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July 13, 1954



Lemuel B. Schofield, John B. Brumbelow, John S. Reynolds, Philadelphia, W. Hensel Brown, Lancaster, for appellant.

William C. Storb, Dist. Atty., Lancaster, for appellee.

Before Rhodes, P. J., and Hirt, Reno, Ross, Gunther, Wright, and Woodside, JJ.

Author: Woodside

[ 176 Pa. Super. Page 320]


The only question involved in this appeal is whether the testimony of local police officers relating conversations of the accused heard through tapping a telephone wire is admissible against one charged with crime in a court of this Commonwealth. We think it is.

The appellant was tried before a jury in the Quarter Sessions Court of Lancaster County on the charges of bookmaking and being a common gambler.

At the trial the Commonwealth produced the testimony of two police officers of the City of Lancaster. It appeared from their testimony that Richard Manduchi had an apartment at 715 N. Duke Street, Lancaster. The owner of the apartment house, at the request of the police officers, took them into the basement by a rear entrance and showed them the inside telephone terminal box. From it the officers followed the wires to where they led up through the floor to Manduchi's apartment. The officers then tapped these wires and during the afternoons of the next several days listened to the telephone conversations.

While the officers were listening Manduchi received a number of telephone calls from different persons placing horse racing bets with him. Manduchi would then telephone the appellant, Isaac Chaitt, and sometimes make the same bet with the appellant which had been made with him, and at other times he would make what is referred to as 'lay off' bets.*fn1 There was some

[ 176 Pa. Super. Page 321]

    evidence that Manduchi and the appellant were partners.

Timely objections were made to the admission of this evidence on the grounds that it violated the 4th, 5th, and 14th Amendments to the Constitution of the United States, Article 1, § 8 of the Pennsylvania Constitution, P.S.,*fn2 and the Federal Communications Act of June 19, 1934, 48 Stat. 1046, 47 U.S.C.A. § 151 et seq. The objections were overruled, an exception noted and the evidence admitted. The jury found appellant guilty. On motion for a new trial the court en banc upheld the admission of the testimony obtained by wire tapping. The defendant was then sentenced to fine and imprisonment on the charge of bookmaking. From this judgment he appealed.

It is conceded by the District Attorney that the evidence of telephone conversations obtained by wire tapping was a material part of the Commonwealth's case and must have had a substantial effect on the verdict of the jury. Thus, if the testimony was improperly admitted, a new trial should be granted.

The question of admitting evidence obtained by wire tapping has been a highly controversial one on which students of law and government have held divergent views and strong convictions. The subject encourages courts to divide, Congress and Legislatures to debate, law reviews to philosophize and newspapers to editorialize -- frequently and often vituperatively.*fn3 In spite of this, the law which the Court should apply to this case is clear.

[ 176 Pa. Super. Page 322]

So much has been written by the courts that dicta can be found to support almost any conceivable position which a lawyer might deem advantageous to assume. The law, however, can be best understood by examining what the courts have held on the subject of admitting testimony improperly obtained, and on the subject of wire tapping.

The 5th and 14th Amendments to the Constitution of the United States have no application to the facts of this case. An incriminatory telephone conversation voluntarily conducted by the accused and secretly overheard from a tapped wire does not compel the accused to be a witness against himself in violation of the 5th Amendment. Olmstead v. United States, 1928, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944. Neither does the 14th Amendment prevent the admission of such testimony by state officials in a state court. Irvine v. People of State of California, 1954, 347 U.S. 128, 74 S.Ct. 381, 383, 98 L.Ed. -- .

Turning to the question of admitting evidence obtained by illegal means, we find that the common law rule, supported by many English and American cases, is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. Adams v. People of State of New York, 1904, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Olmstead v. United States, supra, 277 U.S. at page 467, 48 S.Ct. 564; Com. v. Agoston, 1950, 364 Pa. 464, 72 A.2d 575.

Although the Supreme Court showed an inclination to deviate from this rule in Boyd v. United States, 1886, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746, it is generally accepted that until 1914 this was the rule in every English speaking jurisdiction in the world with the exception of Iowa.*fn4 See Appendix in Wolf v. People of State of

[ 176 Pa. Super. Page 323]

Colorado, 1949, 338 U.S. 25, 33, 69 S.Ct. 1359, 93 L.Ed. 1782.

