Com. v. Smith, T. , 136 A.3d 170 ( 2016 )

J-A34028-15
2016 Pa. Super. 43
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
TALBOT S. SMITH
Appellee No. 1200 MDA 2015
Appeal from the Order Entered June 30, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0005217-2014
BEFORE: PANELLA, J., OTT, J., and JENKINS, J.
OPINION BY OTT, J.: FILED FEBRUARY 19, 2016
The Commonwealth appeals from the order entered June 30, 2015, in
the York County Court of Common Pleas, granting Talbot S. Smith’s pre-trial
motion for habeas corpus relief, and dismissing the sole charge filed against
him. Smith was charged with interception of oral communications1 after he
surreptitiously recorded a conversation with his former boss using a “voice
memo” application (“app”) on his smartphone.2 On appeal, the
Commonwealth contends the trial court erred in concluding that Smith’s use
of the app on his smartphone did not constitute use of a “device” to
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1
See 18 Pa.C.S. § 5703(1).
2
A “smartphone” is a “modern day cellular telephone” with “computer-like
capabilities.” Commonwealth v. Stem, 96 A.3d 407, 409 (Pa. Super.
2014). In the present case, Smith’s smartphone, manufactured by Apple
Inc., is referred to as an iPhone.
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intercept communications under the statute. For the reasons set forth
below, we are constrained to reverse the order of the trial court, and remand
for further proceedings.
The facts and procedural history underlying this appeal are aptly
summarized by the trial court as follows:
[Smith] worked in the employ of the Unilife Corporation as
the Vice President of Integrated Supply Chain until June 14,
2012. On that date, [Smith] was relieved of his duties pending a
meeting with his supervisor, Ramin Mojdeh (“Mojdeh”), which
was scheduled for June 21, 2012, to discuss his future
responsibilities. Between June 14 and June 21, 2012, [Smith]
filed an internal ethics complaint, including alleged actions by
Mojdeh, using Unilife’s third-party reporting site.
During the meeting on June 21, 2012, [Smith] avers that
he noticed a copy of the ethics complaint that he filed sitting on
Mojdeh’s desk. At that point, [Smith] began recording the
conversation with his iPhone’s “Voice Notes” application. Mojdeh
was unaware at the time that [Smith] recorded the conversation.
In mid-July 2012, [Smith] filed an ethics complaint with
the SEC. His employment was terminated by Unilife, and,
resultantly, [Smith] filed a civil suit against his employer. The
existence of the recording was uncovered by Unilife during
discovery. On June 20, 2014, after a Unilife attorney contacted
the Northern York County Regional Police Deparatment, [Smith]
was charged under 18 PA.C.S.A. § 5703(1) (relating to the
interception of communications).
At [Smith’s] preliminary hearing on August 12, 2014, the
charge was held over for court. [Smith] filed an Omnibus Motion
for Pre-Trial Relief, which included a Petition for Writ of Habeas
Corpus, on January 14, 2015. [Smith] and the Commonwealth
were ordered to file briefs on this matter. [Smith] filed a brief in
support of his motion on March 4, 2015; the Commonwealth
filed a brief in opposition to [Smith’s] motion on March 27, 2015.
Trial Court Opinion, 6/30/2015, at 1-2.
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On June 30, 2015, the trial court entered an order granting Smith’s
request for habeas corpus relief, and dismissing the sole charge filed against
him. This Commonwealth appeal follows.3 See Commonwealth v. Hess,
414 A.2d 1043, 1047 (Pa. 1980) (“[T]he Commonwealth may appeal from
an order discharging a defendant upon a writ of habeas corpus[.]”).
On appeal, the Commonwealth contends the trial court erred in
granting Smith’s request for habeas corpus relief.4 Specifically, the question
presented is whether Smith’s use of a “voice memo” app on his smartphone
to record his conversation with Mojdeh was prohibited by the Wiretapping
and Electronic Surveillance Control Act (“Wiretap Act”),5 and therefore,
supports a charge of interception of oral communications pursuant to Section
5703 of the Act. See 18 Pa.C.S. § 5703.
