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
____________________________________________


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.
J-A34028-15



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.



                                     -2-
J-A34028-15



        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.




____________________________________________


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.



                                           -3-
J-A34028-15



     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).


                                    -4-
J-A34028-15



        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

                                        -5-
J-A34028-15



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.

                                         -6-
J-A34028-15



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

                                          -7-
J-A34028-15



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
____________________________________________


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.



                                           -8-
J-A34028-15



      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

                                            -9-
J-A34028-15



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



                                    - 10 -
J-A34028-15



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

                                      - 11 -
J-A34028-15



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
____________________________________________


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.”



                                          - 12 -
J-A34028-15



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.”

                                     - 13 -
J-A34028-15



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
____________________________________________


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.




                                          - 14 -
J-A34028-15



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




                                    - 15 -
J-A34028-15



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




____________________________________________


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.




                                          - 16 -
