Summary
In Mason, the defendant, who worked as a live-in nanny, was charged after her employer turned over the audio and visual recording from a camera placed in one of his children's bedroom; the recording showed Mason forcibly placing a child into a crib, and audio portions of the recording suggested that she may have struck another child several times.
Summary of this case from Commonwealth v. BrillOpinion
No. 69 MAP 2019
03-25-2021
COMMONWEALTH of Pennsylvania, Appellant v. Beth Ann MASON, Appellee
OPINION
In this appeal, we address the admissibility of audio evidence in a criminal trial under the Wiretapping and Electronic Surveillance Act ("Wiretap Act"), 18 Pa.C.S. §§ 5701 - 5782. More specifically, we examine whether the Wiretap Act deems inadmissible a covertly obtained audio recording of Appellee Beth Ann Mason ("Appellee") while she worked as a nanny in the home of the family that employed her. Because Appellee failed to demonstrate that she possessed a justifiable expectation that her oral communications would not be subject to interception by a recording device located in the children's bedrooms, we hold that the Wiretap Act does not preclude the Commonwealth from introducing these recordings as evidence at Appellee's trial for allegedly abusing the children in her care. Consequently, for the reasons that follow, we, in relevant part, reverse the Superior Court's judgment, which held that the trial court properly suppressed the subject audio recording. In addition, we remand the matter to the trial court for further proceedings.
In April of 2017, Eric Valle ("Valle") hired Appellee to act as a nanny for his children and, in doing so, prohibited her from using corporal punishment on the children. Approximately one month after Appellee commenced working for Valle, Valle's three-year-old son reported that Appellee was "thumbing" him in the face and hitting his twin two-year-old sisters. Around that same time, Valle observed that one of the twins had a "busted lip" and that his son occasionally had marks on his face.
We glean the facts underlying this matter from the opinion that the trial court authored in support of its order regarding Appellee's pre-trial motion to suppress evidence. Trial Court Opinion, 6/26/2018.
Valle asked Appellee about his daughter's injured lip, and Appellee initially could not offer an explanation. The following day, however, she suggested that the child may have injured herself while attempting to climb out of her playpen. Valle was skeptical of this possibility given that his daughter suffered no other injuries that would indicate that she fell from her playpen. Of further note, Appellee told Valle that she did not know why his son would claim that she was "thumbing" his face or that she was striking the twins.
Additionally, after Appellee began to care for the children, Valle noticed a shift in their behavior. For example, if Valle raised his voice, his daughter would cover her face, a behavior that she did not exhibit prior to Appellee's employment with the family. Indeed, it appeared to Valle that his children were afraid of Appellee.
Approximately two months after Valle's son reported these incidents to him and Valle confronted Appellee, Valle placed a camera in his children's bedroom. The camera captured sound and video of its surroundings. Valle purposely did not inform Appellee of the presence of the camera. At some point, the camera recorded Appellee yelling at one child before forcefully placing her into a crib located inside of the bedroom where the camera was recording. Audio portions of the recording also suggest that Appellee may have struck the child several times. Valle gave the recording to the police.
The Commonwealth subsequently charged Appellee with aggravated assault, simple assault, and endangering the welfare of children. In response to Appellee's habeas corpus motion, the trial court dismissed the aggravated assault charge due to a lack of sufficient evidence to support it. Appellee then filed an omnibus pretrial motion, which included a motion to suppress the audio and video recordings captured by the previously mentioned camera.
In her motion to suppress, Appellee asserted that the Commonwealth's primary evidence against her consisted of the audio and video recordings taken from Valle's hidden camera. Tellingly, throughout her motion to suppress, Appellee referred to this camera as a "nanny cam," a reference we adopt moving forward in this opinion. See , e.g. , Appellee's Pre-Trial Omnibus Motion, 4/16/2018, at ¶6 ("The underlying evidentiary basis for the charges is primarily a secretive audio and video recording from a hidden camera commonly referred to as a ‘nanny cam.’ "). Appellee suggested that the recordings from the nanny cam violate Section 5703 of the Wiretap Act, 18 Pa.C.S. § 5703, and, thus, would be inadmissible at Appellee's trial because Valle illegally intercepted her electronic and oral communications, as the Wiretap Act defines those terms. Appellee explained that, while the Wiretap Act contains a number of exceptions that allow a party to record secretly another person, none of those exceptions applies to the recordings at issue in this case. Thus, Appellee asked the trial court to suppress the recordings and make them unavailable as evidence at her trial.
Section 5703 states, in full, as follows:
Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:
(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;
(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.
18 Pa.C.S. § 5703.
We provide the relevant statutory definitions infra .
The Commonwealth filed an answer to Appellee's omnibus motion. Therein, the Commonwealth contended that the recordings were admissible pursuant to the exception found at Subsection 5704(17) of the Wiretap Act, which states as follows:
It shall not be unlawful and no prior court approval shall be required under this chapter for[ ... a]ny victim, witness or private detective licensed under the act of August 21, 1953 (P.L. 1273, No. 361), known as The Private Detective Act of 1953, to intercept the contents of any wire, electronic or oral communication, if that person is under a reasonable suspicion that the intercepted party is committing, about to commit or has committed a crime of violence and there is reason to believe that evidence of the crime of violence may be obtained from the interception.
18 Pa.C.S. § 5704(17) (footnote omitted). In this regard, the Commonwealth explained that, when Valle began using the nanny cam, he had reasonable suspicion that Appellee was subjecting his children to a crime of violence and that he believed that the nanny cam would intercept evidence of that crime.
The trial court subsequently held an evidentiary hearing to address, inter alia , Appellee's motion to suppress the recordings. At that hearing, Valle was the Commonwealth's sole witness, and he testified in a manner consistent with the facts as stated above. Appellee briefly testified in support of her motion to suppress by providing her version of the conversation that occurred between her and Valle regarding the lip injury suffered by Valle's daughter. N.T., 5/24/2018, at 24-25. On June 26, 2018, the court entered an order that, in pertinent part, granted Appellee's motion to suppress and excluded from trial both the audio and video recordings captured by the nanny cam. The court authored an opinion in support of its decision.
With due respect, the reasoning provided by the trial court largely is irrelevant to the current appeal. We nonetheless observe that, in its opinion, the court began its analysis by explaining that, for the Commonwealth to prove by a preponderance of the evidence that the exception found at 18 Pa.C.S. § 5704(17) applies to the recordings in question, Valle had to have reasonable suspicion that Appellee was committing, about to commit, or had committed a "crime of violence," as that term is defined in the Wiretap Act. Trial Court Opinion, 6/26/2018, at 7. At the suppression hearing, the Commonwealth contended that when Valle began using the nanny cam, he had reasonable suspicion that Appellee was committing aggravated assault against his children. Id. at 7-8.
The Wiretap Act's definition of "crime of violence," which can be found at 18 Pa.C.S. § 5702, is fairly extensive; thus, we will not include the full definition here. For purposes of this appeal, it is sufficient to note that the definition of "crime of violence" lists a number of criminal offenses, and aggravated assault is the only crime in that list with any pertinence to this matter.
In response to that argument, the trial court highlighted that the only types of aggravated assault included in the Wiretap Act's definition of "crime of violence" can be found at 18 Pa.C.S. §§ 2702(a)(1) and (2). Id. at 8. As the court observed, pursuant to Subsection 2702(a)(1) of the Crimes Code, a person is guilty of aggravated assault if she "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting an extreme indifference to the value of human life." 18 Pa.C.S. § 2702(a)(1). The court further emphasized that the Crimes Code defines "Serious bodily injury" as "[b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement or protracted loss or impairment of the function of any bodily member or organ." 18 Pa.C.S. § 2602.
The crime of aggravated assault found at 18 Pa.C.S. § 2702(a)(2) is irrelevant to this matter as it criminalizes the aggravated assault of police officers and other similarly employed people.
After briefly reiterating the circumstances presented at the suppression hearing, the trial court concluded that the Commonwealth failed to establish that, prior to utilizing the nanny cam, Valle had reasonable suspicion that Appellee was committing, about to commit, or had committed aggravated assault as defined by 18 Pa.C.S. § 2702(a)(1) because the Commonwealth did not present any evidence that Appellee caused or attempted to cause serious bodily injury to the Valle children. Id. at 9-11. In other words, the court concluded that the Commonwealth failed to prove by a preponderance of the evidence that the recordings at issue fit the Wiretap Act exception found at 18 Pa.C.S. § 5704(17).
Next, the trial court noted that, during oral argument regarding Appellee's motion to suppress, the Commonwealth proposed that, if the court were to exclude Appellee's recorded verbal statements from evidence, the court nonetheless could admit the portion of the audio recording that contained "hitting sounds" because, in the Commonwealth's view, "hitting sounds" do not fall under the Wiretap Act's definition of "oral communication." Id. at 11. Although the court agreed with the Commonwealth that the sound of hitting does not fall within the definition of "oral communication," the court nonetheless concluded that the Commonwealth's argument failed. In this regard, the court explained that the remedy afforded to Appellee by the Wiretap Act is "to exclude the ‘contents’ of any wire, electronic, or oral communication, or evidence derived therefrom." Id. (referring to 18 Pa.C.S. § 5721.1(b) ). The court then noted that the Wiretap Act defines "contents" as "any information concerning the substance, purport, or meaning of that communication." 18 Pa.C.S. § 5702.
The Wiretap Act defines "oral communication," in full, as follows:
Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include the following:
(1) An electronic communication.
