Com. v. Pena, R.

• Court: Superior Court of Pennsylvania
• Decided: August 26, 2016
• Docket: 46 MDA 2016
• Status: Unpublished

Opinion

J-S53042-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellant

v.

RICARDO A. PENA No. 46 MDA 2016

Appeal from the Order Entered December 16, 2015 in the Court of Common Pleas of Berks County Criminal Division at No(s):CP-06-CR-0003415-2015

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.: FILED AUGUST 26, 2016

The Commonwealth appeals from the order of the Berks County Court

of Common Pleas granting Appellee Ricardo A. Pena’s1 pretrial motion for

writ of habeas corpus and dismissing the charges of conspiracy and

violations of the Wiretap Act against him.2 The Commonwealth claims that

the trial court erred in concluding that a “smartphone” with voice recording

capabilities was used as a “telephone” and not an “electronic, mechanical or

other device” under the Wiretap Act. See 18 Pa.C.S. § 5702. The trial

court, in its Pa.R.A.P. 1925(a) opinion, observes that its decision is

inconsistent with Commonwealth v. Smith, 136 A.3d 170 (Pa. Super.

* Former Justice specially assigned to the Superior Court. 1 The Commonwealth’s appeal from the order dismissing the charges against Appellee’s codefendant, Jeffrey Nein, is docketed at 47 MDA 2016. 2 18 Pa.C.S. §§ 903(a)(1)-(2); 5703(1)-(3). J-S53042-16

2016), which was decided while this appeal was pending. See Trial Ct. Op.,

3/21/16, at 2.

Following our review, we agree with the Commonwealth and the trial

court that Smith governs the issue raised in this appeal and requires that

the trial court’s order be reversed.3 See Smith, 136 A.3d at 178 (“although

[the defendant] used an app on his smartphone, rather than a concealed

tape recorder, to surreptitiously record his conversation with [the

complainant], the result is the same. [The defendant’s] actions constituted

a violation of Section 5703.”)

Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/26/2016

3 Appellee did not file a brief in this appeal.

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