Com. v. Chaitt

Citation112 A.2d 379,380 Pa. 532
PartiesCOMMONWEALTH of Pennsylvania v. Isaac CHAITT, Appellant.
Decision Date14 March 1955
CourtUnited States State Supreme Court of Pennsylvania

Page 379

112 A.2d 379
380 Pa. 532
COMMONWEALTH of Pennsylvania
Isaac CHAITT, Appellant.
Supreme Court of Pennsylvania.
March 14, 1955.

[380 Pa. 533]

Page 380

Lemuel B. Schofield, John B. Brumbelow, Philadelphia, W. Hensel Brown, Lancaster, for appellant.

William C. Storb, Dist. Atty. of Lancaster Co., Lancaster, for appellee.

Julian E. Goldberg, William Allen Rahill, Philadephia, for American Civil Liberties Union Greater Philadelphia Branch, as amicus curiae.


Page 381

HORACE STERN, Chief Justice.

[380 Pa. 534] This case is concerned solely with the question of the admissibility, in a criminal prosecution, of evidence obtained by the interception of telephonic communications,--a process colloquially known as 'wire tapping.'

Defendant, Isaac Chaitt, was indicted, tried and convicted on charges of book-making and being a common gambler; he was sentenced to imprisonment and to pay a fine on the charge of bookmaking and sentence was suspended on the common gambler charge.

The principal evidence adduced by the Commonwealth in support of the book-making charge consisted of certain telephone conversations between defendant and one Manduchi which were intercepted by two police officers of the City of Lancaster who had placed a tap on the telephone wire leading into Manduchi's apartment. These officers testified, over objection, as to the contents of the conversations they thus overheard and which revealed that defendant received and accepted horse race bets from Manduchi. The latter's apartment was at 715 North Duke Street, Lancaster, and the telephone calls were from there to defendant's apartment at 122 North Queen Street, also in that city. The court refused defendant's motion for a new trial and the Superior Court affirmed the judgment; 176 Pa.Super. 318, 107 A.2d 214. From that affirmance we allowed the present appeal. It is conceded by the Commonwealth that if the testimony of the officers was improperly admitted defendant would have been, and now is, entitled to a new trial.

At the outset it must be understood that we are not here concerned with the much controverted question as to whether there is any imperative need for wire tapping for the detection and prosecution of crime, or, even if such a need exists, whether it is outweighed by the iniquity of wire tapping from a purely ethical and social standpoint and by its impairment of the right [380 Pa. 535] of privacy and therefore whether it should be permitted or whether it should be banned by the laws of this Commonwealth. That question is one of policy to be determined by the legislature. All that we are called upon to decide is in regard to a rule of evidence, namely, whether testimony which in itself is relevant to the determination of a defendant's guilt or innocence should nevertheless be rejected if it was secured in an allegedly improper manner.

We start with the fundamental principle of the common law that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. That rule, which has persisted uninterruptedly in the several jurisdictions of the United Kingdom and the British Commonwealth of Nations and in an overwhelming number of the States which have had occasion to consider the question, has also been firmly entrenched in the decisions of the appellate courts of our own Commonwealth. 1

The Supreme Court of the United States has, through a course of decisions, 2 established as the law for the federal

Page 382

courts that, in a federal prosecution, the Fourth Amendment bars the use of evidence secured[380 Pa. 536] through an illegal search and seizure by federal agents. On the other hand, however, it has definitely held that this ruling does not apply to prosecutions in a State court for a State crime: Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782, nor where the illegal search and seizure has been made by anyone other than a federal officer acting under a claim of federal authority: Weeks v. United States, 232 U.S. 383, 398, 34 S.Ct. 341, 58 L.Ed. 652; Burdeau v. McDowell, 256 U.S. 465, 41 S.Ct. 574, 65 L.Ed. 1408; Feldman v. United States, 322 U.S. 487, 490, 492, 64 S.Ct. 1082, 88 L.Ed. 1408; Irvine v. California, 347 U.S. 128, 136, 74 S.Ct. 381, 98 L.Ed. 561; Serio v. United States, 5 Cir., 203 F.2d 576.

