Commonwealth v. Murray

223 A.2d 102, 423 Pa. 37, 1966 Pa. LEXIS 436

Opinions

Opinion by

Mr. Justice Musmanno,

This case has to do with wire tapping and telephone extension listening.

John Murray, the defendant, who had been employed by a Philadelphia firm, Lanston Monotype, Inc., left that firm to take a job with Summit Industries in Aspers, Adams County. One day Murray called Donald C. Haas, an employee of the Lanston firm, and asked him to obtain from Lanston some certain prints of a “perforating machine,” for which Murray would .pay Haas $25. Haas reported this conversation to his superiors and then the Lanston firm employed E. J. Charters Associates, private detectives, to entrap John Murray. The agency assigned four men to the job.

On May 14, 1963, the Charters Agency took Haas to its offices in the Packard Building in Philadelphia, where a wire tap was attached to the switchboard so that all calls coming through the switchboard could be heard and recorded at that point. The mechanical device having been tested and found to be in working order, one of the detective operatives, Harry J. Morris, called the defendant Murray in Adams County, and then, when the connection had been made, turned the call over to Haas who talked to Murray. Murray said to Haas that on the following day he would come to Haas’s home to pick up the “prints” and pay him $25. He did so, and was later arrested and charged with offering to bribe and bribing a corporate employe in violation of the Act of June 24, 1939, P. L. 872, §667, 18 P.S. §4667.

At the trial before a judge without a jury, the detective Morris testified to having listened in on a telephone extension to the conversation between Haas and Murray. The Court found Murray guilty and he appealed to the Superior Court which affirmed the conviction. Murray petitioned for allocatur which we granted.

The defendant-appellant contends that the conviction cannot stand because of the Act of July 16, 1957, P. L. 956, §1, 15 P.S. §2443, which, inter alia, declares: “No person shall intercept a communication by telephone or telegraph without permission of the parties to such communication.”

The Commonwealth contends that there was no “interception.” It can only so contend by reading the record with glasses which either obliterate or distort the print. Eugene F. Hessel, sound engineer, testified that, on instructions from the detective agency, he attached a wire tap: “A. I was called in by Charters Associates to record a telephone conversation. I hooked up the equipment in our usual manner with a device to the phone Une and checked it out by calling the weather bureau, played back the weather report to make sure the machine was in good operating order, and then when the conversation, phone conversation began, I recorded it. Q. You. recorded it? A. Yes, Sir. Q. Now, how did you physically connect the recording machine with the phone? A. Well, in the office there, is a panel, a phone panel, and the machine is clipped on the panel. Q. Now, were you there the entire time that this conversation was taken? A. Yes, sir. Q. What were you doing at the time that it was being recorded? A. I watched the machine and monitored the conversation that was coming in on headphones. Q. Gould you hear the conversation? A. Yes, sir.”

Footnotes

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It is clear from the record that the telephone line was tapped at a point before the line reached Haas’s telephone instrument.

The engineer testified further about the physical tap: “Q. When you remove that panel there are certain wires inside of that hooking up to each phone in the office. A. That is correct . . . Q. And what you did, was it not, was to take your device and hook it up to that wiring? A. That’s correct.”

The wire tapping so graphically described not only violated the Act of 1957, but it also constituted a trespass on the rights of private property. Hessel admitted he did not have the permission of the Bell Telephone Company to apply the wire tap: “Q. Did you have permission of the American Telephone and Telegraph Company to hook up to their wiring? A. I was engaged to do this. I don’t know. Q. I am asking you a question. Did you have permission from the Bell Telephone Company or American Telephone and Telegraph Company to hook up to their wires? A. Did I personally have permission? Q. Yes, sir. A. No, sir.”

We have seen that the Act of 1957 specifically states that there may be no interception “without permission of the parties to such communication.”. Who were the parties to the communication in this case? Donald Haas and John Murray. It is obvious that detective Morris had the consent of Haas to intercept hi's communication with Murray, but it is equally transparent he did not have the consent of Murray, the defendant. According to the specific wording of the Act, the detective had to have the approval of both parties, not only one, before he could straddle the telephone wires. ‘

The Superior Court, the court below, and the Commonwealth have cited several federal cases in assumed support of their position that the consent of Murray was- not necessary, but the federal cases on this point are not authoritative since the Congressional Act on communication interception differs vitally from the Pennsylvania statute. Section 605 of the Federal Communications Act of 1934, 48 Stat. 1103, 47 U.S.C. §605, declares, inter alia, that “no person not being authorized by the sender shall intercept any communication.”

