J-S11018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

TERRENCE M. LEWIS

                            Appellant                No. 220 EDA 2015


                Appeal from the PCRA Order December 18, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009629-2008


BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                                 FILED MAY 03, 2016

        Terrence M. Lewis appeals from the order entered December 18, 2014,

in the Court of Common Pleas of Philadelphia County, that dismissed,

without a hearing, his first petition filed pursuant to the Pennsylvania Post

Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541–9546. Lewis seeks PCRA

relief from the judgment of sentence of 10 to 20 years’ incarceration,

imposed after a jury convicted him of possession with intent to deliver a

controlled substance.1 We affirm on the basis of the PCRA court’s opinion.

        The PCRA court has fully set forth the facts and procedural history in

its opinion filed in support of its order.2 See PCRA Opinion, 4/1/2015, at 1–
____________________________________________


1
    35 P.S. § 780-113(a)(30).
2
  We note that the PCRA court did not direct Lewis to file a statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
J-S11018-16



4. Lewis contends that the PCRA court erred in dismissing his claim that trial

counsel was ineffective in failing to litigate a motion to suppress evidence

based upon a violation of the Wiretapping and Electronic Surveillance Control

Act (“Wiretap Act”).3          Police apprehended Lewis with the help of a

confidential informant (CI). Lewis alleges police violated the Wiretap Act by

listening to the cell phone conversation between him and the CI.

       The PCRA court has provided a thorough and well reasoned discussion

in support of its decision.         See PCRA Court Opinion, 4/1/2015, at 4–8

(explaining:     (1) The facts of the case at bar are virtually identical to

Commonwealth v. Spence, 91 A.3d 44, 47 (Pa. 2014), wherein the

Pennsylvania Supreme Court held 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”; (2) Spence is controlling

in the present case; (3) Lewis’s argument that Spence is not controlling

because that decision did not answer “several questions” regarding the

specific origins of the CI’s phone fails, as none of these questions are

relevant; and (4) Trial counsel is not ineffective for failing to make a

frivolous argument.) We agree with the PCRA court that Spence is directly

on point and, as such, Lewis’s ineffectiveness claim is completely meritless.



____________________________________________


3
    18 Pa.C.S. §§ 5701–5782.




                                           -2-
J-S11018-16



Accordingly, we adopt the PCRA court’s sound opinion as dispositive of this

appeal.4

       Order affirmed. Motion to Strike Appellee’s Brief or, In the Alternative,

to Accept Attached Reply Brief is granted in part and denied in part.       The

motion to strike Appellee’s Brief is denied; the motion to accept Lewis’s reply

brief is granted.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/3/2016




____________________________________________


4
  We direct the parties to attach a copy of the PCRA court opinion in the
event of further proceedings in this matter.



                                           -3-
                                                                                   Circulated 04/07/2016 01:54 PM




                            IN THE COURT OF COMMON PLEAS
                      rrnsr JUDICIAL  DISTRICT OF PENNSYLVANIA
                                CRIMINAL TRIAL DIVISION


 CO:M:M:ONWEALTH                                                       CP-51-CR-0009629-2008



        vs.



                                                                       SUPERIOR COURT
TERRENCE LEWIS                                                         220 EDA 200'91J;J


                                             OPINION

BRINKLEY, J.                                                           APRil, 1, 2015

        Defendant Terrence Lewis filed a petition for relief pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), claiming ineffective

assistance of counsel. After independent review of Defendant's counseled Amended Petition and

Memorandum of Law; the Commonwealth's           Motion to Dismiss and Supplemental Motion to

Dismiss; and Defendant's Reply to Commonwealth's         Supplement, this Court dismissed his

petition as without merit. Defendant appealed this dismissal to the Superior Cou11. In this

1925(a) Opinion, this Court will address the following issue: whether the PCRA court properly

dismissed Defendant's PCRA petition as untimely and without merit. This Court's dismissal

should be affirmed.

        Background

        On July 1, 2008, Defendant was arrested and charged with possession with intent to

deliver a controlled substance (PWID) after he sold nine ounces of cocaine to an undercover

police officer. This Court summarized the facts in its trial court opinion as follows:
                On July 1, 2008, Miscannon met with a confidential informant
                (CI), who told him about a mid-to-upper level drug trafficker in
                Philadelphia named Terrence Lewis (Defendant), who dealt in up
                to nine ounces of cocaine and that he had purchased drugs from
                this person in the past. The CI described this man as a black male,
                approximately 25 years old, and that he drove a silver Dodge Ram
                truck or a green Lincoln Town Car. Based upon this information,
                Miscannon instructed the Cl to call Defendant and order 4.5
                ounces of "hard" (crack cocaine) and 4.5 ounces of "soft" (powder
                cocaine), for a total of nine ounces. The CI did so using
                speakerphone and they settled on a price of $8000 for these drugs.
               Miscannon then called State Trooper Javier Garcia and instructed
               him to proceed undercover with the CI to purchase the drugs. The
               CI and Defendant engaged in several more phone calls while
               deciding where to meet. Miscannon testified that the CI always
               had the phone on "speaker" and he recognized the same voice on
               the other end each time.

