*1 37 expired questions since raises serious constitutional un Supreme der the recent decision of Court of United States Baxstrom v. Herold, 383 U. S. (1966). unwilling 86 Ct. S. we are However, questions consider those without benefit of briefs arguments by parties present proceed both to the ings. particular Under the circumstances of this case, corpus we are of the view that on remand, habeas appoint represent court should counsel to relator both presentation for the of the contentions advanced in his petition respecting issue his confinement by have arisen reason of the Baxstrom decis ion.9 Superior
The order of the Court is reversed and the record remanded to Common the Court of Pleas of Wayne County proceedings consistent with this opinion.
Mr. Justice Cohen took no part the considera- tion decision of this case. comprehensive 9 This has been aided Court and scholar
ly express brief filed amicus Dickinson School of Law. We appreciation participated preparation who our those in the quality and commend them for the the brief of their endeavor. Murray, Appellant. v.
Commonwealth *2 Mus- C. J., Bell, Before 1966. April Argued and Roberts, O’Brien Eaeen, Cohen, Jones, manno, JJ.
Nathan L. him Posner, with Norman Ar- Leibovitz, *3 thur and Pachel, Foco, Rothschild, O’Brien Franhel, & for appellant.
Gordon Gelfond, Assistant District Attorney, him M. Joseph Assistant District and Smith, Attorney, Arlen District for Specter, Attorney, Commonwealth, appellee.
Opinion by Mr. 6, Justice October Musmanno, 1966: has to do with
This case wire and tapping listening. extension Murray,
John who had been em- defendant, Philadelphia firm, a Lanston ployed by Monotype, firm to job take a with Summit Indus- left that Inc., Adams One Aspers, County. tries called day Murray an C. Lanston and Haas, employee Donald firm, from Lanston him obtain some certain prints asked for which machine,” “perforating Murray a would reported Haas this conversation Haas to his .pay $25. firm then the Lanston and E. superiors employed J. private Associates, detectives, entrap John Charters four men agency assigned to the job. The Murray. Agency Haas May took On the Charters 14, 1963, Philadelphia, Building in Packard to its offices tap so switchboard to the where a wire was attached coming through could that all calls switchboard point. de- The mechanical at that heard and recorded working or- having found to be been tested and vice Harry operatives, Morris, J. one of detective der, County, Murray and in Adams called the defendant turned made, the connection had been when then, Murray Murray. said talked to call over Haas who following day come he would that on the to Haas “prints” up pay pick him home to and $25. Haas’s charged with and He did and was later arrested so, employe corporate bribing offering to a bribe §667, P. 872, of the Act of June L. 24, 1939, violation §4667. 18 P.S. jury, judge de-
At the trial before without having tele- aon tective Morris testified to listened phone Haas and to the conversation between ap- guilty Murray. Murray The found Court Superior pealed con- to the Court which affirmed petitioned Murray we viction. allocatur granted. defendant-appellant convic- contends that July
tion cannot stand because Act inter P. L. 15 P.S. declares: 956, §1, §2443,which, alia, person intercept “No shall communication tele- permission telegraph parties phone without *4 communication.” to such contends there “in
The Commonwealth that was no terception.” only by reading It can so contend the glasses either obliterate record with or distort print. Eugene engineer, F. the sound Hessel, testified agency, from the instructions detective that, he at tap: I “A. was a wire called tached Charters As a to record conversation. I sociates hooked equipment up in our usual the manner with a device the calling it out the Une and checked phone report weather the weather bureau, back played order, make sure the machine was in good operating and then when the conversation conversation, phone Q. Sir. it. A. Yes, recorded You. recorded it? began, Q. recording did connect you how Now, physically there, phone? machine A. Well, office is a is clipped and the machine panel, phone panel, Q. on the time panel. there entire were Now, you Q. What that this conversation taken? A. sir. was Yes, recorded? were at the you doing time that was being IA. watched machine and monitored the conversa Q. tion that in on coming headphones. you was Gould hear the conversation? A. sir.”* Yes,
It from is clear line record tapped point was at Haas’s before line reached telephone instrument.
