March 5, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
JOHN LOPEZ Appellant
Appeal from the Judgment of Sentence February 2, 2010 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0007573-2008
BEFORE: PANELLA, J., OLSON, J., and PLATT, J. [*]
Appellant, John Lopez, appeals from the judgment of sentence entered February 2, 2010, by the Honorable Robert P. Coleman, Court of Common Pleas of Philadelphia County. After careful review, we affirm.
The trial court summarized the undisputed facts of the case as follows:
On November 8, 2007, at approximately 4 P.M., [Philadelphia Police Officer Brian Myers] met with a confidential informant ["CI"] and obtained information that a Hispanic male by the name of Props was selling heroin using a special two-way speakerphone number, 168 star 667 star 9859. Officer Myers searched this informant for any illegal contraband and United States currency [hereinafter "USC"] prior to contacting Props. The CI called the two-way number and the [Appellant], while on speakerphone, agreed to sell a bundle of heroin for $100 USC in the area of Jasper and Cambria [Streets]. During this communication, Officer Myers and his partner, Officer Woertz, were inside the vehicle with the CI and could hear its content.
Ten minutes after the call was made, the officers arrived at the area of Jasper and Cambria [Streets]. Officer Myers supplied the CI with $100 prerecorded USC. The CI proceeded to the agreed upon location and called [Appellant] to let him know he was there. From 75 feet away, Officer Myers observed [Appellant] engaged [in] a hand-to-hand transaction where the CI handed [Appellant] the prerecorded buy money. After taking the buy money, Officer Myers followed [Appellant] to 1834 East Monmouth Street. Five minutes later, [Appellant] exited the property and returned to the CI where Officer Myers observed [Appellant] hand the CI an object. Soon thereafter, the CI returned to Officer Woertz and turned over 14 blue glassine packets containing heroin.
On December 12, 2007, a similar chain of events took place where the officers met with the CI to set up a drug transaction. While Officer Myers, Officer Woertz, and the CI were inside a vehicle, the CI called the same two-way number and [Appellant], while on speakerphone, agreed to sell a bundle of heroin for $120 USC in the area of Jasper and Cambria Street[s]. Officer Myers searched the CI for illegal contraband and USC before handing the CI $120 prerecorded buy money. The CI went to the intersection of Jasper and Cambria while Officer Myers set up surveillance at 1834 Monmouth Street. Approximately 5 to 10 minutes later, Officer Myers observed [Appellant] leaving the residence to meet up with the CI. Officer Myers, from 75 feet away, observed a hand-to-hand transaction where the CI handed [Appellant] the prerecorded buy money. Afterwards, Officer Myers followed [Appellant] back to 1834 East Monmouth Street. Minutes later, [Appellant] returned to the CI and handed the CI an object. Afterwards, the CI returned to Officer Woertz and turned over 14 blue glassine packets containing heroin.
On December 13, 2007, at approximately 5:30 P.M., Officer Myers executed a search and seizure warrant on 1834 East Monmouth Street. Officer Myers and Officer Keenan went to the second floor where they observed [Appellant] coming out of a bedroom. Officer Keenan immediately placed [Appellant] under arrest after Officer Myers identified him as the seller. Recovered from [Appellant's] person was $440 USC along with $40 prerecorded money that was used on the December 12th transaction. In the bedroom, Officer Myers recovered a letter addressed to Johnny Props Lopes. In addition, Officer Myers recovered the cell phone used to set up the transactions, a coffee grinder with heroin residue, and a clear baggy containing 8.5 grams of heroin.
Trial Court Opinion, 4/9/13 at 2-4 (record citations omitted).
Lopez was charged with Possession with Intent to Deliver a Controlled Substance,  Possession of a Controlled Substance,  and Criminal Use of a Communication Facility. On April 28, 2009, Lopez filed a Motion to Suppress Evidence as an illegal interception of a wire communication pursuant to 18 Pa.Cons.Stat.Ann. § 5721.1. A suppression hearing was conducted on November 18, 2009, after which the trial court denied Lopez's motion on December 10, 2009. Following a non-jury trial, Lopez was convicted of all charges. On February 2, 2010, the trial court sentenced Lopez to an aggregate term of four to eight years' imprisonment, to be followed by nine years' reporting probation. This timely appeal followed.
On appeal, Lopez raises the following issues for our review:
1. Did the suppression court err by denying Appellant's motion to suppress because the Commonwealth failed to prove at the suppression hearing that the evidence sought to be suppressed was not the product of a violation of Pennsylvania's Wiretap Act, i.e., a lawful interception, where the evidence adduced at the suppression hearing established that police had a confidential informant twice contact Appellant by cell phone to facilitate a drug deal and that the police eavesdropped on the conversation without Appellant's knowledge or consent?
2. Did the trial court err by holding that the crime herein was committed within 1000 feet of a school thereby requiring the imposition of an enhanced sentence?
