Commonwealth v. Diego

J-A14002-15

2015 PA Super 143

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant

v.

CURTIS DOVAL DIEGO,

Appellee No. 1989 MDA 2014

Appeal from the Order Entered October 28, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001203-2013

BEFORE: BENDER, P.J.E., JENKINS, J., and STRASSBURGER, J.*

OPINION BY BENDER, P.J.E.: FILED JUNE 23, 2015

The Commonwealth appeals from the trial court’s order granting Curtis

Doval Diego’s (Appellee) suppression motion based on purported violations

of the Wiretapping and Electronic Surveillance Control Act, 18 Pa.C.S. §

5701 et seq. (“Wiretap Act” or the “Act”). The Commonwealth contends that

an iPad is not a “device” as that term is defined under the Wiretap Act, and

that Appellee’s text messages were not “intercepted” within the meaning of

the Act. The Commonwealth also argues that Appellee lacks a reasonable

expectation of privacy in his text message communications. After careful

review, we reverse the order granting suppression, and remand for further

proceedings.

The trial court set forth the following factual summary:
____________________________________________

*
Retired Senior Judge assigned to the Superior Court.
J-A14002-15

Following an investigation of stolen guns involving Mr.
Gary Still, Detective James Moyer of the Swatara Police
Department went to Mr. Still’s father’s residence following Mr.
Still’s release from the hospital on February 21, 2013. Detective
Moyer had determined that Mr. Still was involved in the theft of
approximately twelve (12) firearms from the residence of 740
High Street. Detective Moyer advised Mr. Still of his Miranda
rights. Mr. Still stated that he took numerous guns over a period
of eight (8) weeks, and told the officers that he purchased heroin
from [Appellee]. Mr. Still “traded” two of the guns he stole in
exchange for heroin. Mr. Still indicated that these transactions
with [Appellee] were set up on his iPad, which had been seized
earlier by the police as part of the firearms investigation.

Detective Moyer testified that he asked Mr. Still if he would
set up a heroin deal with [Appellee]. Mr. Still was told by the
officers that it would be in his best interest to do so. Mr. Still
agreed, telling the officers that he would use the text messaging
service on his iPad. The transaction took place in the basement
of the police station and was set up with Mr. Still communicating
directly with [Appellee] on the iPad. Mr. Still relayed to the
detectives each response from [Appellee]. In the room with Mr.
Still were at least six (6) law enforcement officers. Detective
Moyer testified that Officer Corey Dickerson was sitting next to
Mr. Still during the communications and said that it was possible
that the officer observed what Mr. Still was doing on the iPad.
Specifically, a transaction was set up to take place at the
Courtyard Marriot, and Mr. Still provided a description of
[Appellee] and his car. When the time came for the deal, Mr.
Still was on location with the officers and pointed out [Appellee].
[Appellee] was found to be in possession of multiple bundles of
heroin and drug paraphernalia. [Appellee] sought suppression of
these items, which was granted by this [c]ourt.

Suppression Court Opinion, 3/16/15, at 1-2.

Following a suppression hearing conducted on January 31 and

February 20, 2014, during which the trial court heard testimony from

Detective Moyer and Gary Still, the trial court requested that the parties

brief the suppression-related issues. Both parties filed their memorandums

-2-
J-A14002-15

of law on April 4, 2014. Subsequently, on October 28, 2014, the court

granted Appellant’s suppression motion.

The Commonwealth filed a timely notice of appeal on November 21,

2014, and a court-ordered Pa.R.A.P. 1925(b) statement on December 5,

2014. The trial court issued its Rule 1925(a) opinion on March 16, 2015.

The Commonwealth now presents the following questions for our

review:

[1]. Whether the trial court erred in granting Appellee’s motion
to suppress evidence because Appellee’s te[x]t messages were
not “intercepted” in violation of the Pennsylvania Wiretap Act?

