Commonwealth v. Voci , 393 Pa. 404 ( 1958 )

Dissenting Opinion by

Mr. Justice Musmanno:

The only evidence introduced in this case against the defendant, Tony Yoci, was conversation obtained by means of wire tapping, and, on it, he was convicted of violating the Act of June 24, 1939, prohibiting pool selling and bookmaking. He appealed to the Superior Court which affirmed the verdict and he then appealed to this Court which has also affirmed the verdict..

Section 605 of the Federal Communications Act provides, inter alia: “. . . 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 . . .”

The defendant maintains that under this plainly worded statute, it is illegal and unconstitutional to use in any criminal prosecution evidence obtained by wire tapping. This Court held in the case of Commonwealth v. Chaitt, 380 Pa. 532, that the fact evidence is obtained illegally does not bar its use by the prosecution. Accordingly, the lower Court and the Superior Court approved the verdict against Voci on the authority of the Chaitt case.

However, Voci submits that the Chaitt case is no longer authority because since it was promulgated in 1955 the Supreme Court of the United States decided in 1957, Benanti v. United States, 355 U. S. 96, that wire tapping evidence obtained by State officers even in accordance with a State statute may still not be used against the accused in a Federal proceeding.

Does the Chaitt precedent, therefore, still apply in Pennsylvania? That is the question before us.

This Court says in its Majority Opinion that: “There can be no doubt that the United States Supreme Court in Benanti v. United States, invalidated much of the reasoning used by this Court in reaching its result in the Chaitt ease.” If the Benanti case invalidated much of the reasoning in Chaitt, would that not be enough to invalidate the authority entirely? The Majority does not think so. It says: “It follows that the Superior Court was correct in ruling that the testimony of Detective Farkus was admissible upon the authority of Commonwealth v. Chaitt, supra, which constitutes binding precedent upon it as it does, in fact, upon us.”

But is Chaitt binding upon us? Are we fettered with chains of our own making? If we are, may we not throw them off at our own bidding? If some of the reasoning in ChaAtt has now, because of the Benanti case, become obsolete, and a fresh approach to the whole question shows the remainder of the reasoning to be lacking in substance, what force compels us to adhere to what we mentally and morally condemn?

The tapping of a telephone wire is about as nasty an intrusion into one’s private affairs as can be imagined. The venerable Justice Holmes referred to it as a “dirty business.” Yet, this Court, with an opportunity to cleanse, fumigate, and purify the law in this respect, insists on retaining wire tapping with all its admitted muck, mire, and malignity on the argument that the Augean stables do not come within our jurisdiction.

The Majority Opinion supports its position by quoting from the Majority Opinion in the Chaitt case. I will avail myself of a similar privilege by quoting from my Dissenting Opinion in that case, namely, “The Majority of the Court says that it is not concerned with the question of wire-tapping from ‘a purely ethical and social standpoint and by its impairment of the right of privacy.’ That may be true, but this Court still has to be concerned with the constitutional rights of the defendant. The Majority says that no constitutional right is involved on the supposition that the protections guaranteed by the Fourth Amendment are only of ‘material things.’ What is a material thing? Is liberty non-material? Does liberty become material only when wrapped in chains? If liberty means anything it means the right to deal and converse with one’s family, friends and the rest of the human race unimpeded and unhampered by officious eavesdroppers. . . . Which is more important? That a horse race gambler should be punished or that the integrity of one’s home be protected? That a placer of bets be stopped or that the government not be degraded by trampling on rights of liberty ever sacred to this land?”

I dissented in the Ohaitt case, I dissent in this case, and I shall continue to dissent until I can feel assured that when I pick up the telephone to speak to a friend, or to anyone with whom conversation is private and sacred, that some Paul-Pry is not listening in, his malicious meddlesomeness being protected by the Supreme Court of Pennsylvania.