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COMMONWEALTH v. VOCI (01/21/58)

January 21, 1958

COMMONWEALTH
v.
VOCI, APPELLANT.



Appeal, No. 249, Oct. T., 1957, from judgment of Court of Oyer and Terminer and Quarter Sessions of the Peace of Lancaster County, June T., 1954, No. 161, in case of Commonwealth of Pennsylvania v. Tony Voci. Judgment affirmed.

COUNSEL

Benjamin R. Donolow, for appellant.

William C. Storb, District Attorney, for appellee.

Before Rhodes, P.j., Hirt, Gunther, Wright, Woodside, Ervin, and Watkins, JJ.

Author: Wright

[ 185 Pa. Super. Page 565]

OPINION BY WRIGHT, J.

Tony Voci was indicted in Lancaster County on a charge of pool selling and book making, as proscribed by section 607 of the Act of 1939, P.L. 872, 18 P.S. 4607. At the trial he demurred to the evidence, and submitted a point for binding instructions. After a verdict of guilty, he filed motions for a new trial and in arrest of judgment. The lower court refused to grant these motions, and imposed sentence. Voci has appealed. The facts are set forth in the following excerpt from the opinion of Judge JOHNSTONE for the court below:

"Detective Farkas testified that he made a tap on the telephone wire of the P. & J. Cafe and recorded the conversations heard on that line on a tape recording machine. One earphone the detective held to his ear and at the same time made notes of the conversations he overheard. The other earphone was attached to the speaker of the recording machine and the same conversations the detective heard were recorded by the machine on a wire tape. This was done on each of three successive days from 12:30 p.m. until approximately 4:00 p.m. After each of the three listening sessions, the officer immediately went to the Police Station and,

[ 185 Pa. Super. Page 566]

    with Officer Thompson doing the typing, made a transcript of the tape recording. Detective Farkas testified that he played and replayed the recording until he was satisfied he had an accurate verbatim transcript of the conversations recorded on the tape. During the giving of his testimony concerning the taking of race horse bets by the defendant, the officer had with him and occasionally referred to the notes he had made in his own handwriting during the intercepted telephone conversations. However, the greater portion of the officer's testimony about the actual bets was read into the record directly from the transcript of the wire recording. The officer stated that he knew the defendant, and although he had never talked to the defendant over the telephone, was positive in his identification of the defendant's voice. Two other police officers, who listened to the tape recording but did not listen to the wire tap, also positively identified the voice of the person accepting bets as that of the defendant. No testimony was offered by or on behalf of the defendant and apparently the jury believed the officers' testimony not only concerning the taking of race bets but the identification of the defendant as the person who took them".

Appellant's distinguished counsel advances six contentions, the first of which is that "wire tapping is an impairment of an individual's right of privacy so that testimony based thereon is inadmissible". It is of course true that the right of privacy is recognized in this Commonwealth. See Hull v. Curtis Publishing Co., 182 Pa. Superior Ct. 86, 125 A.2d 644; Mack Appeal, 386 Pa. 251, 126 A.2d 679. However, as in the case of Commonwealth v. Chaitt, 380 Pa. 532, 112 A.2d 379, we are not here concerned with the policy question whether the need for wire tapping is out-weighed by its impairment of the right of privacy. A person engaged

[ 185 Pa. Super. Page 567]

    in the commission of a crime has no legal right of privacy. Appellant's contention must be rejected upon ...


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