(2) A communication made in the presence of a law enforcement officer on official duty who is in uniform or otherwise clearly identifiable as a law enforcement officer and who is using an electronic, mechanical or other device which has been approved under section 5706(b)(4) (relating to exceptions to prohibitions in possession, sale, distribution, manufacture or advertisement of electronic, mechanical or other devices) to intercept the communication in the course of law enforcement duties. As used in this paragraph only, "law enforcement officer" means a member of the Pennsylvania State Police, an individual employed as a police officer who holds a current certificate under 53 Pa.C.S. Ch. 21 Subch. D (relating to municipal police education and training), a sheriff or a deputy sheriff.
18 Pa.C.S. § 5702 (footnote omitted).
Subsection 5721.1(b)(1) states:
(b) Motion to exclude. Any aggrieved person who is a party to any proceeding in any court, board or agency of this Commonwealth may move to exclude the contents of any wire, electronic or oral communication, or evidence derived therefrom, on any of the following grounds:
(1) Unless intercepted pursuant to an exception set forth in section 5704 (relating to exceptions to prohibition of interception and disclosure of communications), the interception was made without prior procurement of an order of authorization under section 5712 (relating to issuance of order and effect) or an order of approval under section 5713(a) (relating to emergency situations) or 5713.1(b) (relating to emergency hostage and barricade situations).
18 Pa.C.S. § 5721.1.
The trial court suggested that "[i]t would [be] difficult, if not impossible, for the Commonwealth to utilize the recording of ‘hitting’ alone in this matter, without revealing information concerning the substance, purport, or meaning of the excluded oral communications." Id. at 12. Thus, the court opined, because it is obligated to construe strictly the Wiretap Act and to vindicate fully the privacy interests protected by the Act, it was required to exclude the entire recording, which it deemed to constitute an illegally intercepted oral communication (Appellee's utterances) coupled with evidence derived therefrom (the sound produced when Appellee allegedly hit the child).
The Commonwealth subsequently filed a notice of appeal, certifying that "the order appealed from will terminate or substantially handicap the prosecution." Notice of Appeal, 6/29/2020; see Pa.R.A.P. 311(d) (allowing the Commonwealth to 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").
In an unpublished memorandum, a splintered three-judge panel of the Superior Court affirmed in part and reversed in part the trial court's suppression order. Commonwealth v. Mason , 215 A.3d 627 (Pa. Super. 2019) (table) (unpublished memorandum). According to the lead opinion, the relevant question before the court was "whether and to what extent the audio and video recordings of [Appellee] are excludable under the Wiretap Act." Lead Opinion at 5 (footnote omitted). The lead opinion then explained that, under the Wiretap Act, "no person shall disclose the contents of any wire, electronic or oral communication, or evidence derived therefrom, in any proceeding in any court, board or agency of this Commonwealth." Id. at 5-6 (quoting 18 Pa.C.S. § 5721.1(a) (footnote omitted)). The lead opinion further noted, inter alia , that pursuant to the Wiretap Act: (1) "[a]ny aggrieved party in a court proceeding may move to exclude the contents of any wire, electronic or oral communication, or evidence derived therefrom[,]" 18 Pa.C.S. § 5721.1(b) ; (2) an "oral communication" is "uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation[,]" 18 Pa.C.S. § 5702 ; and (3) "intercept" is defined in pertinent part as "aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device," id . Lead Opinion at 5-6.
One judge authored a memorandum affirming in part and reversing in part the trial court's order ("lead opinion"), and the second judge joined only the result reached by that memorandum. As detailed below, the third judge authored a stand-alone concurring and dissenting memorandum.
The lead opinion began its substantive analysis by concluding that, pursuant to the plain language of the Wiretap Act, Appellee's verbal utterances captured by the nanny cam, i.e. , Appellee yelling at the Valle child, are "oral communications" which were "intercepted" by the nanny cam. Id. at 6. Thus, the lead opinion reasoned, "[w]ithout judicial authorization or an applicable exception, the communications are subject to exclusion under the Wiretap Act." Id . at 6-7 (citing 18 Pa.C.S. § 5721.1(b) ). In passing, the lead opinion then determined that the "hitting noises" captured by the nanny cam are also inadmissible at Appellee's trial. In so doing, the lead opinion observed that "the Wiretap Act provides that if an oral communication is rendered inadmissible, then so is the ‘evidence derived therefrom.’ " Id. (quoting 18 Pa.C.S. § 5721.1(b) ). Consistent with the trial court, the lead opinion concluded that the hitting noises constituted evidence derived from Appellee's oral communication and, thus, are inadmissible at her trial. Id.
Most important to the appeal currently before this Court, the lead opinion subsequently addressed the Commonwealth's contentions that: (1) the Wiretap Act protects only oral communications made when the speaker has "an expectation that such communication is not subject to interception under circumstances justifying such expectation," id. at 8 (quoting 18 Pa.C.S. § 5702 ); and (2) the Wiretap Act does not protect Appellee's oral communications because she did not have a justifiable expectation that her utterances would not be recorded in Valle's children's bedroom. In this regard, the lead opinion observed that, pursuant to the Wiretap Act, "courts apply an objective standard when assessing the reasonableness of an expectation of non-interception." Id . (citing Agnew v. Dupler , 553 Pa. 33, 717 A.2d 519, 523 (1998) ).
The Superior Court and the parties interchangeably utilize the Wiretap Act's concept of a person's justifiable expectation that her utterances will not be intercepted with the federal Fourth Amendment constitutional concept of a person's reasonable expectation of privacy. They do so, in part, because of this Court's holding in Agnew v. Dupler , 553 Pa. 33, 717 A.2d 519, 523 (1998), which explained that
[i]n determining whether the expectation of non-interception was justified under the circumstances of a particular case, it is necessary for a reviewing court to examine the expectation in accordance with the principles surrounding the right to privacy, for one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy.
In her dissenting opinion, Justice Donohue states her belief that case law such as Agnew dictates that, because Appellant allegedly had a reasonable expectation of privacy in the Valle children's bedroom, she necessarily had a justifiable expectation that her utterances would not be intercepted while she was in that room. Justice Wecht, on the other hand, dissents, in part, on the basis that Agnew should be overruled because that decision inappropriately married Fourth Amendment concepts to the statutorily-driven requirements of the Wiretap Act.
Notably, the parties to this appeal do not discuss the propriety of this overlap in the law or advocate that the Court take the substantial step of overruling Agnew and its progeny. As our discussion below highlights, the issues presented in this appeal require the Court to interpret the Wiretap Act, and we restrict our analysis to that task. While we may wish to revisit the continued validity of Agnew in the appropriate case where advocacy on the issue is squarely before the Court, applying the doctrine of judicial restraint, we decline to raise and address that issue sua sponte today.
Noting that the nanny cam secretly recorded Appellee inside of the Valle children's bedroom while Appellee was working in her capacity as a nanny for Valle, the lead opinion asserted that the record demonstrated that Appellee objectively had no reason to believe that her communications would be intercepted. Id . at 8-9 (recognizing that various courts have held that an employee has a reasonable expectation of privacy in certain areas of her workplace and that an overnight guest has an expectation of privacy while in the host's home). More specifically, the lead opinion declared that, based upon Appellee's status as an employee and regular guest in Valle's home, "she had a justified expectation that she would not be audio recorded." Id. at 9.
The lead opinion next addressed the Commonwealth's position that the audio recordings are admissible pursuant to the Wiretap's Act's "crime exception," found at 18 Pa.C.S. § 5704(17), as discussed supra . Id. at 10. The lead opinion ultimately agreed with the trial court's determination that the Commonwealth failed to meet its burden of proof under this subsection, concluding that the facts of record were "insufficient to show that Valle had a reasonable basis to think that recording [Appellee] would produce evidence of the type of aggravated assault necessary to satisfy the Wiretap Act's crime exception." Id. at 12 (footnote omitted).
Lastly, the lead opinion discussed the admissibility of the video portion of the nanny cam recordings, which the trial court ruled were inadmissible pursuant to the Wiretap Act. We need not detail this portion of the lead opinion because it is irrelevant to the instant appeal. It is sufficient to note that the lead opinion concluded that the Wiretap Act does not prohibit the admission at trial of the video portion of the nanny cam recording, an issue that is not currently before this Court. For these reasons, the lead opinion affirmed in part and reversed in part the trial court's order. Judge Murray concurred only in the result reached by the lead opinion. President Judge Panella authored a concurring and dissenting memorandum.
Judge Panella concurred with, inter alia , the lead opinion's conclusion that the video portion of the recording is admissible at Appellee's trial. Concurring and Dissenting Memorandum at 1. However, contrary to the lead opinion, Judge Panella first concluded that the audio portion of the nanny cam recording is admissible under the Wiretap Act's "crime exception." Id. Judge Panella was of the view that the Commonwealth sufficiently demonstrated that Valle had reasonable suspicion that Appellee was committing or would commit aggravated assault against the Valle children, "based on the unexplained bruising, ‘thumbing,’ split lip, and other injuries to his children while in the charge of Appellee[.]" Id. at 3. In this regard, Judge Panella highlighted that Appellee allegedly committed these dangerous acts on small children who are susceptible to being seriously injured by the types of assaults alleged in this case. Id .