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3
On July 14, 2015, the trial court ordered the Commonwealth to file a
concise statement of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The Commonwealth complied with the court’s directive and filed a
concise statement on July 20, 2015.
4
“[A] petition for writ of habeas corpus is the proper vehicle for challenging
a pre-trial finding that the Commonwealth presented sufficient evidence to
establish a prima facie case.” Commonwealth v. Carbo, 822 A.2d 60, 67
(Pa. Super. 2003) (en banc) (quotation omitted). “The decision to grant or
deny a petition for writ of habeas corpus will be reversed on appeal only for
a manifest abuse of discretion.” Commonwealth v. Black, 108 A.3d 70,
77 (Pa. Super. 2015) (quotation omitted).
5
18 Pa.C.S. §§ 5701-5782.
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Because the issue raised herein is one of statutory construction, our
review is guided by the following principles, derived from the Statutory
Construction Act (“SCA”), 1 Pa.C.S. § 1501 et seq.
The SCA instructs that “the object of all interpretation and
construction of statutes is to ascertain and effectuate the
intention of the General Assembly. Every statute shall be
construed, if possible, to give effect to all its provisions.” 1
Pa.C.S.A. § 1921(a). Further, “[w]hen 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.” 1 Pa.C.S.A.
§ 1921(b). When, however, the words of the statute are not
explicit, the intention of the General Assembly may be
ascertained by considering other matters. 1 Pa.C.S.A. §
1921(c).
Under the SCA, “[w]ords and phrases shall be construed
according to the rules of grammar and according to their
common and approved usage[.]” 1 Pa.C.S.A. § 1903(a). If the
General Assembly defines words that are used in a statute, those
definitions are binding. Commonwealth v. Kimmel, 523 Pa.
107, 565 A.2d 426, 428 (1989). A court may presume that in
drafting the statute, the General Assembly intended the entire
statute to be effective. 1 Pa.C.S.A. § 1922(2). Thus, when
construing one section of a statute, courts must read that
section not by itself, but with reference to, and in light of, the
other sections. Commonwealth v. Mayhue, 536 Pa. 271, 639
A.2d 421, 439 (1994).
Commonwealth v. Deck, 954 A.2d 603, 606-607 (Pa. Super. 2008),
appeal denied, 964 A.2d 1 (Pa. 2009).
Section 5703 of the Wiretap Act provides that “a person is guilty of a
felony of the third degree if he … intentionally intercepts, endeavors to
intercept, or procures any other person to intercept or endeavor to intercept
any wire, electronic or oral communication.” 18 Pa.C.S. § 5703(1)
(emphasis supplied).
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For our purposes, the Wiretap Act defines “intercept” as “[a]ural or
other acquisition of the contents of any wire, electronic or oral
communication through the use of any electronic, mechanical or other
device.” 18 Pa.C.S. § 5702 (emphasis supplied). The Act further defines
an “electronic, mechanical or other device” as, inter alia:
Any device or apparatus, including, but not limited to, an
induction coil or a telecommunication identification interception
device, that can be used to intercept a wire, electronic or oral
communication other than:
(1) Any telephone or telegraph instrument, equipment or
facility, or any component thereof, furnished to the
subscriber or user by a provider of wire or electronic
communication service in the ordinary course of its
business, or furnished by such subscriber or user for
connection to the facilities of such service and used in the
ordinary course of its business, or being used by a
communication common carrier in the ordinary course of
its business, or by an investigative or law enforcement
officer in the ordinary course of his duties. …
Id. (emphasis supplied).
Moreover, we must bear in mind “Pennsylvania’s [] Wiretap Act
emphasizes the protection of privacy,” and, therefore, “the provisions of the
Wiretap Act are strictly construed.” Commonwealth v. Spangler, 809
A.2d 234, 237 (Pa. 2002).
