# Commonwealth v. Murray > Supreme Court of Pennsylvania · October 6, 1966 · 423 Pa. 37 URL: https://www.frixlaw.com/law-library/cases/9766553 ## Case - **Full name:** Commonwealth v. Murray, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** October 6, 1966 - **Citations:** 423 Pa. 37; 223 A.2d 102; 1966 Pa. LEXIS 436 - **Precedential status:** Published - **Opinion:** Dissent by Cohen - **Judges:** Eagen, Bell, Musmanno, Jones, Cohen, Eaeen, O'Brien, Roberts - **Cited by:** 48 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766553 ## How later opinions describe it (automated extraction) - 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 aggregatio… ## Opinion text Dissenting Opinion by Mr. Justice Cohen: The majority opinion proposes that the use by the private investigator of the extension telephone to overhear the conversation between defendant and the corporate employee was an interception and, that because defendant did not consent, the investigator’s testimony *64 was inadmissible under the statute. This exact issue has not previously arisen in Pennsylvania, but was decided by the United State Supreme Court in Rathbun v. United, States, 355 U. S. 107 (1957). In that case, the accused was charged with transmitting a threatening interstate communication by telephone in violation of federal statutes. Police officers were permitted to testify that they had heard the accused make the threat in question when, with the consent of the person threatened, they listened to the incriminating telephone conversation over a regularly used telephone extension. Section 605 of the Federal Communications Act provides that no person not being authorized by the sender shall intercept any communication by telephone and divulge its existence or contents. The Supreme Court held that §605 was not violated because there was no interception as Congress intended that the word be used. Thus the Supreme Court of the United States has declared that the act of listening to a conversation over an extension telephone is not an interception, and it is irrelevant whether or not there was consent by one or both of the parties. “Each party to a telephone conversation takes the risk that the other party may have an extension telephone and may allow another to overhear the conversation. When such takes place there has been no violation of any privacy of which the parties may complain.” 355 U. S. 111 . Accordingly, it should be apparent, there is no interception in the present case and there can be no application of the Pennsylvania wire tap statute. The dangers inherent in the majority decision are obvious. It will unreasonably hamper the police in their enforcement and investigatory techniques more than any other decision possibly could. As a result of the majority opinion the police will be forbidden, under penalty of law, to overhear a telephone request for ransom in a kidnapping case; and the obscene or *65 threatening telephone caller will be able to harass and terrify his defenseless victim, secure in the knowledge that neither the police nor the telephone operator may listen in for the purpose of obtaining evidence or tracing the call. That the United States Supreme Court recognized this reasoning is evidenced by the observation in Rathbim that: “The telephone extension is a widely used instrument of home and office, yet with nothing to evidence congressional intent, petitioner argues that Congress meant to place a severe restriction on its ordinary use by subscribers, denying them the right to allow a family member, an employee, a trusted friend, or even the police to listen to a conversation to which a subscriber is a party. Section 605 points to the opposite conclusion.” 355 U. S. at 109, 110 . I believe that the same reasoning applies to the present matter. Inasmuch as I have determined that no interception occurred in this case, I find it unnecessary to discuss the differences between the federal act which requires the consent of only the sender of the communication and the Pennsylvania statute which requires the consent of both parties before a lawful interception may be effected. Obviously, if there is no interception, neither statute can be applicable. The lower court excluded from evidence the recording of the conversation between defendant and the corporate employee. However, the court did allow the investigator to testify concerning the contents of the conversation which he had overheard on the extension despite the fact that he stated that on at least three occasions he had read a typewritten transcript of that conversation. The majority opinion contends that this is error because the witness was testifying from what he recalled the transcript said, not from what he recalled of the conversation itself. This is incorrect, for the witness stated that he did not use the transcript to re *66 fresh, his recollection; rather, he testified that he was able to recall from memory alone those portions of the conversation which incriminated the defendant. Furthermore, even though the use of the recording device at the switchboard may be an illegal interception within the meaning of our statute, the same evidence obtained by an independent source at the extension is not rendered inadmissible thereby. Nor done v. United States, 308 U. S. 338 (1939). In the present matter there existed in the private investigator such an independent source of evidence that the “connection between any possible violation of the statute and his testimony had ‘become so attenuated as to dissipate the taint’ in its relation to admissibility.” Monroe v. United States, 234 F. 2d 49, 57 (D.C. Cir. 1956), citing N ardone v. United States, supra. Because the offer to bribe was made over the telephone in Adams County, defendant argues that the Philadelphia court lacked jurisdiction to try the offense. With regard to this matter, I agree with the language of the Superior Court that “the crime [of offering to bribe] is not complete until the offer is received by [the offeree] who, in this case, was in Philadelphia County. . . . [and that the] charge . . . cannot be sustained in the absence of some contact, communication, or conversation with the person alleged to have been bribed.” Commonwealth v. Murray, 206 Pa. Superior Ct. 298, 301 , 213 A. 2d 162, 164 (1965). Since the completed offense took place in Philadelphia where the offer was heard, the trial court properly exercised jurisdiction. Finally, the statute here involved provides, “Whoever offers or gives to any . . . employe . . ..of another . . . money . . . without the knowledge and consent of the employer . . .” is guilty of an offense. Defendant argues that no crime was committed because the arrangements for the transfer of the blueprints and *67 money were made with, the knowledge and consent of the employer. This is an incorrect interpretation of the statute, for the crime may be committed by a mere offer to bribe. The testimony proves that at the time the illegal offer was made, the corporation was without knowledge of the bribe. The arrangements allowing the employee to accept the bribe were made to obtain corroborating evidence. Hence, in this instance, the crime was complete when the original offer was made. I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766553. Public record. Not legal advice.