In the alternative and, again, most significant to the appeal currently before this Court, Judge Panella determined that Appellee had no reasonable expectation of privacy in the children's bedroom within Valle's home where Valle placed the nanny cam. Relying upon principles of criminal law, Judge Panella reasoned that Appellee bore the burden of proving that she had a subjective or actual expectation of privacy while in the Valle children's bedroom and that this subjective expectation is one which society is willing to recognize as reasonable. Id. (citing Commonwealth v. Cruz , 166 A.3d 1249, 1255 (Pa. Super. 2017) ). According to Judge Panella, Appellee failed to meet her burden in this regard. Indeed, Judge Panella explained that he was "not prepared to hold that any adult, outside of their own home, has a reasonable expectation of privacy in an area where young children are sleeping." Id. at 5.
In a footnote, Judge Panella explained that he was unable to locate legal authority "explicitly addressing the issue of which party bears the burden of proof of establishing this condition of the Wiretap Act's ban on recording oral communications." Concurring and Dissenting Memorandum at 4 n.2. Judge Panella further noted that the authority that he did find "assumes this burden rests with [the] party asserting the expectation of non-interception based upon the analysis used to determine whether a person has a reasonable expectation of privacy under the Fourth Amendment." Id. (citing, as an example, Commonwealth v. Prisk , 13 A.3d 526, 531 (Pa. Super. 2011) ).
Lastly, Judge Panella stated that, assuming arguendo that Appellee established that she had a reasonable expectation of privacy in the children's bedroom, he nonetheless would find that the sounds of Appellee allegedly slapping the children are admissible under the Wiretap Act. Judge Panella opined that these sounds are not "oral communications," as defined in the Wiretap Act, and that they are not evidence derived from oral communications. As to the latter point, Judge Panella asserted that the sounds "are simply the consequences of non-verbal actions taken by either [Appellee] or the children." Id. at 5-6. Thus, in his view, the admission of these sounds into evidence would not tend to disclose the content of any oral communication from Appellee. Id. at 6.
The Commonwealth filed a petition for allowance of appeal, which we granted, limited to the following issues, as phrased by the Commonwealth:
(1) Whether a babysitter has a reasonable expectation of privacy in the bedroom of a child she is caring for?
(2) Whether the sounds resulting from a child being forcibly thrown into a crib and being beaten by [Appellee] constitute "oral communications" or "evidence derived therefrom" under the Pennsylvania wiretap statute?
Commonwealth v. Mason , 217 A.3d 802, 803 (Pa. 2019) (per curiam ).
Concerning the first issue, the Commonwealth advocates that a babysitter or nanny does not have a reasonable expectation of privacy in the bedroom of the children in her care. In support of this argument, the Commonwealth initially contends that the lower courts erred in concluding that the recording in question meets the Wiretap Act's definition of "oral communication." More specifically, the Commonwealth asserts that Appellee "did not possess an expectation that her communication to the child was not subject to interception." Commonwealth's Brief at 13. In support of this position, the Commonwealth posits that this Court routinely has "held that the burden of proving a reasonable expectation of privacy is on the defendant as she is the one that must assert it." Id. (quoting Commonwealth v. Enimpah , 630 Pa. 357, 106 A.3d 695, 698 (2014), for the proposition that, to establish standing to suppress evidence in a criminal trial, "a defendant must show that he had a privacy interest in the place invaded or thing seized that society is prepared to recognize as reasonable"). The Commonwealth highlights that, at the suppression hearing, Appellee testified but never stated that she had a subjective expectation of privacy inside of the children's bedroom. According to the Commonwealth, Appellee's "lack of testimony that she held a subjective expectation of privacy in the bedroom of her employer's home is fatal to her claim that a [Wiretap Act] violation occurred." Id. at 14.
The Commonwealth further suggests that, even if Appellee did have a subjective expectation that her communications would not be intercepted inside of the bedroom, that expectation was not justifiable nor reasonable. In this regard, the Commonwealth focuses on this Court's precedent which holds that, "[i]n determining whether the expectation of non-interception was justified under the circumstances of a particular case, it is necessary for a reviewing court to examine the expectation in accordance with the principles surrounding the right to privacy, for one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy." Commonwealth's Brief at 16-17 (quoting Pennsylvania State Police v. Grove , 640 Pa. 1, 161 A.3d 877, 901 (2017) ). The Commonwealth concedes that employees have a recognized level of privacy in their workplace but nonetheless insists that this Court "should not be ready to recognize that anyone, other than a parent, has a privacy interest in the sleeping area of a child." Id. at 17.
In response, Appellee agrees that "[p]ossession of a reasonable expectation of privacy is an essential element of the term ‘oral communication[.]’ " Appellee's Brief at 4. Initially, Appellee contends that a determination of whether she had a reasonable expectation of privacy is based on an objective standard. Id. at 5. However, she later states that "it does seem that the necessary analysis may not be entirely based on objectivity." Id. at 6. Instead, she suggests, "[i]t is required that the aggrieved party ‘exhibits an actual or subjective expectation of privacy.’ " Id. (quoting Commonwealth v. Moore , 928 A.2d 1092, 1101 (Pa. Super. 2007) ). Regardless of the appropriate test, Appellee avers that she had a reasonable expectation of privacy when she was working as a nanny in the Valle home.
In support of this position, Appellee proposes that, if she had been using corporal punishment on or shouting at the Valle children, she would have been knowingly disregarding a stated rule of her employment, i.e. , Valle's instruction that she was not to discipline the children physically or by yelling at them. Id . Thus, Appellee claims, "[i]t is reasonable to conclude that she would not have done so unless she felt as though it was being done in private and without risk to her job." Id. Appellee further reasons that common sense would dictate that, absent notice of the nanny cam, one can assume that she expected privacy in the home of a family that entrusted her to care for their young children. Id. at 8.
In closing, Appellee rejects the Commonwealth's argument that, to establish that she had an expectation of privacy while in the Valle children's bedroom, she was required to testify explicitly to that fact at the suppression hearing. Appellee takes the position that there simply is no legal authority to support that proposition. Id. at 9. Moreover, she agrees with the lead opinion in the Superior Court that her status as an employee and guest of the Valle family cements the fact that she reasonably expected not to be recorded while acting as a nanny in the Valle residence. Id. at 9-10.
The suppression record demonstrates that, at some point, Appellee discovered the nanny cam. The parties disagree about when Appellee learned that she was being secretly recorded. However, consistent with Appellee's position, the record fails to clarify whether Appellee discovered the nanny cam before or after the recordings at issue here were captured. Thus, the fact that Appellee discovered the nanny cam at some point has no bearing on the disposition of this appeal.
We begin our analysis by noting the well-settled principles that guide our review of suppression orders. When, as here, we consider the propriety of a trial court's order granting a motion to suppress, "we may consider only the evidence from the appellee's witnesses along with the Commonwealth's evidence which remains uncontroverted." Commonwealth v. Brown , 606 Pa. 198, 996 A.2d 473, 476 (2010). Our standard of review is restricted to establishing whether the suppression record supports the trial court's factual findings; "however, we maintain de novo review over the suppression court's legal conclusions." Id.
We further observe that our primary task in this appeal is to interpret the Wiretap Act. That task is guided by the Statutory Construction Act, 1 Pa.C.S. §§ 1501 - 1991. Pursuant to the Statutory Construction Act, the object of all statutory construction is to ascertain and effectuate the General Assembly's intention. 1 Pa.C.S. § 1921(a). When the words of a statute are clear and free from ambiguity, the letter of the statute is not to be disregarded under the pretext of pursuing its spirit. 1 Pa.C.S. § 1921(b).
As this Court recently reiterated, "[i]n general, the Wiretap Act prohibits the interception, disclosure or use of any wire, electronic or oral communication." Commonwealth v. Byrd, ––– Pa. ––––, 235 A.3d 311, 319 (2020) (citation and internal quotation marks omitted). Here, we are concerned with whether the Wiretap Act bars the Commonwealth from presenting at Appellee's criminal trial her "oral communication" intercepted by Valle's nanny cam, i.e. , the audio recordings captured by the nanny cam. Appellee would have us hold that her status as an in-home nanny, as a matter of law, entitled her to a justified expectation that her oral communications would not be intercepted while she was in the Valle children's bedroom. For the reasons that follow, we respectfully reject this position.
If a criminal defendant, such as Appellee, believes that evidence in the form of an "oral communication" was intercepted in violation of the Wiretap Act, the Act permits her to make such a claim in a "motion to exclude." 18 Pa.C.S. § 5721.1(b). As noted throughout this opinion, the Wiretap Act provides the following base definition of "oral communication:" "Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 Pa.C.S. § 5702.
Contrary to Appellee's position and in support of the Commonwealth's interpretation of the Wiretap Act, this Court has held that, to establish a violation of the Wiretap Act, the claimant carries the burden to demonstrate, inter alia , that she possessed an expectation that the communication would not be intercepted and that her expectation was justifiable under the circumstances. See Agnew , 717 A.2d at 522 (explaining that "to establish a prima facie case under the Wiretap Act for interception of an oral communication, a claimant must demonstrate: (1) that he engaged in a communication; (2) that he possessed an expectation that the communication would not be intercepted; (3) that his expectation was justifiable under the circumstances; and (4) that the defendant attempted to, or successfully intercepted the communication, or encouraged another to do so"); see also Grove , 161 A.3d at 901-02 (citing Agnew , supra , for the proposition that a "claimant alleging [a] Wiretap Act violation must show[,]" inter alia , "that he possessed an expectation that the communication would not be intercepted [and] that his expectation was justifiable under the circumstances"). Placing this burden on defendants is consistent with the plain language of the Wiretap Act and comports with common sense, as the Commonwealth would have no incentive to demonstrate that a defendant has a justifiable expectation that her oral communication would not be intercepted, and the Wiretap Act does not require the Commonwealth or any other party to prove a negative, i.e. , that the claimant did not have a justified expectation that her oral communication would not be intercepted under the circumstances of the case.