In the present case, the trial court concluded Smith’s smartphone did
not constitute a “device” under the plain language of the Wiretap Act, based
upon both principles of statutory construction, and the Pennsylvania
Supreme Court’s decision in Commonwealth v. Spence, 91 A.3d 44 (Pa.
2014). See Trial Court Opinion, 6/30/2015, at 4-6. The trial court
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emphasized that the Supreme Court in Spence determined all telephones
are exempt under the statute, regardless of “the use to which the telephone
is being put[.]” Id. at 5, quoting Spence, supra, 91 A.3d at 47 (emphasis
in original). The court further explained “the broad language of the Wiretap
Act mandates the conclusion that [Smith’s] use of his iPhone’s ‘voice memos’
application is the use of a ‘telephone … or [a] component thereof.’” Id. at 6.
The Commonwealth asserts, however, the trial court’s analysis is
incorrect. Rather, it maintains the “voice memo” app, used by Smith to
make an audio recording, was “analogous to a pre-digital ‘tape recorder.’”
Commonwealth’s Brief at 8. Recognizing the plain language of the Act
excludes telephones in its definition of interception “devices,” the
Commonwealth, nevertheless, argues the legislature did not intend the
absurd result which will occur if the trial court’s ruling is upheld.
Emphasizing the rapidly evolving technological advances of the modern day
smartphone, “inconceivable at the time the applicable laws were enacted,”
the Commonwealth states “one cannot approach modern cases while
wearing blinders.” Id. at 12. Accordingly, it asserts “the modern cell phone
must be characterized by [the] function it is performing, and the capacity in
which the phone is being used at any given time.” Id. Furthermore, the
Commonwealth distinguishes the Supreme Court’s decision in Spence,
noting that there was “no audio recording made of the conversation” in that
case, where a state trooper simply “listened to the conversation on speaker
phone, as it occurred on the informant’s cellular phone.” Id. at 14-15.
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Rather, the Commonwealth asserts, in the case before us, Smith “recorded a
conversation with Dr. Mojdeh … using a ‘tape recorder’ on his ‘mini
computer.’” Id. at 17.
We begin our discussion by reiterating, “[t]he object of all
interpretation and construction of statutes is to ascertain and effectuate the
intention of the General Assembly.” 1 Pa.C.S. § 1921(a). Here, “[t]he focus
and purpose of the [Wiretap Act] is the protection of privacy.”
Commonwealth v. De Marco, 578 A.2d 942, 949 (Pa. Super. 1990)
(emphasis omitted) (“[I]t is readily apparent that our legislature weighed
society’s interests in the personal privacy of individuals against society’s
interests in having all relevant evidence thus obtained presented in
administrative, civil, and criminal proceedings, and found that the balance
favored the personal privacy interests of individuals.”). Therefore, any
surreptitious recording of a conversation that, by all accounts, would appear
to be private, is a violation of the Act.
However, as noted by the trial court, as well as Smith, the plain
language of the statute exempts telephones, or “any components thereof”
from the definition of an interception “device.” 18 Pa.C.S. § 5702. While we
may not disregard clear and unambiguous language in a statute in order to
pursue its “spirit,” we may consider other matters to determine the
legislature’s intention when the words are not “explicit.” 1 Pa.C.S. §
1921(b)-(c). Further, in determining the legislature’s intent in enacting a
statute, we may presume, inter alia, “the General Assembly does not intend
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a result that is absurd, impossible of execution or unreasonable.” 1 Pa.C.S.
§ 1922(1).
