Appeal, No. 242, Jan. T., 1958, from judgment of Superior Court of Pennsylvania, Oct. T., 1957, No. 242, affirming judgment of Court of Oyer and Terminer and Quarter Sessions of the Peace of Lancaster County, June Sessions, 1954, No. 161, in case of Commonwealth of Pennsylvania v. Tony Voci. Judgment affirmed.
Benjamin R. Donolow, for appellant.
William C. Storb, District Attorney, for appellee.
Before Jones, C.j., Bell, Musmanno, Arnold, Jones and Cohen, JJ.
OPINION BY MR. JUSTICE BENJAMIN R. JONES
The defendant was convicted in the Court of Quarter Sessions of Lancaster County upon indictment charging him with pool selling and bookmaking in violation of the Act of June 24, 1939, P.L. 872, § 607, 18 PS § 4607.*fn* After the verdict of guilty, defendant filed motions for a new trial and in arrest of judgment. Following the trial court's refusal of these motions and the imposition of sentence, defendant appealed to the Superior Court where the judgment was affirmed (185 Pa. Superior Ct. 563, 138 A.2d 232). From that affirmance we allowed the present appeal.
Detective Farkus of the Lancaster City Police placed a wiretap upon the telephone line of the P & J Cafe in that city. For a period of three days, from 12:30 P.M. until approximately 4:00 P.M., the officer intercepted all telephonic communications coming over the tapped wire, taking notes in longhand of what was said and simultaneously recording the conversations by use of a tape recorder. Immediately after each day's session
a typewritten transcript was prepared of the conversations recorded on the tape.
Detective Farkus was the chief witness against defendant. He testified that the tape recordings had been played and replayed until he was satisfied that an accurate verbatim transcript of the recordings had been achieved. During the course of his testimony concerning the taking of race horse bets by defendant, the officer had in his possession and occasionally referred to handwritten notes he had taken while listening to the intercepted telephone conversations. The bulk of his testimony, however, was read directly into the record from the transcript made from the tape recordings. Although the tape recorder was placed in evidence by the Commonwealth, it was not played to the jury. The officer testified that he knew the defendant but had not previously heard his voice over a telephone; he was positive in his identification of the voice he had heard accepting bets as that of defendant. Two other police officers identified defendant's voice by listening to the tape recordings although neither had listened to the conversations as they had come directly over the wire at the wiretap. One of these latter two witnesses had spoken to defendant on the telephone for a short time about a year before. The defendant did not take the stand and no testimony was offered on his behalf. The sole evidence offered against defendant was that procured by means of the wiretap, but it was sufficient to convince the jury that defendant had in fact accepted race bets as charged in the indictment.
Upon this appeal defendant advances the following arguments which he contends require a reversal of the conviction: (1) that the "best evidence rule" requires that the contents of a recording be proven by the playing of the recording itself and ...