The testified further engineer physical about “Q. tap: you panel When remove that certain there are wires up inside of hooking phone each Q. A. That office. is correct . . you did, . And what was it towas take device not, your up and hook it A. That’s wiring? correct.” tapping wire so graphically described not only Act of violated the but it also a tres- constituted on the pass private rights property. admitted Hessel permission did not have the Telephone of the Bell “Q. Company apply tap: wire per- Did have you mission of the American Telephone and Com- Telegraph up to to hook their pany wiring? A. I engaged was Q. to do this. I don’t know. I am asking ques- you tion. Did have permission from you Telephone the Bell or American Company Telephone and Com- Telegraph up to hook to their wires? pany A. Did I personally Q. permission? sir. A. have Yes, sir.” No, throughout emphasis supplied. * All *5 42 specifically Act of 1957 that
We have seen per- “without interception there that states Who to such communication.”. parties mission of the case? in this to the communication parties were de- that It is obvious Murray. Haas and John Donald hi's intercept Haas to Morris had the consent tective trans- equally but is with Murray, communication the de- the consent of Murray, he did not have parent Act, wording specific fendant. According parties, of both approval had to have the the detective not before could straddle only one, ‘ wires. Com- and the Superior the court Court, below, in assumed have cited several federal cases
monwealth Murray position of their that the consent support point not but the federal cases on this necessary, was- are authoritative since the Act Congressional not from the interception vitally communication differs statute. 605 of the Federal Com- Section Pennsylvania Act of §605, munications 48 Stat. U.S.C. inter that “no author- person not declares, alia, being intercept ized the sender shall communication.” under the Thus, Congressional eavesdropper Act, to have the needs consent of one only person to his transom conversation, justify listening,' but under the Pennsylvania parties law both must-be aware indicate intru- of, ear approval, long sion. The lower court said: “The language of the stat- ute is clear as to whether consent of parties' both one is essential only party to avoid the statute . . .' We are not satisfied that failure to obtain consent of parties both constitutes a violation of the statute.” The lower court apparently is hard to satisfy simple and reading unadorned English. The statute specifies there may be no interception “without permission parties to such communication.” Par- ties means more than certainly one. Moreover, his- conclu- tory legislation reinforces inevitable sion unless telephonic interloping illegal agree individuals at both ends of the conversation *6 public. what to one another they say made When Senate, the Pennsylvania passed Act the State prohibition intercept the com- read: “No shall person permis- munication by telephone or telegraph without sion one of Print- parties.” the Bill No. 97, (Senate er’s No. to the 1957.) this restriction 21, However, only consent of one rejected party decisively was the House then vote of 61. The bill was by 128 to amended to to provide parties consent of all the the communication before be de- interception the could fended. pp. 1679, (Legislative Yol. 1957, II, Journal, 1804.)
The Commonwealth of the contends regardless that, physical wire cannot be tapping case, considered any light other than a violation flagrant of the the conviction be- Act, is sustainable Murray cause the detective Morris testified to he had what heard on the extension telephone and not what was recorded the by wire device. argument This tapping overshoots A the record. made transcript was written the conversation recorded the inter-' by device. Detective cepting transcript Morris read this not once but three times. When he was he testified, he heard the testifying what on what he had read transcript? the If his testi- predicated was mony what was contained in the testimony would fall the transcript, within ban of the Act as certainly as would transcript the the itself. recording court in support
The lower cited conviction v. case of Nardone U. U. S., S. 338. That case, of functioning pillar instead as a support con as a operates wrecker’s ball viction, smash loose foundations. The Court from its said in the Nardone un- an has been there it is shown that once case accused tapping, here, shown as was wire lawful prove a sub- opportunity “to to be allowed has fruit against him was portion case stantial es- case the Tsfa/rdone poisonous all That is tree.” Supreme reversed Court in fact, tablished and, because for retrial back the case and sent conviction opportunity to show given the not been had Nardone prosecution tainted. was evidence much how wire very specifically Supreme referred Court agents government that case tapping committed practices.” as “illicit did have defendant us the
In the case before presented opportunity evidence that the show poisonous truly Indeed tree. fruit of a was detective demon- it was himself, of the detective mouth from the *7 chewing apple evidentiary had he was that the strated core. a mildewed January Morris testified detective 29, 1964,
On on the he had heard he said the conversation eight When he was months before. some he he he wrote down what listened, as whether, asked employed pencil replied and that he had not he heard, memory paper not to be left to the because was this date said.” The record- on what was “remember way. ing be done in of the conversation was to another taped.” had it This answer itself could be “We enough to overturn the conviction because it demon- prosecution, criminal that the whole from strates its genesis, tap- very tainted was to be based on the wire recording ping tap. taken from and the wire devastating is even evidence, more that however, depended on the the detective three-times read tran- tape recording script the wire rather than his memo- singly ry he had heard on of what two- year investigations before. The thirds of all de- private particularly and tectives, detectives, are invari- ably they writing a re- make must reduced because port they them. hired on done to those who wbat have report report A contained made here that was transcript recording wire whole taken from tap. “Q. tran- And it [the Detective testified: Morris report script taping] in the the wire is contained you superior your your that perior su- have rendered engaged you; client that correct? is substantially you Q. A. That have correct. Now, sir, copy report you? Q. And A. sir. Yes, you report yon today, have read that A. have not? Oh, you yes. you yesterday, Q. And A. read it not? Yes, did prior I Q. sir, did. And on A. on one Well, occasions? prior report you Q. occasion. And have read in that supposedly what was taken down the recorder? from A. Yes, sir.” transcript
Thus detective Morris had read the recording very day wire wit- was on the prior ness as well as on two The cur- stand, occasions. higher phase opera- shadowy tain rises on this you reports “Q. tion: Mr. did read these on at Morris, you transcript? least three did A. occasions, not, you Q. sir. You Yes, worded it word did word, say not? you Q. A. sir. Yes, would that. And read only you just you what testified toas what recall, phases alleged you but other of this did conversation, Q. not? A. sir . . . In other Yes, words, when he said, night,’ you got ‘We will be down tomorrow from transcript, you did recording, from the not, *8 language? exact Isn’t that correct? A. I am not sure Wednesday at moment whether night. mentioned night. Q. got Q. A. Tomorrow Yes. You that from transcript? Q. A. phraseologies Yes. And other quoted your yon in direct examination, that came recording; isn’t that this sir? true, A. Yes, sir.” from outright by admission With this Morris that he ob- incriminating evidence tained from transcript tape recording, clear as illegally it is installed wire case in this that the conviction the Twelve Tables as quicksand. in rests on stilts imbedded only author- not detective violated the Act divulging izing tape, but of the wire the installation wire-taped transcript con- the contents of the divulge person specifies: Act “No shall versation. The purport in- or of a communication or tercepted the contents use the de- in act.” Nor was violation this from because excused his infraction of the law tective during divulgence in courtroom and a occurred proclaims judicial proceeding. specifically The statute ‘divulge’ divulgence that: “The term includes to a fel- private employe government or low terprise official judicial, or en- legislative or administrative, proceeding.” other depict
Nothing dramatically could more the intense iniq- Legislature wipe determination of the out the tapping forthright uities of wire than this utterance may information obtained not this manner except only, penalty, under dire be communicated to a government employee, fellow or civilian but it also judicial proceeding. even be used The General Assembly tapping of 1957 outlawed wire and all its trappings, completely results as as effects, the Dec- Independence wiped laration tyran- out monarchical ny in America. phase appeal.
