J-S53043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellant
v.
JEFFREY S. NEIN
No. 47 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-0003422-2015
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 Jeffrey S. Nein’s 1 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
*
Former Justice specially assigned to the Superior Court.
1
The Commonwealth’s appeal from the order dismissing the charges against
Appellee’s codefendant, Ricardo A. Pena, is docketed at 46 MDA 2016.
2
18 Pa.C.S. §§ 903(a)(1)-(2); 5703(1)-(3).
J-S53043-16
Commonwealth v. Smith, 136 A.3d 170 (Pa. Super. 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.
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