Thus, under the Congressional Act, the eavesdropper needs to have the consent of only one person to the telephone conversation, to justify his transom listening,' but under the Pennsylvania law both parties must-be aware of, and indicate approval, of the long ear intrusion. The lower court said: “The language of the statute is not clear as to whether consent of both parties' or only one party is essential to avoid the statute . . .' We are not satisfied that failure to obtain consent of both parties constitutes a violation of the statute.” The lower court apparently is hard to satisfy in reading simple and unadorned English. The statute specifies that there may be no interception “without permission of the parties to such communication.” Parties certainly means more than one. Moreover, the his tory of this legislation reinforces the inevitable conclusion that telephonic interloping is illegal unless the individuals at both ends of the conversation agree that what they say to one another may be made public. When the Pennsylvania Act passed the State Senate, the prohibition read: “No person shall intercept a communication by telephone or telegraph without permission of one of the parties.” (Senate Bill No. 97, Printer’s No. 21, 1957.) However, this restriction to the consent of only one party was decisively rejected in the House by a vote of 128 to 61. The bill was then amended to provide for the consent of all parties to the communication before the interception could be defended. (Legislative Journal, 1957, Yol. II, pp. 1679, 1729, 1730, 1804.)

The Commonwealth contends that, regardless of the physical wire tapping in this case, which cannot be considered in any light other than a flagrant violation of the Act, the conviction of Murray is sustainable because the detective Morris testified to what he had heard on the extension telephone and not what was recorded by the wire tapping device. This argument overshoots the record. A written transcript was made of the telephone conversation recorded by the inter-' cepting device. Detective Morris read this transcript not once but three times. When he testified, was he testifying to what he heard on the telephone extension or what he had read in the transcript? If his testimony was predicated on what was contained in the transcript, that testimony would fall within the ban of the Act as certainly as would the transcript of the recording itself.

The lower court cited in support of the conviction the case of Nardone v. U. S., 308 U. S. 338. That case, instead of functioning as a pillar to support the conviction, operates as a wrecker’s ball to smash it loose from its foundations. The Court said in the Nardone case that once it is shown that there has been an unlawful wire tapping, as was shown here, the accused has to be allowed the opportunity “to prove that a substantial portion of the case against him was a fruit of the poisonous tree.” That is all the Tsfa/rdone case established and, in fact, the Supreme Court reversed the conviction and sent the case back for retrial because Nardone had not been given the opportunity to show how much of the prosecution evidence was tainted. The Supreme Court very specifically referred to the wire tapping committed by government agents in that case as “illicit practices.”

In the case before us the defendant did have the opportunity to show that the evidence presented by the detective was truly fruit of a poisonous tree. Indeed from the mouth of the detective himself, it was demonstrated that the evidentiary apple he was chewing had a mildewed core.

On January 29, 1964, detective Morris testified to the conversation he said he had heard on the telephone extension some eight months before. When he was asked whether, as he listened, he wrote down what he heard, he replied that he had not employed pencil and paper because it was not to be left to the memory to “remember on this date what was said.” The recording of the conversation was to be done in another way. “We had it taped.” This answer in itself could be enough to overturn the conviction because it demonstrates that the whole criminal prosecution, from its very tainted genesis, was to be based on the wire tapping and the recording taken from the wire tap.

The evidence, however, is even more devastating that the detective depended on the three-times read transcript of the wire tape recording rather than his memory of what he had heard singly on the telephone two-thirds of a year before. The investigations of all detectives, and particularly private detectives, are invari ably reduced to writing because they must make a report on wbat they have done to those who hired them. A report was made here and that report contained the whole transcript of the recording taken from the wire tap. Detective Morris testified: “Q. And it [the transcript of the wire taping] is contained in the report that you have rendered to your superior and your superior to the client that engaged you; is that correct? A. That is substantially correct. Q. Now, sir, you have a copy of that report with you? A. Yes, sir. Q. And you have read that report today, have yon not? A. Oh, yes. Q. And you read it yesterday, did you not? A. Yes, sir, I did. Q. And on prior occasions? A. Well, on one prior occasion. Q. And you have read in that report what was taken down supposedly from the recorder? A. Yes, sir.”