[2]. Whether the trial court erred in granting Appellee’s motion
to suppress evidence because Appellee lacked a reasonable
expectation of privacy in his text message communications?

[3]. Whether the trial court erred in granting Appellee’s motion
to suppress evidence because Appellee’s iPad is not a “Device”
as defined in the Pennsylvania Wiretap Act?

Commonwealth’s Brief, at 4 (unnecessary capitalization omitted). For ease

of disposition, we will address these issues in reverse order.

In reviewing the grant of a motion to suppress, we are guided by
the following standard of review:

When the Commonwealth appeals from a suppression
order, we follow a clearly defined standard of review and
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. The suppression court's findings of facts
bind an appellate court if the record supports those
findings. The suppression court's conclusions of law,
however, are not binding on an appellate court, whose
duty is to determine if the suppression court properly
applied the law to the facts.

-3-
J-A14002-15

Commonwealth v. Scott, 916 A.2d 695, 696 (Pa. Super. 2007)
(quotation omitted). Further, the construction of a statute raises
a question of law. On questions of law, our standard of review is
de novo, and our scope of review is plenary. Commonwealth
v. Bavusa, 574 Pa. 620, 832 A.2d 1042, 1052 (2003).

Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008).

The Commonwealth contends that Appellee’s iPad is not a ‘device’

within the meaning of the Wiretap Act. This is a matter of first impression.

The Wiretap Act prohibits, with certain exceptions, the interception of

“any wire, electronic or oral communication[.]” 18 Pa.C.S. § 5703(1)-(3).

“Intercept” is defined by the act as follows:

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. The
term shall not include the acquisition of the contents of a
communication made through any electronic, mechanical or
other device or telephone instrument to an investigative or law
enforcement officer, or between a person and an investigative or
law enforcement officer, where the investigative or law
enforcement officer poses as an actual person who is the
intended recipient of the communication, provided that the
Attorney General, a deputy attorney general designated in
writing by the Attorney General, a district attorney or an
assistant district attorney designated in writing by a district
attorney of the county wherein the investigative or law
enforcement officer is to receive or make the communication has
reviewed the facts and is satisfied that the communication
involves suspected criminal activities and has given prior
approval for the communication.

18 Pa.C.S. § 5702 (emphasis added).

The Wiretap Act also defines the intercepting “electronic, mechanical

or other device” as:

-4-
J-A14002-15

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.

(2) A hearing aid or similar device being used to correct
subnormal hearing to not better than normal.

(3) Equipment or devices used to conduct interceptions
under section 5704(15) (relating to exceptions to
prohibition of interception and disclosure of
communications).

18 Pa.C.S. § 5702.

The Commonwealth argues that Appellee’s iPad is not an intercepting

“electronic, mechanical or other device” under the Wiretap Act because it

was being used as the functional equivalent of a modern cellular phone, and

telephones are explicitly excluded from the definition of what constitutes a

“device” under the portion of Section 5702 cited immediately above. We

disagree.

First, Appellee’s iPad was not an “electronic, mechanical or other

device” under Section 5702 because it was not used “to intercept a wire,

electronic or oral communication.” Indeed, there is not any evidence of

record that Appellee used an iPad to communicate with Still. Moreover,

-5-
J-A14002-15

Appellee’s text messaging device, whatever it was, was the origin of the

intercepted message, and not the device that purportedly intercepted that

message. Gary Still’s iPad was purportedly used to intercept Appellee’s

electronic communication. Accordingly, the Commonwealth’s claim that

Appellee’s iPad was not a “device” within the meaning of the Wiretap Act is

simply not relevant to the merit of Appellee’s suppression motion.

Nevertheless, the Commonwealth also argues that Still’s iPad was not

an “electronic, mechanical or other device” within the meaning of the

Wiretap Act. In this regard, the Commonwealth again argues that an iPad

was the functional equivalent of a telephone under the statutory definition

set forth in Section 5702. The Commonwealth cites Commonwealth v.

