Com. v. Pena, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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