Thus, for Appellee's motion to exclude to succeed, she carried the burden of presenting evidence to establish that, under the circumstances of this case, she possessed a justifiable expectation that the oral communications, which were captured by the nanny cam in the Valle children's bedroom, would not be intercepted. Appellee failed to meet this burden. Indeed, the only evidence Appellee submitted at the suppression hearing was her brief testimony recounting her version of the conversation that took place between her and Valle regarding the lip injury suffered by one of Valle's daughters. N.T., 5/24/2018, at 24-25. Appellee's testimony is woefully insufficient to demonstrate that she had a justifiable expectation that her oral communications would not be intercepted under the circumstances presented in this case.
To allay the concern Appellee expressed in her brief, she could have met this burden with any admissible evidence, not just through her testimony.
Further, absent demonstrable circumstances to the contrary, we believe it is objectively reasonable to conclude that persons in Appellee's position do not have a justifiable expectation that their oral communications will not be subject to interception while they are in a child's bedroom. Notably, the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as "nanny cams." That is to say that the expectation that a childcare worker is going to be recorded in their employer's home is so ubiquitous in our society that we have a name for it. Indeed, as observed above, Appellee used this term throughout her motion to suppress to describe the recording device used by Valle. See , e.g. , Appellee's Pre-Trial Omnibus Motion, 4/16/2018, at ¶6 ("The underlying evidentiary basis for the charges is primarily a secretive audio and video recording from a hidden camera commonly referred to as a ‘nanny cam.’ ").
For these reasons, we hold that: (1) Appellee failed to establish that the audio recordings captured by Valle's nanny cam constitute an "oral communication" as defined by the Wiretap Act, insomuch as Appellee did not demonstrate that she had a justifiable expectation that her oral communications would not be intercepted by a device located in the Valle children's bedroom, see 18 Pa.C.S. § 5702 (defining "oral communication" as "Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation."); and (2) a nanny does not have a justifiable expectation that her oral communications will not be intercepted in the bedroom of a child in her care simply because the nanny is an employee and guest of the homeowner. Because the Superior Court reached a contrary result, we reverse the portion of that court's judgment which affirmed the trial court's suppression order. We further remand this matter for proceedings consistent with this opinion.
These holdings render the Commonwealth's second issue moot.
Chief Justice Saylor and Justices Todd and Mundy join the opinion.
Justice Dougherty files a concurring opinion.
Justices Donohue and Wecht file dissenting opinions.
JUSTICE DOUGHERTY, concurring
I join the majority opinion in full. I feel compelled, however, to address several aspects of Justice Wecht's dissenting position that I view differently. In my learned colleague's view, "this Court's Wiretap Act decisions have strayed impermissibly from the statute's unambiguous language." Dissenting Opinion (Wecht, J.) at 1088. Justice Wecht asserts, as he did in his concurring opinion in PSP v. Grove , 640 Pa. 1, 161 A.3d 877, 902-07 (2017) (Wecht, J., concurring), that "for over twenty years now this Court has mistakenly applied the ‘reasonable expectation of privacy’ test — a standard used to determine whether a ‘search’ has occurred under the Fourth Amendment — in matters arising under the Wiretap Act." Dissenting Opinion (Wecht, J.) at 1088. See 18 Pa.C.S. § 5702 (defining an "oral communication" as "[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation"). Discerning no justification for what he views as a conflation of the statutory and constitutional standards, Justice Wecht declares the time has come for us to expressly repudiate its originating source: Agnew v. Dupler , 553 Pa. 33, 717 A.2d 519, 523 (1998) (interpreting Section 5702 of the Wiretap Act and resolving that "one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy"). Dissenting Opinion (Wecht, J.) at 1088, 1090. The majority correctly responds by pointing out that no one has asked us to take that substantial step in this appeal. Majority Opinion at 1076–77 n.9. In my view, this explanation supplies reason enough not to upend, sua sponte , longstanding precedent of this Court. But a few other reasons are also worth mentioning.
There is, for starters, the doctrine of stare decisis . For whatever reasons, issues implicating our adherence (or not) to prior precedent seem to be cropping up more and more in this Court's jurisprudence as of late. See, e.g. , Commonwealth v. Alexander, ––– Pa. ––––, 243 A.3d 177 (2020) (overruling Commonwealth v. Gary , 625 Pa. 183, 91 A.3d 102 (2014), and its adoption of the federal automobile exception). And, rather regrettably, calls to break away from some of our earlier decisions increasingly have been prompted not by the litigants themselves, but by members of this Court acting sua sponte . See, e.g. , Commonwealth v. Reid, ––– Pa. ––––, 235 A.3d 1124, 1160-61, 1168 (2020) (declining the dissenting justices’ requests to overrule sua sponte Commonwealth v. Abdul-Salaam , 571 Pa. 219, 812 A.2d 497 (2002) (interpreting the new constitutional right exception to the PCRA's timebar), Commonwealth v. Peterkin , 554 Pa. 547, 722 A.2d 638 (1998) (declaring the PCRA is jurisdictional in nature), and their progeny); Commonwealth v. Le , 652 Pa. 425, 208 A.3d 960, 976 n.17 (2019) (rejecting the dissent's suggestion that we should overturn our decision in Commonwealth v. Smith , 635 Pa. 38, 131 A.3d 467 (2015), where the appellant had not asked that we do so).
My own views on stare decisis and my corresponding discomfort with the Court's at-times inconsistent treatment of those principles are now well documented, so I will not repeat them again here. See, e.g. , Alexander , 243 A.3d at 211-15 (Dougherty, J., dissenting). It is enough to say that, in my respectful view, where we must weigh the heavy decision whether to overrule a prior precedent — especially one that has been relied upon for decades, like Agnew — there must be a special justification for changing course. See id . This need for a special justification persists whether the case turns on statutory, constitutional, or some other grounds.
To be clear, I do not here advocate for "everlasting adherence to Agnew ’s" interpretation. Dissenting Opinion (Wecht, J.) at 1092. Nor have I remotely implied a belief that stare decisis presents an "absolute rule[,]" either with respect to this case or any other. Id . at 1091. But, in his effort to demonstrate that I have supposedly "miss[ed] the point" of his argument, id . at 1090–91, Justice Wecht actually misses mine. I do not doubt that there may be a "mountain of decisions overturned by courts every year[.]" Id . at 1091. The point, though, is that we ought not to overrule prior precedent sua sponte , without any request by or advocacy from the parties. Thus, while I acknowledge there is facial appeal to Justice Wecht's argument that the Agnew Court's interpretation is wrong, no litigant has yet had an opportunity to provide a contrary argument. We simply cannot — or should not — overrule precedent under such circumstances.
In this case, I neither advocate in support of, or oppose, Justice Wecht's call to overturn Agnew v. Dupler , 553 Pa. 33, 717 A.2d 519 (1998). Dissenting Op. (Wecht, J.) at 1090. As Agnew remains at present good law in this Commonwealth, however, it is clearly relevant to the issues presented here. The Superior Court cited to these cases in which individuals (including, inter alia, an employee or a babysitter) have a "reasonable expectation of privacy" at his or her place of business or in a family's home, precisely because under Agnew the concepts of "reasonable expectation of privacy" under the Fourth Amendment and "justifiable expectation of non-interception" under the Wiretap Act are synonymous with one another. See Agnew, 717 A.2d at 523 ("In determining whether the expectation of non-interception was justified under the circumstances of a particular case, it is necessary for a reviewing court to examine the expectation in accordance with the principles surrounding the right to privacy, for one cannot have an expectation of noninterception absent a finding of a reasonable expectation of privacy." ) (emphasis added); see also PSP v. Grove , 640 Pa. 1, 161 A.3d 877, 901 (2017) (repeating Agnew ’s declaration that when applying the Wiretap Act, "one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy").
As a result, under Agnew and Grove , when one reasonably expects that their oral communications are being made in private, one likewise has a justifiable expectation that those communications will not be intercepted. Inversely, one who lacks a belief that their conversation is private should necessarily assume that their conversation is being intercepted. The cases cited by the Superior Court, which demonstrate that as an employee and a babysitter Mason had a socially acceptable expectation of privacy in the parent's home, are thus directly relevant to whether she had a justifiable expectation that her oral communications would not be intercepted.
See PSP v. Grove , 640 Pa. 1, 161 A.3d 877, 906 (2017) (Wecht, J., concurring) ("It never was necessary or warranted to engraft the constitutional standard for ascertaining a reasonable expectation of privacy onto this definition, and doing so both contravened the statute's plain language and limited the clear scope of the elevated protection that it sought to provide, effectively rewriting the statute to conform to a lower standard that the legislature did not choose to employ.").
Where, however, the relevant issue in a case turns exclusively on an interpretation of some statutory text, the bar for overruling an earlier precedent is almost always higher. Not only do principles of stare decisis automatically assume greater force in a case like that (because the legislature can prospectively amend the statute it if disagrees with our interpretation), but, occasionally, there is one particular statutorily-imposed presumption that comes into play and raises the bar higher still: 1 Pa.C.S. § 1922(4). This presumption instructs that "when a court of last resort has construed the language used in a statute, the [legislature] in subsequent statutes on the same subject matter intends the same construction to be placed upon such language." 1 Pa.C.S. § 1922(4). See, e.g. , PSP, Bureau of Liquor Control Enf't v. Jet-Set Rest., LLC , 648 Pa. 134, 191 A.3d 817, 823 (2018) ("we may presume that, where this Court has previously interpreted certain statutory language, and that language is retained in subsequent amendments to the same statute, the legislature approved of and intended to uphold that interpretation"); Commonwealth v. Wanamaker , 450 Pa. 77, 296 A.2d 618, 624 (1972) ("It is well settled that the failure of the legislature, subsequent to a decision of this Court in construction of a statute, to change by legislative action the law as interpreted by this Court creates a presumption that our interpretation was in accord with legislative inten[t].") (internal quotations and citation omitted).
