PA Court Rules Cell Phone Can Be Instrument of Crime

Posted in Harassment/Stalking on August 2, 2026

Modern criminal cases increasingly involve text messages, social media, and smartphones. A recent Pennsylvania Superior Court decision confirms that these devices can do more than provide evidence—they can also become the basis for an additional criminal charge.

In Commonwealth v. Hernandez, 2026 PA Super 161 (July 29, 2026), the Superior Court held that a defendant’s cell phone qualified as an Instrument of Crime because it was allegedly used to repeatedly send threatening communications through Facebook and Instagram.

What Is Possession of an Instrument of Crime?

Under 18 Pa.C.S. § 907, a person commits the offense of Possessing an Instrument of Crime (PIC) if he or she possesses an object with the intent to use it criminally. The statute defines an instrument of crime as:

PIC is generally graded as a first degree misdemeanor, carrying potential jail time and a permanent criminal record. A first degree misdemeanor would trigger a Federal firearm  , meaning a person convicted of Possession of an Instrument of Crime could not purchase or even possess a firearm.

The Hernandez Case

Hernandez repeatedly contacted a woman through Facebook and Instagram after she rejected his advances. According to the evidence presented at trial, he sent threatening message, sent pornographic photographs and videos, and he continued communications over an extended period despite being told to stop. After a trial, a jury convicted him of Stalking, Harassment, and Possession of an Instrument of Crime. Hernandez appealed his convictions to the Pennsylvania Superior Court.

Why the Court Considered the Cell Phone an Instrument of Crime

On appeal, the defense argued that the cell phone merely facilitated or allowed Hernandez to communicate and therefore should not qualify as an instrument of crime. The Superior Court disagreed.  rejected that argument. According to the Court, the phone was not simply incidental to the offenses but was instead vital to the communications that formed the basis of the stalking and harassment charges. Because the phone was used directly to accomplish the criminal conduct, it satisfied the statutory definition of an instrument of crime.

Importantly, the Court emphasized that its holding is limited to the facts of this case and should not be interpreted to mean that every use of a cell phone during a crime automatically supports a PIC charge.

Criminal Use of a Communication Facility

Cell phone use can result in additional criminal charges in other circumstances, such and Drug Delivery or Unlawful Contact with a Minor.  With Drug Delivery charges, the alleged dealer almost always uses a cell phone to communicate with the buyer and schedule the delivery.  The communication is often via text, call, or other phone app such as Snap Chat or Instagram.  With Unlawful Contact with a Minor, again, the cell phone is often used to facilitate the unlawful communication.  In such situations, the suspect is often charged with Criminal Use of a Communication Facility under 18 Pa.C.S. § 7512.  That statute only requires that a “person uses a communication facility to commit, cause or facilitate the commission or the attempt thereof of any crime which constitutes a felony.  A cell phone is a “communication facility.”  The charge is a felony of the third degree and punishable by up to 15 years in jail and a $15,000 fine.

Sentencing Merger Rules

Although the Superior Court upheld the PIC conviction, it found that the defendant’s harassment convictions should have merged with the stalking convictions for sentencing purposes. Pennsylvania courts have long recognized that harassment is a lesser-included offense of stalking when both convictions arise from the same conduct. Accordingly, the Superior Court vacated the harassment sentences while leaving the stalking and PIC convictions intact.

Charged With Stalking, Harassment, or a Social Media Crime?

If you have been charged with stalking, harassment, terroristic threats, or another offense involving electronic communications, it is critical to have an experienced criminal defense attorney evaluate every potential defense. Issues involving the sufficiency of the evidence, merger of offenses, constitutional protections, and statutory interpretation can significantly affect the outcome of your case.

JD Law P.C. represents individuals charged with criminal offenses throughout Central Pennsylvania. If you are facing criminal charges, contact an experienced State College criminal defense attorney to discuss your rights and defense options.