Commonwealth v. Britton, S., Aplt

[J-40-2019]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

COMMONWEALTH OF PENNSYLVANIA, : No. 55 MAP 2018

:

Appellee : Appeal from the Order of Superior

: Court at No. 1786 EDA 2017 dated

: March 6, 2018 Affirming the

v. : Judgment of Sentence of the

: Monroe County Court of Common

: Pleas, Criminal Division, at No.

STACY BRITTON, : CP-45-CR-0002192-2015 dated

: January 6, 2017.

Appellant :

: ARGUED: November 19, 2019

OPINION

JUSTICE BAER DECIDED: April 22, 2020

California law enforcement officers interviewed Appellant Stacy Britton

(“Appellant”) in her California residence and, unbeknownst to her, recorded those

interviews. Over Appellant’s objection, the Commonwealth utilized those recordings

as evidence to help convict Appellant of murder in Pennsylvania. We granted

allowance of appeal to examine whether the California law enforcement officers were

acting as agents of the Pennsylvania State Police when they recorded the interviews

with Appellant in her California home, and if so, whether Pennsylvania constitutional

and statutory protections are available to Appellant under those circumstances. For

the reasons discussed below, we conclude that the Superior Court correctly

determined that the California law enforcement officers were not acting as agents of

the Pennsylvania State Police when they interviewed Appellant. Thus, examination of

whether any Pennsylvania specific constitutional or statutory protections extended to

Appellant’s situation is unwarranted. Because the Superior Court reached the proper

result in this matter, we affirm that court’s judgment.

I. Pertinent Factual Background1

In July of 2002, human remains were discovered on a property in Monroe

County, Pennsylvania. The remains were from a body which had been dismembered

and burned in two, 55 gallon barrels. A forensic examination revealed that the cause

of the victim’s death was multiple stab wounds and blunt force trauma to the head and

torso. The examination further revealed that the victim’s head, hands, and legs were

amputated postmortem.

At the time of the victim’s death, Appellant lived with her then-husband, James

Britton (“James”), in Wilkes-Barre, Pennsylvania. On August 24, 2002, the Brittons’

home burned down as a result of arson, and the couple moved to California.

In 2003, the victim was identified as Robert Roudebush (“Victim”), a resident of

Wilkes-Barre, Pennsylvania. Around the same time that authorities learned of Victim’s

identity, James, who was incarcerated on charges unrelated to the instant matter,

notified his probation officer and, later, the Pennsylvania State Police that he had

information about a July 2002 murder of a person named Bob. James told the police

that Larry Tooley, the Brittons’ next door neighbor in Wilkes-Barre, committed the

murder. Nonetheless, the case remained cold.

In 2008, Victim’s murder was the subject of an investigating grand jury. During

those proceedings, the Brittons testified and again suggested that Larry Tooley had

committed Victim’s murder. It, however, does not appear that anyone was charged as

1Our summary of the facts is gleaned from the transcript of Appellant’s suppression

hearing, N.T., 7/12/2016, and the opinion that the trial court authored in support of its

order denying Appellant’s motion to suppress, Trial Court Opinion, 10/27/2016.

[J-40-2019] - 2

a result of the grand jury investigation. Consequently, the murder continued to remain

unsolved.

On August 14, 2015, Appellant, who was living in San Bernardino County,

California, called authorities in Pennsylvania to discuss information that she had

regarding a 2002 homicide. More specifically, Appellant informed Monroe County

Detective Joseph Coddington that on July 4, 2002, James killed Victim. During the

course of their conversation, Appellant stated to the detective that she would prefer to

speak to someone in person.

Detective Coddington passed this information along to his colleague, Monroe

County Detective Wendy Serfass, who then contacted Corporal Shawn Williams of the

Pennsylvania State Police.2 Corporal Williams called Appellant in California, and she

repeated her story that James killed Victim. Appellant also stated that she

dismembered the body at James’ request and further described how the couple

disposed of the body by placing the remains in plastic bags, driving them to a property,

and burning them in barrels.