We will now consider another of this Superior Both the lower court and the Court stated in respective opinions, their equal- and the Commonwealth ly nothing illegal that there is contends, about someone listening in on a extension, without con- parties conversing sent of the on that and then wire, divulging the contents that conversation to others. position This demonstrates misreading another of- the The Act Act. declares a no-nonsense fashion that person employ any “No shall install or device for over-
4? through or passing recording communications hearing, intercept a telephone or intent line with telegraph a communication of violation this act.” telephone
What is a a for over- extension but device ? re- hearing physical properties The needed and the labor more quired to install a be even telephone extension extensive than those in attaching tap, a wire employed Which is a from the gadget sorts. both lead They main telephone both lead to the same end line, they eavesdropping. the difference which Thus, result — Superior and court be- Commonwealth, Court low attempt to draw tap between wire and a tele- phone extension cannot on any based distinction mechanical complexity operations. between the two
What the prosecution throughout this entire case perceive fails to is that precise Act 1957 has one purpose punish and that is to intercept those who tele- phone communications without the consent both par- ties. The Act states that person who intercepts a telephone communication of a mechanical by means or or “aids, procures abets violation device, of this act of a is guilty punish- and shall be misdemeanor, able by imprisonment not more than one or year, fine not more than' five thousand . . dollars ., both.” It can be wondered the court why when below, it heard detective Morris that he testify' had aided and proclaimed abetted violation of law, did resolve into itself committing and hold magistrate Morris action the grand jury. the Commonwealth would Certainly not argue that if interloper an clandestinely installed a telephone ex- to a private tension and listened in on all he would be free from conversations, prosecution. Why change that situation because would the interloper hap- detective? pened paid to be a He, same as anyone the consent parties must have of both else, to a tele- before he conversation under phone may, listen Act, intercept, thus into, conversation. accom- is to purpose of a
The legitimate or to business in his the subscriber modate profes- business comfort. his domestic add to *10 secretary telephone so his extension has a man sional ishe telephone him inform when may and answer telephone ex- ahas householder The well-to-do wanted. family, than more calls his so when that, tension may in the warmth revel loved ones one of his glad- joy greetings, of his in the of his share cheeriness the master tidings, directions which or obtain the some say a tele- conveys. because that, But this does of- business phone been installed has extension stranger or listen in, in the a home, or fice may le- may snoop, blackmailer or that a a detective ply gally him to will enable the secrets which obtain to be Commonwealth seems trade. The his nefarious telephone impression a extension that because tap permanent hoc ad is an and a wire more or less is illegitimately. it procedure, If the former can be used point anything in the cannot idea, entertains appro- gives substance, that notion of 1957 which Act encouragement. or even bation The, States, v. United cites Rathbun Commonwealth quotes illustra- from it averred 355 U. S. position nothing illegal about that there is of its tion telephone listening The Rathbun in on a extension. binding Pennsylvania possibly on the case cannot has been the federal statute said, as because,, courts tapping requires subject only the consent of of wire in order to evidence of the communicants render one wire-tapping from evidence admissible. The obtained approval par- Pennsylvania of all statute demands telephone, very in the conversation. The ties involved opinion paragraph in the Rathbun reads: “This first the issue whether the concerns contents of case a regularly telephone on a used overheard communication party the consent one conversa- phrase tion are admissible federal court.” Thus, Pennsylvania party” emphasized, “one is bnt specific repeat, lan- and we must have the statute, we person intercept guage: communication “No shall telephone telegraph permission the Par- or without obviously means communication.” such Parties ties Murray persons parties all involved. Here the were gave Murray and Haas. not. Haas consent but did his application Rathbun ease has no more Thus, Pennsylvania situation at bar than it have to the would Vehicle Code. installation use extension al-
ready intercept in order to communication, installed, right illegal. which the intruder It has is hear, against prattle the law. All the univer- about the sality utterly extension is irrelevant *11 commonplace to this case. The lower court said: “It is ordinary telephone for the home owner to have several e.g., extensions his one another in home, the hall, third in bedroom, a fourth in and a kitchen, his office or den.” neighborhood
It is not known what affluent lower court lives that homes all its friends are equipped multiple-telephone system with a vast, more appropriate engine to a fire station than to “ordi- private nary” dwelling. “ordinary” homeowners opinion usually that the writer of this visits one have telephone living in the hall or the room, and it. that is assuming even