The post- Agnew legislative history underlying Section 5702 of the Wiretap Act highlights the significance of the Section 1922(4) presumption. For example, I note that in the twenty-two-year span since we decided Agnew , the legislature has amended Section 5702 of the Wiretap Act four times , and yet it has never once seen fit to statutorily alter Agnew ’s interpretation of the term "oral communication." See 2002, Dec. 9, P.L. 1350, No. 162, § 3; 2012, Oct. 25, P.L. 1634, No. 202, § 1; 2017, July 7, P.L. 304, No. 22, § 1; 2020, June 5, P.L. 246, No. 32, § 2. Perhaps most telling of all, shortly after we issued our decision in Grove in 2017, the legislature specifically amended the statute's definition of "oral communication," but it left completely intact the portion of the statute interpreted in Agnew , i.e. , the phrase "uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation." 18 Pa.C.S. § 5702. The legislature's decision in this regard might strongly suggest it actually found Agnew ’s interpretation of Section 5702 to be consistent with legislative intent. See, e.g. , 1 Pa.C.S. § 1922(4) ; Jet-Set , supra ; Wanamaker , supra .
Of course, I recognize this is not the only conceivable conclusion that can be drawn from the circumstances. One might argue the legislature simply didn't notice we "got it wrong" in Agnew ; that argument has (unfortunately) prevailed in other cases where members of this Court endeavored to overrule prior statutory interpretations with which they disagreed. See Commonwealth v. Small, ––– Pa. ––––, 238 A.3d 1267, 1285 (2020) (overruling precedent establishing the "public record presumption" to the PCRA and declaring application of the Section 1922(4) presumption is discretionary, not mandatory, in part because the legislature allegedly is ill-equipped to "detect our error[s]" and "marshal the resources to correct [them]"). But it's highly questionable in my view whether that argument can bear serious scrutiny here. Justice Nigro raised precisely the same objection in Agnew that Justice Wecht now advances — meaning the legislature has had more than two decades to consider and, if necessary, correct it. And it's not exactly as if the issue has disappeared since then. As Justice Wecht recognizes, federal courts have continued to acknowledge the divergent interpretations. See Kelly v. Borough of Carlisle , 622 F.3d 248, 257 (3d Cir. 2010) (observing Agnew "squelched the distinction developing in some lower court cases between a reasonable expectation of non-interception and an expectation of privacy"); Peruto v. Roc Nation , 385 F.Supp.3d 384, 388 n.6 (E.D. Pa. 2019) (deeming Justice Nigro's concurrence in Agnew "persuasive" but explaining it was bound by the Agnew majority's position). There is also Justice Wecht's recent and thorough exposition of the issue in Grove . See Grove , 161 A.3d 877 at 902-06 (Wecht, J., concurring). To suggest these various judicial opinions have all gone unnoticed by the legislature might appear to some as foolhardy.
Justice Wecht cites Small and asserts that "[i]t is well-settled that the burden of correcting our own errors does not rest entirely on the shoulders of the General Assembly." Dissenting Opinion (Wecht, J.) at 1092. But, contrary to this characterization of the matter as being "well-settled," I note Small was decided just months ago, it addressed the Section 1922(4) presumption issue only tangentially, and the opinion cited no caselaw to support what appears to be a first-of-its-kind decision declining to apply the presumption on the basis of the legislature's purported impotence.
There are countless examples, new and old, in which the legislature has proven just how adept it can be when it truly disagrees with a statutory interpretation rendered by this Court. See, e.g. , Commonwealth v. Forsythe , 217 A.3d 273, 278-79 (Pa. Super. 2019) ("Just over a month after the Supreme Court issued its decision in [Commonwealth v. Hlubin , 652 Pa. 545, 208 A.3d 1032, 1052 (2019) (holding Section 8953(a)(3) of the Municipal Police Jurisdiction Act (MPJA) does not authorize police officers to cross jurisdictional lines to participate in pre-arranged sobriety checkpoints)], the legislature amended, inter alia , [S]ection 8953(a)(3)" with the "explicit[ ] inten[t] to reverse the Supreme Court's interpretation of the MPJA in Hlubin .").
The same could arguably be said of any suggestion the legislature has been unable to "marshal the resources" to amend the statute. Small , 238 A.3d at 1285. As noted, the legislature has been anything but complacent with respect to the Wiretap Act, having repeatedly amended it over the years, most recently in 2020. Yet despite these occurrences — and even in the face of multiple, express invitations to overrule Agnew —the legislature has held firm for more than two decades, finding no reason to tinker with the Agnew Court's interpretation of the term "oral communication." By repeatedly amending Section 5702 and declining each and every time to alter the text this Court interpreted in Agnew , there is a strong argument to be made that, at least from the legislature's perspective, Agnew was correctly decided.
I raise these points, and use the circumstances of Agnew as an example, to underscore the high bar that must be met before we rush to overrule longstanding precedent of this Court, particularly in cases involving statutory interpretation. And while I acknowledge there is room for healthy debate over when this Court should elect to invoke the Section 1922(4) presumption, my larger point is that the parties should be afforded the chance to weigh in on the matter when possible. To do otherwise deprives the Court of potential advocacy demonstrating that a prior decision interpreting a statute — even one that appears wrong on its face — might have actually been in accord with legislative intent, rending judicial correction both unnecessary and improper.
For instance, in Justice Wecht's view, the presumption "should control only when there are legitimate reasons to assume that the General Assembly's inaction holds interpretive significance." Dissenting Opinion (Wecht, J.) at 1092. Respectfully, I do not favor such a requirement, as it allows a subjective assessment of what legislative history is "significant" and what is not, effectively undermining the value of the presumption. To me, it makes more sense to simply allow Section 1922(4) to operate as it was intended — as a presumption that can be rebutted with objective evidence. And while I appreciate Justice Wecht's effort to provide such evidence here to support his view that the presumption should not apply relative to Agnew , again, the real issue is that the parties have not had an opportunity to supply their own, potentially contradictory proofs.
See Commonwealth v. Spangler , 570 Pa. 226, 809 A.2d 234, 237 (2002) (citing Michael S. Lieb, E–Mail & the Wiretap Laws: Why Congress Should Add Electronic Communication to Title III's Statutory Exclusionary Rule and Expressly Reject a "Good Faith" Exception , 34 Harv. J. on Legis . 393, 422 (1997) for the proposition that state wiretap acts "provide greater protection than the Fourth Amendment").
JUSTICE DONOHUE, dissenting
At the criminal trial of Appellee Beth Ann Mason ("Mason"), the Commonwealth sought to introduce evidence obtained from the video and audio recording captured by a camera that father, Eric Valle, installed in the bedroom where his children slept in order to monitor Mason, the nanny he employed to care for the children. Mason filed a motion to exclude the evidence pursuant to Section 5721.1(b)(1) of the Wiretap and Electronic Surveillance Control Act, 18 Pa.C.S. §§ 5701 - 5721.1(b)(1) (the "Wiretap Act"), which the trial court granted and the Superior Court affirmed as to the audio portion of the recording. The Majority's decision to reverse the Superior Court's determination rests principally upon its announcement that as a matter of law, a nanny has no objectively reasonable expectation of privacy in the bedroom of a child in the home in which she is employed. For the reasons set forth herein, I do not agree and would instead affirm the decision of the Superior Court.
To begin, I take no position on which party here had the burden of proof with regard to suppression of the audio/video recording from the camera in the child's bedroom. I instead agree with the Superior Court's view that in this case it does not matter. Based upon the factual record developed below, Mason argues persuasively that her actions reflect that she had an actual and subjective expectation of privacy. Mason's Brief at 6. First, at no time did Valle advise Mason of the presence of a camera or other electronic surveillance. (RR 56a-57a). Furthermore, Valle testified that at the outset of Mason's employment, he expressly advised her that the children were not to be disciplined by corporal punishment. (RR 58a). As such, her subsequent actions directly to the contrary reflect that she plainly believed that she was doing so in private, without any surveillance or any risk to her job. Mason's Brief at 6. Indeed, even after Valle questioned her about incidents of yelling and hitting reported to him by one of his children, (RR 44a), the surveillance suggested that Mason continued her wrongful behavior.
The Superior Court majority cited to substantial authority in support of the contention that Mason, like other employees, has a reasonable expectation of privacy in certain areas of their workplace.
"Appellate courts have held that employees have a reasonable expectation of privacy in certain areas of their workplace." Commonwealth v. Cruz , 166 A.3d 1249, 1255 (Pa. Super. 2017) ; see City of Ontario v. Quon , 560 U.S. 746 [130 S.Ct. 2619, 177 L.Ed.2d 216] (2010) (recognizing a heightened level of privacy in the workplace); O'Connor v. Ortega , 480 U.S. 709 [107 S.Ct. 1492, 94 L.Ed.2d 714] (1987) ("As with the expectation of privacy in one's home, [an expectation of privacy] in one's place of business is ‘based upon societal expectations that have deep roots in the [Fourth] Amendment.’ ") (quotation omitted). Overnight guests in another's home also have a long-recognized expectation of privacy. See Minnesota v. Olson , 495 U.S. 91, 98 [110 S.Ct. 1684, 109 L.Ed.2d 85] (1990).