               The CI and Defendant finally agreed to meet in a Pathmark
               Parking Lot at the intersection of Monument and Ford Road.
               Miscannon followed the CI and Garcia to that location in an
               unmarked police vehicle. At approximately 4: 10 p.m., he saw
               Defendant arrive in a silver Dodge Ram pickup truck and pull up
               alongside the Cl and Garcia's car. Defendant then drove to the
               intersection of Media and 60111 Street, followed by the CI and
               Garcia in their own car. Miscannon remained in an unmarked
              police vehicle parked around the comer so that he could conduct
              surveillance. Approximately two minutes later, he observed
              Defendant walk onto the 1400 block of Redfield Street. He Jost
              sight of Defendant for approximately 8-10 minutes when he
              entered and exited a residence, and then stopped to talk with an
              individual in a black Jeep.

              After receiving the pre-determined takedown signal from Garcia,
              Miscannon proceeded to where Garcia and the CI were located and
              arrested Defendant from inside the backseat of an undercover
              police vehicle. From Defendant's person, he recovered $6,310 and
              two cell phones. Miscannon called the phone number the CI had
              been using to communication with Defendant, and one of the cell
              phones rang. After Defendant was in custody, Garcia gave
              Miscannon a clear plastic bag filled with 4.5 ounces of powder
              cocaine, which Garcia had received from Defendant.

(Commonwealth v. Lcwjs, Unpublished Trial Ct. Opinion, Brinkley, J., 2547 EDA 2009, at 4-5).




                                               2
         On February l g, 19, 2009, this Court conducted a trial in the presence of a jury.

 Defendant was represented at trial by D. Louis Nicholson, Esquire. On February 18, 2009,

 defense counsel litigated a motion to suppress all physical evidence recovered from Defendant at

 the time of his arrest. This motion was denied. On February 20, 2009, the jury found Defendant

 guilty of PWID. On April 16, 2009, Defendant was sentenced to 10 to 20 years state

 incarceration. On April 21, 2009, defense counsel filed post-sentence motions, requesting a new

 trial and/or a reconsideration of sentence. These motions were denied by operation of Jaw on

 August 21, 2009.

        On August 27, 2009, Defendant's appellate counsel, Jack Mclvlahon, Esquire, filed a

 Notice of Appeal to Superior Court. On March 23, 2011, the Superior Court affirmed the

judgment of guilt but remanded the matter for resentencing. After reargument on May 26, 2011,

the Superior Court withdrew its prior ruling, and on February 29, 2012 issued a second opinion,

this time affirming both judgment of guilt and sentence. Defendant did not seek review by the

Pennsylvania Supreme Court.

        On October 10, 2012, Defendant filed a prose PCRA petition. He filed an amended pro

se petition on June 4, 2013. On July I, 2013, Todd Mosser, Esquire was appointed as PCRA

counsel. Mr. Mosser filed an amended PCRA petition on January 16, 2014. On April 14, 2014,

the Commonwealth filed a Motion to Dismiss. The Commonwealth filed a Supplement to its

Motion to Dismiss on April 30, 2014. On November 19, 2014, this Court sent Defendant a

Notice Pursuant to Rule 907, indicating that his petition would be dismissed as meritless.

Defendant filed a prose response to this Notice on December 3, 2014. On December 18, 2014,

this Court dismissed without hearing Defendant's PCRA petition, finding his claim of ineffective




                                                3
 assistance of counsel to be without merit. On January 12> 2015, Defendant filed a Notice of

 Appeal to the Superior Court.

          Discussion

         This Court properly dismissed Defendant's PCRA petition as without merit. After denial

 of PCRA relief, the appellate court 's standard and scope of review is limited to whether the

 PCRA court's findings are supported by the record and free from legal error. Commonwealth v.

 Edmiston, 619 Pa. 549, 559 (2013) (citing Commonwealth v. Breakiron, 566 Pa. 323, 781 A.2d

 94, 97 n. 4 (2001)). The review of questions of law is de novo. Id. (citing Commonwealth v.

 Fahy, 598 Pa. 5 84, 959 A. 2d 312, 316 (2008)).

         In his amended PCRA petition, Defendant claims that trial counsel was ineffective for

 failing to file a motion to suppress all evidence gathered by Trooper Miscannon through

allegedly "illegally intercepted" phone caJJs. Specifically, he claims that the Cl's use of his cell

phone's speakerphone feature while setting up a drug sale in the presence of Trooper Miscannon

was a violation of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S.A. §

5701, et seq. ("Wiretap Act"). This claim is without merit and no relief is due.