However, that the home of the trial judge telephone has ten is extensions, this an invita- neighbors eavesdrop tion for ten to come in on his private commonplace- conversations? And then, any object or ness device is not the criterion for de- termining criminality or the innocence employ- of its object commonplace No can ment. be more than a but when it kitchen is knife, used to stab someone to the ordinariness of the knife death, does not render it the tele what It not weapon. is a homicidal less in certain it illegal make is that phone extension The uni put. it is use to which but the circumstances, in an defined lauded versally Judge Hand Learned to whose message “intercepts a anyone as who terceptor not con do the communicants as listener intervention importance; can have the means he sent; employs States (United the breach counts.” is privacy Breach 1910). 2d Cir. v. F. 2d Polakoff, in this case. is issue privacy not like a seashell An is telephone extension not like a listen to. It is pick anyone may up It is into anyone may well shout. wishing cast a stone deep like a chasm into which one may telephone An listen for echo. and then tooth his own private as to its subscriber as just is con- in on his No one to listen right brush. has his au- telephone versation on his extension without Apart from natural makes the thorization. law which or ideas crime as one’s words as much a robbery his purloining money jewels, Pennsylvania Leg- has verbal be an islature declared such thievery act punishable the criminal of the Common- courts wealth. in on a
Listening without au- extension, on a person’s private thorization, telephone conversa- as just morally as well as tion, legally reprehensible, as his improper, tapping part wire. It is all *12 of what jurist illustrious and Oliver Wendell Holmes, as patriot, designated renowned “dirty business.” Eavesdropping which amounts to trespassing is an in- privacy of protected by vasion of organic law land. 1 of Pennsylvania
Section Constitution declares: born “All men are free equally and independent, and inherent and have certain indefeasible rights, among those of and enjoying which are defending life and prop liberty, protecting acquiring, possessing of and happi erty reputation, pursuing and of and their own pursuits happiness privacy. The ness.” One of the of right privacy property of individual is as much clothing as the land which he holds title and the dissenting back. wears his Justice Brandéis in his opinion in of v. case Olmstead United States, privacy U. S. said that the invasion of tele phone greater tampering is even than that involved telephone with the United States mails: “Whenever a tapped, persons privacy line is ends at both of the line is invaded and all conversations between upon any although subject, proper, them and confiden may privileged, tial and be overheard. Moreover, tapping tap of one man’s line involves ping every person other whom he may espio call or who call him. As means nage, general writs assistance and but warrants are puny tyranny oppression instruments of com when pared wire-tapping.” with greatest experienced joy that can be mortal
man is to feel master of himself his small fate, —this big things. precious privileges as well as Of all the prerogatives happiness every in the crown of right American citizen has none shines wear, greater imparts luster and more innate satisfac- tion and soulful contentment to the than the wearer golden, right Every- diamond-studded to be let alone. comparison thing else in is dross and sawdust. Pennsylvania . Section 8 Article I of the Consti- tution and the Fourth Amendment to the Constitution right the United States are dedicated to this to be private let But if alone. detectives and intermeddlers legal may, responsibility, peer without through key- eavesdrop at the listen holes, table, at the transom telephone, and and over the crawl under the then bed, guarantees all constitutional meaningless ag- become *13 neck- gregation broken aas of as disconnected words, floor. on the scattered lace beads have whose agen- irresponsible the Act of 1957, Were it not for tap unau- to obtain wires cies conld be emboldened to scavengers, of social the use thorized information political sharpers, buccaneers. and discredited business personal dealings and They pry the most could into relationships. They aside tear could the most sacred lawyer says his to the the which shields curtain what the physician patient, minister to the the to his client, priest to parishioner, penitent, the the husband the Without betrothed. his wife and the fiance his every guardian rights privacy, user of of our phantom conjure possibility the the would have to clutching eavesdropper be could hands of the electric speaks. very into the instrument scan- Without the Act of the malevolent most banquet help dalmonger of table could himself at the guarded burglary the of secrets and commit most precious jewels family yet be intimacies and most punishment befitting and heinous immune from the so trifling exception practice, immoral a of some with penalty trespass. for malicious mischief or
Wire-tapping listening not mere does with the end operation. After the wire-leech has sucked position guarded he is then in a secrets, blood unwary position his victim. He in a blackmail ill-gotten corruption, gains. threats traffic potential infamy could That such a be tolerated name of the enforcement of the law extraordinary most would
paradox paradoxical in these lines. Pennsylvania Legislature recognized has all legislated perils against and has these them. It be- duty apply legislation courts to comes Peeping Frys Paul Toms, the that the so and the Med- put naught expressed Charlies dlesome defending people dignity will man, liberty sanctity family communication, its citizens. *14 Phila appellant
The inter alia, maintains, delphia to entertain County jurisdiction courts had a if prosecution any him against because crime, was in occurred Adams where committed, County bribe via the the offer allegedly made, telephone, This Philadelphia Donald C. Haas who was in County. is not position well taken. The the re without offer, in or ception would be without Philadelphia, physical effect. can legal Nothing happen that would give court jurisdiction over an until asserted offense offer is heard by person whom it is directed. The offer made heard alleged by Murray was allegedly in Philadelphia In Commonwealth County. Taub, v. Superior 187 Pa. Ct. 440 while (1958), defendant, in communicated Allegheny County, over the a threat to a in person residing County. Westmoreland The Court Superior held that crime was effected Westmoreland and County affirmed the jurisdiction by undertaken Westmoreland over offense County involved.