Commonwealth v. Mason , 2019 WL 1084210, at *4 (Pa. Super. Mar. 7, 2019). The court also cited to cases from other jurisdictions specifically holding that babysitters have a socially acceptable expectation of privacy in the parent's home. Id. (citing People v. Moreno , 2 Cal.App.4th 577, 583-85, 3 Cal.Rptr.2d 66 (Cal. Ct. App. 1992) (recognizing that since babysitters have the right to exclude others from the household, they enjoy a level of privacy in a home beyond even that of an overnight guest); State v. Anonymous , 40 Conn.Supp. 20, 480 A.2d 600, 608-09 (1984) (reasoning that "[a]s the caretaker of the child, [the babysitter] undoubtedly had a socially acceptable expectation of privacy [in the home]."); State v. Elrod , 395 S.W.3d 869, 878 (Tex. Ct. App. 2013) (holding that a babysitter had an expectation of privacy because she "had dominion and control over the residence and had the right, perhaps even the duty, to exclude others from the home")).1 The Majority, without response to the authority cited by the Superior Court or reference to any contrary authority from other courts, holds that as a matter of law, "it is objectively reasonable to conclude that persons in [Mason's] position do not have a justifiable expectation that their oral communications will not be subject to interception while they are in a child's bedroom." Majority Op. at 1081. According to the Majority, "the expectation that a childcare worker is going to be recorded in their employer's home is so ubiquitous in our society that we have a name for it [nanny cam]." Id. at 1081–82.
I strongly disagree that, as a matter of law, anyone accepting employment as a nanny forfeits his or her right of privacy in the child's bedroom. The Majority does not explain why a nanny must assume that she will be surreptitiously spied upon by her employer after being entrusted with the care of that employer's children, or why the nanny should not assume instead that a parent who placed him or her in this position of responsibility also trusted that appropriate care would be given to the children. There is nothing in the record to support the notion that an expectation of distrust by parents is "ubiquitous" in our society, that all parents surveil their child's caregiver, or even that most babysitters (of varying ages) are aware of the general utilization of such surveillance devices. But even if one assumes broad awareness of the existence of nanny cams, knowledge of the device's capabilities (e.g., whether they are activated by motion detectors, whether they capture both video and audio, etc.) is certainly not universal. The Majority's pronouncement sounds like a legislative finding adduced after hearings. Instead, the Majority assumes facts to support a sweeping judicial policy choice.
The Majority also does not indicate whether a nanny should expect to be electronically monitored in other locations in the home (e.g., on a living room couch where the child naps), and/or whether their new rule extends to other caregivers (e.g., grandparents). It is not a broad leap to assume that it does.
In my view, privacy principles require that to validate evidence from the use of surveillance devices in criminal proceedings, a parent utilizing such a device to monitor a nanny must advise the nanny that it has been installed, where it is located, and that it is recording his or her words and actions. Given appropriate notice, issues relating to the nanny's privacy rights and the admissibility of evidence under the Wiretap Act would be avoided. Candor about the surveillance may serve to prevent unwanted behavior if a parent believes that trust may have been misplaced when employing the nanny. It also allows the nanny to decide whether he or she is willing to give up privacy expectations because of his or her occupation in the home of another.
For these reasons, I respectfully dissent. I would affirm the order of the Superior Court.
JUSTICE WECHT, dissenting
As I have explained in the past,1 this Court's Wiretap Act decisions have strayed impermissibly from the statute's unambiguous language. Unlike the Majority, I would overturn those flawed decisions today.
I.
The Wiretap Act contains a statutory suppression remedy that extends to non-constitutional violations. Specifically, the suppression provision forbids, among other things, the disclosure of "the contents of any ... oral communication" in any judicial proceeding.2 Because Pennsylvania's Wiretap Act embodies a "two-party consent" approach, the statute defines an "oral communication" as "[a]ny oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation."3 In other words, suppression is warranted under the Act when a speaker justifiably expects that his or her communication will not be recorded.
This statutory privacy shield, without question, was intended to provide greater protection than the Fourth Amendment to the United States Constitution.4 Yet for over twenty years now this Court has mistakenly applied the "reasonable expectation of privacy" test—a standard used to determine whether a "search" has occurred under the Fourth Amendment—in matters arising under the Wiretap Act. There is no justification for this. The reasonable expectation of privacy test stems directly from the text of the Fourth Amendment, which prohibits only "unreasonable searches and seizures." But the Wiretap Act, unlike the Fourth Amendment, does not turn on reasonable expectations of privacy . It requires only what it says on its face: a justifiable expectation of non-interception . The regrettable fusion of these two distinct standards can be traced to Agnew v. Dupler , 553 Pa. 33, 717 A.2d 519 (1998), where the Court held that:
U.S. Const. amend. IV (emphasis added).
In determining whether the expectation of non-interception was justified under the circumstances of a particular case, it is necessary for a reviewing court to examine the expectation in accordance with the principles surrounding the right to privacy, for one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy. To determine the existence of an expectation of privacy in one's activities, a reviewing court must first examine whether the person exhibited [a subjective] expectation of privacy; and second, whether that expectation is one that society is prepared to recognize as reasonable.
Id. at 523 (emphasis added).
The Third Circuit has observed that Agnew marks a turning point in our Wiretap Act jurisprudence given that the decision "squelched the distinction developing in some lower court cases between a reasonable expectation of non-interception and an expectation of privacy." Truth be told, the Third Circuit is being charitable. The Agnew court did not merely overrule a few lower court decisions. The Court disregarded the plain language of the Wiretap Act and applied inapposite Fourth Amendment concepts because it believed, incorrectly, that anyone who lacks a generalized expectation of privacy (à la Katz ) necessarily should assume that their conversation is being recorded. But, as the Superior Court has explained, many situations could arise in which an individual possesses one expectation but not the other.
Kelly v. Borough of Carlisle , 622 F.3d 248, 257 (3d Cir. 2010).
Katz v. United States , 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring) (setting forth the now familiar two-part test, which requires that the defendant possess "an actual (subjective) expectation of privacy ... that society is prepared to recognize as ‘reasonable’ "); Smith v. Maryland , 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (adopting Justice Harlan's two-part formula).
[I]f one is being examined by his or her physician and knows from past experience that the doctor often carries a small tape recorder in a pocket to record patient interviews, one's expectation of non-interception is nearly non-existent, but the expectation of privacy is still extremely high. On the other hand, if one is speaking with the town gossip at a public swimming pool under circumstances insuring that the gossip is not wearing a body wire, one's expectation of non-interception is very high, but the expectation of privacy is very low.
Commonwealth v. McIvor , 448 Pa.Super. 98, 670 A.2d 697, 700 (1996) ; see also Agnew , 717 A.2d at 525 (Nigro, J., concurring) ("[T]he expectation of non-interception and the expectation of privacy involve two distinct inquiries.").
There are some who believe that Agnew ’s holding, though clearly wrong as a matter of statutory interpretation, is unlikely to make a difference in most cases. That is so, the argument goes, because a person who has a reasonable expectation of privacy under the Fourth Amendment will almost always justifiably expect that their words are not being recorded and vice versa. As the Superior Court's decision below illustrates, however, courts applying the reasonable expectation of privacy test often focus on whether a person has a generalized expectation of privacy in a particular place . But an analysis that hinges on such "constitutionally protected areas" makes no sense when the only question is whether a justified expectation of non-interception exists.
Commonwealth v. Mason , 2019 WL 1084210, at *4 (Pa. Super. 2019) (citing cases for the proposition that "employees have a reasonable expectation of privacy in certain areas of their workplace"); see also Brief for Commonwealth at 17 ("[T]his Honorable Court should not be ready to recognize that anyone, other than a parent, has a privacy interest in the sleeping area of a child.").
For example, the United States Supreme Court has held that no one has a reasonable expectation of privacy in the area beyond a home's curtilage (so-called "open fields"). But the rationale for that holding—a belief that such areas "usually are accessible to the public and the police in ways that a home, an office, or commercial structure would not be" —translates poorly in the Wiretap Act context. Would a reasonable person assume that he is being recorded whenever he converses in an open field? I doubt it.
Oliver v. United States , 466 U.S. 170, 178, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) ("[A]n individual may not legitimately demand privacy for activities conducted out of doors in fields, except in the area immediately surrounding the home.").
Id. at 179, 104 S.Ct. 1735.
In fact, faithful application of the Fourth Amendment's reasonable expectation of privacy test would eviscerate the Wiretap Act in almost all circumstances because the law is clear that speakers generally lack a constitutional expectation of privacy in their oral communications. In this regard, the United States Supreme Court has held that a speaker loses any expectation of privacy in his words at the moment he utters them in the presence of another. This means that applying Agnew ’s literal holding would lead to few if any conversations being protected by the Wiretap Act—a state of affairs which the General Assembly surely did not intend.
Smith , 442 U.S. at 743-44, 99 S.Ct. 2577 ("This Court consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."); Hoffa v. United States , 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) ("Neither this Court nor any member of it has ever expressed the view that the Fourth Amendment protects a wrongdoer's misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it."); accord Lopez v. United States , 373 U.S. 427, 465, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963) (Brennan, J., dissenting) ("The risk of being overheard by an eavesdropper or betrayed by an informer or deceived as to the identity of one with whom one deals is probably inherent in the conditions of human society. It is the kind of risk we necessarily assume whenever we speak.").