In the present case, the trial court’s interpretation of the Act leads to
an absurd result. Disregarding the fact that the smartphone technology at
issue was not available at the time the relevant subsection was enacted,6
Smith improperly, electronically, recorded his private conversation with
Mojdeh, without Mojdeh’s knowledge or consent. The fact that Smith used
an app on his smartphone, rather than a tape recorder, to do so, is of no
moment. The surreptitious recording of the conversation violated the
provisions of the Act.7
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6
The telephone exemption in Section 5702 was added to the statute in
1988. See 1988, Oct. 21, P.L. 1000, No. 115, § 3, imd. effective. However,
“[t]he first smartphone was designed by IBM and sold by BellSouth … in
1993.” http://www.britannica.com/technology/smartphone.
7
We note the conversation recorded by Smith was an “oral communication,”
as opposed to a “wire” or “electronic communication.” An “oral
communication” is defined in the Act 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.” 18
Pa.C.S. § 5702. Neither the trial court, nor Smith, contend Mojdeh had an
expectation his conversation with Smith was “subject to interception.” Id.
Compare Commonwealth v. Dewar, 674 A.2d 714, 719 (1996) (finding
taped conversation between defendant and complainant, working with
police, was admissible at defendant’s trial because it was not an “oral
communication” under the Act; while defendant had a reasonable
expectation of privacy “talking to [the complainant] in his office with the
door closed,” he did not have an expectation that the conversation would not
be intercepted since the defendant, himself, also secretly recorded the
conversation), appeal denied, 680 A.2d 1159 (Pa. 1996). Therefore, we will
presume, for purposes of this appeal, the taped conversation was an “oral
communication” as defined in the Act.
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However, both Smith and the trial court assert the Supreme Court’s
holding in Spence, supra, compels a different result. In that case, a state
trooper directed a confidential informant to call his drug supplier and
arrange a purchase. The informant did so, and activated the speakerphone
function on his cell phone so that the trooper could listen to the
conversation. The defendant was later arrested when he appeared to
complete the sale. Spence, supra, 91 A.3d at 44-45.
The defendant filed a pretrial motion to suppress the evidence against
him based on a violation of the Wiretap Act, arguing the trooper’s actions in
directing the informant to call the defendant and listening to the
conversation over speakerphone, “constituted an unlawful interception of the
conversation[.]” Id. at 45. However, like Smith here, the Commonwealth,
argued the cell phone was exempted as an interception “device” under the
definition in Section 5207. The trial court rejected that argument, and
granted the motion to suppress.
In an unpublished decision, a panel of this Court affirmed, concluding
the cell phone was not a “device” with respect to the informant, but was a
“device” with respect to the trooper “because the service provider had not
furnished it to him.” Id. See 18 Pa.C.S. § 5702 (defining “electronic,
mechanical, or other device as “[a]ny device … that can be used to intercept
a wire, electronic or oral communication other than … [a]ny telephone …
furnished to the … user by a provider of wire or electronic communication
service in the ordinary course of its business”). Therefore, this Court found
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that because the trooper was not a “furnished ‘subscriber or user’ of the cell
phone, [his] use was an unlawful interception under the provisions of the
Act.” Spence, supra, 91 A.3d at 45 (footnote omitted).
On appeal, the Supreme Court reversed, stating there was no basis to
categorize the cell phone differently depending upon who was listening to
the conversation. Id. at 47. The Court explained:
The intent of the General Assembly may be discerned from the
plain language of the words employed in the statute. The cell
phone over which the trooper heard the conversations between
the [informant] and [the defendant] clearly was a telephone
furnished to the subscriber or user by a provider of wire or
electronic communication service in the ordinary course of its
business. The language of the statute states that telephones are
exempt from the definition of device; the language of the statute
does not state that it is the use to which the telephone is being
put which determines if it is considered a device. We reject the
statement by the Superior Court, that only certain uses of a
telephone may exempt the telephone from being considered a
device, as being contrary to the plain language contained in the
definitional section of the Wiretap Act. Accordingly, we hold that
a state trooper does not violate the Wiretap Act when he listens
through the speaker on an informant’s cellular telephone as the
informant arranges a drug deal.
Id. (emphasis in original; citation omitted).