That year the Supreme Court of the United States in Weeks v. United States, 1914, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, decided that letters taken from the house of the accused by an official of the United States acting under color of his office in direct violation of the constitutional rights of the defendant were improperly admitted into evidence in a Federal court. This exception to the common-law rule was limited to evidence obtained by federal officials, for in the same case it was held that papers and property illegally seized by policemen not acting under any claim of Federal authority were properly admitted into evidence.*fn5

By 1949 only sixteen of the state courts had followed the Federal rule. Thirty-one states, including Pennsylvania, and all other English speaking jurisdictions, adhered strictly to the common-law rule. See Appendix to Wolf v. People of State of Colorado, supra.

In Com. v. Dabbierio, 1927, 290 Pa. 174, 138 A. 679, 681, our Supreme Court held that Article 1, Section 9 of the Pennsylvania Constitution, P.S., does not forbid the receipt of evidence, on the trial of their former possessor, of articles taken under a search warrant which was wrongfully issued and served. Although admitting 'the great

[ 176 Pa. Super. Page 324]

    persuasive effect to be given to the decisions of that eminent tribunal, even where they are not binding' upon it, our Supreme Court nevertheless rejected the reasoning of the Weeks case and like the vast majority of other jurisdictions adhered to the common-law rule. 290 Pa. at page 179, 138 A. 679.

In Com. v. Agoston, supra, 364 Pa. at page 484, 72 A.2d at page 585, our Supreme Court again followed what had 'long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence.'

As late as 1953 our own Court in Com. v. Montanero, 1953, 173 Pa. Super. 133, 96 A.2d 178 held that the admissibility of evidence is not affected by the illegal methods by which it was procured.

In that case Judge Reno again considered the Federal rule and said:

'Appellee relies upon cases decided by the United States Supreme Court, such as Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Adams v. People of State of New York, 192 U.S. 585, 24 S.Ct. 372, 48 L.Ed. 575; Weeks v. U. S., 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652. These cases and their cogeners lay down rules of evidence which apply only in the Federal courts. They are not binding upon the courts of this State and have been expressly repudiated by them. Com. v. Dabbierio, supra; Com. v. Schwartz, supra, [82 Pa. Super. 369]. Moreover, the United States Supreme Court has held that its rule which excludes illegally obtained evidence is not applicable to trials in state courts. Wolf v. [People of State of] Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, and has recognized our Dabbierio case as an authoritative pronouncement of Pennsylvania's posture.' 73 Pa. Super. at page 136, 96 A.2d at page 179.

Now let us turn to the question of whether secretly tapping a telephone wire is a violation of a person's rights as guaranteed by the 4th Amendment It is not.

[ 176 Pa. Super. Page 325]

The Supreme Court of the United States held that wire tapping did not amount to a search or seizure within the meaning of the 4th Amendment, pointing out that 'The amendment itself shows that the search is to be of material things -- the person, the house, his papers, or his effects.' The language of the Amendment, the Court held, cannot be extended and expanded to include telephone wires reaching to the whole world from defendant's house or office. Olmstead v. United States, supra. In that case as here 'There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants.' 277 U.S. at page 464, 48 S.Ct. at page 568.

In the Olmstead case the court had suggested that Congress could protect the secrecy of telephone messages by making them, when intercepted, inadmissible in evidence in federal criminal trials by direct legislation, and thus depart from the common-law rule of evidence. 277 U.S. at page 465, 48 S.Ct. 564. Immediately thereafter Congressional Committees investigated this matter, but session after session Congress rejected all efforts to change the law.

When the Federal Communications Act of 1934, supra, passed Congress there was contained in it a provision, Section 605, which the Supreme Court later said did change the federal rule of evidence on admitting conversations obtained by wire tapping.

This Act was passed for the purpose of transferring jurisdiction over radio and wire communications to the newly constituted Federal Communications Commission. The language of Section 605, which we shall discuss later, was borrowed from the Radio Act of 1927, 44 Stat. 1162. This practically identical provision was in the Radio Act even before the Olmstead case was decided. See dissent of Justice Brandeis, footnote 13, 277 U.S. at page 481, 48 S.Ct. at page 573.

[ 176 Pa. Super. Page 326]

During the passage of the Communications Act no mention was made of any change in the law relating to wire tapping or the admission of evidence obtained thereby. In fact, Congressman Sam Rayburn in reporting for the Committee on Interstate and Foreign Commerce which had the ...

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