Spence, 91 A.3d 44 (Pa. 2014), in support of this claim.

In Spence, the question before our Supreme Court was whether a

state trooper violated the Wiretap Act when he listened to Spence’s

conversation with an informant via the speaker on the informant's cellular

telephone while the informant arranged a drug deal with Spence. The

Commonwealth argued on appeal that because telephones were explicitly

excluded under the definition of “electronic, mechanical, or other device[s]”

in the Wiretap Act, the trooper had not violated the Act. Spence argued that

the informant’s phone was not a phone under the Act with respect to the

trooper because the informant, and not the trooper, was a subscriber to the

phone’s communication services.

-6-
J-A14002-15

Our Supreme Court rejected Spence’s argument, stating, “we see no

basis upon which to categorize the arrestee's cell phone as a device with

respect to him, but not as a device with respect to the Commonwealth.” Id.

at 47. The Spence Court also held that: “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.” Id.

Here, in light of Spence, the Commonwealth argues:

In the instant case, Gary Still utilized the text message
feature of his iPad to communicate directly with [Appellee], who
utilized a cell phone. These text messages were sent utilizing a
cell phone service, provided to Still in the ordinary course of
business. Gary Still's iPad should be categorized as a telephone
since it was being utilized as such in this case. In [Appellee]'s
own suppression brief, the defense conceded that Still's iPad
communications "should be treated the same as audible
telephone calls."

Therefore, because Gary Still's iPad is not a "device," there
was no violation of the Pennsylvania Wiretap Act when Still
texted with [Appellee] and relayed the responses to the
surrounding officers.

Commonwealth’s Brief, at 18.

We disagree with the Commonwealth’s analysis. 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

-7-
J-A14002-15

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.

Furthermore, the policy decision embodied in adopting such an

expansive interpretation of the term ‘telephone’ under the Wiretap Act is

beyond the province of this Court. Indeed, if we were to extend the

Commonwealth’s argument to its logical conclusions, any modern computer,

in tablet form or otherwise, would have be considered a telephone under the

Wiretap Act when it is used to transmit or receive an electronic

communication. We decline to so radically expand the definition of

‘telephone’ under the Wiretap Act in this fashion without the benefit of

further legislative input. Furthermore, 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.1

____________________________________________

1
See http://en.wikipedia.org/wiki/Tablet_computer#Early_devices, accessed
on 6/1/15. Moreover, although the first tablet computers identifiable as
such were invented in the late 1980’s, id., it would not be until 1994 that
any mobile phone technology was used to transmit text messages on a
broad scale. See http://en.wikipedia.org/wiki/Text_messaging#History,
accessed on 6/1/15 (“Modern SMS [Short Messaging Service] text
messaging is understood to be messaging from one mobile phone to another
(Footnote Continued Next Page)

-8-
J-A14002-15

Finally, our reluctance to expand the telephone exception is consistent

with our policy to strictly construe the provisions of the Wiretap Act, as our

Supreme Court explained in Commonwealth v. Spangler, 809 A.2d 234

(Pa. 2002):

Pennsylvania's Wiretap Act emphasizes the protection of privacy,
see generally Commonwealth v. DeMarco, 396 Pa.Super.
357, 371, 578 A.2d 942, 949 (1990), and, consistent with such
emphasis, provides a statutory exclusionary rule that extends to
non-constitutional violations. Because of this privacy concern,
the provisions of the Wiretap Act are strictly construed. See
Boettger v. Miklich, 534 Pa. 581, 586, 633 A.2d 1146, 1148
(1993).

Spangler, 809 A.2d at 237 (footnote and citation omitted).

For each and all of the aforementioned reasons, we conclude that an

iPad is an “electronic, mechanical, or other device” that does not fall within

the telephone exception under the Wiretap Act. As such, the

Commonwealth’s third claim lacks merit.