Corporal Williams’ colleague, Pennsylvania State Police Corporal Thomas

McAndrew, then called the County Sherriff’s Department in San Bernardino, California,

and eventually spoke to Detective Jon Cahow. Corporal McAndrew provided Detective

Cahow with a background of this case and, pursuant to Appellant’s request, asked the

detective to interview Appellant in person. Corporal McAndrew and Detective Cahow

did not discuss instructions on how the California law enforcement officers should

conduct their interview with Appellant. The Pennsylvania State Police followed up later

by emailing and mailing various reports and files to the San Bernardino County

Sherriff’s Department.

2 Corporal Williams had worked on the case previously.

[J-40-2019] - 3

On August 17, 2015, Detective Cahow contacted Appellant by phone, and she

agreed to meet with the detective and his partner, San Bernardino County Detective

Charles Phillips, at the Morongo Sherriff’s Station in California, where the detectives

interviewed Appellant for several hours. Video and audio recordings were made of the

interview, which presumably is legal and done as a matter of protocol in California.

Further, there is a sign in the Sheriff’s Station where Appellant was interviewed,

advising interviewees that video and audio recordings are occurring.

As the interview proceeded, Appellant became tired and concerned that her son

needed to go to bed to be ready for school the next day, but she agreed to continue

the interview with the detectives at her home. There, the detectives recorded their

conversation with Appellant by way of a belt recorder, i.e., an audio recording device

that the detectives placed on their belts. During the course of these interviews on

August 17th, Appellant initially said that she came home on July 4, 2002, and

discovered Victim dead in the basement of her home. However, later in the interviews,

she recanted this statement, accepted responsibility for participating in the murder,

explained in gruesome detail how she dismembered the body, and laid out how the

couple disposed of the remains. Appellant also accused James of starting the fire that

burned down their house in August of 2002.3

The California detectives returned to Appellant’s home the next day and

continued interviewing her. They again captured an audio recording of the

conversation on a belt recorder. In addition, Detective Phillips utilized a Sherriff-issued

iPad to record a video of Appellant demonstrating on a stuffed animal the manner in

3Pennsylvania State Police Detective Williams later interviewed James, who blamed

Appellant for Victim’s murder and for burning down the couple’s home.

[J-40-2019] - 4

which James killed Victim. Appellant further admitted that she was present for and

actively participated in Victim’s murder.

Over the course of the two days of interviews, Detective Cahow periodically

updated Pennsylvania State Police Corporal McAndrew concerning Appellant’s

statements. At some point during those conversations, Detective Cahow informed

Corporal McAndrew that the California detectives were recording their interviews with

Appellant. However, the California detectives never affirmatively informed Appellant

that they were recording the interviews, although, as noted above, there was a sign in

the Morongo Sheriff’s Station advising that audio and video recording was taking place;

moreover, Appellant was aware that the California detectives recorded her depiction

of the murder on an iPad.

Pennsylvania authorities subsequently arranged for Appellant to return to the

Commonwealth, where she was arrested and charged with multiple crimes connected

to Victim’s murder. The San Bernardino County Sherriff’s Department later provided

the recordings of Appellant’s interviews to the Pennsylvania State Police.

II. Relevant Procedural History

Appellant filed an omnibus pretrial motion in the Pennsylvania trial court,

seeking, inter alia, an order suppressing all of the recorded statements that she made

to the California authorities in August of 2015. Pertinent to the instant appeal,

Appellant averred that the San Bernardino County Sherriff’s Department was working

at the direction of the Pennsylvania State Police when the San Bernardino County

detectives “surreptitiously” recorded her statements. Omnibus Pretrial Motion,

4/29/2016, at ¶¶ 13 & 14. Building on this premise, Appellant asserted that, as agents

of the Pennsylvania State Police, the San Bernardino County detectives failed to follow

“the dictates of the Pennsylvania [Wiretapping and Electronic Surveillance Control Act

[J-40-2019] - 5

(“Pennsylvania Wiretap Act”)4] and obtain proper authorization under the Act and in

violation of [Appellant’s rights under the] Fourth and Fourteenth Amendment[s] of the

United States Constitution and under Article I, Section [8] of the Pennsylvania

Constitution.”5 Id. at ¶ 15.

The trial court held a hearing to address the pretrial motions. Relevant to

Appellant’s motion to suppress, the following witnesses testified: Monroe County

Detective Joseph Coddington, San Bernardino County Detective Cahow, and

Pennsylvania State Police Corporals Williams and McAndrew. These witnesses

testified to, inter alia, the facts as outlined above.

