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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NON-PRECEDENTIAL DECISION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 missed calls were from a phone number identified as "Cable."
At approximately 4:46 p.m. on November 19, 2009, the number identified as "Cable" called the cellular phone that had been seized by the Lebanon County Drug Task Force. Detective Saul answered the call and inquired "What's up?" A male voice asked "Are you home?" Detective Saul responded, "This is J, I'm not home, how bout 12th and Cumberland?" The male voice stated, "I can do that." Detective Saul then told him to come to the Budget Motel parking lot.
Approximately twenty minutes later, Detective Saul placed a telephone call utilizing the seized cellular phone to the number identified as Cable. A male answered and said "I'll be there in a minute, I'm waiting for a ride. You said 12th and Cumberland?" Detective Saul responded, "Yeah, at the Budget." The male replied, "You want me to call when I'm there?" Detective Saul said, "Yeah, how much you need?" The male responded, "A twenty, is that alright?" Detective Saul replied, "Yeah."
At approximately 5:29 p.m., Detective Saul received an incoming call on the cellular telephone, which had been seized, from the number identified as Cable. A male voice indicated, "I'm on my way now." At approximately 5:50 p.m., Detective Saul received another call, on the cellular telephone which had been seized, from the number identified as Cable. A male voice stated, "I'm here." As Detective Saul answered the call, a Ford Explorer turned into the parking lot of the Budget Motel. A male passenger in the front seat of the Ford Explorer was on the telephone as the vehicle entered the parking lot. Members of the Lebanon County Drug Task Force approached the vehicle.
The front seat passenger was identified as [Rosa]. Detective Saul used the cellular telephone which had been seized to call the number identified as Cable. The cell phone in [Rosa's] pocket rang.

Trial Court Opinion, 6/18/10, at 2-3.

At Rosa's suppression hearing, like the parties in the companion case, Rosa and the Commonwealth stipulated the following facts:

1. Detective Saul did not obtain a search warrant to access and answer incoming calls to the seized cellular phone.
2. Detective Saul did not obtain a court order pursuant to the Pennsylvania Wiretap Act as to the seized cellular phone.
3. Detective Saul did not obtain consent from the owner of the seized cellular telephone to use it to set up the attempted drug transaction.

Id. at 1. At the conclusion of the suppression hearing, Judge Tylwalk, like Judge Charles, found Detective Saul's use of the cell phone violative of Pennsylvania's Wiretap Act and granted Rosa's suppression motion.

The Commonwealth has now filed this appeal raising the following question for our review in both appeals:

A. WHETHER THE TRIAL COURT ERRED IN FINDING THAT THE CONDUCT OF THE POLICE IN ANSWERING A SEIZED CELLULAR PHONE CONSTITUTED AN UNLAWFUL INTERCEPTION UNDER PENNSYLVANIA'S WIRETAP ACT?

Brief for Appellant at 5.

Our analysis of this question begins with the presumption that "[w]here a motion to suppress has been filed, the burden is on the Commonwealth to establish by a preponderance of the evidence that the challenged evidence is admissible." Commonwealth v. Ruey, 892 A.2d 802, 807 (Pa. 2006) (Opinion Announcing the Judgment of the Court) (quoting Commonwealth v. DeWitt, 608 A.2d 1030, 1031 (Pa. 1992)). If the trial court denies the motion, we must determine "whether the record supports the trial court's factual findings and whether the legal conclusions drawn therefrom are free from error." Commonwealth v. McClease, 750 A.2d 320, 323 (Pa. Super. 2000). If the appeal is filed by the Commonwealth, we may consider "only the evidence from the defendant's witnesses together with the evidence of the prosecution that, when read in the context of the entire record, remains uncontradicted." Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008). "Where the record supports the findings of the suppression court, we are bound by those facts and may reverse only if the court erred in reaching its legal conclusions based upon the facts." McClease, 750 A.2d at 323-24.

Pennsylvania's "Wiretapping and Electronic Surveillance Control Act, " 18 Pa.C.S. § 5701, et seq., more commonly known as the Wiretap Act, prescribes, inter alia, the extent to which law enforcement officers may intercept the oral communications of others without their consent or knowledge. Subject to exceptions enumerated elsewhere in the statute, Section 5703 broadly prohibits interception of oral communication as follows:

§ 5703. Interception, disclosure or use of wire, electronic or oral communications

Except as otherwise provided in this chapter, a person is guilty of a felony of the third degree if he:

(1) intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication;
(2) intentionally discloses or endeavors to disclose to any other person the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know that the information was obtained through the interception of a wire, electronic or oral communication; or
(3) intentionally uses or endeavors to use the contents of any wire, electronic or oral communication, or evidence derived therefrom, knowing or having reason to know, that the information was obtained through the interception of a wire, electronic or oral communication.

