J-S53042-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                             Appellant

                      v.

RICARDO A. PENA
                                                       No. 46 MDA 2016


               Appeal from the Order Entered December 16, 2015
        in the Court of Common Pleas of Berks County Criminal Division
                       at No(s):CP-06-CR-0003415-2015

BEFORE: BOWES, SHOGAN, and FITZGERALD,* JJ.

JUDGMENT ORDER BY FITZGERALD, J.:                   FILED AUGUST 26, 2016

        The Commonwealth appeals from the order of the Berks County Court

of Common Pleas granting Appellee Ricardo A. Pena’s1 pretrial motion for

writ of habeas corpus and dismissing the charges of conspiracy and

violations of the Wiretap Act against him.2 The Commonwealth claims that

the trial court erred in concluding that a “smartphone” with voice recording

capabilities was used as a “telephone” and not an “electronic, mechanical or

other device” under the Wiretap Act.       See 18 Pa.C.S. § 5702.   The trial

court, in its Pa.R.A.P. 1925(a) opinion, observes that its decision is

inconsistent with Commonwealth v. Smith, 136 A.3d 170 (Pa. Super.

*
    Former Justice specially assigned to the Superior Court.
1
 The Commonwealth’s appeal from the order dismissing the charges against
Appellee’s codefendant, Jeffrey Nein, is docketed at 47 MDA 2016.
2
    18 Pa.C.S. §§ 903(a)(1)-(2); 5703(1)-(3).
J-S53042-16


2016), which was decided while this appeal was pending. See Trial Ct. Op.,

3/21/16, at 2.

        Following our review, we agree with the Commonwealth and the trial

court that Smith governs the issue raised in this appeal and requires that

the trial court’s order be reversed.3 See Smith, 136 A.3d at 178 (“although

[the defendant] used an app on his smartphone, rather than a concealed

tape     recorder,   to   surreptitiously    record   his   conversation   with   [the

complainant], the result is the same. [The defendant’s] actions constituted

a violation of Section 5703.”)

        Order reversed. Case remanded. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2016




3
    Appellee did not file a brief in this appeal.



                                            -2-
