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NON - PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENN SYLVANIA 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 Pen nsylvania 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
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4. Lewis contends that the PCRA court erred in dism issing 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 discussi on 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 bec ause 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 PC RA court that Spence is directly on point and, as such, Lewis’s ineffectiveness claim is completely meritless.

_____ _______________________________________ 3 18 Pa.C.S. §§ 5701
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- 3
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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 mat ter.police officer. This Court summarized the facts in its trial court opinion as follows:

deliver a controlled substance (PWID) after he sold nine ounces of cocaine to an undercover On July 1, 2008, Defendant was arrested and charged with possession with intent to Background should be affirmed. dismissed Defendant's PCRA petition as untimely and without merit. This Court's dismissal 1925(a) Opinion, this Court will address the following issue: whether the PCRA court properly petition as without merit. Defendant appealed this dismissal to the Superior Cou11. 

### In this Dismiss; and Defendant's Reply to Commonwealth's Supplement, this Court dismissed his Memorandum of Law; the Commonwealth's Motion to Dismiss and Supplemental Motion to assistance of counsel. After independent review of Defendant's counseled Amended Petition and Relief Act (PCRA), 42 Pa.C.S.A. § 9541 et seq. (eff. Jan. 16, 1996), claiming ineffective Defendant Terrence Lewis filed a petition for relief pursuant to the Post Conviction 

### APRil, 1, 2015 BRINKLEY, 

### J. OPINION SUPERIOR COURT 

### 220 EDA 200'91J;J TERRENCE LEWIS vs. CP-51-CR-0009629-2008 CO:M:M:ONWEALTH IN THE COURT OF COMMON 

### PLEAS



## rrnsr JUDICIAL DISTRICT OF 

### PENNSYLVANIA

CRIMINAL TRIAL DIVISION Circulated 04/07/2016 01:54 PM2

( C ommonwealth v. Lcwjs , Unpublished Trial Ct. Op i n i on, B rinkl e y , J., 2 547 E DA 2 009, a t 4-5)

.

Afte r re ceivin g th e p r e - d e t e rmin e d tak edown sign a l fro m G arci a , Misc a nnon p roc e e d e d to where G arcia a nd th e C I w e r e lo ca te d a nd arre s t ed Defendant from in s id e th e ba cks eat o f an under c over po lice veh ic le

. Fro m D efe ndant ' s pe r son , h e r eco v ere d $6, 310 a nd tw o ce ll phon es . Mi sc annon cal le d th e phon e nu mbe r th e C I h a d b e en usi ng t o c ommuni c ati on with D efen d an t , an d on e o f the ce ll p hon e s ra n g. Afte r Defend a nt w a s in c ustody , Gar c i a gave Mis ca nnon a c le ar pl as ti c b a g filled wi th 4

. 5 o unc es of p o wde r c o cain e, wh i ch G arc ia h a d rec e iv e d from D e fend a nt. T he CI a n d Defend a nt fi n a lly a greed t o me e t in a Pathm ark Parking L o t a t the inters e ction o f Monument a nd F ord R o ad. Mi sca nnon foll o w e d th e C I and G ar cia to th a t loc a tion i n an unm ark ed p o lice v e hicl e. At approximately 4: 10 p. m ., h e saw D e fen da nt arrive in a s il v e r Dodg e R a m pi ckup truc k a nd pull u p a long s ide the C l and Gar ci a's car. Defendant th e n d r ov e to th e int ers e c ti o n of M e d ia and 60 111 S tr eet , fo llow ed by the C I a nd Gar c ia i n their own car . Misc a nnon r e mained in a n unmarked poli ce v ehi c l e parke d around th e com er so th a t h e c ould c ondu c t surveillance

. Approxim at e ly t w o minute s l ate r , h e obs e rved D e fe n d a nt w a lk onto the 1400 block o f Redfi e ld Street. He Jost sight of D efe nda n t fo r ap pro xi ma te l y 8

- 10 minutes w he n he e ntere d a nd ex ited a resid e nce, a nd then stopp e d to talk with an in d ivi dual in a bla ck Jeep

. On Jul y 1, 2 008, Misc a nnon me t wi th a co nfide nti al i n form a nt (CI), who told him about a mid-to- u pper l e v e l drug trafficker i n P hil a d e lph ia n a m e d T e rr e nc e Le wis (Defendant ), who dea lt i n up to nin e oun ce s o f c ocaine and that h e h a d purchas e d dru g s fro m this p e r s o n in the p a st. The CI d e sc ribed this man as a bl ac k m a le , approxim at e ly 2 5 years old, an d that he d r o v e a s ilv er Dodg e R a m tru ck or a gr e en Lincoln T own Car

. B a sed upon this in fo rmati on, Mis c annon i n s tru c ted th e Cl to c a ll Defend a nt a nd or der 4.5 oun c e s of "hard" ( c rack c ocain e ) and 4

