Commonwealth v. Smith

136 A.3d 170

2016 PA Super 43

COMMONWEALTH of Pennsylvania, Appellant

v.Talbot S. SMITH, Appellee.

No. 1200 MDA 2015

Superior Court of Pennsylvania.

Argued Dec. 2, 2015.

Filed Feb. 19, 2016.

Stephanie E. Lombardo, Assistant District Attorney, York, for Commonwealth, appellant.

Edward A. Paskey, York, for appellee.

BEFORE: PANELLA, J., OTT, J., and JENKINS, J.

OPINION BY OTT, J.:

The Commonwealth appeals from the order entered June 30, 2015, in the York County Court of Common Pleas, granting Talbot S. Smith's pre-trial motion for habeas corpus relief, and dismissing the sole charge filed against him. Smith was charged with interception of oral communications¹ after he surreptitiously recorded a conversation with his former boss using a “voice memo” application (“app”) on his smartphone.² On appeal, the Commonwealth contends the trial court erred in concluding that Smith's use of the app on his smartphone did not constitute use of a “device” to intercept communications under the statute. For the reasons set forth below, we are constrained to reverse the order of the trial court, and remand for further proceedings.

The facts and procedural history underlying this appeal are aptly summarized by the trial court as follows:

[Smith] worked in the employ of the Unilife Corporation as the Vice President of Integrated Supply Chain until June 14, 2012. On that date, [Smith] was relieved of his duties pending a meeting with his supervisor, Ramin Mojdeh (“Mojdeh”), which was scheduled for June 21, 2012, to discuss his future responsibilities. Between June 14 and June 21, 2012, [Smith] filed an internal ethics complaint, including alleged actions by Mojdeh, using Unilife's third-party reporting site.

During the meeting on June 21, 2012, [Smith] avers that he noticed a copy of the ethics complaint that he filed sitting on Mojdeh's desk. At that point, [Smith] began recording the conversation with his iPhone's “Voice Notes” application. Mojdeh was unaware at the time that [Smith] recorded the conversation.

In mid-July 2012, [Smith] filed an ethics complaint with the SEC. His employment was terminated by Unilife, and, resultantly, [Smith] filed a civil suit against his employer. The existence of the recording was uncovered by Unilife during discovery. On June 20, 2014, after a Unilife attorney contacted the Northern York County Regional Police Department, [Smith] was charged under 18 PA.C.S.A. § 5703(1) (relating to the interception of communications).

At [Smith's] preliminary hearing on August 12, 2014, the charge was held over for court. [Smith] filed an Omnibus Motion for Pre–Trial Relief, which included a Petition for Writ of Habeas Corpus, on January 14, 2015. [Smith] and the Commonwealth were ordered to file briefs on this matter. [Smith] filed a brief in support of his motion on March 4, 2015; the Commonwealth filed a brief in opposition to [Smith's] motion on March 27, 2015.

Trial Court Opinion, 6/30/2015, at 1–2.

On June 30, 2015, the trial court entered an order granting Smith's request for habeas corpus relief, and dismissing the sole charge filed against him. This Commonwealth appeal follows.³ See Commonwealth v. Hess, 489 Pa. 580, 414 A.2d 1043, 1047 (1980) (“[T]he Commonwealth may appeal from an order discharging a defendant upon a writ of habeas corpus[.]”).

On appeal, the Commonwealth contends the trial court erred in granting Smith's request for habeas corpus relief.⁴ Specifically, the question presented is whether Smith's use of a “voice memo” app on his smartphone to record his conversation with Mojdeh was prohibited by the Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”),⁵ and therefore, supports a charge of interception of oral communications pursuant to Section 5703 of the Act. See 18 Pa.C.S. § 5703.

Because the issue raised herein is one of statutory construction, our review is guided by the following principles, derived from the Statutory Construction Act (“SCA”), 1 Pa.C.S. § 1501 et seq.

The SCA instructs that “the object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. Every statute shall be construed, if possible, to give effect to all its provisions.” 1 Pa.C.S.A. § 1921(a). Further, “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.A. § 1921(b). When, however, the words of the statute are not explicit, the intention of the General Assembly may be ascertained by considering other matters. 1 Pa.C.S.A. § 1921(c).