Appellant's Brief at 3.
Lopez first argues that the trial court erred in denying his motion to suppress evidence obtained in violation of the Pennsylvania Wiretapping and Electronic Surveillance Control Act ("Wiretap Act"), 18 Pa.Cons.Stat.Ann. §§ 5701 et seq.
When reviewing the denial of a motion to suppress, we must consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. We are bound by the suppression court's findings if they are supported by the record. Factual findings wholly lacking in evidence, however, may be rejected. We may only reverse the suppression court if the legal conclusions drawn from the findings are in error.
Commonwealth v. Gatlos, 76 A.3d 44, 52 (Pa.Super. 2013) (internal quotes and citations omitted).
As our application of the Wiretap Act necessitates an interpretation of statutory language which implications a question of law, our scope of review is plenary and our standard of review is de novo. Commonwealth v. Rushing, 71 A.3d 939, 957 (Pa.Super. 2013).
The Wiretap Act prohibits, inter alia, the interception, disclosure, or use of any wire, electronic, or oral communication. 18 Pa.Cons.Stat.Ann. § 5703. Because the Wiretap Act focuses on the protection of privacy, our Pennsylvania Supreme Court has instructed that its provisions must be strictly construed. Commonwealth v. Deck, 954 A.2d 603, 607 (Pa.Super. 2008), appeal denied, 600 Pa. 738, 964 A.2d 1 (2009). "In addition, the Court has emphasized that the Wiretap Act is modeled on Title III ("Title III") of the Omnibus Crime Control and Safe Streets Act of 1968 … [which] authorizes states to adopt wiretap statutes that trigger greater, but not lesser, protection than that available under federal law." Id. (citation omitted).
Section 5721.1(b) of the Wiretap Act, under which Lopez premises his suppression motion, provides that "[a]ny aggrieved person who is a party to any proceeding in any court, board or agency of this Commonwealth may move to exclude the contents of any wire, electronic or oral communication, or evidence derived therefrom" if "intercepted" without prior court authorization and no exception under 18 Pa.Cons.Stat.Ann. § 5704 applies. An "aggrieved person" is defined under the Wiretap Act as "[a] person who was a party to any intercepted wire, electronic or oral communication or a person against whom the interception was directed." 18 Pa.Cons.Stat.Ann. § 5702. An oral cellular telephone conversation is a "wire communication" as that term is defined by section 5702 of the Act.
The Commonwealth argues in response to Lopez's brief that he is not an aggrieved person for purposes of the Wiretap Act. In support thereof, the Commonwealth cites the Pennsylvania Supreme Court's decision in Commonwealth v. Hawkins, 718 A.2d 265 (Pa. 1998), for the proposition that an individual seeking suppression bears the burden of proving "reasonable expectation of privacy before he may obtain the exclusion of evidence." Commonwealth's Brief at 8 n.7. Preliminarily, we note that the Supreme Court's decision in Hawkins is inapposite to the case sub judice, as that decision in no way involved the application of the Wiretap Act or an interpretation of the term "aggrieved person" under the Act. Secondly, we note that a panel of this Court in Commonwealth v. Deck, supra, previously rejected similar reasoning and held that Section 5703 of the Wiretap Act prohibits interception, disclosure of use of wire communications without regard to the speaker's expectation of privacy. Deck, 954 A.2d at 609.
Regardless of his expectation of privacy, Lopez was clearly a party to the wire communication and undoubtedly the person against whom the interception was directed. As such, we do not hesitate to conclude that Lopez qualifies as an "aggrieved person" as defined by section 5702 of the Wiretap Act.
We must next determination whether an "interception" of the wire communication occurred. The term "intercept" is defined under the Wiretap Act as:
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.
18 Pa.Cons.Stat.Ann. § 5702. As defined by the Wiretap, an "interception" requires acquisition of a wire communication through the use of any "electronic, mechanical or other device." Id. An "electronic, mechanical or other device" is defined as:
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.
18 Pa.Cons.Stat.Ann. § 5702.
Lopez argues that, "in the circumstances present here, the intentional eavesdropping on a phone conversation on speakerphone constituted an interception under section 5702, with or without a separate device, such as a recording device." Appellant's Brief at 15. The Commonwealth counters that "[b]ecause the CI's telephone was being used by the subscriber to connect to a communication service in the ordinary course of business, it was not an "electronic, mechanical or other device under the Act." Commonwealth's Brief at 11. Thus, the Commonwealth urges us to conclude that the use of the telephone to listen to Lopez was not an interception.