The time has come for this Court to repudiate Agnew ’s atextual holding. When our precedent conflicts with the plain language of a duly enacted statute, there are only two reasonable approaches. We can either adhere to stare decisis and continue to apply the flawed decision or we can instead choose to overturn it. Today's Majority, apparently unsatisfied with both of these options, neither overturns nor applies Agnew. Instead, the Majority treats as precedential Agnew’ s reasonable expectation of privacy test, only to disregard that test a mere eight pages later. The Majority cannot have it both ways. Reciting one test and applying another is not "judicial restraint." It is instead a recipe for rampant confusion. And while I applaud the Majority for taking baby steps towards discarding the reasonable expectation of privacy standard, today's decision is sure to puzzle lawyers and judges about whether Agnew remains good law moving forward.
Compare Majority Opinion at 1076–77 n.9 (quoting Agnew for the proposition that "one cannot have an expectation of non-interception absent a finding of a reasonable expectation of privacy"), with id. at 1081 (holding that "persons in Appellee's position do not have a justifiable expectation that their oral communications will not be subject to interception while they are in a child's bedroom (emphasis added)).
Majority Opinion at 1076–77 n.9.
Put simply, a reasonable expectation of privacy is not a necessary element under the Wiretap Act. As I have opined previously, Agnew "reflects an erroneous conflation of statutory and constitutional standards, and unduly restricts the scope of the interest that the Wiretap Act is intended to protect." Agnew must be overruled explicitly. I would do so today.
Grove , 161 A.3d at 902 (Wecht, J., concurring).
II.
In his concurring opinion, my learned colleague Justice Dougherty attempts to frame my disagreement with the Majority as a dispute about the role of precedent. While I am more than happy, as always, to discuss and debate my views on stare decisis— an imprecise doctrine about which many jurists disagree—Justice Dougherty seems to be missing the point. What separates my method from the Majority's is not a different conception about how willing courts should be to repudiate past erroneous decisions. Rather, what makes the Majority's position so indefensible is that it neither overturns nor applies the rule announced in Agnew. This ignore-without-overruling approach can be called many things, but respectful of stare decisis it is not. Justice Dougherty's valentine to settled precedent might be more persuasive if he hadn't delivered it while simultaneously joining an opinion that dodges binding precedent.
Nevertheless, given the risk that some readers might mistake Justice Dougherty's personal conception of stare decisis for the only legitimate view on the matter, I feel compelled to respond with a few points that have been omitted from the Concurrence. To begin with, stare decisis (meaning "to stand by things decided" ) is not an absolute rule. As the mountain of decisions overturned by courts every year would suggest, stare decisis "is not an inexorable command to be followed blindly when such adherence leads to perpetuating error." Thus, when our prior decisions have "distorted the clear intention of the legislative enactment and by that erroneous interpretation permitted the policy of that legislation to be effectively frustrated," this Court has "no alternative but to rectify our earlier pronouncements and may not blindly adhere to the past rulings out of a deference to antiquity."
Stare Decisis , Black's Law Dictionary (11th ed. 2019); see also Super Stare Decisis , Black's Law Dictionary (11th ed. 2019) ("The theory that courts must follow earlier court decisions without considering whether those decisions were correct. Critics argue that strict adherence to old decisions can result in grave injustices and cite as an example the repudiation of Plessy v. Ferguson , 163 U.S. 537, 16 S.Ct. 1138, 41 L.Ed. 256 (1896) by Brown v. Board of Education , 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).").
Commonwealth v. Small, ––– Pa. ––––, 238 A.3d 1267, 1285 (2020) (quoting Stilp v. Commonwealth , 588 Pa. 539, 905 A.2d 918, 967 (2006) ). To be fair, Justice Dougherty evidently subscribes to the view that not all precedents are created equal. See Concurring Opinion at 1084 n.2 (Dougherty, J.). But I must confess, I am unfamiliar with the apparent principle that the Court's decisions are less authoritative when they were "decided just months ago." Id.
Id. (quoting Mayhugh v. Coon , 460 Pa. 128, 331 A.2d 452, 456 (1975) ).
Furthermore, neither the Majority nor the Concurrence argue that Agnew was correctly decided, and stare decisis "isn't supposed to be the art of methodically ignoring what everyone knows to be true." As I explained in the previous section, the Agnew Court plainly erred by departing from the text of the Wiretap Act and imposing instead an unworkable judge-made rule which bears no resemblance to the statutory text that allegedly justified it. And while Justice Dougherty might prefer to leave bad enough alone, I personally have never been of the view that "we must consecrate the mere blunders of those who went before us, and stumble every time we come to the place where they have stumbled."
Ramos v. Louisiana , ––– U.S. ––––, 140 S.Ct. 1390, 1405, 206 L.Ed.2d 583 (2020) (citing R. Cross & J. Harris, Precedent in English Law 1 (4th ed. 1991) (attributing this aphorism to Jeremy Bentham)).
McDowell v. Oyer , 21 Pa. 417, 423 (Pa. 1853) ("A palpable mistake, violating justice, reason, and law, must be corrected, no matter by whom it may have been made. There are cases in our books which bear such marks of haste and inattention, that they demand reconsideration.").
In advocating for everlasting adherence to Agnew ’s unsound holding, Justice Dougherty underscores that the legislature has amended Section 5702 of the Wiretap Act four times post- Agnew . This is a potentially significant fact because courts may presume that, when this Court interprets "certain statutory language and that language is retained in subsequent amendments to the same statute, the legislature approved of and intended to uphold that interpretation." But that presumption is just one of many that exist to help courts ascertain the intent of the General Assembly in difficult cases. The default rule—indeed, the most important rule when it comes to statutory interpretation—is that the best indication of the General Assembly's intent is the plain language of the statute.
Concurring Opinion at 1083–84 (Dougherty, J.).
PSP v. Jet-Set Rest., LLC , 648 Pa. 134, 191 A.3d 817, 823 (2018).
See 1 Pa.C.S. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
In any event, the view that legislative inaction signifies tacit approval of even our most flawed decisions is not one that I share. It is well-settled that the burden of correcting our own errors does not rest entirely on the shoulders of the General Assembly. And given the many possible explanations for legislative inaction, we "walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle." Thus, the presumption that Justice Dougherty embraces should control only when there are legitimate reasons to assume that the General Assembly's inaction holds interpretive significance.
Small , 238 A.3d at 1285 ("[T]his Court's departure from the plain language of a statute should not be viewed categorically as placing the burden upon the General Assembly to detect our error and to marshal the resources to correct it.").
Helvering v. Hallock , 309 U.S. 106, 121, 60 S.Ct. 444, 84 L.Ed. 604 (1940).
This approach is entirely consistent with the Statutory Construction Act, which could not be clearer that our primary goal when interpreting statutes must be to ascertain the intent of the General Assembly. It also tells us, in no uncertain terms, that the best indication of the General Assembly's intent is the plain language of the statute. In other words, no presumption or canon should ever be used to disregard otherwise unambiguous statutory text. After establishing these fundamental principles, the very next section lists five non-exclusive presumptions that "may be used" to ascertain the legislature's intent—one of which is the presumption that the General Assembly intends subsequent statutes to be interpreted consistently with this Court's earlier decisions on the same subject. We should not invoke these explicitly non-mandatory presumptions as holy writ.
1 Pa.C.S. § 1921(a) ("The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.").
Id. § 1921(b) ("When the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.").
Id. § 1922 ("In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used[.]" (emphasis added)).
Any attempt to treat as gospel a non-exclusive list of non-mandatory presumptions (which, in any event, cannot be used to negate a statute's plain language) cannot be taken seriously. The Section 1922 presumptions are optional, though potentially useful, tools for ascertaining legislative intent in the event of ambiguity. When the General Assembly instructs judges that they "may" do something, that necessarily suggests that they also may not. Indeed, in some cases, more than one of the listed presumptions will apply; yet those presumptions will weigh in favor of divergent conclusions, making it impossible to apply all of them.
Id. ; accord Small , 238 A.3d at 1285 ("Although the Commonwealth's point is well-taken, we do not view the asserted presumption to be controlling. Application of this presumption is discretionary, not mandatory.").
To understand the weakness of Justice Dougherty's claim that Section 1922(4) circumscribes our judicial discretion here, consider one of the other listed presumptions, which states that the General Assembly does not intend to pass unconstitutional statutes. Taken to its logical conclusion, Justice Dougherty's understanding of the Statutory Construction Act would prevent courts from ever striking down statutes on constitutional grounds. When faced with a plainly unconstitutional enactment, we would instead be forced to dream up an interpretation (no matter how strained) that passes constitutional muster. Of course, that is not what the legislature intended, which is why the presumptions are both discretionary and subservient to the principle that a statute's plain language is the best indication of legislative intent.
1 Pa.C.S. § 1922(3) (courts may presume that "the General Assembly does not intend to violate the Constitution of the United States or of this Commonwealth").
Notably, other presumptions in Section 1922—in particular the presumption that the legislature does not intend "absurd" or "unreasonable" results—are intentionally vague and open to interpretation by judges. 1 Pa.C.S. § 1922(1) (courts may presume that "the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable").
