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COMMONWEALTH v. MCCOY ET AL. (06/11/70)

decided: June 11, 1970.

COMMONWEALTH, APPELLANT,
v.
MCCOY ET AL.



Appeal from order of Court of Common Pleas of Bucks County, No. 905 of 1967, in case of Commonwealth of Pennsylvania v. William McCoy and Kenneth Papszycki.

COUNSEL

Stephen B. Harris, Assistant District Attorney, with him Ward F. Clark, District Attorney, for Commonwealth, appellant.

Richard J. Molish, Stephen I. Weiss, and Weiss, Nelson & Moskowitz, for appellee.

S. Richard Klinges, III, for appellee.

Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J. Dissenting Opinion by Hoffman, J.

Author: Spaulding

[ 216 Pa. Super. Page 437]

On July 29, 1967, Donald Palace received a telephone call threatening that Palace would be killed if he did not pay the caller. Before a second call was received Palace informed the police of the first call and had an amplifier-recorder set up to overhear the conversation. The device was held next to the earpiece of the phone so that the receiver could still hear. There was no physical connection between the telephone and the equipment. The caller was not advised that the conversation was being overheard and recorded. As a result of the information recorded that day and the next, appellees, William McCoy and Kenneth Papzsycki,

[ 216 Pa. Super. Page 438]

    were arrested on July 30, 1967, and charged with blackmail, extortion, misuse of the telephone, and conspiracy. Following a suppression hearing, Judge Satterthwaite of the Bucks County Court of Common Pleas, Criminal Division, issued an order January 9, 1970, suppressing all evidence of the overheard conversations. The Commonwealth appeals from that order.

The court below determined that the Fourth Amendment provisions concerning illegal search and seizure did not apply; and that the case was controlled by Pennsylvania statute,*fn* Act of July 16, 1957, P. L. 956 § 1, 18 P.S. § 3742.

The statute reads in relevant part: "No person shall intercept a communication by telephone or telegraph without permission of the parties to such communication. No person shall install or employ any device for overhearing or recording communications passing through a telephone or telegraph line with intent to intercept a communication in violation of this act. No person shall divulge or use the contents or purport of a communication intercepted in violation of this act. . . . 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. Except as proof in a suit or prosecution for a violation of this act, no evidence obtained as a result of an unlawful interception shall be admissible in any such proceeding."

Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966), reversing 206 Pa. Superior Ct. 298, 213 A.2d 162 (1965), most recently interpreted that language. In that ...


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