The Supreme Court of Pennsylvania has outlined the prohibitive reach of the wiretap statute as encompassing mechanical invasions over telephone extensions and listening on an extension without the consent of the communicating parties.
Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966)

Pleva, David J.

English

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Duquesne Law Review Volume 5 Number 3 Article 12 1966 Evidence - Wiretapping - Extension Telephones David J. Pleva Follow this and additional works at: https://dsc.duq.edu/dlr  Part of the Evidence Commons Recommended Citation David J. Pleva, Evidence - Wiretapping - Extension Telephones, 5 Duq. L. Rev. 448 (1966). Available at: https://dsc.duq.edu/dlr/vol5/iss3/12 This Recent Decision is brought to you for free and open access by Duquesne Scholarship Collection. It has been accepted for inclusion in Duquesne Law Review by an authorized editor of Duquesne Scholarship Collection. DUQUESNE UNIVERSITY LAW REVIEWa crime which was "about to be committed.12 7 This further suggests theawareness that a modernization of arrest privileges is needed to makethem consistent with the conditions under which the police today mustprotect the public.Thomas P. RuaneEvmENcE-Wiretapping-Extension Telephones-The Supreme Court ofPennsylvania has outlined the prohibitive reach of the wiretap statute asencompassing mechanical invasions over telephone extensions and listen-ing on an extension without the consent of the communicating parties.Commonwealth v. Murray, 423 Pa. 37, 223 A.2d 102 (1966).The defendant, an employee of Summit Industries, contacted an oldacquaintance and employee of a competitive firm, Lanston Company, andoffered him a sum of money in exchange for confidential company in-formation. This solicitation was reported to the Lanston officials and aneffort was made to secure evidence in order to prosecute the defendantunder the Penal Code of 19391 for offering to bribe or bribing a corporateemployee. Private detectives were hired and they instructed the Lanstonemployee to telephone the defendant and make further arrangements forthe transfer of the information while they listened on an extension phoneand recorded the conversation with a mechanical device attached to theextension.2Using the evidence that the detectives secured by listening on the ex-tension phone the trial court convicted the defendant3 despite defense'sprotestations that what was overheard was inadmissable under the Actof July 16, 1957, P.L. 956 section 1 which makes it a crime to "intercepta communication by telephone or telegraph without permission of theparties to such communication." 4 The Superior Court affirmed the con-27. Commonwealth v. Hicks, 209 Pa. Super. 1, 5, 223 A.2d 873, 875 (1966).1. The statute provides in pertinent part: "Whoever offers or gives to any agent, em-ployee, or servant of another ... any commission, money, property or other valuable thing,without the knowledge and consent of the principal employer, or master as an inducement,bribe, . . . is guilty of a misdemeanor. . . ." PA. STAT. ANN. tit. 18, § 667 (1963).2. The detectives took the contacted employee to their office and attached the device totheir switchboard to record the conversation and simultaneously listened in while theemployee phoned the call.3. It should be noted that the evidence obtained by use of the mechanical recording wasexcluded under the Pennsylvania "wiretap" statute and specifically distinguished fromevidence secured by listening over the extension.4. The statute provides in pertinent part: "No person shall intercept a communicationby telephone or telegraph without permission of the parties to such communication. Noperson shall install or employ any device for overhearing or recording communications pass-[Vol. 5:448RECENT DECISIONSviction but rejected the distinction drawn by the trial court between themechanical eavesdropping and the overhearing and held that the Act of1957 did not prevent the use of either method.'Speaking for the court, Justice Musmanno reversed the holding of theSuperior Court and interpreted the legislative intent and terminology asproscribing admission of all evidence secured by recording a conversationover an extension without the consent of the communicating parties. Itwas found as a matter of fact that the detective's testimony was so taintedby his reliance on the recording that independent testimony as to whathe had heard eight months before was virtually inconceivable' and, there-fore, the only determination made on the facts was that any evidenceobtained through the use of a recording device attached to an extensionviolated the statute. In the court's opinion no procedure could moreflagrantly violate the statute's proscriptions, for the unequivocal wording"interception" and "device for overhearing" manifestly demonstrate thelegislature's aversion to all such forms of "wiretapping." 