concurring.
I agree with the Majority that there was no interception pursuant to the Wiretap Act when Trooper Houk communicated with a suspect via text messaging while pretending to be the suspect’s accomplice. I write separately, however, to note my disagreement with the Majority’s reliance on Commonwealth v. Proetto, 771 A.2d 828 (Pa.Super.2001), aff'd per curiam, 575 Pa. 511, 837 A.2d 1163 (2003), as I agree with the Superior Court that the case at hand is factually distinct from Proetto.
Preliminarily, the Pennsylvania Wiretapping Act criminalizes the interception, or “acquisition,” of the contents of any wire, electronic, or oral communication. 18 Pa. C.S. § 5702-5703. We applied the Wiretap Act in Proetto, where the detective created a fictional online identity, “Kel-lyl5F,” and initiated communication with Proetto. Importantly, in Proetto, the communication was at all times directly between the detective and Proetto; there was no third party involved in the communication. Because there was no third party, there was no interception of a communication occurring between Proetto and a third party. As the Superior Court in Proetto noted, in the opinion adopted by this Court, “Detective Morris, as ‘Kel-lyl5F’ was the intended recipient of these communications.” Id. at 831. Whether the detective assumed a fictional identity for purposes of initiating the communication is irrelevant because the two-way communication was only between the detective and Proetto.
Here, in contrast, and contrary to the Majority’s conclusion, the text message communication was between the defendant (Stephen Lanier) and a third party (Michael Amodeo). Trooper Houk at no point was ever the “intended recipient” of Lanier’s text messages, either as himself or through the adoption of a “fictional identity.” It is because the communication was between defendant Lanier and Amodeo, a third party, and intercepted by Trooper Houk, that this case is distinct from Proet-to.
While I see Proetto as factually distinguishable from the case at hand, I am, nevertheless, in a concurring posture because this case is more factually similar to Commonwealth v. Smith, 186 Pa.Super. 89, 140 A.2d 347 (1958) and Commonwealth v. DiSilvio, 232 Pa.Super. 386, 335 A.2d 785 (1975),1 both of which involved police officers answering ringing telephones on the premises of a bookmarking operation during police raids. In each case,. the callers asked for certain named individuals, and, when informed that those individuals were unavailable, proceeded to place bets. In both cases, the Superior Court found that the police officers’ actions of answering the phones and talking to the callers did not constitute an interception pursuant to the relevant Pennsylvania anti-wiretapping statutes at the time of the incidents because the callers “freely elected” to talk to the person answering the phone, whether or not they were informed of the identity and occupation of the recipients of the calls. By receiving the communication directly over the phone, the officers were in fact themselves “parties to the calls.” DiSilvio, 335 A.2d at 787; Smith, 140 A.2d at 350.
Likewise, by answering Lanier’s text messages to Amodeo, Trooper Houk here *102acted in the same manner as the police officers in Smith and DiSilvio. Lanier directly communicated with and “freely elected” to continue the conversation with the person answering the text messages.
Justice TODD joins this opinion.. Both Smith and DiSilvio were favorably cited by the Superior Court in Commonwealth v. Proetto, 771 A.2d 823 (Pa.Super.2001), which our Court per curiam affirmed on the basis of the Superior Court’s opinion. Thus, we have adopted the Superior Court’s rationale employed in reaching its final disposition in Proetto. See Commonwealth v. Tilghman, 543 Pa. 578, 673 A.2d 898 (1996).