Smith seizes upon the preceding language to assert that, “[u]nder
Spence, any use of a telephone to ‘intercept’ a conversation is exempted
from the Wiretap Act.” Smith’s Brief at 14. He emphasizes the Court “could
have provided specific examples of what ‘uses of a cell phone’ would not be
exempt from the definition of device,” but it did not do so. Id. at 15. Smith
further states, in the absence of any “significant advances to cell phone
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technology” in the months since Spence was decided, we are “left with a
ruling from the Pennsylvania Supreme Court that exempts cellphones, and
any use thereof, from the definition of device.” Id.
We find the holding in Spence is not as expansive as Smith proposes.
Despite the Supreme Court’s statement that the statute exempts telephones
from the definition of an interception device regardless of their use, we
must bear in mind that the cell phone at issue in Spence was used as a
telephone. Indeed, the Trooper listened to – but did not record – the
telephone conversation between the informant and the defendant via the
informant’s cell phone’s speaker function. As the Commonwealth notes in its
brief: “The Trooper was akin to an eavesdropper overhearing a conversation
between two other individuals.” Commonwealth’s Brief at 15. However, in
the present case, Smith did not use his smartphone as a telephone. Rather,
he essentially used “a ‘tape recorder’ on his ‘mini computer.’” Id. at 17.
Accordingly, we find Spence distinguishable on its facts.
Smith also relies upon the recent decision of this Court in
Commonwealth v. Diego, 119 A.3d 370 (Pa. Super. 2015), to support his
position. In that case, police detectives traced stolen guns to an individual
named Gary Still. Still told the detectives he traded several of those guns to
the defendant in exchange for heroin, and agreed to set up a heroin
purchase with the defendant. He did so using a text messaging service on
his iPad tablet computer. Still relayed the messages he received from the
defendant to the detectives, who were standing nearby. When the
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defendant appeared for the sale, the detectives arrested him. Id. at 372-
373.
The trial court subsequently granted the defendant’s motion to
suppress based on violations of the Wiretap Act. On appeal, the
Commonwealth argued, inter alia, that Still’s iPad was not a “device” under
the Act.8 Specifically, the Commonwealth asserted that, because Still used a
text messaging feature on his iPad, which he sent via his cell phone service
provider, the iPad was “the functional equivalent of a telephone under the
statutory definition set forth in Section 5702.” Id. at 375.
A panel of this Court disagreed, explaining:
The Spence decision did not in any way broaden the telephone
exception to the definition of what constitutes an “electronic,
mechanical, or other device” under the Wiretap Act. An iPad is
not a telephone or telegraph instrument under a common
understanding of the relevant terms, and no reasonable person
familiar with the now ubiquitous technology of tablet computers
would misidentify an iPad as a mere telephone. The fact that an
iPad or any other tablet computer can perform functions similar
or identical to a modern cellular phone is not dispositive, as the
Spence Court’s holding implies. The trend of convergence
between modern computers and telephones aside, at this time
the technologies in question remain different not only by degree,
but also in kind.
Id. The panel also declined to “so radically expand the definition of
‘telephone’ under the Wiretap Act … without the benefit of further legislative
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8
Interestingly, we note that in both Spence and Diego, the Commonwealth
took the same position as Smith does in the present case, asserting the cell
phone in Spence and the iPad in Diego were exempted from the definition
of interception “devices.”
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input.” Id. at 376. The Court commented: “it is, at best, a dubious
proposition that the authors of the 1978 Wiretap Act intended ‘telephone’ to
include iPads, as the first tablet computers were not invented until the late
1980’s.” Id.
Smith argues, here, the trial court’s decision, similarly, did not
broaden the definition of “device” under the Act. Smith’s Brief at 16.
Rather, Smith’s use of the “voice memo” app on his cell phone to record the
conversation with Mojdeh fell within the exemption in the definition of
“device” for “[a]ny telephone … or any component thereof[.]” 18 Pa.C.S. §
5702.
