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COMMONWEALTH v. MURRAY (10/06/66)

decided: October 6, 1966.

COMMONWEALTH
v.
MURRAY, APPELLANT



Appeal from order of Superior Court, Oct. T., 1965, No. 394, affirming judgment of Court of Quarter Sessions of Philadelphia County, June T., 1963, No. 1712, in case of Commonwealth of Pennsylvania v. John Murray.

COUNSEL

Nathan L. Posner, with him Norman Leibovitz, Arthur Packel, and Fox, Rothschild, O'Brien & Frankel, for appellant.

Gordon Gelfond, Assistant District Attorney, with him Joseph M. Smith, Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Musmanno, Jones, Cohen, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Musmanno. Concurring Opinion by Mr. Justice Eagen. Mr. Justice Jones joins in this opinion. Concurring Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this opinion. Dissenting Opinion by Mr. Justice Cohen.

Author: Musmanno

[ 423 Pa. Page 39]

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.

[ 423 Pa. Page 40]

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."

[ 423 Pa. Page 41]

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 Page 41} to the phone line 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. Could you hear the conversation ? A. Yes, sir. "*fn*

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."

[ 423 Pa. Page 42]

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 his 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 history

[ 423 Pa. Page 43]

    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, Vol. 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 intercepting 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

[ 423 Pa. Page 44]

    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 Nardone 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 invariably

[ 423 Pa. Page 45]

    reduced to writing because they must make a report on what 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 you 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 you 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

[ 423 Pa. Page 46]

    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 ...


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