The order of the Superior Court reversed, Quarter of of sentence the Court of judgment Sessions is reversed and a new trial ordered in accordance with this opinion. Opinion by
Concurring Eagen Mr. Justice : do construe the Act of July L. 16, P. 1957, 15 P.S. §2443, be aimed 956, §1, at the use of an or- telephone. It dinary may well be that eaves- nature should every proscribed dropping stat- by not persuaded but I ute am the legislation involved However, so intended. is clear to me that the re- wiretapping device used cording in the instant case statute violation was the testimony Morris was witness predicated sufficiently upon inseparable activity illegal by to be and tainted therefrom. grant trial. a new in the
I therefore concur
opinion.
joins in this
Mr. Justice Jones
Concurring
Opinion
Roberts:
Mr. Justice
jury
Appellant
convicted
was tried without
Philadelphia Coun-
Quarter
Sessions
the Court
corporate
bribing
ty
offering
em-
to bribe and
for
L.P.
ployee
1939,
of the Act of June 24,
violation
Superior Court affirmed
§4667.
P.S.
§667,
Murray, 206 Pa. Su-
v.
the conviction. Commonwealth
Appellant
perior
(1965).
filed
Ct.
The statute which we must in this case part provides: person intercept “No tinent shall com- a telegraph permis- or munication without parties person such sion communication. No employ any overhearing install or device for shall cording or re- passing through communications a or intercept telegraph line with intent a communica- person of this act. No divulge in violation tion shall or in- purport use tlie contents or of a communication in tercepted wilfully violation of this act. Whoever this procures violates or or a violation aids, abets act is shall be guilty punishable misdemeanor, fine by imprisonment of not more than one or year, or not more than five thousand dollars ($5000), shall be both, and liable communi- any person whose cation treble intercepted or unlawfully divulged unlaw- the amount from any damage such resulting ful less or but in no event interception, divulgence use, than one hundred at- dollars ($100) and reasonable ‘person’ per- fee. The term torney’s includes natural sons, business associations, partnerships, corporations, or legal other persons purport- or entities, acting in ing act or behalf sub- or for, government of, any division whether thereof, or local. Federal, State term ‘divulge’ employe includes to a divulgence fellow or official or government private enterprise or in a judicial, administrative, legislative other proceeding. proof in Except as or prosecution suit for a violation this evidence act, obtained as a result of an un- lawful interception pro- shall admissible such Act of ceeding.” L. July 16, P. 15 P.S. 956, §1, §2443. interpret
To provision Commonwealth, its and. the brief, dissent, Superior Court below re- ly part majority opinion Rathbun v. on. Unit- ed 355 U. States, S. 78 S. Ct. 161 (1957). In *16 Supreme Rathbun the Court of the United States held of the Federal Communications Act1 §605 does not 1 person receiving assisting receiving, or “No transmit or assisting transmitting, any ting, foreign or interstate or com by divulge publish existence, shall wire or radio or munication substance, purport, effect, contents, meaning thereof, except or any reception, through of channels transmission or authorized to addressee, agent, attorney, person than his or or other to a employed person or authorized forward such communication to of into evidence proscribe preclude and hence admission exten- listened on an police officer who testimony awith sion to a conversation of the defendant phone The Su- person overhearing. who had consented to the preme Court’s was based on a construction holding interception the term which in like the federal statute, our own statute, key determining range In sought conduct to be proscribed. interpreting way we are of course Pennsylvania statute, bound accept Supreme interpretation Court’s of inter- ception in the federal persuasive as much statute, weight as we accord that naturally Court’s mat- holding ter. since our Moreover, prior statute was adopted to the decision at a time Ratftbun, when lower federal courts on whether disagreed the federal statute reached the destination, proper its accounting distributing or to or officers communicating tbe various centers over which the communication passed, ship or to master of a under whom serv- he is ing, response subpena by competent or in to a a court of issued jurisdiction, authority; per- or on demand of other lawful and no by being intercept any son not authorized the sender com- shall divulge publish existence, contents, munication or sub- stance, purport, effect, meaning intercepted or Of communica- such any person being person; tion and no not entitled shall thereto any foreign receiving communica- receive or assist in interstate or any or the same or information there- tion wire radio use not or benefit of for his own for the another contained benefit intercepted having person thereto; received such and no entitled acquainted contents, having become sub- or communication any part meaning effect, purport, there- stance, the same or or divulge obtained, knowing shall of, so information was that such effect, contents, substance, purport, existence, or publish the or thereof, any part same or or use the meaning or of the same bene- for the benefit or for his own contained therein information Provided, That section thereto: entitled not of another fit utilizing publishing, divulging, receiving or apply shall broadcast, or transmitted any radio communication the contents general public, relat- use for the or others amateurs VI, 19, 1934, c. Title ofAct June ships in distress.” ing to §605. U.S.C. §605,48 Stat. *17 57 in in im- conduct issue present is case,2 clearly to infer from possible federal the Penn- cases whether encom- sylvania Legislature interception intended pass on an overhearing phone without consent one of parties. appropri- thus find it ate to examine and evaluate the considerations underlie the in decision Rathbun the other as well as cases which have treated the question.