The Commonwealth next contends that Appellant lacked a reasonable

expectation of privacy in the contents of the text message conversation he

had with Gary Still. The Commonwealth asserts that Commonwealth v.

Proetto, 771 A.2d 823 (Pa. Super. 2001), is instructive in this regard. We

agree.

In Proetto, we recognized that:

_______________________
(Footnote Continued)

mobile phone. Radiolinja became the first network to offer commercial
person-to-person SMS text messaging service in 1994.”).

-9-
J-A14002-15

While engaging in a conversation over the telephone, a party
would have no reason to believe that the other party was taping
the conversation. Any reasonably intelligent person, savvy
enough to be using the Internet, however, would be aware of
the fact that messages are received in a recorded format, by
their very nature, and can be downloaded or printed by the party
receiving the message. By the very act of sending a
communication over the Internet, the party expressly consents
to the recording of the message.

Proetto, 771 A.2d at 829. The Proetto Court further opined that:

Sending an e-mail or chat-room communication is analogous to
leaving a message on an answering machine. The sender knows
that by the nature of sending the communication a record of the
communication, including the substance of the communication,
is made and can be downloaded, printed, saved, or, in some
cases, if not deleted by the receiver, will remain on the
receiver's system. Accordingly, by the act of forwarding an e-
mail or communication via the Internet, the sender expressly
consents by conduct to the recording of the message.

Id. at 830.

We find the reasoning of the Proetto Court equally applicable in this

case. When Appellant engaged in a text message conversation with Gary

Still, he knew, or should have known, that the conversation was recorded.

By the very act of engaging in the means of communication at-issue,

Appellee risked that Gary Still would share the contents of that conversation

with a third party.

Appellee contends the instant case is not analogous to Proetto

because Proetto involved conversations in an internet chat room and not

text messages. He argues that when someone engages in chat room

conversations:

- 10 -
J-A14002-15

Neither the sender nor any of the multiple recipients of a
communication posted on an internet chat room have the
technological capability to delete that message once it is posted.
In that situation, the proverbial bell cannot be unrung.

However, the recipient of a text message has the
technological capability to delete that text message, though the
sender might not. Further, in most circumstances, the recipient
of a text message is a single individual, not an internet chat
room potentially populated by boundless, anonymous
individuals. These facts readily distinguish a text message from
the internet chat room message in Proetto on which the
Commonwealth hangs its hat.

Appellee’s Brief, at 9-10.

Appellee’s argument is unconvincing. First, the Proetto Court

expressly included e-mails in its analysis, and e-mails share far more in

common with text messages than they do with chat-room posts. E-mails,

like text messages, can be deleted (or not) by the recipient. E-mails, like

text messages, are likely to have as a recipient a single individual rather

than a group. Moreover, the Proetto Court also relied on Commonwealth

v. DeMarco, 578 A.2d 942 (Pa. Super. 1990), wherein this Court had held

that answering machine tapes fall within the mutual consent provision of the

Wiretap Act. The DeMarco Court explained:

[W]e take judicial notice of the irrefutable fact that any
reasonably intelligent person leaving a message on an ordinary
answering machine would have to be aware of, and consented
by conduct to, the recording of the message on the answering
machine tape. Absent some special showing of unique attributes
of a particular answering machine cloaking its identity as an
answering machine (not suggested here), we cannot imagine
how one could not know and intend that the message placed
upon the answering machine tape be taped, and by the very act
of leaving a message, expressly consent by conduct to the
taping of that message.

- 11 -
J-A14002-15

DeMarco, 578 A.2d at 948.

Clearly, whether an answering machine’s owner could delete the

recorded message was not relevant to the DeMarco Court’s analysis of the

expectation of privacy held by the caller. Similarly, here, the differences

between chat-rooms, e-mails, and text messages, regarding who retains or

controls the ‘ability to delete,’ are simply irrelevant. It is the sender’s

knowledge that the communication will automatically be recorded, surmised

from the very nature of the selected means of transmission, that is

dispositive of the sender’s lack of an expectation of privacy or, at least, the

lack of any reasonable expectation of privacy.