Our review of the applicable provisions of the Wiretap Act and the facts of the case constrain us to agree with the Commonwealth. Clearly, the C.I.'s use of the cellular phone is excluded from the definition of "electronic, mechanical or other device" because he was the subscriber or user. 18 Pa.Cons.Stat.Ann. § 5702. There is no dispute that under the facts here, police listened to the telephone conversation via a two-way number enabling the two phones to operate on a dedicated speakerphone connection, and did not record the conversation. More importantly, there are no facts of record to suggest that the police officer in any way "used" the C.I.'s phone or manipulated the conversation in a way that suggests he was anything other than a passive bystander to the conversation. Thus, as we find the C.I.'s use of the phone is exempted from the definition of an "electronic, mechanical or other device, " we cannot find that an "interception" of a wire communication occurred as that term is contemplated under the Wiretap Act. See 18 Pa.Cons.Stat.Ann. § 5702 (defining "intercept" as "Aural or other acquisition of the contents of any wire, electronic or oral communication through the use of any electronic, mechanical or other device.") (emphasis added).
We find Lopez's reliance upon this Court's decision in Commonwealth v. Cruttenden, 976 A.2d 1176 (Pa.Super. 2009) to be misplaced. In Cruttenden, a panel determined a violation of the Wiretap Act occurred where a police officer communicated with the defendant via text-messaging on an accomplice's telephone to arrange a drug sale by purporting to be the accomplice. Id. at 1181. However, this decision was reversed by the Pennsylvania Supreme Court on appeal. See Commonwealth v. Cruttenden, 58 A.3d 95, 99 (Pa. 2012) (holding there was no "interception" of the text messages between Appellee the trooper posing as the accomplice "because the trooper was a direct party to the communication and the misrepresentation of his identity was an irrelevant factor for purposes of the Wiretap Act").
Based on the foregoing, we conclude that the police officer's passive listening to a conversation on speakerphone, without more, did not constitute an interception for purposes of the Wiretap Act. Therefore, we find no error in the trial court's order denying Lopez's motion to suppress evidence.
Lastly, Lopez claims that the trial court erred when it applied the school enhancement provision of the Pennsylvania Commission on Sentencing Guidelines. See 204 Pa.Code § 303.10(b)(1). This claim raises a challenge to the discretionary aspects of sentencing. Commonwealth v. Adams, 760 A.2d 33, 39 (Pa.Super. 2000).
A challenge to the discretionary aspects of a sentence must be considered a petition for permission to appeal, as the right to pursue such a claim is not absolute." Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.Super. 2004), appeal denied, 580 Pa. 695, 860 A.2d 122 (2004) (citation omitted). "Two requirements must be met before we will review this challenge on its merits." McAfee, 849 A.2d at 274.
First, an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. The determination of whether a particular issue raises a substantial question is to be evaluated on a case-by-case basis. In order to establish a substantial question, the appellant must show actions by the trial court inconsistent with the Sentencing Code or contrary to the fundamental norms underlying the sentencing process.
Commonwealth v. Williams, 69 A.3d 735, 740 (Pa.Super. 2013) (citation omitted).
In the present case, Lopez's appellate brief contains the requisite 2119(f) concise statement, and, as such, is in technical compliance with the requirements to challenge the discretionary aspects of a sentence. We further find that Lopez's challenge to the application of the school zone enhancement presents a substantial question because it is a claim that the sentence is contrary to a specific provision of the Sentencing Code. See Commonwealth v. Wilson, 829 A.2d 1194, 1198 (Pa.Super. 2003).
Section 303.10 of the Pennsylvania Code provides a sentencing guideline enhancement "[w]hen the court determines that the offender … manufactured, delivered or possessed with intent to deliver a controlled substance within 1000 feet of the real property on which is located a public or private elementary or secondary school." 204 Pa.Code § 303.10(b)(1).
At sentencing, Officer Christopher Reed testified that he measured the distance from the corner of Jasper and Cambria Streets where the drug transactions occurred to the corner of Orleans and Emerald Street, which is the furthest point of the Willard Francis School away from the corner where the transaction occurred. N.T., Sentencing, 2/2/10 at 39. The distance measured 998.9 feet. Id. Officer Reed further testified that 1834 East Monmouth Street, where Lopez was observed retrieving the narcotics for sale, was approximately one block closer to the school than the corner of Jasper and Cambria Streets. Id. at 40-41. The Officer measured the distance between the northwest corner of Jasper and Cambria Streets and 1834 Monmouth Street to be 320 feet. Id. at 51.
Given the forgoing, we find the evidence sufficient to establish that the drug transactions occurred within 1000 feet of a school zone as required by section 303.10(b)(1). We further note that although Officer Reed measured the distance to the furthest corner of the school from where the transaction occurred, a school zone for purposes of section 303.10(b)(1) "encompasses not only the school building itself, but includes all of the school property located in a zone where children have access…." Commonwealth v. Davis, 734 A.2d 879, 883 (Pa.Super. 1999). As such, the distance to the closest corner of the school would have been much less than the measured 998.9 feet. As the measurement provided by the Commonwealth was sufficient to establish that the transaction occurred within 1000 feet of a school zone, the trial court did not err in applying the enhancement.
Judgment of sentence affirmed.