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COMMONWEALTH PENNSYLVANIA v. WILLIAM MCELHENNY (08/27/79)

submitted: August 27, 1979.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
WILLIAM MCELHENNY



Nos. 315 and 316 Special Transfer Docket, Appeal from the Order of the Court of Common Pleas, Trial Division, Criminal Section of Philadelphia County, Granting Appellee's Motion to Suppress a Tape Recording of Appellee's Telephone Call to Police Department on C.P. 77-08-2100-2101

COUNSEL

Robert B. Lawler, Assistant District Attorney, Philadelphia, for Commonwealth, appellant.

Gilbert B. Abramson, Philadelphia, for appellee.

Hoffman, Eagen and Hess, JJ.*fn*

Author: Per Curiam

[ 273 Pa. Super. Page 235]

Appellant Commonwealth contends that the lower court erred in sustaining appellee William McElhenny's motion to suppress a tape recorded inculpatory statement made by appellee during an unsolicited telephone call to a police communications center. We disagree and, accordingly, affirm the order of the court below.

On August 20, 1977, police discovered the body of Margaret McGuire McElhenny at a residence located at 2723 Sears Street in Philadelphia. At 10:21 P.M. that same evening, the Police Radio Emergency Center at the Police Administration Building received a telephone call from a male caller who stated: "Officer, I killed Margie McGuire." The caller also informed the answering officer that he was wearing black shoes and a flowered shirt; and that he "was her husband." The conversation was tape recorded pursuant to standard practice at the Center. On August 21 and 22, 1977, McElhenny was taken to the Police Administration Building, but refused to answer any questions. On August 22, 1977, police arrested McElhenny and charged him with the murder of his wife. McElhenny filed a motion to suppress the taped conversation. The lower court held a hearing on the motion at which the tape was authenticated. On May 10, 1978, Judge DELLA PORTA granted the motion to suppress because McElhenny had not consented in writing to use of the tape. The Commonwealth then appealed from the order of the court below.

The applicable Pennsylvania statute in effect at the time the relevant incidents in this case occurred provided:

ยง 5702. Breach of privacy of telephone or telegraph communications.

[ 273 Pa. Super. Page 236]

(a) Offense defined --

A person commits a misdemeanor of the second degree if he:

(1) intercepts without permission of the parties to the communication a message . . . by ...


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