It is clear to me that telephon privacy ing public is the interest which must first arrest one’s attention in with dealing A problem. pass mere ing acquaintance with the newspaper suffices to daily substantiate the existence of a felt widely and insidious threat to individual privacy tech only by posed, nological but also evolution advances, of con social temporary structures. A for in jealous regard dividual privacy judicial tradition of distinguished buttressed in origin, many areas by imperative mandate of constitutional guarantees. Protection of individual appears privacy, to re however, frequently duce the methods available to law enforcement agen cies the detection and prosecution of crime. New would deny this country concern today growth criminal activity is of the same order of as the magnitude concern with the erosion of individual privacy. as And, Judge the United States Clark Court of Appeals the Second Circuit pointed out his excellent dissent United States v. Polakoff, 112 F. 2d 891-93 888, (2d Cir. the more 1940), broadly legislative meaning interception is interpreted, the more thoroughly insulated a means for criminal ac tivity becomes. The majority Rath as most bun, judges as well who reach the same result, construe urge interception also to include over 2 States, in Rathbun v. cases cited United See 355 U. S. nn.4-5, (1957). 162 Ct. nn.4-5 S. 58' phone impute an extension would be to
hearing as intention of Legislature unlikely proscribing the commonplace criminal and innocuous convenience *18 of having business associates and members listen family into a conversation without to inform the bothering caller.3
In these evaluating one is confront- considerations, ed first with the salient enacting fact that simple, by of the Act July our 16, Legislature language nowhere conditioned an use by expressed exception for by any police or agency, inter- proscribed otherwise, of ception telephone conversations without permission of the parties. soBy no one doing, Legis- denies the lature decided that the right caller pri- to the vacy phone his conversation was important more than the interest served by permitting police anyone else to tap wires. The in- statutory “shall language stall or employ any device for to overhearing” my mind admits of no sensible distinction between a wire- tap and an extension phone. Thus unless com- we are pelled by statutory use of the interception word a compulsion itself, which I find impossible to enter- there is no tain, reason for as dissent- concluding, and ing other concurring opinion apparently that does, addition, urges In the dissent this construction would preventing police have untoward listening result of from tracing kidnap tracing calls, a call. As to the I am not certain assumption the dissent is correct tracing its unstated re by quires listening party recipient. any event, a other than a In overhearing appears the case conversation necessary kidnap to save life victim is a difficult one fortunately unprepared, say however, now. I am not before us yield provisions excep of this statute would not an now stake, although certainly clarify at I life is believe where tion ing cover to the statute to such situations would amendment ob-. difficulty. judicial See, e.g., Schwartz, On doubt viate Cur Tapping, Legalize Proposals To Wire 103 U. Pa. L. Rev. rent (1954). 165-67 privacy Legislature clearly individual while valued per- right highly tap more than the wires without privacy less nonetheless valued mission, individual right by exten- than overhear an conversations phone permission. com- sion I am a without Indeed at plete imagine by purpose a stat- loss to what is served requires permission of ute, which at the outset more parties “interception” than one of the of a simple expedient resorting if conversation, listening per- telephone, in on an extension the needed dispensed parties completely mission of one of the is prac- with. To so would hold, obliterate believe, opinion majority tical effect which, as indicates, Legislature very distinctly had in mind.4 Moreover, overhearing by phone if without consent proscribed party one *19 it seems ob- the statute overhearing vious that such either without consent of party proscribed. would not be of the users Thus, mercy be would at the of those who wish to pry into intended confidences neither to reach user extremely other I ears. results Such am reluctant Legislature believe the intended. argument pro-
The that to construe statute to overhearing phones scribe on extension would make criminally liable numerous business associates rela- phone tives who listen into conversations unbeknownst difficulty. may one remains as a caller, however, It difficulty by saying well be sufficient answer this language that the of the statute taken as a whole and my read sense with common leaves no doubt in mind Legislature prevent intended to the conduct overhearing while the case, at issue case secretary relative dealt with when and if it I difficulty In event, arises. believe however, by construing statutory be overcome could term 4 Eavesdroppers Dash, Compare (1959). 406-21 both, implied expressed
“permission”
encompass
permission.
a call made
circumstances
Thus when
is
ordinarily
it
to believe
where would
be unreasonable
any objection
one caller
to the over-
would have
hearing
phone,
of the
I
conversation on an extension
why
permission
see
reason
that caller’s
cannot be
implied,
seriously
and I
substantial
doubt whether
practical difficulty
Ad-
would result from such a rule.5
mittedly,
statutory
such a
term
construction
“permission” is not
the most natural
and would
one,
adopt
not be inclined to
it in
the normal course
interpretation.
statutory
But if
con-
absent
such
permission
myself
struction
I would find
forced
here,
practical
emasculating
to the Hobson’s choice of
ef-
construing
impose
fect of the statute or
it
criminal
liability
imagine
for conduct which I find it hard to
Legislature
faintly
deemed even
then
undesirable,
adopt.
