stating that “if detectives and private intermeddlers may, without legal responsibility, peer through 7 keyholes, eavesdrop at the table, listen at the transom and over the telephone, and crawl under the bed, then all constitutional guarantees become [a] meaningless aggregation of words, as disconnected as a broken necklace whose beads have scattered on the floor”
How later courts described this case
- stating that “if detectives and private intermeddlers may, without legal responsibility, peer through 7 keyholes, eavesdrop at the table, listen at the transom and over the telephone, and crawl under the bed, then all constitutional guarantees become [a] meaningless aggregation of words, as disconnected as a broken necklace whose beads have scattered on the floor”
- "The Court said in the Nardone case that once it is shown that there has been an unlawful wire tapping, as was shown here, the accused has to be allowed the opportunity 'to prove that a substantial portion of the case against him was a fruit of the poisonous tree.' That is all the Nardone case established and, in fact, the Supreme Court reversed the conviction and sent the case back for retrial because Nardone had not been given the opportunity to show how much of the prosecution evidence was tainted."
- eavesdropping on telephone conversation with one party's consent intruded on privacy rights guaranteed by Pa. Const. art. I, §§ 1, 8
- under Article I, Section 1 of the Pennsylvania Constitution, “[t]he right of privacy is as much property of the individual as the land to which he holds title and the clothing he wears on his back.”
Written by the judges who cited it.
The opinion
Concurring Opinion
by Mr. Justice Roberts:
Appellant was tried without a jury and convicted in the Court of Quarter Sessions of Philadelphia County for offering to bribe and bribing a corporate employee in violation of the Act of June 24, 1939, P. L. 872, §667, 18 P.S. §4667. The Superior Court affirmed the conviction. Commonwealth v. Murray, 206 Pa. Superior Ct. 298 , 213 A. 2d 162 (1965). Appellant filed a petition for allowance of appeal which was granted by us. The facts of the case are set out in the opinion of the trial court. Commonwealth v. Murray, 35 Pa. D. & C. 2d 634, 635-39 (O. & T. and Ct. of Quarter Sessions, Philadelphia County, 1965).
Among the questions presented by this case is one of great significance and no little difficulty concerning Pennsylvania’s so-called anti-wiretapping statute, the Act of July 16, 1957, P. L. 956, §1, 15 P.S. §2443. Specifically, we are called upon to decide whether the statute prohibits a private detective from testifying in a criminal trial to the contents of a telephone conversation between the defendant and another caller overheard on an extension phone by the detective without permission of the defendant, but with permission of the other caller.
The statute which we must apply to this case in pertinent part provides: “No person shall intercept a communication by telephone or telegraph without permission of the 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 *55 or use tlie contents or purport of a communication intercepted in violation of this act. Whoever wilfully violates or aids, abets or procures a violation of this act is guilty of a misdemeanor, and shall be punishable by imprisonment of not more than one year, or by fine of not more than five thousand dollars ($5000), or both, and shall be liable to any person whose communication is unlawfully intercepted or divulged for treble the amount of any damage resulting from such unlawful interception, divulgence or use, but in no event less than one hundred dollars ($100) and a reasonable attorney’s fee. The term ‘person’ includes natural persons, business associations, partnerships, corporations, or other legal entities, and persons acting or purporting to act for, or in behalf of, any government or subdivision thereof, whether Federal, State or local. The term ‘divulge’ includes divulgence to a fellow employe or official in government or private enterprise or 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.” Act of July 16, 1957, P. L. 956, §1, 15 P.S. §2443.
To interpret this provision the Commonwealth, in its brief, the dissent, and. the Superior Court below rely in part on. the majority opinion in Rathbun v. United States, 355 U. S. 107 , 78 S. Ct. 161 (1957). In Rathbun the Supreme Court of the United States held that §605 of the Federal Communications Act 1 does not *56 proscribe and hence preclude admission into evidence of testimony of a police officer who listened on an extension phone to a conversation of the defendant with a person who had consented to the overhearing. The Supreme Court’s holding was based on a construction of the term interception which in the federal statute, like our own statute, is key to determining the range of conduct sought to be proscribed. In interpreting the Pennsylvania statute, we are of course bound in no way to accept the Supreme Court’s interpretation of interception in the federal statute, as much persuasive weight as we naturally accord that Court’s holding on the matter. Moreover, since our statute was adopted prior to the decision in Ratftbun, at a time when lower federal courts disagreed on whether the federal statute reached the *57 conduct in issue in the present case, 2 it is clearly impossible to infer from federal cases whether the Pennsylvania Legislature intended interception to encompass overhearing on an extension phone without the consent of one of the parties. I thus find it appropriate to examine and evaluate the considerations which underlie the decision in Rathbun as well as the other cases which have treated the question.
