.3d 526, 2011 Pa. Super. 22, 2011 Pa. Super. LEXIS 23, 2011 WL 281097 (Pa. Ct. App. 2011).

Opinions

OPINION BY

GANTMAN, J.:

Appellant, Gary E. Prisk, appeals from the judgment of sentence entered in the Centre County Court of Common Pleas, following his jury trial convictions for three hundred fourteen (314) offenses, including multiple counts of rape, involuntary deviate sexual intercourse, and indecent assault.1 We affirm.

The relevant facts and procedural history of this appeal are as follows. Between 2001 and 2007, Appellant sexually abused his stepdaughter (“Victim”). The abuse commenced when Victim was ten years old. At that time, Appellant would force Victim to undress in his presence. Appellant threatened to kill Victim’s family members if she told anyone about these incidents.

As Victim grew older, the abuse escalated. Appellant forced Victim to perform mutual masturbation and to give and receive oral sex. Appellant also gave Victim a camera, ordering her to take nude photographs of herself in sexually explicit poses. When Victim was approximately twelve years old, Appellant raped her for the first time. On that occasion, Appellant plied Victim with alcohol and made her watch pornographic videos. Appellant told Victim she would have to perform the sex acts depicted in the videos. Thereafter, Appellant continued to rape and sexually assault Victim on an almost daily basis, often when Victim’s mother and brother were not at home. If Victim disobeyed Appellant’s commands, Appellant would physically abuse her. The physical abuse included burning Victim’s stomach, holding her head under water in the bathtub, and placing plastic bags over her head.

In 2006, Appellant was imprisoned at the Centre County Correctional Facility for unrelated offenses. Appellant participated in a work release program, which enabled him to continue his abuse of Victim. In 2007, when Appellant no longer participated in work release, Victim first informed her mother and the police about the abuse. As part of the investigation into Victim’s allegations, the police convinced Victim to visit Appellant at the county prison on March 11, 2008. Victim wore a recording device during the visit, capturing her conversation with Appellant. The Commonwealth did not obtain an order from the Court of Common Pleas prior to intercepting this conversation.

On July 7, 2008, the Commonwealth filed criminal informations charging Appellant with three hundred fourteen separate offenses related to the sexual and physical [529]*529abuse of Victim. On November 3, 2008, Appellant filed a motion to suppress the recording of his jailhouse conversation with Victim. Appellant claimed the Commonwealth obtained the recording in violation of the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”).2 Specifically, Appellant argued the Commonwealth had to obtain an order from the Court of Common Pleas prior to intercepting a conversation inside of his “home.” By order and opinion entered January 16, 2009, the court denied Appellant’s suppression motion.

Following trial, a jury convicted Appellant of all charges. On April 9, 2010, the court sentenced Appellant to an aggregate term of six hundred thirty-three (633) to one thousand five hundred (1500) years’ imprisonment. On April 14, 2010, Appellant timely filed post-séntence motions, including a motion to modify sentence. Appellant conceded his sentence fell within the statutory guidelines; nevertheless, Appellant argued the court imposed a manifestly excessive sentence. Appellant insisted he “will never live even a fraction of the total sentence,” and the sentence “goes far beyond the bounds of protecting the community....” (Post-Sentence Motions, filed 4/14/10, at 5). On May 13, 2010, the court denied Appellant’s post-sentence motions.

Appellant timely filed the instant notice of appeal on May 19, 2010. On June 2,

2010, the court ordered Appellant to- file a concise statement of matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely filed his Rule 1925(b) statement on June 14, 2010.

Appellant raises two issues for our review:

DID THE COURT ERR BY FAILING TO SUPPRESS AN INTERCEPTED CONVERSATION WITHIN THE WALLS OF THE PRISON IN WHICH APPELLANT RESIDED?
WAS THE COURT’S AGGREGATE SENTENCE OF 633 YEARS TO 1500 YEARS’ INCARCERATION A MANIFESTLY EXCESSIVE SENTENCE?

(Appellant’s Brief at 27).

In his first issue, Appellant complains the Commonwealth cannot record a conversation in the home of a nonconsent-ing party unless the Court of Common Pleas first issues an order authorizing the interception. Appellant contends the county prison was his “home” at the time of the March 11, 2008 interception, because it was his de facto place of abode. Appellant asserts he has lived at the prison since 2006, and has paid $10.00 per day in fees to “rent” his cell. Appellant also maintains he has the ability to restrict visitors’ access to the prison; a visitation could occur only after Appellant places the visitor’s name on a list for approval.

Additionally, Appellant maintains the prison does not record or otherwise monitor the conversations occurring inside the visitation room. Appellant emphasizes that prison officials monitor some types of inmate communications, including telephone conversations, but not others, such as outgoing mail. Under these circumstances, Appellant argues he had a subjective belief that his conversation in the visitation room was private. Appellant further argues: “If there are distinctions being made in what [inmate] communications are being monitored, society is tacitly recognizing a very limited expectation of privacy as reasonable.” (Appellant’s Brief at 40). Appellant concludes the court should have suppressed the recording of the March 11, 2008 conversation in [530]*530the prison visitation room on this ground. We disagree.

We examine this issue subject to the following principles:

Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusions drawn from those facts are correct.
[W]e may consider only the evidence of the prosecution 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 record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts.

Commonwealth v. Williams, 941 A.2d 14, 26-27 (Pa.Super.2008) (en banc) (internal citations and quotation marks omitted).

“The focus and purpose of the [Wiretap Act] is the protection of privacy.” Commonwealth v. Spence, 428 Pa.Super. 548, 681 A.2d 666, 668 (1993). The Wiretap Act provides in pertinent part:

§ 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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Cite This Page — Counsel Stack

Bluebook (online)
13 A.3d 526, 2011 Pa. Super. 22, 2011 Pa. Super. LEXIS 23, 2011 WL 281097, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-prisk-pasuperct-2011.