        A. Ineffective Assistan_ce of Counsel

        In order to demonstrate ineffective assistance of counsel, the defendant must plead and

prove both that his "counsel's performance was deficient" and that the "deficient performance

prejudiced the defense." Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119> 1124 (2007)

(quoting Strickland v. \Vashinglon, 466 U.S. 668, 687,104 S.Ct. 2052, 2064, 80 L.Ed.2d 674

(1984); Commonwealth v, Pierce, 515 Pa. 153, 527 A.2d 973, 975 (1987)). Specifically, a PCRA

petitioner must prove the following: u( 1) that the claim is of arguable merit; (2) that counsel had

no reasonable strategic basis for his or her action or inaction; and, (3) that, but for the errors and



                                                   4
omissions of counsel, there is a reasonable probability that the outcome of the proceedings would

have been different." Commonwealth         v. Bath, 2006 PA Super. 235, 907 A.2d 619, 622 (2006)

(quoting Commonwealth v._Kin.1..bnll, 555 Pa. 299, 724 A.2d 326, 333 (1999)). The failure to

satisfy any prong of this test will cause the entire claim to fail. Bath, 907 A.2d at 622 (citing

Cqmmonwcalth v. Bridg~~' 584 Pa. 589, 886 A.2d 1127, 1131 (2005)); see also Com1non1~1!l.!..h

v. Hanis, 578 Pa. 377, 852 A.2d 1168, 1173 (2004) ("where an appellant has not met the

prejudice prong .of the ineffectiveness standard, the claim may be dismissed on that basis alone").

        B. Trooper Miscannon did not violate t~ WiretapAct when he listened to the Cl's
           !·lQ_~,vcrsation with Defendanl vla a cell phone's ~p_eakcrnhone feature.

        Defendant's ineffective assistance of counsel claim based upon the use of the

speakerphone feature on the Cl's cell phone so that Trooper Miscannon could listen to the CI's

conversation with Defendant was not a violation of the Wiretap Act. Pursuant to 18 Pa.C.S.

§5703, a person is guilty of violating the Wiretap Act ifhe or she "intentionally intercepts,

endeavors to intercept, or procures any other person to intercept or endeavor to intercept any

wire, electronic or oral communication."    The Wiretap Act further prohibits the disclosure or use

of the content of any conununication   intercepted in violation of this act. Interception is defined

as the "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. "Electronic, mechanical or

other device" is further defined by the statute 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


                                                  5
                    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.C.S.A. § 5702.

        Recently, in Commonwealth v. Spcncq, our Supreme Court considered a matter nearly

 factually identical to the case at bar. 91 A.3d 44 (2014). In Spence, Pennsylvania State Trooper

 Miscannon instructed a CI to contact a drug dealer and arrange a drug transaction. Trooper

 Miscannon dialed the Cl's cell phone and instrncted the CI to use the speakerphone feature so

 that he could monitor the conversation. Rejecting the defendant's claim that this violated the

 Wiretap Act, the Pennsylvania Supreme Court declared, "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 arranged a drug deal. Spence, supra at 47. The Court reasoned:

               [t]he cell phone over which the trooper heard the conversations
               between the arrestee and Appellee 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 statutes 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.



       The facts in the case at bar are not just analogous, but are virtually identical. Here,

Trooper Miscannon was working with a Cl, who called Defendant on his cell phone and put the

phone on speaker so that Trooper Miscannon could hear the conversation.       The Spence court

holding unequivocally stated that this was not a violation of the Wiretap Act.

       In his Memorandum of Law in Opposition to the Commonwealth's           Motion to Dismiss

and Supplemental Memorandum, Defendant argues that Spence is not controlling because it did

                                                 6
 not answer "several questions" regarding the specific origins of the Cl's cell phone, such as: "(i)

 was the Cl's cellphone 'furnished to the subscribe or user (i.e. the CI) by a provider of wire or

 electronic communication service?'; (ii) was such furnishment [sic] 'done in the ordinary course

 of its business?'; and/or (iii) was the cellphone ~ furnished by such subscriber or user for

 connection to the facilities of such service and used in the ordinary course of its business?'."

 Defendant goes on to posit the following questions regarding the "mysterious" origins of the cell

 phone: "Was it provided to him/her by an employer? Did it even belong to the Cl or was he/she

 borrowing it? Was the Cl's name even on the account? Why was it furnished? Was it furnished

 'for connection to the facilities of such service' or was it 'furnished' to take photos with? What is

the 'ordinary course of business'?" However, none of these questions are relevant. Defendant

offers nothing to show how the answers to these questions would change the Pennsylvania

Supreme Court's analysis in Spence. The cell phone did not belong to Trooper Miscannon; it

belonged to the CI. The specific manner in which the CI procured the phone was irrelevant for

the purposes of this matter. As discussed above, counsel cannot be held ineffective for failing to

make a frivolous argument. Since the Pennsylvania Supreme Court held that Trooper

Miscannon's actions were lawful and not violative of the Wiretap Act, counsel was not

ineffective for failing to put forth this argument. Accordingly, this Court's dismissal of

Defendant's PCRA petition as meritless should be affirmed.




                                                 7
                                        CONCLUSION

       After review of the applicable statutes, case law and testimony, this Court committed no

error, This Court properly dismissed Defendant's PCRA petition as meritless as it was not a

violation of the Wiretap Act for Trooper Miscannon to listen to the Cl's conversation with

Defendant on speakerphone. Accordingly, this Court's dismissal should be affirmed.



                                                                              BY THE COURT:




                                              8