After the suppression hearing, the parties submitted briefs in support of their

legal positions. Related to her agency theory, Appellant revised her request for relief,

seeking suppression only of the statements recorded in her California home. In short,

Appellant contended that: (1) because the California law enforcement officers were

acting as agents of the Pennsylvania State Police when they interviewed her in her

California home, Pennsylvania law controls the legality of their actions in this regard;

and (2) both the Pennsylvania Constitution and the Pennsylvania Wiretap Act

precluded the California law enforcement officers from secretly recording Appellant in

her home. In response, the Commonwealth argued that Appellant’s statements were

legally obtained in California pursuant to California law.

The trial court denied Appellant’s motion to suppress. In its opinion in support

of that decision, before turning to Appellant’s agency argument, the court initially

utilized a thorough conflict-of-law analysis to determine whether Pennsylvania or

4 18 Pa.C.S. §§ 5701-5782.

5These constitutional provisions protect against unreasonable governmental searches

and seizures.

[J-40-2019] - 6

California law should govern the admissibility of the recorded statements that Appellant

made in California. Trial Court Opinion, 10/27/2016, at 4-10. For present purposes,

because the trial court’s conflict-of-law analysis is outside the scope of this appeal, it

is sufficient to note that the court explained that when an issue implicates substantive

laws, such as the privacy rights asserted by Appellant, a conflict-of-law analysis

requires the forum court to apply the law of the state with the most interest in the

outcome of the controversy. Id. at 4-5. The court concluded that California has a

higher interest in whether the California law enforcement officers acted legally in

recording Appellant. Id. at 5-6. The court further concluded that the recordings were

lawfully made in accord with California law and, thus, admissible.

Of primary importance to this appeal, the trial court next recognized that

Appellant was arguing that San Bernardino County Detectives “Cahow and Phillips, at

the time they surreptitiously recorded her during the August 17-18, 2015 interviews,

were acting as agents of the Pennsylvania State Police and therefore, those agents

must conform to Pennsylvania law.” Trial Court Opinion, 10/27/2016, at 10. While the

court observed that Appellant “failed to cite to any legal authority to support this

position[,]” id., it apparently conducted its own research, concluding that there is no

Pennsylvania legal authority that supports Appellant’s argument. The court then

looked to other jurisdictions that have addressed the issue.

By way of example, the trial court highlighted the Supreme Court of

Washington’s decision in State v. Brown, 940 P.2d 546 (Wash. 1997), which we will

summarize briefly. At the request of a Washington police department, California law

enforcement officers interviewed Brown, and he confessed to crimes committed in

Washington. The California officers recorded the statements without Brown’s

knowledge, which was legal in California, and prosecutors in Washington utilized those

[J-40-2019] - 7

recorded statements to convict Brown in Washington. On appeal to the Washington

Supreme Court, Brown argued that his California statements should have been

suppressed because the California officers were acting as agents of the Washington

police department, and the surreptitious recordings violated Washington’s Privacy Act.

The Brown court concluded that, to determine whether the California officers

were acting as agents of the Washington police department, the pertinent question was

whether the California officers cooperated and helped the Washington police

department so extensively that the California officers “did not ‘independently’ obtain

[Brown’s] statements.” Brown, 940 P.2d at 589. In concluding that the California

officers were not acting as agents, the Brown court found it significant that: (1) the

Washington police department merely telephoned the California officers and asked

them to get a statement from Brown; (2) the Washington police did not tell the California

officers what to ask or how to conduct the interview; and (3) the California officers

lawfully and independently recorded Brown’s statements under California law. Id. at

589-90. For these reasons, the Brown court held that the recorded statements were

properly admitted at Brown’s trial.

Turning back to the case sub judice, the trial court found Brown to be

persuasive, applied that decision to the instant facts, and determined that the San

Bernardino County detectives did not act as agents of the Pennsylvania State Police

when they interviewed Appellant. Id. at 11. In reaching this determination, the court

highlighted that the California detectives lawfully recorded their interviews with

Appellant, a long-time California resident, pursuant to California law and that both

Corporal McAndrew and Detective Cahow credibly testified at the suppression hearing

that their conversations did not include instructions on how the California detectives

should conduct their interviews with Appellant. Id. at 11-12. Consequently, the court

[J-40-2019] - 8

refused to suppress the recordings, concluding that the detectives legally obtained

those recordings pursuant to California law. Id. at 12.