Thus detective Morris had read the transcript of the wire recording on the very day he was on the witness stand, as well as on two prior occasions. The curtain rises higher on this phase of the shadowy operation: “Q. Mr. Morris, you did read these reports on at least three occasions, did you not, the transcript? A. Yes, sir. Q. You worded it word for word, did you not? A. Yes, sir. I would say that. Q. And you read not only what you just testified as to what you recall, but other phases of this alleged conversation, did you not? A. Yes, sir . . . Q. In other words, when he said, ‘We will be down tomorrow night,’ that you got from the transcript, did you not, from the recording, the exact language? Isn’t that correct? A. I am not sure at the moment whether he mentioned Wednesday night. Q. Tomorrow night. A. Yes. Q. You got that from the transcript? A. Yes. Q. And other phraseologies that yon quoted in your direct examination, that came from this recording; isn’t that true, sir? A. Yes, sir.”

With this outright admission by Morris that he obtained incriminating evidence from the transcript of the illegally installed wire tape recording, it is as clear as the Twelve Tables that the conviction in this case rests on stilts imbedded in quicksand.

The detective violated the Act not only by authorizing the installation of the wire tape, but by divulging the contents of the transcript of the wire-taped conversation. The Act specifies: “No person shall divulge or use the contents or purport of a communication intercepted in violation of this act.” Nor was the detective excused from his infraction of the law because this divulgence occurred in a courtroom and during a judicial proceeding. The statute specifically proclaims that: “The term ‘divulge’ includes divulgence to a fellow employe or official in government or private enterprise or in a judicial, administrative, legislative or other proceeding.”

Nothing could more dramatically depict the intense determination of the Legislature to wipe out the iniquities of wire tapping than this forthright utterance that any information obtained in this manner may not only, except under dire penalty, be communicated to a fellow government or civilian employee, but it may also not even be used in a judicial proceeding. The General Assembly of 1957 outlawed wire tapping and all its trappings, results and effects, as completely as the Declaration of Independence wiped out monarchical tyranny in America.

We will now consider another phase of this appeal. Both the lower court and the Superior Court stated in their respective opinions, and the Commonwealth equally contends, that there is nothing illegal about someone listening in on a telephone extension, without the consent of the parties conversing on that wire, and then divulging the contents of that conversation to others. This position demonstrates another misreading of- the Act. The Act declares in a no-nonsense fashion that “No person shall install or employ any device for over hearing, or recording communications passing through a telephone or telegraph line with intent to intercept a communication in violation of this act.”

What is a telephone extension but a device for overhearing ? The physical properties needed and the labor required to install a telephone extension may be even more extensive than those employed in attaching a wire tap, Which is a gadget of sorts. They both lead from the main telephone line, they both lead to the same end result — eavesdropping. Thus, the difference which the Commonwealth, the Superior Court and the court below attempt to draw between a wire tap and a telephone extension cannot be based on any distinction in mechanical complexity between the two operations.

What the prosecution throughout this entire case fails to perceive is that the Act of 1957 has one precise purpose and that is to punish those who intercept telephone communications without the consent of both parties. The Act states that any person who intercepts a telephone communication by means of a mechanical device, or “aids, abets or procures a violation of this act is guilty of a misdemeanor, and shall be punishable by imprisonment of not more than one year, or by fine of not more than' five thousand dollars . . ., or both.” It can be wondered why the court below, when it heard detective Morris testify' that he had aided and abetted in violation of proclaimed law, did not resolve itself into a committing magistrate and hold Morris for action of the grand jury.

Certainly the Commonwealth would not argue that if an interloper clandestinely installed a telephone extension to a private telephone and listened in on all conversations, he would be free from prosecution. Why would that situation change because the interloper happened to be a paid detective? He, the same as anyone else, must have the consent of both parties to a telephone conversation before he may, under the Act, listen into, and thus intercept, that conversation.

