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2025 PA Super 19
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEMETRI MARKOS :
:
Appellant : No. 800 EDA 2024
Appeal from the Judgment of Sentence Entered February 6, 2024
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005005-2022
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HELENE ALDORASI-MARKOS :
:
Appellant : No. 737 EDA 2024
Appeal from the Judgment of Sentence Entered February 6, 2024
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0005013-2022
BEFORE: BOWES, J., STABILE, J., and KUNSELMAN, J.
OPINION BY KUNSELMAN, J.: FILED JANUARY 27, 2025
Demetri Markos and Helene Aldorasi-Markos 1 appeal from the
judgments of sentence imposed after they were convicted of harassment and
disorderly conduct2 involving their actions toward a neighbor. The neighbor
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1 We refer to Helene Aldorasi-Markos as Mrs. Aldorasi, as she does in her brief.
2 18 Pa.C.S. §§ 2709(a)(3), 5503(a)(3).
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recorded telephone calls she received from Mr. Markos. Both appellants
challenge the admission of those recordings under the Wiretapping and
Electronic Surveillance Control Act (Wiretap Act). 3 We hold that the appellants
waived their Wiretap Act issue because they did not follow the applicable rules
of criminal procedure, which required them to file a pretrial motion to
suppress. We reject the appellants’ remaining issues and affirm.
This case began with posts on a social media page for the borough of
Morton, Pennsylvania in the summer of 2022. Mrs. Aldorasi posted that her
son needed a kidney transplant, apparently hoping to find a donor. Another
resident of Morton posted that Mrs. Aldorasi herself would be a perfect match
and questioned why she would not donate a kidney to her own son.
Thereafter, on June 9, 2022, Mrs. Aldorasi sent a text message to Renee
Dickson, who also lived in Morton. She asked Mrs. Dickson why she was
speaking about her to the person who made the post. Unaware of the post,
Mrs. Dickson replied that she had no idea what Mrs. Aldorasi was talking about
and asked her to leave her and her family alone.
For the following month, Mrs. Aldorasi did not leave the Dicksons alone.
After Mrs. Dickson blocked Mrs. Aldorasi on her cell phone, Mrs. Aldorasi drove
by Mrs. Dickson’s home every day and followed the Dicksons to the park. Both
the appellants would honk their vehicles’ horns, scream, and yell outside Mrs.
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3 1978, Oct. 4, P.L. 831, No. 164, as amended, 18 Pa.C.S. §§ 5701–5782.
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Dickson’s house. In one instance, Mrs. Aldorasi drove slowly alongside Mrs.
Dickson while she was riding bikes with her daughter.
On July 5, 2022, Mrs. Aldorasi’s son went to Mrs. Dickson’s house to
confront her. Afterwards, Mrs. Aldorasi called Mrs. Dickson’s home telephone
number and said, “You’re fucking dead, bitch.”
On July 7, 2022, around 8:00 p.m., Mrs. Dickson called the police to
report that she heard a horn honk in front of her house. The police told the
appellants not to contact Mrs. Dickson.
On July 9, 2022, around 3:30 p.m., Springfield Township Police
Sergeant David R. Welsh responded to a call from Mrs. Dickson. While he was
speaking with her at her house, the appellants drove by in a truck, and
Sergeant Welsh yelled for them to stop. The appellants recorded the
interaction, which ended with Mr. Markos honking the truck’s horn for no
reason. Any time Sergeant Welsh tried to talk with the appellants about the
situation, they berated him and used obscene language.
Later that same day, Mr. Markos called Mrs. Dickson’s home telephone
at around 10:00 p.m., and again around noon the following day, July 10, 2022.
In the calls, Mr. Markos called Mrs. Dickson a bitch and accused the Dicksons
of stealing from their employers. Mrs. Dickson, who feared for her life,
recorded the two calls.
On July 11, 2022, Springfield Township Police charged the appellants
with, inter alia, harassment and disorderly conduct. The cases proceeded to
a preliminary hearing on November 4, 2022. At the preliminary hearing, Mrs.
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Dickson acknowledged that she recorded the July 9 and 10 calls from Mr.
Markos. All counts were held for court. Despite being aware of the recordings,
the appellants did not move to exclude them from evidence.
The case was tried jointly on February 6, 2024. The trial court convicted
the appellants of harassment and disorderly conduct. After trial, the court
sentenced the appellants to probation and fines. The appellants separately
moved for reconsideration, which the trial court denied on February 28, 2024.
The appellants timely appealed. 4 They and the trial court complied with
Pennsylvania Rule of Appellate Procedure 1925.
The main issue presented in both appeals is whether the trial court erred
by receiving Mrs. Dickson’s recordings of Mr. Markos’ telephone calls into
evidence. Preliminarily, the Commonwealth asserts that the appellants failed
to preserve this issue because they did not move pretrial to exclude either
recording under the Wiretap Act. Instead, both appellants objected to their
admission and use at trial. We agree that to preserve a Wiretap Act issue in
a criminal case, a defendant must present the issue in a pretrial motion to
suppress evidence, which neither appellant did here.
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4 Mrs. Aldorasi purported to appeal from the verdict, which was entered in
writing on February 21, 2024, after the announcement of both verdict and
sentence in open court on February 6, 2024. Mr. Markos appealed from the
judgment of sentence and denial of post-sentence motions. However, an
appeal in a criminal case “properly lies from the judgment of sentence made
final by the denial of post-sentence motions.” Commonwealth v.
Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc).
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Whether a Wiretap Act challenge is preserved involves an issue of
statutory interpretation, for which we “ascertain and give effect to the General
Assembly’s intent.” Commonwealth v. Strunk, 325 A.3d 530, 545 n.9 (Pa.