A jury trial commenced, and the prosecutor presented to the jury, inter alia, the

recordings of the interviews conducted in Appellant’s California home. The jury

convicted Appellant of first-degree murder, criminal conspiracy to commit homicide,

perjury, and hindering apprehension. As to her murder conviction, the trial court

sentenced Appellant to life in prison without the possibility of parole. Appellant filed

post-sentence motions, which the court denied.

Appellant appealed to the Superior Court. In so doing, she reiterated her

position that Pennsylvania law prohibited the California law enforcement officers from

“surreptitiously” recording her when they were in her home because they were acting

as agents of the Pennsylvania State Police. In an unpublished memorandum, the

Superior Court affirmed Appellant’s judgment of sentence, relying upon the trial court’s

opinion. Thereafter, Appellant filed a petition for allowance of appeal, which this Court

granted to address the following question, as phrased by Appellant: “Should out of

state law enforcement officers acting within their own state but solely at the request of

Pennsylvania law enforcement officers be considered agents of the Pennsylvania law

enforcement and as such governed by the same statutory and constitutional standards

as the Pennsylvania law enforcement officers?” Commonwealth v. Britton, 194 A.3d

1041, 1042 (Pa. 2018).

III. Parties’ Arguments to this Court

The issue before this Court requires that we first determine when a foreign

police officer qualifies as an “agent” of a Pennsylvania police force. In offering her view

on the topic, Appellant does not discuss Brown, supra, or any other legal authority that

is directly on point. Instead, Appellant supports her position primarily by invoking this

[J-40-2019] - 9

Court’s decisions in Commonwealth v. Dembo, 301 A.2d 689 (Pa. 1973) (holding that

a warrantless, exploratory search of mail by a postal employee at the direction of the

Pennsylvania State Police constituted a government search in violation of the Fourth

Amendment of the United States Constitution), and Commonwealth v. Eshelman, 383

A.2d 838 (Pa. 1978) (concluding that, although an auxiliary officer was off-duty when

he conducted a warrantless search of a vehicle, the record nonetheless established

that the off-duty officer was acting as a police officer when he removed packages from

that vehicle and turned them over to police). In short, Appellant believes that these

cases suggest that in determining whether the California law enforcement officers were

acting as agents of the Pennsylvania State Police, this Court should focus “on the

coordination between Pennsylvania law enforcement and California law enforcement.”

Appellant’s Brief at 16.

Applying this rationale to the facts of the case, Appellant points out that the

California detectives would not have interviewed her but for the Pennsylvania State

Police’s request that they do so. Appellant further highlights that Detective Cahow

informed Pennsylvania State Police Corporal McAndrew that he would be interviewing

Appellant in her home and that he would be recording that interview; yet, Corporal

McAndrew continued to use Detective Cahow’s assistance in this matter. Appellant

concludes, “The continued use of Detective Cahow knowing that the residence would

be entered and the conversations recorded makes Detective Cahow an agent under

Dembo and Eshelman.” Id.

The Commonwealth’s argument is of limited help as it does not squarely

address Appellant’s agency argument. Rather, the Commonwealth primarily contends

that a conflict-of-law analysis, like that performed by the trial court, applies to and

permits the secret recording of the statements that Appellant made in her California

[J-40-2019] - 10

home. Commonwealth’s Brief at 10-16. Later in its brief, the Commonwealth suggests

that, if the Court concludes that the trial court erred by permitting the jury to hear the

recordings of Appellant in her home, any such error was harmless. Id. at 20-22.

IV. Discussion

Ultimately, we are reviewing the trial court’s denial of Appellant’s motion to

suppress. This review is limited to determining whether the suppression court’s factual

findings are supported by the record and whether the legal conclusions drawn from

those facts are correct. Commonwealth v. Yandamuri, 159 A.3d 503, 516 (Pa. 2017).

Thus, our review of questions of law is de novo. Id. Our scope of review is limited to

considering only the evidence of the Commonwealth and so much of the evidence for

the defense as remains uncontradicted when read in the context of the suppression

record as a whole. Id.