Second, Appellee argues that he possessed a heightened expectation

of privacy, pursuant to the United States Supreme Court’s recent holding in

Riley v. California, 134 S.Ct. 2473 (2014). We disagree, as Appellee

misunderstands the import of Riley.

In Riley, the defendant’s ‘smartphone’ was seized incident to his

arrest for firearms offenses. The police searched the contents of the phone

for evidence of gang-related activity without first obtaining a search warrant.

The Supreme Court held that the warrantless search of the contents of

Riley’s phone was illegal even though it was permissibly seized incident to

his arrest. In reaching this conclusion, the Supreme Court held, inter alia,

that modern ‘smartphones’ are qualitatively different from other items

typically seized during an arrest due to the privacy implications arising from

the cornucopia of information that can be contained in, or immediately

- 12 -
J-A14002-15

accessed from, such devices. Summarizing its holding, the Supreme Court

explained:

Modern cell phones are not just another technological
convenience. With all they contain and all they may reveal, they
hold for many Americans “the privacies of life[.]” The fact that
technology now allows an individual to carry such information in
his hand does not make the information any less worthy of the
protection for which the Founders fought. Our answer to the
question of what police must do before searching a cell phone
seized incident to an arrest is accordingly simple—get a warrant.

Riley, 134 S.Ct. at 2494-95 (citation omitted).

Here, Appellee’s reliance on Riley is simply misplaced. The police did

not obtain the contents of Appellee’s text message conversation with Still by

searching Appellee’s phone incident to his arrest. Indeed, the police did not

obtain a recording of that conversation from Appellee at all. Thus, the

heightened expectation of privacy recognized in Riley is not applicable to

this case.

For the aforementioned reasons, we agree with the Commonwealth

that Appellant lacked a reasonable expectation of privacy in the text

message conversation he had with Still. In this regard, we find the following

analogy, provided by the Proetto Court, particularly useful in

conceptualizing the basis for this conclusion:

E-mail transmissions are not unlike other forms of modern
communication.... For example, if a sender of first-class mail
seals an envelope and addresses it to another person, the
sender can reasonably expect the contents to remain private and
free from the eyes of the police absent a search warrant founded
upon probable cause. However, once the letter is received and
opened, the destiny of the letter then lies in the control of the

- 13 -
J-A14002-15

recipient of the letter, not the sender, absent some legal
privilege.... Thus an e-mail message, like a letter, cannot be
afforded a reasonable expectation of privacy once that message
is received.

[United States v. Charbonneau, 979 F.Supp. 1177, 1184
(S.D. Ohio 1997)] (quoting United States v. Maxwell, 45 M.J.
406, 417 (C.A.A.F. 1996)).

Proetto, 771 A.2d at 831. This reasoning applies with equal potency to the

text messages at issue in this case. When an individual sends a text

message, he or she should know that the recipient, and not the sender,

controls the destiny of the content of that message once it is received.

However, our analysis is not at an end simply because we have

concluded that Appellee lacked a reasonable expectation of privacy in the

text messages received by Still. Evidence may be suppressed for violations

of the Wiretap Act even if the interception does not violate a reasonable

expectation of privacy. We explained this distinction in Commonwealth v.

Deck, 954 A.2d 603 (Pa. Super. 2008).

[T]he Commonwealth argues that the telephone conversation
recording should not be suppressed because Deck had no
reasonable expectation that his telephone conversation [with the
victim] was private.