2024) (citing 1 Pa.C.S. § 1921(a)). The Wiretap Act “emphasizes the
protection of privacy” in wire, oral, and electronic communications, including
telephone calls. Commonwealth v. Spangler,
809 A.2d 234, 237 (Pa.
2002). The Act generally prohibits both recording a telephone call and
disclosing the contents of an unlawfully recorded call. 18 Pa.C.S. §§ 5702,
5703; see, e.g., Commonwealth v. Deck,
954 A.2d 603 (Pa. Super.
2008). The Act specifies exceptions, including for a victim who reasonably
suspects “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 & 5704(17). If a person has obtained knowledge of the contents of a
wire, electronic, or oral communication by means authorized by the Wiretap
Act, she may testify about those contents in a criminal case. 18 Pa.C.S.
§ 5717(b). In section 5721.1, the Wiretap Act further provides for disclosure
of intercepted communications in evidence in any criminal proceeding. The
Act provides, in relevant part:
(a) Disclosure in evidence generally.--
(1) Except as provided in paragraph (2), no person shall
disclose the contents of any wire, electronic or oral
communication, or evidence derived therefrom, in any
proceeding in any court . . . of this Commonwealth.
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(2) Any person who has obtained knowledge of the contents
of any wire, electronic or oral communication, or evidence
derived therefrom, which is properly subject to disclosure
under section 5717 . . . may also disclose such contents or
evidence in any matter relating to any criminal . . .
proceedings in any court . . . . Once such disclosure has
been made, then any person may disclose the contents or
evidence in any such proceeding.
(3) Notwithstanding the provisions of paragraph (2), no
disclosure in any such proceeding shall be made so long as
any order excluding such contents or evidence pursuant to
the provisions of subsection (b) is in effect.
18 Pa.C.S. § 5721.1(a).
In the event of an unlawful recording, “the Act provides a statutory
exclusionary rule that authorizes the suppression of interceptions that were
not carried out in compliance with Section 5704’s exceptions.” Deck, 954
A.2d at 607. Specifically, the Act allows an aggrieved person to move to
exclude a recording that was made without a section 5704 exception and
without a statutory order of authorization or approval:
(b) Motion to exclude.--Any aggrieved person who is a party to
any proceeding in any court . . . 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).
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18 Pa.C.S. § 5721.1(b)(1). “The motion shall be made in accordance with the
applicable rules of procedure governing such proceedings.” 18 Pa.C.S.
§ 5721.1(c)(1).
In a criminal case, the applicable procedural rules require a defendant
to include any motion for suppression of evidence in an omnibus pretrial
motion for relief. Pa.R.Crim.P. 578, 581. A defendant who does not file a
timely motion under these rules waives the issue of suppression. Pa.R.Crim.P.
581(B); see Commonwealth v. Baumhammers, 960 A.2d 59, 76–77 (Pa.
2008). Because a motion to exclude evidence under the Wiretap Act must
comply with applicable procedural rules, we hold that the waiver provision of
Rule 581(B) applies to Wiretap Act challenges. A criminal defendant who does
not file a timely motion under Section 5721.1(b) therefore waives any claim
that could have been included in such a motion.
When a criminal defendant appeals the denial of a pretrial motion to
exclude evidence under the Wiretap Act, the standard and scope of appellate
review is identical to that of any other suppression issue. See, e.g.,
Commonwealth v. Shreffler, 201 A.3d 757, 763 (Pa. Super. 2018). We
review “only the evidence presented at the suppression hearing” to determine
“whether the suppression court’s factual findings are supported by the record
and whether the legal conclusions drawn from those facts are correct.”
Id.
(quoting Commonwealth v. Freeman,
150 A.3d 32, 34–35 (Pa. Super.
2016)). However, if there is no pretrial suppression hearing, then there are
no factual findings to review separate from the trial record. A criminal
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defendant’s failure to move to exclude evidence under the Wiretap Act before
trial thus deprives an appellate court of a record to review.
Here, the appellants’ failure to litigate the Wiretap Act issue before trial
precludes our review. The appellants could have moved to exclude the
recordings under subsection 5721.1(b)(1) by contending that Mrs. Dickson
recorded Mr. Markos’ calls without any applicable exception under section
5704 or an order under section 5712, 5713(a), or 5713.1(b). At a pretrial
suppression hearing, the Commonwealth could have presented evidence that
an exception, such as subsection 5704(17), applied. The legality of the
recordings presents a fact-intensive inquiry that is distinct from the appellants’
guilt. Because neither of the appellants moved to exclude the recordings
before trial, the trial court did not hold a hearing to resolve the distinct Wiretap
Act issue. So, we have no suppression record to review. Therefore, both
appellants waived their challenge under the Wiretap Act. 5
The appellants’ remaining issues fail. Both argue that court’s admission
of the recordings at trial was not harmless error. Because the appellants
waived their claim that the recordings should have been suppressed, we do
not reach the harmlessness issue. Mrs. Aldorasi also challenges the weight of
the evidence, claiming that the improper recordings buttressed Mrs. Dickson’s
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5 The appellants’ trial objections would suffice to preserve claims of error
under the Rules of Evidence. See Pa.R.E. 103(a). However, neither appellant
persuades us that the trial court abused its discretion under evidentiary
principles. See Trial Court Opinion, 4/22/24, at 6 (suggesting that the
recordings were relevant, probative, and admissible).
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otherwise incredible testimony, prejudicing the trial court. Again, because
Mrs. Aldorasi waived her claim that the recordings were improperly admitted,
we reject her weight claim.
Judgments of sentence affirmed.
Date: 1/27/2025
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