Finally,
is the construction I would
it re-
assures me no little amount that the solution of this
problem suggested
substantially along
here is
the lines
by Judge
followed
in Polalcoff.
Learned
Hand
my interpretation
Because of
statute,
unnecessary
course
for me to discuss whether
de-
testimony
tective’s
should have been excluded because
fatally
reading
transcript
infected
his
of illegally
wiretape recording.
made
I do deem it worth
mentioning, though the contention is not raised in
*20
Appeals
In 1940 the United States Court of
for
the Second
opinion suggesting
problem
an
Circuit wrote
that
the
of innocent
by
overhearing
family
business
associates
members be dealt with
way.
Polakoff,
(2d
in
v.
this
United States
61 case Commonwealth’s the of this under facts brief, though testimony, the cor- admission the detective’s by roborated trial evidence deemed sufficient judge independently, to sustain the conviction cannot preclude begin our To reversal. I fail to how see testimony the effect of the detective’s did not inevita- bly play an instrumental in role the trial court’s ver- dict. not a This is case which other evidence guilt overwhelming. importantly, strikes me as More failing to reverse a trial in ad- which the evidence was July mitted in violation of the Act of 1957 would 16, hardly proper respect degree evidence the for the Legislature’s see command, Kotteakos v. United States,
328 (1946), U. S. 750, 66 S. Ct. 764-65, 1248 1239, light particular emphasis exclusion which statute contains.
Appellant
offering
attacks his conviction for
ground
bribe on
Quarter
that the Court of
Sessions
Philadelphia County
jurisdiction
of
lacked
alleged
fense. The
offer
was made
conversa
during
appellant
admittedly
tions
in Adams
was
County while the offeree of the bribe
in Philadel
was
phia County. Appellant
points
correctly
out that
may normally
criminal case
not be tried
outside
county
alleged
in which the
committed.
offense was
Chatary
Commonwealth ex rel.
v.
416 Pa.
Nailon,
280,
(1965);
206
2dA.
Commonwealth v.
316 Pa.
Mull,
(1934).
argues,
175 Atl.
He
effect,
statutory language defining
offering
offense
a bribe limits the locus of the
imme
crime to an area
diately
person
surrounding of the offeror at the
dispatched.6
why
moment the offer is
see
reason
Noland,
(1933),
6 In State v.
204 N.C.
such utilizes offeror a where the offers or in case gives” ever does and which instrumentality intends, an which See location. in to another transmit his offer fact, 426 28 Ct. v. 209 S. S. 39, United States U. Thayer, Pa. 187 Taub, v. Commonwealth J.); (1908) (Holmes, Common 2d Ct. 144 A. 628 Superior (1958); 440, Quarter 41 (Ct. Pa. D. & C. 2d wealth v. 28 Keenan, Pa. 199 aff’d Philadelphia mem., County), Sessions, Appellant, Ct. A. 2d (1962). 184 793 Superior 1, prosecu a Keenan involved that which urges case, under Philadelphia County tion blackmail in §4805, P. L. 18 P.S. §805, Act June 1939, another from telephoned defendant a threat a who because county Philadelphia, distinguishable or deliv statute sends penalizes blackmail “whoever jurisdiction a utters” threat because ers Phil Keenan therefore been conferred on must have court virtue of the fact adelphia solely by To in Philadelphia. employ threat was delivered which call process by “deliver” to describe the verb conduct the transmission er’s effects words my conversation involves, listener strain on common than to char usage less opinion, “ut “send” or process by the words acterize same jurisdic I find no reason to believe that Thus, ter”. depended in Keenan the verb deliver. solely tion nothing appellant’s find citation of Moreover, ex rel. Sickler v. & 11 Pa. D. Yaukey, Commonwealth 1956) Fulton County, persuades 2d 11 (C.P. C. contrary. me to the to distinguish also seeks Taub.
Appellant In jurisdiction held a surety it was case under the Act of March proceeding peace 31, 1860, important weight resolving question not deem I do here.
