Appeals from orders of Court of Common Pleas of Chester County, Sept. T., 1971, No. 282, in cases of Commonwealth of Pennsylvania v. Robert Helms, and Same v. Kenneth Spacil.
Timothy H. Knauer, Assistant District Attorney, with him Robert S. Gawthrop, III, Assistant District Attorney, and William H. Lamb, District Attorney, for Commonwealth, appellant.
Michael S. Barranco, Assistant Public Defender, with him John R. Merrick, Public Defender, for appellees.
William M. Hebrank, with him Raymond F. Scully, for amicus curiae, The Bell Telephone Company of Pennsylvania.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, and Spaeth, JJ. (Van der Voort, J., absent). Opinion by Jacobs, J. Dissenting Opinion by Cercone, J. Dissenting Opinion by Price, J.
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The appellees, Robert Helms and Kenneth Spacil, were charged with conspiracy to fraudulently obtain tele-communications service and conspiracy to possess and possession of instruments or devices used to achieve theft of communications service.*fn1 Both appellees moved to suppress evidence obtained by security personnel of the Bell Telephone Company of Pennsylvania contending that such evidence was obtained in violation of the Pennsylvania anti-wiretapping statute.*fn2 The lower court granted the suppression motions and the Commonwealth appealed.*fn3
The facts reveal that an employee of Bell Telephone Company, while running a routine office check on telephone trunk lines, discovered the presence of unusual multifrequency sounds on one of the lines. On each of the next several days he also heard these unusual tones. The employee was aware that these sounds were not consistent with sounds generated by any equipment which the Bell System was using in the area, and were not consistent with any malfunction which he had been trained to anticipate in the equipment. He therefore suspected
[ 234 Pa. Super. Page 541]
that a trespasser was illegally using the equipment, and notified Bell security personnel.
The Bell security officer assigned to the case, acting with the assistance of the employee who had discovered the sounds, observed the multifrequency tones and the accompanying voice transmission. He identified the tones as emanating from a "blue box" device, an illegal electronic device which permits the user to electronically bypass telephone company billing equipment and to seize access to worldwide telecommunications equipment without charge. The security officer immediately ordered a trace of the line being used, which revealed that the call was placed from the address of one of the appellees, Kenneth Spacil.
Bell Telephone's security division then began an intensive monitoring campaign through which it positively identified 47 probable possessors and users of the blue box device. The security officer testified that the purpose of the investigation was to identify the parties who were in possession of and using the devices and to identify the methods employed. Commencing on the first evening of the investigation, August 23, 1971, the company made tape recordings of the conversations which were originated by means of the blue box. The security officer, Beam, admitted that the communications equipment was in perfect working condition and that he employed the taping procedure solely to determine who was defrauding the company and how. Beam testified that he continued to monitor and tape, over a one-month period between August 23 and September 23, 1971, conversations originating from the Spacil residence and three other residences as they were identified. He stated that some of the conversations monitored lasted as long as an hour and a half and reiterated, "[a]gain, these tapes were in the attempt for intelligence . . ." Beam testified that the telephone tap on the Spacil telephone was in operation 24 hours a day until it was removed in late September.
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He stated that although the tap was not monitored for all of that time it would have been possible for anyone entering the room in which the monitor was located to listen to the phone. Although Beam testified that he was certain that no calls other than trespass calls were monitored, he acknowledged on cross-examination: "Q: You had to identify it as a trespass call by listening to the substance of it? A: That's right. And when we were in, I mean, this is what basically what [sic] I would do."
Beam also admitted that incoming calls not made by a blue box were monitored in some instances. Beam stated that although his purpose in the selective taping was to gain intelligence as to the methods employed and by whom, the tapes often included "general conversation" between the two parties, some of whom were not under investigation.
On September 24, 1971, Bell security personnel notified the District Attorney's office of the results of its investigation and the appellees were subsequently arrested and charged with the offenses indicated.
The appellees asserted in their suppression motions below that these acts by the telephone company employees were in violation of the Pennsylvania anti-wiretap statute*fn4 and that, therefore, all such evidence and the fruits*fn5 thereof were inadmissible in the prosecution against them. The Pennsylvania statute upon which they rely states in pertinent part:
"No person shall intercept a communication by telephone or telegraph without permission of the parties to such communication. . . . No person shall divulge or use the contents or purport of a communication intercepted in violation of this act. . . . The
[ 234 Pa. Super. Page 543]
term 'divulge' includes divulgence . . . 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." (Emphasis added).*fn6
The Commonwealth, however, and the Bell Telephone Company of Pennsylvania in an amicus brief, assert that the acts of the telephone company personnel were specifically excluded from the prohibitions of the Act by virtue of its last sentence, which states:
"Nothing in this act shall be interpreted to apply to acts done by personnel of any telephone or telegraph carrier in the performance of their duties in connection with the construction, maintenance or operation of a telephone or telegraph system."*fn7
The resolution of this case thus turns upon the meaning and breadth of the statutory exclusion which pertains to telephone company personnel, most particularly it turns upon the meaning of the phrase "in connection with the construction, maintenance or operation." The Commonwealth argues that the phrase was intended to and should be construed to encompass the investigative procedures employed by the phone company in the instant case. It asserts that these procedures were necessary to maintain the integrity of the system by preventing fraud and to protect the continued operation of the system by assuring that all proper charges would be billed.
The issues before us thus simply defined are whether the Legislature in enacting the statutory exclusion intended to permit the communications carrier to engage in ...