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COMMONWEALTH v. PAPSZYCKI (03/18/71)

decided: March 18, 1971.

COMMONWEALTH
v.
PAPSZYCKI, APPELLANT



Appeal from order of Superior Court, No. 380, Oct. T., 1970, reversing 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

Richard J. Molish, with him Weiss, Nelson & Moskowitz, for appellant.

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

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 442 Pa. Page 235]

This appeal necessitates another application of Pennsylvania's anti-wiretapping statute, Act of July

[ 442 Pa. Page 23616]

, 1957, P. L. 956, No. 411, § 1, 18 P.S. § 3742 (Supp. 1970). We must decide whether, under the Act, a person other than a receiver can testify as to the contents of a telephone conversation if he overheard the call by means of an amplification device without the consent of the caller. We believe the testimony is inadmissible.

The factual background is not in dispute. At approximately ten o'clock on the evening of Saturday, July 29, 1967, Donald Palace received an anonymous telephone call at his home advising him that the caller had a "contract" to kill him but was willing to "reverse" the contract for $800. Palace suggested that the caller telephone him again in an hour, which he did, reiterating the threats. The calls were repeated throughout the night and the following day.

Subsequent to the first call, Palace summoned the police. While awaiting their arrival he arranged an induction coil device around the receiver portion of the telephone handset. The device, although not physically attached to the receiver, permitted conversations passing through that particular telephone to be recorded on a tape recorder and simultaneously to be amplified so that they were directly audible to anyone in the room. The coil was in operation when the second and later calls were received. The resulting conversations were recorded and also were overheard by two police officers, Mrs. Palace, and Palace's brother-in-law, Irving Homer, who also answered some of the telephone calls.

Eventually the calls were traced. Appellant Kenneth Papszycki and one William McCoy were indicted on charges of blackmail, conspiracy, malicious use of the telephone, and attempted extortion. Prior to trial, defendants applied to the court to have evidence suppressed that allegedly had been obtained by unlawful search and seizure in violation of the Fourth Amendment and also by unlawful wiretapping in contravention

[ 442 Pa. Page 237]

    of the Pennsylvania anti-wiretapping statute. Hearing was held, and the court ruled on the basis of the Pennsylvania statute, that any evidence through the testimony of the police officers, Mrs. Palace, or even Palace or Homer, which they did not personally hear directly through the telephone receiver itself as the immediate party ...


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