P. L. exercised 427, §6, P.S. properly was §23 Quarter the Court of Coun Sessions of Westmoreland *22 Alle ty over threat from telephoned the defendant by gheny County County. to in Westmoreland woman The basis this is that appellant distinction, urges, the state of mind of in Taut recipient the of the call was an element of the offense offense and hence the could be located in the the woman heard county where the in whereas the offeree threat, instant case the the bribe’s state of mind is offense. irrelevant to the appellant What is that the offense disregards, however, of offering to bribe can hardly per made out absent ception the by offeree of not the offer. Whether or this perception is correctly characterized as a “state is thus mind”, irrelevant. the Appellant’s reliance on in language Commonwealth v. Su 193 Pa. Friedman, perior Ct. 640, 165 A. 2d 681 (1960) spoken words the by defendant the “gist” are crime of offering bribe is In placed. well hardly the Friedman the case issue of the trial juris court’s diction over the offense was neither raised nor dis and the language cussed, was used such a way as persuade me that the court did not by intend it a cata of all the logue elements of the offense of offering bribe. appellant’s
Because conviction must be overturned due to the inadmissibility detective’s testimony, do not deem necessary discuss nonjurisdic- appellant. tional raised questions by joins Mr. Justice O’Brien opinion. by Opinion
Dissenting Mr. Justice Cohen: opinion majority proposes The the use by investigator private telephone to over- conversation between defendant hear and the cor- and, was an employee interception porate that because not did consent, investigator’s defendant testimony 64 issue This exact
was inadmissible under statute. de was but in Pennsylvania, has not arisen previously Rathbun Court Supreme State by cided United United, case, In that v. U. States, (1957). S. threaten transmitting charged accused was violation telephone by communication ing interstate permitted officers were of federal statutes. Police threat make had heard the accused testify they threat person consent of with the question when, con telephone to the incriminating listened they ened, extension. over a used regularly versation pro Act Federal Communications Section 605 of the sender being vides that authorized person communication intercept any shall Court Supreme divulge its existence contents. *23 no there was held that not violated because was §605 be the word interception Congress as intended States of the United Supreme used. Thus the Court ato conversation listening has declared that the act of and an telephone interception, over an is not extension one it irrelevant whether or not there was consent is con telephone to a parties. party or both of the “Each have risk that the other party may takes the versation over to telephone and allow another may an extension there place When such takes hear the conversation. par the no of which any privacy has been violation 111. it 355 U. S. may complain.” Accordingly, ties interception in the there is no should be apparent, there can no application case and present tap wire statute. Pennsylvania inherent the decision are dangers majority hamper police It unreasonably will the obvious. and investigatory techniques enforcement more their possibly other decision could. As a than result police the will be opinion un- majority forbidden, a telephone to overhear request for law, penalty der case; and kidnapping in a obscene or ransom harass be able to threatening telephone caller will knowledge his defenseless secure terrify victim, operator that neither police nor the trac- listen purpose obtaining evidence the call. Court ing Supreme That the United States observa- recognized this is evidenced reasoning tion in is a Rathbim that: “The used widely instrument of yet home office, to ar- evidence nothing petitioner congressional intent, gues that meant to a restriction Congress place severe its use ordinary them by subscribers, denying right a trust- allow an family member, employee, ed or even the conversation friend, police listen to a which subscriber points Section 605 party. opposite conclusion.” U. 110. I S. at 109, believe that applies same present to the reasoning matter. I
Inasmuch intercep- as have determined tion occurred in dis- find case, unnecessary cuss the differences between the federal act which re- quires the consent of communi- only sender of the cation and the statute Pennsylvania requires consent of parties both before a interception lawful may be effected. if there is Obviously, no interception, neither applicable. statute can be
The lower court excluded from evidence the record- ing conversation between cor- defendant and the porate employee. the court in- However, did allow the *24 to testify the vestigator concerning contents of con- the he versation which had on overheard the extension de- spite the fact that he stated that at least three occa- had he read typewritten transcript sions of that con- opinion The majority versation. contends that this is the error witness was because from testifying what he transcript the not from said, recalled what he recalled itself. of the conversation This is incorrect, the not that did use the stated witness transcript to re- 66
fresh, he was he testified recollection; rather, his portions memory of the alone those able to from recall Fur defendant. the conversation which incriminated recording though device the even use thermore, interception illegal with at the be an switchboard ob meaning evidence the same of our statute, independent is an at the extension tained source thereby. v. United Nor done rendered inadmissible present (1939). matter In 308 338 U. S. States, private investigator inde an there existed such pendent be the “connection source of evidence that possible any tes of the and his tween violation statute dissipate timony had ‘become so attenuated as admissibility.” v. Unit taint’ in relation to Monroe its citing (D.C. 1956), ed 234 F. 2d Cir. States, supra. N ardone v. United States, Because the offer to bribe made over the tele- was phone argues County, in Adams defendant Philadelphia jurisdiction try court lacked of- regard agree fense. With to this with the matter, language Superior Court [of that “the crime offering complete is not until bribe] the offer re- is [the ceived offeree] in Phila- who, was case, delphia County. charge . . . [and the] . . . cannot be sustained the absence of some communi- contact, person alleged or conversation with the cation, to have Murray, been bribed.” Commonwealth v. 206 Pa. Su- perior (1965). 213 A. Ct. 2d 298, 301, Since completed place Philadelphia took offense where properly offer was trial court heard, exercised jurisdiction.
Finally, the statute here provides, involved “Who- gives employe . offers or . . ever . . ..of another money knowledge . . . without the . . . and consent of employer guilty . .”. of an offense. Defendant argues that no crime was committed because the ar- rangements for the transfer blueprints *25 with, consent money were made knowledge interpretation employer. This is an incorrect mere a the crime be committed statute, offer to time bribe. The at the proves that testimony with- illegal offer was was corporation made, out allow- knowledge the bribe. The arrangements ing the ob- made to employee accept the bribe were tain evidence. corroborating instance, Hence, the crime complete was when the offer was original made.
I dissent. Appellant.
Commonwealth v. Cheeks,