…

Based on the definitions in and language of the Wiretap
Act, we disagree. Section 5702 clearly and explicitly
differentiates between oral communications and wire
communications, giving a distinct definition for each. 18
Pa.C.S.A. § 5702. Section 5702's definition of wire
communication does not include an expectation of privacy on the
part of the speaker, as does its definition of oral communication.
Id. Section 5703 is written in the disjunctive, and protects
“wire, electronic or oral communications” from interception,

- 14 -
J-A14002-15

disclosure or use. 18 Pa.C.S.A. § 5703 (emphasis added). See
In re Paulmier, 594 Pa. 433, 937 A.2d 364, 372 (2007)
(recognizing that the word “or” when used in a statute is
disjunctive, used to connect alternative words or phrases).
Section 5703 does not state that a wire communication must
also be an oral communication to be protected. Id.

Moreover, we remain mindful of our Supreme Court's
admonition in Spangler that the Wiretap Act is modeled on Title
III and that the Wiretap Act may not grant less protection than
that available under the federal statute. Accordingly, we
observe that the language of the definitions of wire
communication and oral communication in the Wiretap Act and
those in Title III [of the Federal Omnibus Crime Control and Safe
Streets Act of 1968] are virtually identical, and that the federal
courts have held that telephone conversations are wire
communications which, unlike oral communications, are
protected against interception without regard to the speaker's
expectation of privacy. See, e.g., Briggs v. American Air
Filter Co., Inc., 630 F.2d 414, 417 & n.4 (5th Cir. 1980).

In light of Spangler and the discussion above, we
conclude that Section 5703 of the Wiretap Act prohibits the
interception, disclosure or use of a telephone conversation as a
wire communication under Section 5702, even if the telephone
conversation is not also an oral communication under Section
5702. 18 Pa.C.S.A. §§ 5702, 5703. This, in turn, leads us to
conclude that Section 5703 prohibited the interception,
disclosure or use of the telephone conversation between [the
victim] and Deck. Id. Deck's expectation of privacy is
irrelevant.

Deck, 954 A.2d at 608-09 (footnote omitted) (emphasis added).

Because a reasonable expectation of privacy in an electronic

communication is not required to seek relief under the Wiretap Act

violations, Appellee’s lack of a reasonable expectation of privacy in his text

messages with Still does not, by itself, preclude application of the statutory

exclusionary rule provided by the Act. Thus, we reach the Commonwealth’s

remaining claim, wherein the Commonwealth contends that suppression was

- 15 -
J-A14002-15

not warranted because no ‘intercept’ occurred within the meaning of the

definition as set forth in Section 5702 of the Wiretap Act.

In claiming that no interception occurred in this case, the

Commonwealth relies on Commonwealth v. Cruttenden, 58 A.3d 95 (Pa.

2012), and Proetto. In Proetto, this Court held that when an officer posed

as an underage female to communicate with a suspected sexual offender in

a chat room on the internet, no violation of the Wiretap Act occurs because

the officer was a direct party to the communication, and thus there has been

no “interception” of a communication under the statutory definition. As

Section 5702 provides, “The term[,]” interception, “shall not include the

acquisition of the contents of a communication made … to an investigative or

law enforcement officer[.]” The Proetto Court explained its decision that no

intercept occurred as follows:

In this case, Detective Morris was a direct party to the
communications from Appellant. There was no eavesdropping or
wiretapping. Detective Morris obtained the information because
he was a party to the communication. The fact that Detective
Morris did not identify himself as a police officer is of no effect.
See Commonwealth v. DiSilvio, 232 Pa.Super. 386, 335 A.2d
785 (1975). The Wiretap[] Act is not intended to prevent a
telephone user from misrepresenting his or her identity. Id.
Appellant freely elected to talk to Detective Morris, regardless of
whether he was informed of “Kelly15F”'s true identity. Therefore
the communications received by Detective Morris should not be
suppressed on the grounds that the means of obtaining this
information was in violation of the Act.

Proetto, 771 A.2d at 832 (2001).

- 16 -
J-A14002-15

Similarly, in Cruttenden, our Supreme Court held that no intercept

occurs when a law enforcement officer “communicates directly with a

suspect via cell phone text messages while pretending to be the suspect's

accomplice[,]” because “an officer who directly communicates with another

person by text-messaging is not eavesdropping or listening in on a

conversation, but is himself engaging in the communication[.]”