7The court did not, however, limit its holding to the facts of the instantcase, but extended its interpretation of the statute by hypothesizing thateven had there been no mechanical device used in the case, merely over-hearing a conversation on an extension phone constitutes a violation ofthe statute. It arrived at this construction by emphasizing the sanctity ofan individual's right to privacy and rejecting all alleged distinctions be-tween using a mechanical device to record a conversation and listeningon an extension as mechanical and artificial.The dearth of Pennsylvania precedent interpreting this aspect of thestatute well reflects the basis for the divergent views expressed on thepresent court8 and would indicate that their decision was probably dic-ing through a telephone or telegraph line with intent to intercept a communication in viola-tion of this act. No person shall divulge or use the contents or purport of a communicationintercepted in violation of this act. . . .PA. STAT. ANN. tit. 15, § 2443 (1958).5. Commonwealth v. Murray, 206 Pa. Super. 298, 213 A.2d 162 (1965). It held thatneither using a recording device on an extension nor overhearing on an extension were"interceptions" within the statute.6. Using the detective's admission that his testimony was based on the recording theinstant court reversed the trial court's factual determination that he testified from his ownrecollection.7. In Olmstead v. United States, 277 U.S. 438 (1928), it was conclusively establishedthat wiretapping was not prohibited by the Constitution. So at the very least, the Penn-sylvania statute was drafted to prevent those elementary forms of wiretapping involving theattachment of mechanical devices to means of communication.8. Justice Musmanno in speaking for the court spoke only for himself and Justice Bell.Concurring, Justice Eagen, with whom Justice Jones joined, agreed with the factual holdingbut believed that the statute was being misconstrued when it was applied merely to over-hearing on an extension. Also concurring was Justice Roberts, with whom Justice O'Brienjoined, and unequivocally construed the Pennsylvania statute as- proscribing the use ofmechanical devices on extension phones as well as overhearing, but took time to attempt to1966-19671 449DUQUESNE UNIVERSITY LAW REVIEWtated by personal predilections rather than by a construction of legaldogma. In Commonwealth v. Smith9 evidence was admitted that an officeroverheard by answering a telephone while participating in a gamblingraid, and in Commonwealth v. Bruno10 a recipient of a call was permittedto use in evidence a recording of that call. Although the court does notmention either of these cases in its opinion and neither of them areconclusively determinative of the law as it pertains to extension inter-loping, it would not have been unreasonable for the court in applying thelatter case to arrive at a contrary result. For if the legislative intent allowsan individual to tape his own conversation and then divulge it to anotherwithout the consent of the other party, then it should be no greater anintrusion of privacy for that same person to permit another to listen in. ona different device within his possession, i.e., a telephone extension.Additional support for a contrary interpretation could have been foundin the United States Supreme Court decision, United States v. Rathbun,"in which under a federal statute similar in nature to Pennsylvania's12the Court interpreted the legislative intent as permitting the overhearingof a conversation over an extension phone." However, the instant courtdismissed the Rathbun decision as inapplicable because of different con-sensual requirements. 4 But perhaps the decision was erroneously con-sidered, for the holding was not based on the consensual requirementsbut instead revolved around the interpretation of "interception" as. notincluding overhearing on permanent family conveniences such as exten-sion phones. 5 And since this was the very issue that concerned the presentcourt, it could have used the federal decision as a guideline in examiningthe reach of the Pennsylvania act.solve some of the ramifications of the decision that Justice Musmanno skirted. Justice Cohenvehemently dissented, contending that neither the recording device nor the overhearing wereinterceptions within the act in light of the Rathbun decision. And that even if the recordingwas illegal the detective's testimony should have been admitted because it was certainlyindependent testimony not based on the recording.9. 