The purpose of a telephone extension is to accommodate the subscriber in his legitimate business or to add to his domestic comfort. The business and professional man has a telephone extension so his secretary may answer the telephone and inform him when he is wanted. The well-to-do householder has a telephone extension so that, when he calls his family, more than one of his loved ones may revel in the warmth and cheeriness of his greetings, share in the joy of his gladsome tidings, or obtain the directions which the master conveys. But this does not say that, because a telephone extension has been installed in the business office or in the home, a stranger may listen in, or that a detective may snoop, or that a blackmailer may legally obtain the secrets which will enable him to ply his nefarious trade. The Commonwealth seems to be of the impression that because a telephone extension is more or less permanent and a wire tap is an ad hoc procedure, the former can be used illegitimately. If it entertains that idea, it cannot point to anything in the Act of 1957 which gives that notion substance, approbation or even encouragement.

The, Commonwealth cites Rathbun v. United States, 355 U. S. 107, and quotes from it in averred illustration of its position that there is nothing illegal about listening in on a telephone extension. The Rathbun case cannot possibly be binding on the Pennsylvania courts because,, as has been said, the federal statute on the subject of wire tapping requires the consent of only one of the communicants in order to render evidence obtained from wire-tapping evidence admissible. The Pennsylvania statute demands the approval of all parties involved in the telephone, conversation. The very first paragraph in the Rathbun opinion reads: “This case concerns the issue of whether the contents of a communication overheard on a regularly used telephone extension with the consent of one party to the conversa tion are admissible in federal court.” Thus, the phrase “one party” is emphasized, bnt in the Pennsylvania statute, and we must repeat, we have the specific language: “No person shall intercept a communication by telephone or telegraph without permission of the Parties to such communication.” Parties obviously means all persons involved. Here the parties were Murray and Haas. Haas gave his consent but Murray did not. Thus, the Rathbun ease has no more application to the situation at bar than it would have to the Pennsylvania Vehicle Code.

The installation or use of a telephone extension already installed, in order to intercept a communication, which the intruder has no right to hear, is illegal. It is against the law. All the prattle about the universality of the telephone extension is utterly irrelevant to this case. The lower court said: “It is commonplace for the ordinary home owner to have several telephone extensions in his home, e.g., one in the hall, another in the bedroom, a third in the kitchen, and a fourth in his office or den.”

It is not known in what affluent neighborhood the lower court lives that the homes of all its friends are equipped with a vast, multiple-telephone system more appropriate to a fire engine station than to the “ordinary” private dwelling. The “ordinary” homeowners that the writer of this opinion visits usually have one telephone in the hall or the living room, and that is it.

However, even assuming that the home of the trial judge has ten telephone extensions, is this an invitation for ten neighbors to come in and eavesdrop on his private conversations? And then, the commonplaceness of any device or object is not the criterion for determining the innocence or criminality of its employment. No object can be more commonplace than a kitchen knife, but when it is used to stab someone to death, the ordinariness of the knife does not render it any less a homicidal weapon. It is not what the telephone extension is that may make it illegal in certain circumstances, but the use to which it is put. The universally lauded Judge Learned Hand defined an interceptor as anyone who “intercepts a message to whose intervention as a listener the communicants do not consent; the means he employs can have no importance; it is the breach of privacy that counts.” (United States v. Polakoff, 112 F. 2d 888, 889, 2d Cir. 1910). Breach of privacy is the issue in this case.

An extension telephone is not like a seashell that anyone may pick up and listen to. It is not like a wishing well into which anyone may shout. It is not like a deep chasm into which one may cast a stone and then listen for the echo. An extension telephone is just as private to its subscriber as his own tooth brush. No one has the right to listen in on his conversation on his telephone extension without his authorization. Apart from natural law which makes the robbery of one’s words or ideas as much a crime as purloining his money or jewels, the Pennsylvania Legislature has declared such verbal thievery to be an act punishable in the criminal courts of the Commonwealth.

Listening in on a telephone extension, without authorization, on a person’s private telephone conversation, is just as morally reprehensible, as well as legally improper, as tapping his telephone wire. It is all part of what Oliver Wendell Holmes, illustrious jurist and renowned patriot, designated as “dirty business.” Eavesdropping which amounts to trespassing is an invasion of privacy protected by the organic law of the land.