It is clear to me that the privacy of the telephoning public is the interest which must first arrest one’s attention in dealing with this problem. A mere passing acquaintance with the daily newspaper suffices to substantiate the existence of a widely felt and insidious threat to individual privacy posed, not only by technological advances, but also by the evolution of contemporary social structures. A jealous regard for individual privacy is a judicial tradition of distinguished origin, buttressed in many areas by the imperative mandate of constitutional guarantees. Protection of individual privacy, however, appears frequently to reduce the methods available to law enforcement agencies in the detection and prosecution of crime. New would deny that in this country today concern with the growth of criminal activity is of the same order of magnitude as the concern with the erosion of individual privacy. And, as Judge Clark of the United States Court of Appeals for the Second Circuit pointed out in his excellent dissent in United States v. Polakoff, 112 F. 2d 888, 891-93 (2d Cir. 1940), the more broadly the legislative meaning of interception is interpreted, the more thoroughly insulated a means for criminal activity the telephone becomes. The majority in Rathbun , as well as most judges who reach the same result, also urge that to construe interception to include over *58 hearing on an extension phone would be to impute to the Legislature the unlikely intention of proscribing as criminal the commonplace and innocuous convenience of having business associates and family members listen into a conversation without bothering to inform the caller. 3
In evaluating these considerations, one is confronted first with the simple, salient fact that by enacting the Act of July 16, 1957, our Legislature in language nowhere conditioned by an expressed exception for use by any agency, police or otherwise, proscribed interception of telephone conversations without permission of the parties. By so doing, no one denies the Legislature decided that the right of any caller to the privacy of his phone conversation was more important than the interest served by permitting police or anyone else to tap wires. The statutory language “shall install or employ any device for overhearing” to my mind admits of no sensible distinction between a wiretap and an extension phone. Thus unless we are compelled by the statutory use of the word interception itself, a compulsion which I find impossible to entertain, there is no reason for concluding, as the dissenting and other concurring opinion apparently does, that *59 while the Legislature clearly valued individual privacy more highly than the right to tap wires without permission, it nonetheless valued individual privacy less than the right to overhear conversations by an extension phone without permission. Indeed I am at a complete loss to imagine what purpose is served by a statute, which at the outset requires permission of more than one of the parties to “interception” of a telephone conversation, if by the simple expedient of resorting to listening in on an extension telephone, the needed permission of one of the parties is completely dispensed with. To so hold, would I believe, obliterate the practical effect which, as the majority opinion indicates, the Legislature had very distinctly in mind. 4 Moreover, if overhearing by extension phone without consent of one party is not proscribed by the statute it seems obvious that such overhearing without consent of either party would not be proscribed. Thus, users of the telephone would be at the mercy of those who wish to pry into confidences intended by neither user to reach other ears. Such results I am extremely reluctant to believe the Legislature intended.
The argument that to construe the statute to proscribe overhearing on extension phones would make criminally liable numerous business associates and relatives who listen into phone conversations unbeknownst to one caller, however, remains as a difficulty. It may well be sufficient to answer this difficulty by saying that the language of the statute taken as a whole and read with common sense leaves no doubt in my mind that the Legislature intended to prevent the conduct at issue in this case, while the case of the overhearing secretary or relative may be dealt with when and if it arises. In any event, however, I believe the difficulty could be overcome by construing the statutory term *60 “permission” to encompass both, expressed and implied permission. Thus when a call is made in circumstances where it would ordinarily be unreasonable to believe that one caller would have any objection to the overhearing of the conversation on an extension phone, I see no reason why that caller’s permission cannot be implied, and I seriously doubt whether substantial practical difficulty would result from such a rule. 5 Admittedly, such a construction of the statutory term “permission” is not the most natural one, and I would not be inclined to adopt it in the normal course of statutory interpretation. But if absent such a construction of permission here, I would find myself forced to the Hobson’s choice of emasculating the practical effect of the statute or construing it to impose criminal liability for conduct which I find it hard to imagine the Legislature deemed even faintly undesirable, then that is the construction I would adopt. Finally, it reassures me no little amount that the solution of this problem suggested here is substantially along the lines followed by Judge Learned Hand in Polalcoff.