Cruttenden, 58 A.3d at 96. Stated another way, “[t]he applicability of the

Act does not rest on whether the caller's presumption of the identity of the

person answering the call is accurate.” Id. at 100.

Here, the Commonwealth essentially claims that no interception

occurred when the police monitored Still’s communication with Appellant

because there was “less police intrusion” in this case as compared to what

had occurred in Proetto and Cruttenden. This particular argument lacks

merit.

Neither Proetto nor Cruttenden supports the Commonwealth’s

position as argued. In both cases, the communication at issue was between

a suspect/defendant and a law enforcement officer, a situation specifically

excepted from the statutory definition of “intercept.” The definition of

“intercept” in Section 5702 specifically excludes “the acquisition of the

contents of a communication made through any electronic, mechanical or

other device or telephone instrument to an investigative or law enforcement

officer, or between a person and an investigative or law enforcement officer,

where the investigative or law enforcement officer poses as an actual person

- 17 -
J-A14002-15

who is the intended recipient of the communication[.]” 18 Pa.C.S. § 5702.

Here, no law enforcement officer was a direct party to the communication

and, therefore, the Section 5702 exception to the definition of “[i]ntercept”

does not apply.

Moreover, the Commonwealth provides no support for the proposition

that what is or is not an intercept under the Wiretap Act turns on the

magnitude of the ‘police intrusion.’ No such language appears in the

statute, nor does the Commonwealth direct our attention to any pertinent

case law to that effect.

However, we do conclude that no intercept occurred in this case for a

different reason. Gary Still, and not the police, spoke directly with Appellee

by text message in the at-issue communication, and he did so voluntarily.

Still was a party to the conversation, and therefore he could not be said to

have intercepted it simply because he received it. That he subsequently

relayed the contents of that conversation to the police does not render either

his or the police’s conduct an “interception” under the plain meaning of the

Act.

Once an individual text message is received by the intended recipient,

the communication has ended. Once the communication had ended, it is

simply illogical to conclude that subsequent actions constitute intercepts

within the meaning of the Wiretap Act. While it is true that, in most

instances, the content of a text message conversation will be recorded by

the recipient’s device as it is received, that circumstance is innate or

- 18 -
J-A14002-15

inherent to the technology. It would be absurd to conclude that anytime an

iPad or similar device records a text message conversation that a Wiretap

Act violation occurs—for that is the equivalent of saying that everyone

receiving a text message on such a device has committed a Wiretap Act

violation.

If an intercept did not occur during the transmission of the message,

or at least simultaneous to the receipt of the message, then we must

logically conclude that no intercept occurred at all. Our conclusion in this

regard is buttressed by the fact that the record does not support Appellee’s

assertion that the police were watching Still’s iPad screen over his shoulder

as the text messages were sent back and forth to Appellee.2 If the police
____________________________________________

2
Appellee contends that “[t]he police supervised and observed the text-
message conversation between Still and his drug supplier as it was occurring
on the iPad.” Appellee’s Brief, at 3. However, Appellee’s citations to the
record simply do not support that factual claim. First, the trial court does
not definitively resolve this issue. During its recitation of the facts, the court
states:

The transaction took place in the basement of the police station
and was set up with Mr. Still communicating directly with
[Appellee] on the iPad. Mr. Still relayed to the detectives each
response from [Appellee]. In the room with Mr. Still were at
least six (6) law enforcement officers. Detective Moyer testified
that Officer Corey Dickerson was sitting next to Mr. Still during
the communications and said that it was possible that the officer
observed what Mr. Still was doing on the iPad.