Put simply, the Section 1922(4) presumption should be afforded controlling weight only when there are legitimate reasons to assume that the General Assembly's inaction holds interpretive significance. Here, there are many reasons to suspect otherwise. For one thing, while Justice Dougherty focuses on the number of amendments to Section 5702 after Agnew , he fails to mention that Section 5702 is a definitional provision containing more than thirty terms that have nothing to do with the issue that we addressed in Agnew. For example, one of the four post- Agnew amendments that Justice Dougherty highlights simply added the term "suspected criminal activity" to Section 5702 ’s list of defined terms. But the insertion of that definition is irrelevant to the question we addressed in Agnew , which concerned only whether a particular communication constituted an "oral communication" under the Act.
Concurring Opinion at 1084 (Dougherty, J.) ("[I]n the twenty-two-year span since we decided Agnew , the legislature has amended Section 5702 of the Wiretap Act four times , and yet it has never once seen fit to statutorily alter Agnew ’s interpretation of the term "oral communication." (emphasis in original)).
See 2002, Dec. 9, P.L. 1350, No. 162, § 3.
The 2020 amendment that Justice Dougherty mentions, see Concurring Opinion at 1085 (Dougherty, J.), is similarly irrelevant. That legislation merely added a new criminal offense to the Wiretap Act's "crime of violence" definition. See 2020, Jun. 5, P.L. 246, No. 32, § 2.
Indeed, only one of the four amendments that Justice Dougherty touts (Act 22 of 2017) modified the Wiretap Act's definition of an "oral communication." Justice Dougherty emphasizes that this piece of legislation was passed "shortly" after our Court decided Grove , a case in which I authored a concurring opinion pointing out that the Agnew Court almost certainly misinterpreted Section 5702. In Justice Dougherty's view, this timing strongly suggests that the General Assembly agrees with the Agnew and Grove majorities’ interpretations of what constitutes an "oral communication."
Concurring Opinion at 1083–84 (Dougherty, J.); see Grove , 161 A.3d at 906 (Wecht, J., concurring).
Concurring Opinion at 1083–84 (Dougherty, J.) ("The legislature's decision in this regard might strongly suggest it actually found Agnew ’s interpretation of Section 5702 to be consistent with legislative intent.").
The wild guess underlying Justice Dougherty's argument—that legislative inaction signals the General Assembly's agreement with our holding in Agnew —becomes increasingly dubious the closer one looks. Consider first the timing of Act 22. When Justice Dougherty says that the legislature amended Section 5702 "shortly after we issued our decision in Grove ," he is not kidding. We decided Grove on June 20, 2017, while the Senate and House passed Act 22 on June 27, 2017 and June 28, 2017, respectively. Needless to say, any legislative response to our debate in Grove would not have materialized in Act 22 given that introducing and passing legislation is rarely a one-week affair. In fact, the bill that ultimately became Act 22 was introduced in the Senate approximately three months earlier, in late March 2017. And that bill was itself largely a reintroduction of a measure that had passed in the Senate during the 2015-2016 session before stalling in the House.
Id .
See S.B. 976, Regular Session 2015-2016.
Consider also what Act 22 actually accomplished. Justice Dougherty's portrayal of Act 22 as some sort of back-to-basics reconsideration of the Wiretap Act's "oral communication" definition is incorrect. The law had one main purpose: to authorize the use of police body-cameras. To accomplish this, one small part of Act 22 modified Section 5702 to explicitly exclude from the definition of an "oral communication" any communication "made in the presence of a law enforcement officer on official duty who is in uniform or otherwise clearly identifiable as a law enforcement officer and who is using an electronic, mechanical or other device which has been approved ... to intercept the communication in the course of law enforcement duties." Yet Justice Dougherty would have us believe that the General Assembly, by passing a law authorizing police body-cameras (amid a national push for similar legislation, no less) clearly and manifestly approved of Agnew ’s nineteen-year-old misreading of Section 5702.
Notably, this line of reasoning distorts the usual mode of statutory interpretation, in which courts attempt to ascertain the intent of a specific General Assembly, i.e. , the one that enacted the statute in the first place. Justice Dougherty's approach, by contrast, attempts to divine the unlegislated desires of lawmakers who came along many years after the enactment of the Wiretap Act and simply declined to make a fuss about Agnew.
To call that theory strained would be an understatement. I would be shocked if even a single legislator who voted for Act 22 believed that he or she was engrafting the Fourth Amendment's reasonable expectation of privacy test onto the Wiretap Act's "oral communication" definition.
Finally, consider Justice Dougherty's assumption that the General Assembly absolutely would have legislatively overturned Agnew if it disagreed with the decision. This too involves a great deal of speculation. While the Wiretap Act is a far-reaching piece of legislation, our erroneous decision in Agnew thankfully affects only a small number of litigants, namely, those with cases involving oral (rather than wire, electronic, or stored) communications. Before Grove , Pennsylvania state courts had cited Agnew only eleven times, with many of those decisions simply quoting Agnew ’s recitation of the applicable standard of review. Others mentioned Agnew only in passing, while at least one decision cited Agnew but misstated its holding. In other words, the Court's blunder in Agnew has had few, if any, real-world consequences to date. And legislatures, by their very nature, are reactive institutions that must triage countless legislative priorities. So, while it's unsurprising that the General Assembly quickly enacted corrective legislation after our decision holding that multi-jurisdictional DUI checkpoints are illegal, Agnew ’s potential harms are far less immediate and far too hypothetical to serve as a useful comparison.
See , e.g ., Scampone v. Highland Park Care Ctr., LLC , 618 Pa. 363, 57 A.3d 582, 596 (2012) (citing Agnew for the standard of review applicable to the grant of a compulsory nonsuit); Berger v. Peco Energy Co. , 2016 WL 5266623, at *5 (Pa. Super. 2016) (same); Branham v. Rohm & Haas Co. , 2013 WL 5763133, at *4 (Pa. Super. 2013) (same); Swank v. Breakneck Creek Reg'l Auth ., 2008 WL 9398671, at *3 (Pa. Cmwlth. 2008) (same).
Commonwealth v. Kunkel , 2013 WL 11255699, at *7 (Pa. Super. 2013) (citing Agnew in passing); Commonwealth v. McNeil , 808 A.2d 950, 957 n.8 (Pa. Super. 2002) (stating incorrectly that "[Agnew ] held that the police officer's conversations were not oral communications within the meaning of the Wiretap Act because Agnew did not have a reasonable expectation that the contents of the discussion would not be intercepted ." (emphasis added)).
See Concurring Opinion at 1085 n.3 (Dougherty, J.) (discussing the General Assembly's response to our decision in Commonwealth v. Hlubin , 652 Pa. 545, 208 A.3d 1032, 1052 (2019) ).
As these flaws in Justice Dougherty's analysis illustrate, courts must always avoid rote, uncritical application of interpretive doctrines, especially when doing so requires us to make dubious assumptions about the General Assembly's intent. The various tools of statutory interpretation, if applied carelessly, can negate the most important presumption of all: the principle that statutes mean what they say. Agnew was wrong when it was decided and, unlike Justice Dougherty, I do not believe that the mere passage of time has transformed that wrong decision into a correct one.
One common rationale for the doctrine of stare decisis is that it "contributes to the actual and perceived integrity of the judicial process." If our goal is to contribute to the integrity of the judicial process, we should abandon, rather than perpetuate, the fiction that failing to admit this Court's past errors is a noble endeavor. Fortunately, a proper, nuanced understanding of stare decisis does not prevent us from reexamining Agnew. When a prior decision was obviously mistaken and this Court is unwilling to defend it (or even apply it), blind obedience to stare decisis is unwarranted.
Payne v. Tennessee , 501 U.S. 808, 827, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991).
III.
Turning to the specific facts before us, I disagree with the Majority's conclusion that Beth Ann Mason lacked a justified expectation that her oral communications would not be intercepted in her employer's home. The Majority's entire analysis hinges on the correctness of a single proposition: that the use of recording devices to monitor child care workers is "ubiquitous." The implication, of course, is that nannying is an occupation in which constant surveillance is the norm, to be expected by any reasonable caregiver. The Majority offers no support for this assertion, which strikes me as quite dubious. My own instinct—admittedly no more scientific than the Majority's—is that most parents are reluctant to place their children (and homes) in the custody of people they do not trust.
Majority Opinion at 1082.
While I agree with the Majority that the term "nanny cam" has, to some extent, permeated our shared lexicon, I reject the notion that nanny cams are ubiquitous simply because society has a name for them. See Majority Opinion at 1081 ("Notably, the use of recording devices in homes as a means for parents to monitor people hired to care for their children have become so commonplace that these devices are often referred to as "nanny cams." That is to say that the expectation that a childcare worker is going to be recorded in their employer's home is so ubiquitous in our society that we have a name for it."). To state the obvious, not everything that has a name is ubiquitous. Pandas? Lamborghinis? Xylophones?
More importantly, as explained above, the Wiretap Act's requirement of a justified expectation of non-interception under the circumstances was never intended to be a high bar. Most people in most situations generally assume (correctly) that they are not being recorded. Thus, as before, "I have no trouble concluding that this expectation [of non-interception] is justifiable in the vast majority of instances in which people speak, and becomes unjustifiable only in the presence of some indicia that one's utterances are being intercepted."
Grove , 161 A.3d at 905-06 (Wecht, J., concurring).
Because no such indicia are present here, Mason's words constituted an "oral communication" under the Wiretap Act. Accordingly, the lower courts correctly held that the portion of audio in which Mason can be heard telling the victim to "shut up" was inadmissible. Because the Majority concludes otherwise, I respectfully dissent.