. 5 ou n ces of "so ft " (p ow der co c a in e), for a tot al of n i ne oun c es. The CI d i d s o u s in g spe ak erpho n e and they s e ttled on a p ri c e of $8000 for th e se drug s. Mis c anno n th en ca ll e d St a te T roop er Jav i er G ar c i a a n d instru c t e d him to pro c e e d undercover with the CI to p ur cha s e the dru gs. T he CI and De fe nd a nt e nga ge d in se veral mor e ph o n e ca lls while deciding where to m e et. M i sc a nnon t e stifie d that th e CI alw ay s had th e phon e on " spe ake r" and he r ec ogni z ed the sa me v oice on the other end e ac h ti m e .3

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, Esqui r e. On February 18, 2009, defense counsel litigat ed a motion to suppress all physical e vidence 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 inc arceration

. On April 21, 2009, defense counsel filed post-sentence motions, requesting a new trial a nd/ or a reconsid e ration of s e ntence
. These motions were denied by operation of 

### J a w 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 fo r 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 sent e nce. Defendant did not seek review by the Pennsylvania Supreme Court. On O c tober 10 , 2012 , Defendant filed a pros e 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 C ommonwealth filed a Motion to Dismiss. The Commonwealth filed a Supplement to its Motion to Di s miss on April 30, 2014

. On November 19, 2014, thi s Court sent Defendant a Notice Pursuant to Rule 907 , indicating that his petition would be dismissed as meritless. Defendant filed a pro s e 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 ineffective4

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 a s 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 e rrors and5 (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 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: other device" is further defined by the statute as: of any electronic, mechanical or other device." 18 Pa.C.S. 

### § 5702. "Electronic, mechanical or as the "acquisition of the contents of any wire, electronic or oral communication through the use of the content of any conununication intercepted in violation of this act. Interception is defined wire, electronic or oral communication." The Wiretap Act further prohibits the disclosure or use endeavors to intercept, or procures any other person to intercept or endeavor to intercept any §5703, a person is guilty of violating the Wiretap Act ifhe or she "intentionally intercepts, conversation with Defendant was not a violation of the Wiretap Act. Pursuant to 18 Pa.C.S. speakerphone feature on the Cl ' s cell phone so that Trooper Miscannon could listen to the CI's Defendant's ineffective assistance of counsel claim based upon the use of the B. Trooper Miscannon did not violate t~ WiretapAct when he listened to the Cl's !· l Q_~,vcrsation with Defendanl vla a cell phone's ~p

_ eakcrnhone feature. prejudice prong .of the ineffectiveness standard, the claim may be dismissed on that basis alone"). v. Hanis, 578 Pa. 377, 852 A.2d 1168, 1173 (2004) ("where an appellant has not met the Cqmmonwcalth v. Bridg~~' 584 Pa. 589, 886 A.2d 1127, 1131 (2005)); see also Com1non1~1!l.!..h satisfy any prong of this test will cause the entire claim to fail. Bath, 907 A.2d at 622 (citing (quoting Commonwealth v._Kin.1..bnll, 555 Pa. 299, 724 A.2d 326, 333 (1999)). The failure to have been different." Commonwealth v. Bath, 2006 PA Super. 235, 907 A.2d 619, 622 (2006) omissions of counsel, there is a reasonable probability that the outcome of the proceedings would6

and Supplemental Memorandum, Defendant argues that Spence is not controlling because it did In his Memorandum of Law in Opposition to the Commonwealth's Motion to Dismiss holding unequivocally stated that this was not a violation of the Wiretap Act. phone on speaker so that Trooper Miscannon could hear the conversation. The Spence court Trooper Miscannon was working with a Cl, who called Defendant on his cell phone and put the The facts in the case at bar are not just analogous, but are virtually identical. Here, [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. as the informant arranged a drug deal. Spence, supra at 47. The Court reasoned: violate the Wiret ap Act when he listens through the speaker on an informant> s cellular telephone Wiretap Act, the Pennsylvania Supreme Court declared, "we hold that a state trooper does not that he could monitor the conversation. Rejecting the defendant's claim that this violated the Miscannon dialed the Cl's cell phone and instrncted the CI to use the speakerphone feature 

### so Miscannon instructed a CI to contact a drug dealer and arrange a drug transaction. Trooper factually identical to the case at bar. 91 A.3d 44 (2014). In Spence, Pennsylvania State Trooper Recently, in Commonwealth v. Spcncq, our Supreme Court considered a matter nearly 18 Pa.C.S.A. § 5702.

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.7

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.8 BY THE COURT:

Defendant on speakerphone. Accordingly, this Court's dismissal should be affirmed. violation of the Wiretap Act for Trooper Miscannon to listen to the Cl's conversation with 

### error, This Court properly dismissed Defendant's PCRA petition as meritless as it was not a After review of the applicable statutes, case law and testimony, this Court committed no CONCLUSION