As noted above, the issue before this Court requires that we first determine

when a foreign police officer qualifies as an “agent” of a Pennsylvania police force. In

advancing her position regarding the meaning of “agent” in these circumstances,

Appellant relies upon this Court’s decisions in Dembo and Eshelman, which we will

briefly discuss at this point. In Dembo, Pennsylvania State Police Trooper Alan Phillips

received information that Dembo previously had purchased ingredients to manufacture

illegal drugs. The trooper then asked postal authorities to inform him if Dembo were

to receive any packages in the mail. Two and one-half months later, a postmaster

informed Trooper Phillips that a package had arrived for Dembo, and at the trooper’s

direction, the postal authorities inspected the package and discovered illegal drugs.

Dembo later was convicted of drug-related offenses.

On appeal to this Court, Dembo’s chief contention was “that opening the

package at the post office and inspecting its contents was an unconstitutional search

[J-40-2019] - 11

in violation of the Fourth Amendment.” Dembo, 301 A.2d at 691. In agreeing with

Dembo, the Court observed that, although the postal authorities possessed the

discretion to inspect Dembo’s mail, the “overwhelming evidence forces the conclusion

that this search was initiated by police officials in furtherance of a police investigation

then in progress and the postal authorities were merely the means selected in an

attempt to avoid the necessity of establishing probable cause.” Id. at 693. We,

therefore, held that the warrantless, exploratory search of mail by a postal employee

at the direction of the Pennsylvania State Police constituted a government search in

violation of the Fourth Amendment of the United States Constitution.

As noted above, the threshold issue that we must address in the case before us

is when does a foreign police officer become an “agent” of a Pennsylvania police force.

In other words, we are charged with defining “agent” within this discrete context.

Dembo is unhelpful in accomplishing this task, as there was no discussion of the

boundaries of agency because there was no question in that case that the postal

authorities conducted themselves in conformity with the directions of Trooper Phillips.

See Dembo, 301 A.2d at 693 (“Here, the record is clear that the postal authorities were

merely a tool used by the police officials to further a police investigation.”). Stated

differently, unlike the question currently before the Court, the Dembo Court was not

faced with developing a test to discern whether an agency relationship existed between

a Pennsylvania police department and a foreign police officer operating within the laws

of his jurisdiction. In addition and as discussed below, unlike in Dembo, here, the

Pennsylvania State Police did not direct the mechanics of the California officers’

interviews.

Eshelman is similarly unhelpful in resolving this appeal. Eshelman involved

Glenn Decker, an auxiliary policeman for the Borough of Roaring Springs,

[J-40-2019] - 12

Pennsylvania. While off-duty, Decker was on a Pennsylvania property without the

owner’s permission, when he discovered an old Cadillac surrounded by weeds and

without tags. Decker knew the vehicle belonged to Eshelman. Through the windows

of the vehicle, Decker observed packages that he suspected contained marijuana. He

retrieved the packages from the vehicle, took them to the Roaring Springs’ police

station, and showed them to his superior officer, who then arranged for Decker to take

the packages to the State Police barracks at Hollidaysburg. The packages tested

positive for marijuana, and Eshelman eventually was convicted of drug-related crimes.

On appeal to this Court, Eshelman argued that the evidence obtained by Decker

should have been suppressed because, at the time of the search, Decker was acting

as a police officer “and that, in any event, the exclusionary rule of the Fourth

Amendment, as applied to the states by the Fourteenth Amendment, should be

extended to evidence improperly obtained by private citizens.” Eshelman, 383 A.2d at

840 (footnote omitted). This Court agreed that the evidence should have been

suppressed, holding, in relevant part, that although Decker was off-duty when he

conducted the search of the vehicle, the record evidence established that Decker

nonetheless was acting as a police officer when he removed the packages from that

vehicle and turned them over to police. Id. at 842.

The Eshelman Court then bolstered this conclusion by opining that “the conduct

of Decker’s superior in the police department upon receiving the package from Decker

in effect ratified Decker’s unauthorized acts on behalf of the Commonwealth.” Id. In

so doing, the Court stated, “It is fundamental agency law that an act outside the scope

of one’s authority may be ratified by the subsequent conduct or behavior of the principal

on whose behalf one purports to be acting.” Id. While Appellant seems to believe that

this statement of the law has some significance to this case, she fails to explain how

[J-40-2019] - 13

this principle establishes that the California detectives were acting as agents of the

Pennsylvania State Police. Indeed, a close reading of Eshelman reveals that it does

not address, either directly or indirectly, the principles at issue in the instant case.