With this background in mind we proceed to a consideration of the present question in regard to wire tapping, and in that connection the first point to be noted is that wire tapping is not a violation of the Fourth Amendment of the Constitution of the United States since the searches and seizures to which that Amendment relates are only of material things,--one's person, house, papers or effects. Therefore the interception of telephonic communications is not illegal nor are the overheard conversations inadmissible in evidence unless prohibited by statute: Olmstead v. United States, 277 U.S. 438, 464-468, 48 S.Ct. 564, 72 L.Ed. 944. It is by Section 605 of the Federal Communications Act of June 19, 1934, c. 652, 48 Stat. 1103, 47 U.S.C.A. § 605, that such a prohibition was effected. That Section provides in substance that no person receiving or transmitting, or assisting in receiving or transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the contents thereof to any person other than the addressee, or 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 become acquainted with the contents of the same, knowing that such information was so obtained, shall divulge or publish the contents thereof or use the [380 Pa. 537] same or any information therein contained for his own benefit or for the benefit of another not entitled thereto. These provisions, therefore, prohibit employees of communication agencies from divulging any interstate or foreign communications. But the portion of the Section from which the present problem arises is as follows: '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.'

Two questions soon arose as to the scope of this provision. The first was whether the phrase 'no person' embraced federal agents engaged in the detection of crime, and whether 'divulging' included the giving of testimony in a federal court as to the contents of an intercepted communication. In Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, it was argued that such general words as 'no person' should not be held to include the sovereign and apply to federal officers, but the court held to the contrary and also that the prohibition against divulging the contents of intercepted messages banned the giving of testimony in regard thereto in a federal court.

The second question was whether the prohibition against interception applied to intrastate as well as interstate and foreign communications. In Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298, a policeman in New York City acting under instructions of a United States Post Office Inspector, tapped telephone wires over a period of months; the intercepted messages consisted of both intrastate and interstate communications. The court stated that, since Congress had power, when necessary for the protection of interstate commerce, to regulate intrastate transactions, there was no constitutional requirement that the scope of this statute be limited so [380 Pa. 538] as to exclude intrastate communications, and accordingly it held that none of the intercepted

Page 383

messages were admissible in evidence in a criminal prosecution in the Federal court.

In the present case there were no interstate communications, all the telephoning between defendant and Manduchi taking place within the City of Lancaster. There may be some room to doubt, therefore, whether the power of Congress to regulate interstate commerce extends to such a situation, or, if so, whether the decision in the Weiss case was intended to be broad enough to include the interception of purely local messages. Be that as it may, however, the more important question is whether State agents engaged in the detection of a State crime and testifying in a State court are included within the intended scope of Section 605 of the Act. It is the contention of appellant that they are so included and that therefore they not only commit a crime when they intercept a communication but an additional crime when they divulge it by testimony in court; accordingly he argues that for the court to allow them to give such testimony is practically to sanction and condone the commission of a criminal offense in its very presence, and therefore, even though their testimony be relevant to the determination of the guilt or innocence of the person on trial, it should not be received under such circumstances. Appellant would thus distinguish the search and seizure cases previously referred to on the ground that there the witness merely testified to the information gained by a crime already committed but did not commit another crime in and through the very act of testifying.

In our opinion Section 605 of the Act was not intended to, and does not, relate to the divulging of the contents of intercepted communications by State agents [380 Pa. 539] testifying in the criminal prosecution of a State crime in a State court. In Schwartz v. Texas, 344 U.S. 199, 73 S.Ct. 232, 97 L.Ed. 231, it was held that the Section applies only to the exclusion in federal court proceedings of evidence obtained and sought to be divulged in violation thereof, but does not exclude such evidence in State court proceedings. When it is borne in mind that an intention of Congress to supersede or suspend the exercise of the...

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