18 Pa.C.S. § 5703. The statute also defines the following terms pertinent to the investigations at issue here:

"Electronic communication." Any transfer of signs, signals, writing, images, sounds, data or intelligence of any nature transmitted in whole or in part by a wire, radio, electromagnetic, photoelectronic or photo-optical system, except:
(1) Deleted.
(2) Any wire or oral communication.
(3) Any communication made through a tone-only paging device.
(4) Any communication from a tracking device (as defined in this section).
"Intercept." Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device. The term shall include the point at which the contents of the communication are monitored by investigative or law enforcement officers.
"Oral communication." Any oral communication uttered by a person possessing an expectation that such communication is not subject to interception under circumstances justifying such expectation. The term does not include any electronic communication.
"Wire communication." Any aural transfer made in whole or in part through the use of facilities for the transmission of communication by wire, cable or other like connection between the point of origin and the point of reception, including the use of such a connection in a switching station, furnished or operated by a telephone, telegraph or radio company for hire as a communication common carrier. The term includes any electronic storage of such communication.

18 Pa.C.S. § 5702.

Applying these provisions in Cruttendon II, our Supreme Court clarified that, contrary to our rationale in Cruttenden I, an officer's use of a third party's mobile phone does not constitute an interception within the meaning of the Wiretap Act. See Cruttendon II, 58 A.3d at 100. In Cruttenden I, a panel of this Court addressed a challenge by the Commonwealth to the trial court's suppression of evidence obtained by police through the interception of text messages sent from the defendant's cell phone. As in this case, the officer communicated with the defendant about the sale of illegal drugs using the cell phone of his confederate, whose cooperation the officer had obtained after a narcotics arrest. Accessing the phone with the consent of its owner, Michael Amodeo, the investigating officer initially responded to a text message from Cruttenden and then answered and sent additional text messages using Amodeo's phone, purporting to be Amodeo. See Cruttendon, 976 A.2d at 1181. Information exchanged in the messages directly enabled the police to locate and arrest Cruttenden, prompting a motion to suppress all of the evidence obtained through the use of the text messages on the basis of the Wiretap Act. See id. The trial court granted the motion and the Commonwealth appealed, relying on Commonwealth v. Proetto, 771 A.2d 823 (Pa. Super. 2001).[1]

In Cruttenden I and Cruttenden II, the Commonwealth raised the very argument it recites here that because the officer was a direct participant in the exchange of the text messages, no interception within the meaning of the Wiretap Act had occurred. See Cruttenden I, 976 A.2d at 1180-81 ("[The Commonwealth] claims that the Wiretap Act does not apply to this case, because the text messages were not 'intercepted' pursuant to the statutory definition. . . . [T]he Commonwealth contends that Aonce Trooper Houk began to respond to the [t]ext messages posing as Amodeo, he was the intended recipient of the communications, thus the Wiretap Act does not apply.'"). On review, our Supreme Court confirmed that in fact a police officer's use of a third party's mobile phone does not constitute an interception within the meaning of the Wiretap Act. The following excerpts of the Court's analysis are dispositive:

An officer is deemed the "intended recipient" of a phone communication in which the officer is directly involved, even under circumstances in which the officer shields or misrepresents his or her identity, because the caller elects to talk to the officer who answered the phone. Proetto, supra at 832 (citing Smith, supra at 350). The applicability of the Act does not rest on whether the caller's presumption of the identity of the person answering the call is accurate. It makes no difference instantly that Trooper Houk posed as Amodeo; the fact which takes the case out of the purview of the Act is that Appellee [] elected to communicate with the person answering the call and that the communication was direct. Therefore, there was no eavesdropping or listening in, and no interception took place.

Cruttenden II, 58 A.3d at 100 (emphasis added).

Based on the record in this case and our Supreme Court's disposition in Cruttenden II, we are constrained to agree with the Commonwealth's assertion that Detective Saul's participation in telephone conversations on the seized telephones did not constitute an interception. As the Commonwealth argues, the detective spoke directly with the respective defendants when he answered their calls. The fact that he did so under false pretenses, posing as the owners of the respective phones in order to exploit the trust of the callers, is not dispositive of whether his conduct constituted an interception. In this regard, this case is wholly analogous to Cruttenden II, and our Supreme's Court's disposition in that case is controlling. We discern no material difference between the officer's use of the phone in Cruttenden for texting and his use of the phone in this case for voice transmission. Both constitute direct communication by the officer with a defendant who initiated the communication freely with a telephone number of his choosing. Under such circumstances, an officer's participation in the communication does not constitute an "interception" within the meaning of the Wiretap Act.[2] We conclude accordingly that the respective trial courts erred in suppressing the evidence obtained through the Detective's use of the third parties' mobile phones.

For the foregoing reasons, we vacate the trial court's orders suppressing all evidence obtained as a result of Detective Saul's interception of the phone calls in question, and remand for further proceedings consistent with this Memorandum

Orders VACATED. Case REMANDED for further proceedings consistent with this Memorandum. Jurisdiction RELINQUISHED.

Judgment Entered.


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