Because of my interpretation of the statute, it is of course unnecessary for me to discuss whether the detective’s testimony should have been excluded because fatally infected by his reading of the transcript of the illegally made wiretape recording. I do deem it worth mentioning, though the contention is not raised in the *61 Commonwealth’s brief, that under the facts of this case the admission of the detective’s testimony, though corroborated by evidence deemed sufficient by the trial judge to sustain the conviction independently, cannot preclude our reversal. To begin with I fail to see how the effect of the detective’s testimony did not inevitably play an instrumental role in the trial court’s verdict. This is not a case in which the other evidence of guilt strikes me as overwhelming. More importantly, failing to reverse a trial in which the evidence was admitted in violation of the Act of July 16, 1957 would hardly evidence the proper degree of respect for the Legislature’s command, see Kotteakos v. United States, 328 U. S. 750, 764-65 , 66 S. Ct. 1239, 1248 (1946), in light of the particular emphasis on exclusion which the statute contains.
Appellant attacks his conviction for offering to bribe on the ground that the Court of Quarter Sessions of Philadelphia County lacked jurisdiction of the offense. The alleged offer was made in telephone conversations during which appellant was admittedly in Adams County while the offeree of the bribe was in Philadelphia County. Appellant correctly points out that a criminal case may normally not be tried outside the county in which the alleged offense was committed. Commonwealth ex rel. Chatary v. Nailon, 416 Pa. 280 , 206 A. 2d 43 (1965); Commonwealth v. Mull, 316 Pa. 424 , 175 Atl. 418 (1934). He argues, in effect, that the statutory language defining the offense of offering a bribe limits the locus of the crime to an area immediately surrounding the person of the offeror at the moment the offer is dispatched. 6 I see no reason why *62 such a limitation is compelled by the language “whoever offers or gives” in a case where the offeror utilizes an instrumentality which he intends, and which does in fact, transmit his offer to another location. See United States v. Thayer, 209 U. S. 39 , 28 S. Ct. 426 (1908) (Holmes, J.); Commonwealth v. Taub, 187 Pa. Superior Ct. 440 , 144 A. 2d 628 (1958); Commonwealth v. Keenan, 28 Pa. D. & C. 2d 41 (Ct. of Quarter Sessions, Philadelphia County), aff’d mem., 199 Pa. Superior Ct. 1 , 184 A. 2d 793 (1962). Appellant, urges that the Keenan case, which involved a prosecution for blackmail in Philadelphia County under the Act of June 24, 1939, P. L. 872, §805, 18 P.S. §4805, of a defendant who telephoned a threat from another county to Philadelphia, is distinguishable because the blackmail statute penalizes “whoever sends or delivers or utters” a threat and because jurisdiction in Keenan must therefore have been conferred on the Philadelphia court solely by virtue of the fact that the threat was delivered in Philadelphia. To employ the verb “deliver” to describe the process by which a caller’s conduct effects the transmission of words to a listener in a telephone conversation involves, in my opinion, no less strain on common usage than to characterize the same process by the words “send” or “utter”. Thus, I find no reason to believe that jurisdiction in Keenan depended solely on the verb deliver. Moreover, I find nothing in the appellant’s citation of Commonwealth ex rel. Sickler v. Yaukey, 11 Pa. D. & C. 2d 11 (C.P. Fulton County, 1956) which persuades me to the contrary.
