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[U] Commonwealth v. Rosa

Superior Court of Pennsylvania

July 5, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
ANGEL ROSA, Appellee COMMONWEALTH OF PENNSYLVANIA, Appellant
v.
JOHN J. FRANK, Appellee

NON-PRECEDENTIAL DECISION

Appeal from the Order Entered June 18, 2010 In the Court of Common Pleas of Lebanon County Criminal Division at No. CP-38-CR-0000250-2010

BEFORE: BENDER, DONOHUE and OTT, JJ.

MEMORANDUM

BENDER, J.

This matter comes before us on remand from the Supreme Court of Pennsylvania for reconsideration in light of that Court's recent holding in Commonwealth v. Cruttendon, 58 A.3d 95 (Pa. 2012) (Cruttendon II). In that decision, our Supreme Court reversed the disposition of a panel of this Court, holding that an investigating officer's use of an informant's mobile phone while posing as the informant in text messages, did not constitute an interception and was not a violation of Pennsylvania's Wiretapping and Electronic Surveillance Control Act. Because we had concluded to the contrary in this case, in reliance on the panel's disposition in Cruttendon, 976 A.2d 1176 (Pa. Super. 2009) (Cruttendon I), the high Court vacated our disposition and remanded the matter for further analysis. Accordingly, we augment our consideration here in reliance on the Supreme Court's holding. See Cruttendon II, supra.

The Commonwealth of Pennsylvania appeals the trial court's orders suppressing evidence of unlawful drug sales obtained by an officer of the Lebanon County Drug Task Force when the officer answered cell phones belonging to the two defendants and pretended to be the phones' owners. The trial court concluded that the officer's conduct constituted an illegal interception under Pennsylvania's Wiretap Act. The Commonwealth contends that no interception occurred, as the officer was a direct participant in the respective phone conversations. Upon supplementary review, in light of Cruttendon II, we conclude that the trial court erred in suppressing the evidence, and we vacate its orders.

The trial court, the Honorable Bradford Charles, presided at John J. Frank's suppression hearing and summarized the relevant factual and procedural history as follows:

On October 2, 2009, the Lebanon County Drug Task Force seized a cellular telephone as a result of a narcotics investigation. After seizing the telephone, Detective Adam Saul noticed that it would ring frequently. On October 9, 2009, Detective Saul answered an incoming call and said: "What's up?" A male on the other end of the phone identified himself as "Angel" and asked: "Can I get some bud?" Detective Saul responded in the affirmative and arranged to meet the prospective purchaser of marijuana at the Lebanon Budget Motel.
Later on October 9, 2009, Detective Saul and Detective Ryan Mong waited at the Budget Motel parking Lot. They encountered a silver sedan vehicle that was occupied by [defendant Frank]. Detective Saul arrested [Frank] for attempting to order marijuana. In [Frank's] possession was a cellular telephone with a number identical to the one that was used to make the call earlier in the day.

On February 22, 2010, [Frank] filed a Pre-Trial Motion to Suppress Evidence. A hearing was conducted on March 31, 2010. At the hearing, the District Attorney and [Frank's] attorney stipulated the following additional facts:

(1) That Detective Saul did not obtain a search warrant prior to using the seized telephone;
(2) That Detective Saul did not obtain a Court Order pursuant to the Pennsylvania Wiretap Act in order to use the seized phone;
(3) That Detective Saul did not obtain consent from the owner of the seized phone to use it in order to communicate with [Frank] or anyone else.

Trial Court Opinion, 5/12/10, at 2-3. At the conclusion of the evidentiary hearing, Judge Charles determined that Detective Saul's conduct in using the cell phone with neither a wiretap warrant nor the consent of its owner ran afoul of this court's holding in Cruttenden I. Accordingly, the court granted Frank's motion and suppressed all evidence obtained as a result of Detective Saul's use of the cell phone.

Frank's case was consolidated for appellate review with that of Angel Rosa. The Honorable John C. Tylwalk presided at Rosa's suppression hearing and summarized the factual and procedural history of that case as follows:

On November 19, 2009, members of the Lebanon County Drug Task Force seized a cellular telephone as part of a narcotics investigation. During an examination of the cellular phone, Detective Adam Saul . . . noticed several new messages and recent calls. Several of the ...

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