Commonwealth v. McCoy

Dissenting Opinion by

Hoffman, J. :

Judge Spaulding has well stated the facts of the case. The question presented by these facts is: May a person other than the receiver testify as to the contents of a phone call, if he has heard the phone call by means of an amplification device without the consent of the caller?*

The answer to this question is governed by the Act of July 16, 1957, P. L. 956, §1, 18 P.S. §3742 (Supp. 1970) [formerly, 15 P.S. §2443]. The first two sentences of the Act are crucial. “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.” Plainly read, the second sentence prohibits installing or employing a device with the intent to intercept a communication. This sentence, therefore, prohibits the installation or use of devices regardless of whether a communication is, in fact, intercepted. In contrast, the first sentence prohibits actual interception and makes no reference to the use of a device. It is written in general language, with its entire emphasis placed upon gaining access to communications without the consent *442of both, parties. The question, therefore, is whether the legislature, in thus referring to interceptions, without making reference to the means employed, intended to confine the prohibition only to physical intrusions upon the line of communication or, rather, it intended a broader result, that being the protection of the privacy of personal communications. In my opinion, the language most reasonably comports with the latter.

This conclusion is in accord with the general aims of the Act. The Act makes communications by telephone or telegraph a protected interest which can be waived only by the consent of both parties to the communication. The legislature’s desire to insulate communication is evident from the requirement that both parties consent rather than just one. Were just one party’s consent necessary, then we might conclude that the legislature intended to protect one only from uninvited strangers. A two-party consent requirement, however, indicates an intention to keep out all strangers, invited as well as uninvited. If the majority are correct, this Court will permit anyone to overhear as long as it is done without breaking into the line of communication. Thus, one party, without the consent of the other, could hold amplification equipment to the phone and broadcast the other party’s voice to whomever he wished with impunity. Or a stranger, without the consent of either party, could hold sophisticated amplification equipment to a wall or to a phone booth and listen to a communication with impunity. Such a result would circumvent the intent of the Act. It would determine an individual’s right to privacy on the scheme employed by the interceptor rather than on the scope of the right itself.

My reading of the Act is supported by the decision of the Supreme Court in Commonwealth v. Murray, 423 Pa. 37, 223 A. 2d 102 (1966). Although there was no one opinion representing the view of a majority of the *443Court, two opinions representing the views of four justices enunciate the rationale this Court must follow. Both opinions faced the question whether overhearing a communication by means of an extension telephone, without the consent of both parties, was a violation of the Act.

Justice Musmanno, writing for The Chief Justice and himself, wrote: “Both the lower court and the Superior Court stated in their respective opinions, and the Commonwealth equally contends, that there is nothing illegal about someone listening in on a telephone extension, without the consent of the parties conversing on that wire, and then divulging the contents of that conversation to others. This position demonstrates another misreading of the Act. The Act declares in a no-nonsense fashion that '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.’ What is a telephone but a device for overhearing? * * * What the prosecution throughout this entire case fails to perceive is that the Act of 1957 has one precise purpose and that is to punish those who intercept telephone communications without the consent of both parties. * * * Certainly the Commonwealth would not argue that if an interloper clandestinely installed a telephone extension to a private telephone and listened in on all conversations, he would be free from prosecution. Why would that situation change because the interloper happened to be a paid detective? He, the same as anyone else, must have the consent of both parties to a telephone conversation before he may, under the Act, listen into, and thus intercept, that conversation.” Id. at 46-47, 223 A. 2d at 107-108 [original emphasis].

Justice Roberts, writing for Justice O’Brien and himself, wrote: “[T]here is no reason for concluding *444. . . that 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.” Id. at 58-59, 223 A. 2d at 113.

The rationale of both opinions is that telephone and telegraph communication is protected and that it is not to be intruded upon by any method. Neither opinion in its discussion of an extension, relies upon the fact that an extension is connected to the line of communication. They both mandate, in the words of Justice Roberts, that no “simple expedient” be allowed to circumvent the policy of the Act.

In summary, without specific direction from the legislature, I cannot agree that overhearing accomplished through an amplification device is exempted from the Act’s prohibition. This Court’s opinion would allow such an exemption by a rationalization which does not comport with the intent of the Act. The Act clearly intends to protect the privacy of communications. Such privacy can be invaded only if both parties relinquish their privilege to communicate in confidentiality. I cannot agree that this Court can legislate away what the General Assembly has clearly mandated for the protection of our citizenry. Nor can we, as the majority suggest, substitute our interpretation of the legislature’s intent in place of the Supreme Court’s interpretation in Murray.

I would affirm the order of the lower court.

Tape recordings were also made of the phone calls in question. Their status is governed hy the same rationale as the amplification device.