Thus, neither Dembo nor Eshelman provides precedent to guide our analysis.

Nevertheless, this Court is well acquainted with the term “agent.” As we

observed nearly 175 years ago, “An agent is one who acts in the place and stead of

another.” Valentine v. Packer, 5 Pa. 333, 334 (1847). In the context of agency law,

we have explained that “[t]he law is clear in Pennsylvania that the three basic elements

of agency are: the manifestation by the principal that the agent shall act for him, the

agent’s acceptance of the undertaking and the understanding of the parties that the

principal is to be in control of the undertaking.” Basile v. H & R Block, Inc., 761 A.2d

1115, 1120 (Pa. 2000) (internal quotation marks omitted) (citing Scott v. Purcell, 415

A.2d 56, 60 (Pa. 1980) (quoting Restatement (Second) of Agency § 1, Comment b

(1958)).

Applying this definition to the facts of this case, we note that reasonable minds

could differ as to whether the Pennsylvania State Police manifested a desire to have

the California detectives act on its behalf and whether the California detectives

accepted that task. However, we need not delve into those areas, as the last element

of the definition simply is not met here. More specifically, the last element of the term

“agency” makes clear that an agency relationship is established only when the principal

exercises control over the action at hand.

The suppression record is devoid of evidence that would suggest that the

Pennsylvania State Police, as the purported principal, exercised any control over the

manner in which the California detectives, the purported agents, interviewed Appellant.

To the contrary, as explained above, the record unquestionably establishes that the

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San Bernardino County detectives interviewed Appellant, a California resident, in a

manner that was consistent with California protocol and law. Nothing in the record

suggests that the Pennsylvania State Police requested that the California detectives

question Appellant in a particular place, at particular time, or in a particular manner, let

alone record the interviews. In this regard, it is important to note that the trial court

credited the testimony of Pennsylvania State Police Corporal McAndrew and San

Bernardino County Detective Cahow that they did not discuss the manner in which the

California detectives would interview Appellant at all. Trial Court Opinion, 10/27/2016,

at 11-12.

Accordingly, we hold that the lower courts properly determined that the San

Bernardino County Sheriff’s Department did not act as an agent of the Pennsylvania

State Police when the San Bernardino County detectives interviewed Appellant in her

California home, as there is no evidence of record that establishes that the

Pennsylvania State Police exhibited control over the California detectives.6, 7 Having

reached this conclusion, we need not address Appellant’s claim that Pennsylvania

6 While the Washington Supreme Court’s decision in Brown is not binding on this Court

nor discussed by the parties, we nonetheless observe that the result we reach in this

case is consistent with the conclusion reached in Brown. Stated succinctly, in both

cases, the Courts determined that California law enforcement officers were not acting

as agents of the forum state’s police force when they conducted interviews because

the records established that the forum state’s police force did not direct or control the

actions of the California officers. Rather, the forum state’s police force simply

telephoned the California officers and asked them to talk to a person.

7 The concurring justice finds it necessary to ponder our intent in reaching this

conclusion and to make unwarranted accusations that we are undermining the

protections of the Pennsylvania Constitution. A common sense reading of this Opinion

makes clear that we have addressed and disposed of the narrow issue before the Court

by assessing the arguments actually presented in the parties’ briefs. Contrary to the

assertions of the concurring opinion, we are in no way shifting “Article I, Section 8’s

exclusionary rule from a privacy rationale to one of deterrence.” Concurring Opinion

at 27. Indeed, by focusing on the narrow issue presented to the Court, we do not reach

any constitutional issue and, therefore, are not altering the constitutional landscape.

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constitutional and statutory protections extended to the interview conducted in her

home. For these reasons, we affirm the Superior Court’s judgment, which affirmed

Appellant’s judgment of sentence.

Chief Justice Saylor and Justices Todd, Donohue, Dougherty and Mundy join

the opinion.

Justice Wecht files a concurring opinion.

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