J-S11018-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 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 Pennsylvania 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-S11018-16

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4. Lewis contends that the PCRA court erred in dismissing 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 discussion 

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 

because 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 PCRA court that Spence is directly 

on point and, as such, Lewis’s ineffectiveness claim is completely meritless. 

____________________________________________

3 18 Pa.C.S. §§ 5701–5782.
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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 matter.
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 

BRINKLEY, J. APRil, 1, 2015 

OPINION 

SUPERIOR COURT 

TERRENCE LEWIS 220 EDA 200'91J;J 

vs. 

CO:M:M:ONWEALTH CP-51-CR-0009629-2008 

IN THE COURT OF COMMON PLEAS 

rrnsr JUDICIAL DISTRICT OF PENNSYLVANIA 

CRIMINAL TRIAL DIVISION 

Circulated 04/07/2016 01:54 PM
2 

(Commonwealth v. Lcwjs, Unpublished Trial Ct. Opinion, Brinkley, J., 2547 EDA 2009, at 4-5). 

After receiving the pre-determined takedown signal from Garcia, 

Miscannon proceeded to where Garcia and the CI were located and 

arrested Defendant from inside the backseat of an undercover 

police vehicle. From Defendant's person, he recovered $6,310 and 

two cell phones. Miscannon called the phone number the CI had 

been using to communication with Defendant, and one of the cell 

phones rang. After Defendant was in custody, Garcia gave 

Miscannon a clear plastic bag filled with 4.5 ounces of powder 

cocaine, which Garcia had received from Defendant. 

The CI and Defendant finally agreed to meet in a Pathmark 

Parking Lot at the intersection of Monument and Ford Road. 

Miscannon followed the CI and Garcia to that location in an 

unmarked police vehicle. At approximately 4: 10 p.m., he saw 

Defendant arrive in a silver Dodge Ram pickup truck and pull up 

alongside the Cl and Garcia's car. Defendant then drove to the 

intersection of Media and 60111 Street, followed by the CI and 

Garcia in their own car. Miscannon remained in an unmarked 

police vehicle parked around the comer so that he could conduct 

surveillance. Approximately two minutes later, he observed 

Defendant walk onto the 1400 block of Redfield Street. He Jost 

sight of Defendant for approximately 8-10 minutes when he 

entered and exited a residence, and then stopped to talk with an 

individual in a black Jeep. 

On July 1, 2008, Miscannon met with a confidential informant 

(CI), who told him about a mid-to-upper level drug trafficker in 

Philadelphia named Terrence Lewis (Defendant), who dealt in up 

to nine ounces of cocaine and that he had purchased drugs from 

this person in the past. The CI described this man as a black male, 

approximately 25 years old, and that he drove a silver Dodge Ram 

truck or a green Lincoln Town Car. Based upon this information, 

Miscannon instructed the Cl to call Defendant and order 4.5 

ounces of "hard" (crack cocaine) and 4.5 ounces of "soft" (powder 

cocaine), for a total of nine ounces. The CI did so using 

speakerphone and they settled on a price of $8000 for these drugs. 

Miscannon then called State Trooper Javier Garcia and instructed 

him to proceed undercover with the CI to purchase the drugs. The 

CI and Defendant engaged in several more phone calls while 

deciding where to meet. Miscannon testified that the CI always 

had the phone on "speaker" and he recognized the same voice on 

the other end each time. 
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, Esquire. On February 18, 2009, 

defense counsel litigated a motion to suppress all physical evidence 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 

incarceration. On April 21, 2009, defense counsel filed post-sentence motions, requesting a new 

trial and/or a reconsideration of sentence. These motions were denied by operation of Jaw 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 for 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 sentence. Defendant did not seek review by the 

Pennsylvania Supreme Court. 

On October 10, 2012, Defendant filed a prose 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 Commonwealth filed a Motion to Dismiss. The Commonwealth filed a Supplement to its 

Motion to Dismiss on April 30, 2014. On November 19, 2014, this Court sent Defendant a 

Notice Pursuant to Rule 907, indicating that his petition would be dismissed as meritless. 

Defendant filed a prose 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 ineffective 
4 

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 as 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 errors and 
5 

(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 

!·lQ_~,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 would 
6 

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 Wiretap 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