Com. v. Griffin

• Decision Date: 18 March 1959
• Citation: 189 Pa.Super. 59,149 A.2d 656
• Parties: COMMONWEALTH v. Thomas GRIFFIN, Appellant.
• Court: Pennsylvania Superior Court

Page 656

149 A.2d 656

189 Pa.Super. 59

COMMONWEALTH v. Thomas GRIFFIN, Appellant.

Superior Court of Pennsylvania.

March 18, 1959.

Application for Allocatur Denied June 2, 1959.

Herbert L. Maris, Philadelphia, for appellant.

Lawrence M. Aglow, Juanita Kidd Stout, Asst. Dist. Attys., James N. Lafferty, First Asst. Dist. Atty., Philadelphia, for appellee.

Before RHODES, P. J., and HIRT, GUNTHER, WRIGHT, ERVIN and WATKINS, JJ.

HIRT, Judge.

The defendant was convicted of possession and sale of heroin, on 31 indictments, which had been consolidated for trial. Motions for a new trial and in arrest of judgment were denied and the defendant was sentenced, to consecutive terms of imprisonment in the Philadelphia County Prison of from 2 1/2 to 5 years, on 6 of the bills; sentence was suspended on the remaining 25 convictions. In this single appeal with the tacit consent of the district attorney, the defendant has questioned the validity of the 6 judgments of sentence.

At the trial there was testimony of Commonwealth witnesses, who were users of heroin, that they had bought the drug from the defendant on the dates laid in the indictments. And in further proof of the unlawful transactions there was admitted in evidence, over objection, tape recordings of telephone conversations between drug addicts and the defendant in which the purchase of heroin from him was negotiated. These recordings of conversations by means of wire-tapping were made on various dates prior to May 24, 1957, which was the first day of defendant's trial in these cases. When this evidence was received, and on the date when the defendant was convicted of the charges by the jury, there was no prohibition in the law of Pennsylvania against the admission of relevant evidence obtained by the interception of telephonic conversations in a criminal prosecution. And its admissibility was not affected in any way by the illegality of the means by which it was obtained. That was the rule of Commonwealth v. Chaitt, 380 Pa. 532, 112 A.2d 379. More recently, to wit: on July 1, 1958, the Supreme Court in Commonwealth v. Voci, 393 Pa. 404, 143 A.2d 652, (affirming our decision in 185 Pa.Super. 563, 138 A.2d 232) in effect held that the provision in § 605 of the Federal Communications Act of June 19, 1934, 48 Stat. 1103, 47 U.S.C.A. § 605, that: '* * * no person * * * shall intercept any communication and divulge' its contents, does not relate to conversations intercepted by means of tape recording by state agents who testify in a prosecution of a state crime in a state court. Contrary to appellant's contention, this testimony of Commonwealth witnesses, obtained by wire tapping, did not violate the Fifth Amendment of the Constitution of the United States, at the time of its admission under the then settled law of this State.

By Act of Assembly approved the 16th day of July, 1957, P.L. 956, 15 P.S. § 2443, wire tapping was outlawed and it was then made unlawful for any person to 'intercept a communication by telephone * * * without permission of the parties to such communication.' In § 2 it was specifically provided: 'This act shall take effect in thirty days.' The defendant was tried and convicted before the date of this enactment and its approval by the Governor, but was not sentenced until after its effective date. There is no merit in the appellant's contention that the court was without authority to impose sentence after the statute forbidding the use of 'wire-tap' evidence, became effective.

The invariable rule...