Under the SCA, “[w]ords and phrases shall be construed according to the rules of grammar and according to their common and approved usage[.]” 1 Pa.C.S.A. § 1903(a). If the General Assembly defines words that are used in a statute, those definitions are binding. Commonwealth v. Kimmel, 523 Pa. 107, 565 A.2d 426, 428 (1989). A court may presume that in drafting the statute, the General Assembly intended the entire statute to be effective. 1 Pa.C.S.A. § 1922(2). Thus, when construing one section of a statute, courts must read that section not by itself, but with reference to, and in light of, the other sections. Commonwealth v. Mayhue, 536 Pa. 271, 639 A.2d 421, 439 (1994).

Commonwealth v. Deck, 954 A.2d 603, 606–607 (Pa.Super.2008), appeal denied, 600 Pa. 738, 964 A.2d 1 (2009).

Section 5703 of the Wiretap Act provides that “a person is guilty of a felony of the third degree if he ... intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, electronic or oral communication.” 18 Pa.C.S. § 5703(1) (emphasis supplied).

For our purposes, the Wiretap Act defines “intercept” as “[a]ural or other 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 (emphasis supplied). The Act further defines an “electronic, mechanical or other device” as, inter alia:

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....

Id. (emphasis supplied).

Moreover, we must bear in mind “Pennsylvania's [ ] Wiretap Act emphasizes the protection of privacy,” and, therefore, “the provisions of the Wiretap Act are strictly construed.” Commonwealth v. Spangler, 570 Pa. 226, 809 A.2d 234, 237 (2002).

In the present case, the trial court concluded Smith's smartphone did not constitute a “device” under the plain language of the Wiretap Act, based upon both principles of statutory construction, and the Pennsylvania Supreme Court's decision in Commonwealth v. Spence, 625 Pa. 84, 91 A.3d 44 (2014). See Trial Court Opinion, 6/30/2015, at 4–6. The trial court emphasized that the Supreme Court in Spence determined all telephones are exempt under the statute, regardless of “the use to which the telephone is being put[.]” Id. at 5, quoting Spence, supra, 91 A.3d at 47 (emphasis in original). The court further explained “the broad language of the Wiretap Act mandates the conclusion that [Smith's] use of his iPhone's ‘voice memos' application is the use of a ‘telephone ... or [a] component thereof.’ ” Id. at 6.

The Commonwealth asserts, however, the trial court's analysis is incorrect. Rather, it maintains the “voice memo” app, used by Smith to make an audio recording, was “analogous to a pre-digital ‘tape recorder.’ ” Commonwealth's Brief at 8. Recognizing the plain language of the Act excludes telephones in its definition of interception “devices,” the Commonwealth, nevertheless, argues the legislature did not intend the absurd result which will occur if the trial court's ruling is upheld. Emphasizing the rapidly evolving technological advances of the modern day smartphone, “inconceivable at the time the applicable laws were enacted,” the Commonwealth states “one cannot approach modern cases while wearing blinders.” Id. at 12. Accordingly, it asserts “the modern cell phone must be characterized by [the] function it is performing, and the capacity in which the phone is being used at any given time.” Id. Furthermore, the Commonwealth distinguishes the Supreme Court's decision in Spence, noting that there was “no audio recording made of the conversation” in that case, where a state trooper simply “listened to the conversation on speaker phone, as it occurred on the informant's cellular phone.” Id. at 14–15. Rather, the Commonwealth asserts, in the case before us, Smith “recorded a conversation with Dr. Mojdeh ... using a ‘tape recorder’ on his ‘mini computer.’ ” Id. at 17.

We begin our discussion by reiterating, “[t]he object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly.” 1 Pa.C.S. § 1921(a). Here, “[t]he focus and purpose of the [Wiretap Act] is the protection of privacy.” Commonwealth v. De Marco, 396 Pa.Super. 357, 578 A.2d 942, 949 (1990) (emphasis omitted) (“[I]t is readily apparent that our legislature weighed society's interests in the personal privacy of individuals against society's interests in having all relevant evidence thus obtained presented in administrative, civil, and criminal proceedings, and found that the balance favored the personal privacy interests of individuals.”). Therefore, any surreptitious recording...