Section 1 of the Pennsylvania Constitution declares: “All men are born equally free and independent, and have certain inherent and indefeasible rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property and reputation, and of pursuing their own happiness.” One of the pursuits of happiness is privacy. The right of privacy is as much property of the individual as the land to which he holds title and the clothing he wears on his back. Justice Brandéis in his dissenting opinion in the case of Olmstead v. United States, 277 U. S. 438, said that the invasion of privacy by telephone is even greater than that involved in tampering with the United States mails: “Whenever a telephone line is tapped, the privacy of the persons at both ends of the line is invaded and all conversations between them upon any subject, and although proper, confidential and privileged, may be overheard. Moreover, the tapping of one man’s telephone line involves the tapping of the telephone of every other person whom he may call or who may call him. As a means of espionage, writs of assistance and general warrants are but puny instruments of tyranny and oppression when compared with wire-tapping.”

The greatest joy that can be experienced by mortal man is to feel himself master of his fate, — this in small as well as in big things. Of all the precious privileges and prerogatives in the crown of happiness which every American citizen has the right to wear, none shines with greater luster and imparts more innate satisfaction and soulful contentment to the wearer than the golden, diamond-studded right to be let alone. Everything else in comparison is dross and sawdust.

. Section 8 of Article I of the Pennsylvania Constitution and the Fourth Amendment to the Constitution of the United States are dedicated to this right to be let alone. But if detectives and private intermeddlers may, without legal responsibility, peer through keyholes, eavesdrop at the table, listen at the transom and over the telephone, and crawl under the bed, then all constitutional guarantees become meaningless ag gregation of words, as disconnected as a broken necklace whose beads have scattered on the floor.

Were it not for the Act of 1957, irresponsible agencies conld be emboldened to tap wires to obtain unauthorized information for the use of social scavengers, discredited business sharpers, and political buccaneers. They could pry into the most personal dealings and the most sacred relationships. They could tear aside the curtain which shields what the lawyer says to his client, the physician to his patient, the minister to the parishioner, the priest to the penitent, the husband to his wife and the fiance to his betrothed. Without this guardian of our rights of privacy, every telephone user would have to conjure the possibility that the phantom hands of the electric eavesdropper could be clutching the very instrument into which he speaks.

Without the Act of 1957, the most malevolent scandalmonger could help himself at the banquet table of the most guarded secrets and commit burglary of the most precious jewels of family intimacies and yet be immune from the punishment befitting so heinous and immoral a practice, with the exception of some trifling penalty for malicious mischief or trespass.

Wire-tapping does not end with the mere listening operation. After the wire-leech has sucked in the blood of guarded secrets, he is then in a position to blackmail his unwary victim. He is in a position to traffic with corruption, threats and ill-gotten gains. That such a potential infamy could be tolerated in the name of the enforcement of the law would be the most extraordinary paradox in these paradoxical lines.

The Pennsylvania Legislature has recognized all these perils and has legislated against them. It becomes the duty of the courts to apply that legislation so that the Peeping Toms, the Paul Frys and the Meddlesome Charlies may not put to naught the expressed will of the people in defending the dignity of man, the sanctity of family communication, and the liberty of its citizens.

The appellant maintains, inter alia, that the Philadelphia County courts had no jurisdiction to entertain a prosecution against him because the crime, if any was committed, occurred in Adams County where he allegedly made, via the telephone, the offer to bribe Donald C. Haas who was in Philadelphia County. This position is not well taken. The offer, without the reception in Philadelphia, would be without physical or legal effect. Nothing can happen that would give any court jurisdiction over an asserted offense until the offer is heard by the person to whom it is directed. The alleged offer made by Murray was allegedly heard in Philadelphia County. In Commonwealth v. Taub, 187 Pa. Superior Ct. 440 (1958), the defendant, while in Allegheny County, communicated over the telephone a threat to a person residing in Westmoreland County. The Superior Court held that the crime was effected in Westmoreland County and affirmed the jurisdiction undertaken by Westmoreland County over the offense involved.

The order of the Superior Court is reversed, the judgment of sentence of the Court of Quarter Sessions is reversed and a new trial ordered in accordance with this opinion.

All emphasis throughout supplied.