Suppression Court Opinion, 3/16/15, at 1-2. The mere possibility that
Officer Dickerson had contemporaneously observed the conversation
between Appellee and Still on Still’s iPad does not demonstrate that he did
observe it. It merely expresses Detective’s Moyer’s uncertainty about what
(Footnote Continued Next Page)

- 19 -
J-A14002-15

_______________________
(Footnote Continued)

Officer Dickerson observed. Officer Dickerson did not testify, and neither of
the testifying witnesses at Appellee’s suppression hearing could say for
certain if any of the officers had directly observed the conversation as it
happened.

Later in its opinion, the trial court describes the events differently,
stating: “During the communication, officers were in the room
contemporaneously observing and directing, but not themselves doing the
communicating. … The officers[’] giving direction to Still, and watching over
him, amounts to eavesdropping or listening in on the electronic message
communication.” Id. at 5 (emphasis in original). The court also noted that
“it was [Still] who initiated the phone call at the direction of the officers; the
clear intent was to intercept.” Id. at 5 n.1.

This portion of the trial court’s opinion could be read to imply that the
officers were observing and directing Still, but not directly observing the
conversation between Still and Appellee. However, to the extent that this
suggests that an officer directly observed the text message conversation as
it appeared on Still’s iPad, that interpretation of the facts lacks sufficient
support in the record. First, the trial court does not cite to the portion of the
record that would support that interpretation. Second, Detective Moyer’s
testimony does not support that interpretation. Describing what happened,
Detective Moyer stated:

We asked Mr. Still if he would be willing to set up a deal with his
dealer that evening, which he agreed to do. From that point, he
said he usually contacts [Appellee] with an i[P]ad through a text
messaging service on his i[P]ad. He was provided his i[P]ad. He
then set up the deal.

He asked what he should do. I said, [j]ust do your deal the way
you normally would. He set it up. He relayed to me what
was going on. The deal was set up.

N.T., 1/13/14, at 7.

Later, Detective Moyers stated that Officer Dickerson was seated next
to Still during the iPad conversation, and that Officer Dickerson “could have
seen” the messages as a result of his position in relation to Still.

(Footnote Continued Next Page)

- 20 -
J-A14002-15

had observed the text message conversation over Appellee’s shoulder as it

occurred, a different legal question would be before this Court because it

would then be plausible to argue that the police may have observed the

content of the text messages before Still had received them. However,

because that particular factual scenario is not before this Court at this time,

we need not address it.

_______________________
(Footnote Continued)

Third, Gary Still’s testimony does not support the claim that police
observed the iPad as the messages were received. He testified as follows:

Q. How do you communicate that to the officers? Are you telling
them or showing them the text messages?

A. I am saying maybe a mixture of both. I am really not 100
percent sure of exactly how it happened; if they were looking at
it or just asking me what I said or what was being said.

Q. Were there any officers right with you while you were sending
the text messages?

A. No. I can’t say they were right on top of me. The room
wasn’t that big that people were getting lost in there. So there
were people around me, but I don’t think anyone was
actually looking right over my shoulder.

N.T., 2/20/14, at 9 (emphasis added).

Given the testimony from Still and Officer Dickerson, the only
witnesses who testified at Appellee’s suppression hearing, we read the trial
court’s opinion as concluding that Still’s iPad conversation was not being
directly observed by the officers as it occurred. Instead, the trial court
intended to imply that by directing Still’s conversation with Appellee, and by
having Still relay the content as the conversation occurred, that the police
had effectively intercepted it. Therefore, we disagree with the trial court
only in its legal conclusion that an intercept occurred in these circumstances.

- 21 -
J-A14002-15

In sum, we conclude that no Wiretap Act violation occurred and,

therefore, that the trial court erred when it granted suppression on that

basis. Furthermore, because Appellee lacked any reasonable expectation of

privacy in his text messages after they were received on Still’s iPad, there

was no constitutional violation of Appellant’s privacy rights.

Suppression order reversed. Case remanded. Jurisdiction

relinquished.

Judge Strassburger joins this opinion.

Judge Jenkins concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/23/2015

- 22 -