No. 960 Philadelphia, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, May Term, 1980, Nos. 71, 73.
William T. Cannon, Philadelphia, for appellant.
Alan Sacks, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Johnson, Montemuro and Montgomery, JJ.
[ 308 Pa. Super. Page 142]
Appellant was convicted, by a jury, of voluntary manslaughter and possession of an instrument of crime. Following the denial of his post verdict motions, appellant was sentenced to consecutive terms of imprisonment of five (5) to ten (10) years for voluntary manslaughter, and two and one-half (2 1/2) to five (5) years for possession of an instrument of crime. This appeal raising several assignments of error followed.
Appellant first alleges that evidence resulting from an "intercepted communication" was improperly introduced and admitted. During the trial the victim's sister testified that approximately six (6) days prior to the shooting of the decedent, appellant called the decedent, his estranged wife, at her mother's home. Ms. Sturdevant, the victim's sister, further testified that she listened to the conversation on an extension telephone without the consent of her sister or appellant. She heard appellant tell his wife that he had intended to kill her when he saw her with William Dowdy, her boyfriend, a few days prior to the telephone conversation. A timely objection to this testimony was made by defense counsel, but overruled by the trial court. The objection, and appellant's present claim, was based upon the Wiretapping and Electronic Surveillance Act*fn1 (hereinafter "the Act").
Counsel argued then, as he does now, that Ms. Sturdevant violated the Act by listening in on the conversation without the consent of the parties. As a result, he asserts
[ 308 Pa. Super. Page 143]
that the evidence should not have been admitted. In presenting his argument, appellant relies on this court's opinion in Commonwealth v. Baldwin, 282 Pa. Super. 82, 422 A.2d 838 (1980). We are not, however, persuaded by appellant's position.
Baldwin interpreted the Pennsylvania Anti-Wiretap Statute*fn2 as prohibiting listening in on or overhearing a telephone conversation via a telephone extension without the consent of the conversors. This conclusion was reached by the court after they determined that such actions constituted an "interception" of the conversation. Notably, however, this court was interpreting the Act of 1972, which was applicable to the issue in Baldwin as the present Act became effective after the incident at issue therein occurred.
The Act of 1972 at 18 Pa.C.S.A. § 5702 stated that:
"A person commits a misdemeanor of the second degree if he:
(1) intercepts without permission of the parties to the communication a message or other communication by telephone or telegraph . . ."
The Baldwin decision was premised on the fact that based upon the definition given above, only two elements need be proven to establish a violation: (1) interception of a telephone communication, (2) without the permission of the parties. The Act of 1972 contained no further provisions or ...