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COMMONWEALTH v. DISILVIO (02/27/75)

decided: February 27, 1975.

COMMONWEALTH
v.
DISILVIO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1973, No. 459 A & B, in case of Commonwealth of Pennsylvania v. Dominick DiSilvio.

COUNSEL

John L. Doherty, for appellant.

Robert L. Eberhardt, Assistant District Attorney, with him John M. Tighe, First Assistant District Attorney, and John J. Hickton, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 232 Pa. Super. Page 388]

This appeal challenges the admissibility of evidence obtained by police officers answering the appellant's telephone during an authorized search of his premises. The appellant contends that the information elicited from the callers was obtained in violation of Pennsylvania's antiwiretapping statute as it stood in 1972 when the search took place.*fn1 We hold that the actions of the police in answering the telephone did not constitute an interception of a communication such as is prohibited by the Act of July 16, 1957, the law in effect when the search

[ 232 Pa. Super. Page 389]

    took place, and the evidence so obtained is therefore admissible. The appellant also raises three other arguments, all without substance, based on the evidence obtained from the telephone conservations. Since appellant's arguments are unpersuasive, we must affirm the judgment of the lower court.

The appellant was indicted and found guilty of poolselling and bookmaking.*fn2 The evidence against him at his trial was the product of a police raid on his center of operations, carried out on October 28, 1972. On that date, a number of detectives from the Pittsburgh Police executed a search warrant for a building suspected of being the locale of bookmaking activities. The detectives were required to force open the reinforced doors to gain entrance. While a number of the detectives were so occupied, the remainder arrested the appellant and another as they attempted to flee out the back. Once inside, the officers discovered in one room a table with three telephones, chairs, a television, radio, and heater. In addition they found rice paper, an adding machine, sports line sheets and a bucket of water containing a pasty residue. The three telephones continued to ring while the raid was in progress. The officers estimated that they answered in excess of 50 calls and testified that the callers asked for "Dom" (the appellant's first name is Dominick) or "Rick." When the callers were informed that the parties to whom they wished to speak were "tied up," most of them hung up, but a few proceeded to place bets.

Appellant contends that by answering the telephones the police officers abused the appellant's right to privacy and violated Pennsylvania's anti-wiretapping statute, and argues that their actions render the evidence of the conversations inadmissible. The Act of July 16, 1957, 18 P.S. ยง 3742, in effect at the time of the incident, provides

[ 232 Pa. Super. Page 390]

    in part: "[n]o person shall intercept a communication by telephone . . . 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 . . . line with intent to intercept a communication in violation of this act." The statute protects a private realm of great sensitivity and for that reason the courts will review with particular care activity which might infringe on the right it protects. See Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966).*fn3 In interpreting the statute, the Supreme Court recently noted that "[t]he statute is designed to secure the integrity of this particular means of private communication. This Court has interpreted the Act as mandating that no person shall without the consent of all parties to the conversation surreptitiously intercept or record the communication." Commonwealth v. Gullett, 459 Pa. 431, 329 A.2d 513, 518-519 (1974).

Since the conduct of the officers in the instant case did not involve recording the conversation or the use of any electronic device for overhearing, we need only consider whether their activity constituted such an interception under the act as would require the consent of the parties to the communication. Compare Commonwealth v. Gullett, supra, with Parkhurst v. Kling, 266 F. Supp. 780 (E.D. Pa. 1967). The officers here simply answered the telephones and spoke directly with the callers. In our view, this is not what was intended ...


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