Again, we conclude Smith has extracted a broader holding from Diego
than this Court intended. The facts in Diego were clear. The “device” used
to intercept the communication at issue was an iPad tablet computer, not a
telephone. Therefore, the “device” did not fall within the exemption for
“telephones” under Section 5702. While the “device” at issue herein was a
cell phone, it was not being used, by any measure, as a telephone.
Therefore, we find the decision in Diego distinguishable.
Lastly, Smith warns of the danger of characterizing his use of his cell
phone in the present case as a violation of the Act. He notes Section 5705
of the Wiretap Act prohibits a person from “[i]ntentionally possess[ing] an
electronic, mechanical or other device, knowing or having reason to know
that the design of such device renders it primarily useful for the purpose of
the surreptitious interception of a wire, electronic or oral communication.”
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18 Pa.C.S. § 5705(1). He argues, “[i]f the Act, particularly the term
‘device[’] is interpreted by this Court to include a cellular phone’s voice
recording feature then every person in possession of an iPhone in
Pennsylvania would arguably be in violation of the Act.” Smith’s Brief at 17.
We disagree. If Smith’s fears were justified, every person who
possessed a tape recorder would be in violation of the Act. That is simply
not the case. A “voice memo” app on an iPhone is not designed to be
“primarily useful for the purpose of the surreptitious interception of a
wire, electronic or oral communication.” 18 Pa.C.S. § 5705(1) (emphasis
supplied). Accordingly, Smith’s argument fails.
We reiterate that, “[g]enerally, the Wiretap Act prohibits the
interception, disclosure, or use of any wire, electronic, or oral
communication.” Commonwealth v. Kuder, 62 A.3d 1038, 1044 (Pa.
Super. 2013), citing 18 Pa.C.S. § 5703, appeal denied, 114 A.3d 416 (Pa.
2015). To that end, Smith does not contend that, if he had surreptitiously
recorded his conversation with Mojdeh using a tape recorder, he would not
have violated Section 5703.9 Furthermore, it is clear that had Smith spoken
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9
Indeed, as the Commonwealth proposes, “[i]t would be entirely
unreasonable to interpret the Act in such a way that an individual who
records a conversation on a tape recorder, or other similar device would be
held criminally liable, while that same person recording a conversation on a
smart phone application would not be sanctioned.” Commonwealth’s Brief at
14.
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with Mojdeh on his telephone, and recorded the conversation on an
answering machine, he would also have committed a violation of Section
5703. See Deck, supra (holding trial court properly precluded introduction
of sexual assault victim’s audio recording of telephone conversation with
defendant; Section 5703 prohibits interception of wire communications
without the speaker’s knowledge).
Nevertheless, the facts of this case present a different scenario,
created, in part, by the technological advances of today’s cellular phones.
Indeed, the United States Supreme Court has observed:
The term “cell phone” is itself misleading shorthand; many of
these devices are in fact minicomputers that also happen to have
the capacity to be used as a telephone. They could just as easily
be called cameras, video players, rolodexes, calendars, tape
recorders, libraries, diaries, albums, televisions, maps, or
newspapers.
Riley v. California, 134 S. Ct. 2473, 2489 (U.S. 2014) (holding police must
secure a warrant before searching data on cell phone seized incident to
arrest). Accordingly, we find that, although Smith used an app on his
smartphone, rather than a concealed tape recorder, to surreptitiously
record his conversation with Mojdeh, the result is the same. His actions
constituted a violation of Section 5703.
Because we conclude the trial court erred when it determined that
Smith’s use of a “voice memo” app on his smartphone did not constitute an
interception “device” under the Wiretap Act, we are constrained to reverse
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the order of the trial court granting Smith’s request for habeas corpus relief,
and remand for further proceedings.10
Order reversed, and case remanded for further proceedings.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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10
We decline to comment on the decision of the Commonwealth to
prosecute Smith for his actions, which, by all accounts, appear to have been
taken to protect his job and opportunities for future employment.
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