Appeals from judgment of sentence of Court of Common Pleas of Dauphin County, No. 1890 of 1972, and Nos. 980, 981, and 982 of 1973, in case of Commonwealth of Pennsylvania v. Harry Ernest Stehley.
Thomas C. Zerbe, Jr., Assistant Public Defender, and Richard D. Walker, Public Defender, for appellant.
Marion E. MacIntyre and Edwin W. Frese, Jr., Deputy District Attorneys, and LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Cercone, J.
[ 235 Pa. Super. Page 151]
In the instant case, appellant challenges three of his four convictions on four separate indictments for malicious use of telephones under our former Penal Code, 18 P.S. § 4414.1 (App. 1973). The obscene phone calls for which appellant was convicted were made on numerous occasions to four different women between June, 1972, and April, 1973. In the case of three of the indictments, a substantial part of the evidence establishing Harry Stehley as the obscene phone caller was produced by the use of a "pen register" by the Commonwealth Telephone Company at the request of the State Police. Appellant's sole contention herein is that the use of the pen register was illegal under the Penal Code, 18 P.S. § 3742 (App. 1973), so that the evidence produced thereby should have been suppressed.
Section 3742 of the Penal Code provided in pertinent part:
"No person shall intercept a communication by telephone or telegraph without permission of the
[ 235 Pa. Super. Page 152]
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 . . . [e]xcept 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 [judicial] proceeding. . . ."
Thus, appellant's allegation is that the use of the pen register constituted an interception of a telephone communication to which he was a party, without his consent. In order to evaluate the validity of this argument, some basic understanding of the operation of a pen register is necessary.*fn1
The advent of the dial telephone created a need for a device which could replace the human hand of the operator and automatically provide the telephone company with information necessary to the operation and billing of a large and complex telephone system; and, the pen register was developed to fill that need. A pen register is connected to a particular line which is to be observed, so that when the receiver is lifted from the base of the telephone and a number is dialed, the pen register is activated by the change in the electrical pulses caused by the dialing. Each pulse is recorded on paper as a dash; and, since the number of pulses corresponds to the number which is dialed, the pen register records a "printout" of the telephone numbers which ...