Appellant also seeks to distinguish Taub . In that case it was held that jurisdiction of a surety of the peace proceeding under the Act of March 31, 1860, *63 P. L. 427, §6, 19 P.S. §23 was properly exercised by the Court of Quarter Sessions of Westmoreland County over a threat telephoned by the defendant from Allegheny County to a woman in Westmoreland County. The basis of this distinction, appellant urges, is that the state of mind of the recipient of the call in Taut was an element of the offense and hence the offense could be located in the county where the woman heard the threat, whereas in the instant case the offeree of the bribe’s state of mind is irrelevant to the offense. What appellant disregards, however, is that the offense of offering to bribe can hardly be made out absent perception by the offeree of the offer. Whether or not this perception is correctly characterized as a “state of mind”, is thus irrelevant. Appellant’s reliance on the language in Commonwealth v. Friedman, 193 Pa. Superior Ct. 640, 644 , 165 A. 2d 678, 681 (1960) that words spoken by the defendant are the “gist” of the crime of offering to bribe is hardly well placed. In the Friedman case the issue of the trial court’s jurisdiction over the offense was neither raised nor discussed, and the language was used in such a way as to persuade me that the court did not intend by it a catalogue of all the elements of the offense of offering to bribe.
Because appellant’s conviction must be overturned due to the inadmissibility of the detective’s testimony, I do not deem it necessary to discuss the nonjurisdictional questions raised by appellant.
Mr. Justice O’Brien joins in this opinion.
“No person receiving or assisting in receiving, or transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, to any person other than the addressee, his agent, or attorney, or to a person employed or authorized to forward such communication to *56 its destination, or to proper accounting or distributing officers of tbe various communicating centers over which the communication may be passed, or to the master of a ship under whom he is serving, or in response to a subpena issued by a court of competent jurisdiction, or on demand of other lawful authority; and no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, substance, purport, effect, or meaning Of such intercepted communication to any person; and no person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by wire or radio and use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto; and no person having received such intercepted communication or having become acquainted with the contents, substance, purport, effect, or meaning of the same or any part thereof, knowing that such information was so obtained, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of the same or any part thereof, or use the same or any information therein contained for his own benefit or for the benefit of another not entitled thereto: Provided, That this section shall not apply to the receiving divulging, publishing, or utilizing the contents of any radio communication broadcast, or transmitted by amateurs or others for the use of the general public, or relating to ships in distress.” Act of June 19, 1934, c. 652, Title VI, §605, 48 Stat. 1103 , 47 U.S.C. §605 .
See cases cited in Rathbun v. United States, 355 U. S. 107 , 109 nn.4-5, 78 S. Ct. 161 , 162 nn.4-5 (1957).
In addition, the dissent urges that this construction would have the untoward result of preventing police from listening and tracing a kidnap call. As to the tracing of calls, I am not certain the dissent is correct in its unstated assumption that tracing requires listening in by a party other than a recipient. In any event, the case in which overhearing a telephone conversation appears necessary to save the life of a kidnap victim is a difficult one fortunately not before us now. I am unprepared, however, to say now that the provisions of this statute would not yield an exception where life is at stake, although I certainly believe a clarifying amendment to the statute to cover such situations would ob-. viate doubt and judicial difficulty. See, e.g., Schwartz, On Current Proposals To Legalize Wire Tapping, 103 U. Pa. L. Rev. 157 , 165-67 (1954).
Compare Dash, The Eavesdroppers 406-21 (1959).
In 1940 the United States Court of Appeals for the Second Circuit wrote an opinion suggesting that the problem of innocent overhearing by business associates or family members be dealt with in this way. United States v. Polakoff, 112 F. 2d 888 (2d Cir. 1940 (L. Hand, J.)). That Polakoff view remained the law in one of the most populous areas of this country for seventeen years until RatKbwn. Yet with the conceivable exception of Reitmeister v. Reitmeister, 162 F. 2d 691 (2d Cir. 1947), I have found no reported case involving the difficult factual situations of the type conjured up by the Rathbun majority.
In State v. Noland, 204 N.C. 329 , 168 S.E. 412 (1933), the only reported case I have found dealing with the precise question here, the court concluded that jurisdiction of a trial of an inter-county offering to bribe by telephone lay in the county where the offer was heard. Since Noland lists no reasons for its conclusion *62 I do not deem it of important weight in resolving the question here.