186 Pa. Super 89, 140 A.2d 347 (1958).,10. 203 Pa. Super 541, 201 A.2d 434 (1964), cert. denied, 379 U.S. 965 (1964).11. 355 U.S. 107 (1957).12. The statute provides in pertinent part: "... and no person not being authorized bythe sender shall intercept any communication and divulge or publish the existence . . . ormeaning of such intercepted communication to any person ... " 48 Stat. 1103 (1934) ; 47U.S.C. § 605 (1962).13. This statute was held not to be binding on the states in United States v. Schwartz,344 U.S. 199 (1952).14. It should be noted that the federal act requires the consent of only the sender topermit an interception, whereas the Pennsylvania act requires the consent of all the com-municating parties.15. See Bradley and Hogan, Wiretapping: From Nardone to Benanti and Rathbun, 46GFo. L.J. 418, 441 (1958) and Meletzke, Admissability in Federal Courts of Evidence Over-heard on Extension Phones, 19 Onio L.J. 345, 349 (1958) as concluding that it was theinterpretation of "interception" on which the ultimate decision hinged.[Vol. 5:448RECENT DECISIONSNo matter how explicit and lucid a court is in interpreting a statute,there inheres in its decision, as in the instant case, perplexing ramificationsfor future cases involving similar though not identical facts. As indicatedby the dissenting opinion,16 many ordinary business and family practicesof overhearing phone calls would seem to be prohibited by the broadinterpretation of the statute that was given by the court, unless suchsituations are regarded, as some writers suggest, 17 as implying consent bythe communicating parties' 8 or treating the eavesdropper as an alter egoof one of the parties, and thus taking the "interception" outside of thestatute. Another potential problem is the restrictions on usual policetactics employing extension phones for law enforcement; but possibly thesolution to that problem is to treat such procedures as unwarranted in-vasions of an individual's privacy which should be curtailed.Such minor uncertainties can easily be resolved as they arise and shouldnot overshadow the advantages derived from the court's commendableinterpretation assuring the individual's right to privacy. Furthermore,although the holding on the facts, prohibiting the unconsented use ofmechanical devices on extension phones, is unassailable under the wordingof the act, the extended interpretation also proscribing listening on anextension absent mechanical devices, could have been adversely in-fluenced by proper consideration of the Rathbun decision and Pennsyl-vania precedent in the area. However, it should be kept in mind thatthese considerations were only discretionary in their application andtheir disregard in no way vitiates the soundness or validity of the court'sconclusions, but rather reflects the court's political and social concern tobridge the gap of constitutional deficiency and preserve a most basicfreedom-the right to privacy.David J. Pleva16. 423 Pa. at 65, 223 A.2d at 116 (1966).17. See United States v. Polakoff, 112 F.2d 888 (2d Cir. 1940) (L. Hand, J.), suggestingthat the rationale of implied consent can be used to handle such problems.18. Using a similar rationale the Superior Court in Commonwealth v. Goldberg, 208 Pa.Super. 513, 224. A.2d 91 (1966) excluded a unique fact situation from the purview of thestatute where a telephone subscriber attached a mechanical device to his home phone in aneffort to record conversations between his wife and her paramour. The court held that suchactions did not violate the Act of 1957 because the act was not designed to prevent a sub-scriber from "intercepting" for a "rightly paramount purpose". Basing its rationale on aNew York decision the court held that "When such a subscriber consents to the use of hisline, by his employee or by a member of his household, or by his wife, there is a conditionimplied that the telephone will not be used to the detriment of the subscriber's business,household or marital status." The conclusions in this case, however, appear unsubstantiatedsince the wording of the act in no way imparts such an exclusion as arrived at in this caseand hopefully the decision will be reconsidered if taken on appeal.1966-1967]

Evidence - Wiretapping - Extension Telephones

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