Com. ex rel. Fitzpatrick v. Bullock

• Decision Date: 28 February 1977
• Citation: Com. ex rel. Fitzpatrick v. Bullock, 370 A.2d 309, 471 Pa. 292 (Pa. 1977)
• Parties: COMMONWEALTH of Pennsylvania ex rel. F. Emmett FITZPATRICK, District Attorney of Philadelphia County v. Matthew W. BULLOCK, Judge, Philadelphia Court of Common Pleas.
• Court: Pennsylvania Supreme Court

Page 309

370 A.2d 309

471 Pa. 292

COMMONWEALTH of Pennsylvania ex rel. F. Emmett FITZPATRICKDistrict Attorney of Philadelphia County v.Matthew W. BULLOCK, Judge, Philadelphia Court of Common Pleas.

Supreme Court of Pennsylvania.

Argued Oct. 12, 1976.

Decided Feb. 28, 1977.

[471 Pa. 293] Abraham J. Gafni, Deputy Dist. Atty. for Law, Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., for petitioner.

Jonathan Vipond, III, Philadelphia, for respondent.

John Patrick, Philadelphia, for Yul B. Hayward.

Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

EAGEN, Justice.

The Commonwealth, through the District Attorney of Philadelphia, is here seeking a writ of prohibition against Judge Matthew W. Bullock of the Court of Common Pleas of Philadelphia.This is the background.

On March 5, 1976, Yul Brynner Hayward, who was then fifteen and a half years old, was arrested and charged with murder, robbery, and related weapons offenses arising out of an incident on February 24, 1976.Subsequently, informations were filed against Hayward, pretrial motions were disposed of, and the case was assigned to Judge Bullock for trial.On August 11, 1976, at a conference with counsel prior to jury selection, Judge Bullock asked the prosecuting attorney whether the Commonwealth was seeking the death penalty, and the latter replied: 'I cannot in all candor say because I think it is a jury question.'The judge then stated that, as he had indicated previously in a letter to the district attorney's office, it was his intention in such a case to make 'a preliminary determination whether or not I consider a reasonable jury could find the death penalty if the death penalty is still in the case.'He thus scheduled a hearing 'at which time I will expect the Commonwealth to make any offer of proof as to the facts and basis of which it believes the jury could reasonably find the death penalty.'Further, he Sua sponte ordered that Hayward be given a psychiatric examination and that the psychiatrist testify at the hearing as to Hayward's 'maturity or lack thereof.'The judge also subpoenaed Hayward's school records.

Although the assistant district attorney assigned to prosecute the case for the Commonwealth had originally indicated that both he and his office were satisfied with this procedure, when the hearing was convened the following day he objected to its propriety on the ground that it was a usurpation of a function assigned by statute to the jury, and he indicated that the Commonwealth would not participate in the hearing.The judge then called a psychiatrist and a psychologist, both of whom had official positions as consultants to the court and both of whom had examined Hayward at the court's request.The judge took the lead in questioning both witnesses.The psychiatrist testified that he had examined Hayward for about forty minutes and concluded that, although he found no 'thinking disorder' in the defendant, the latter was a 'schizoid personality' who under stress 'could compensate into a real psychotic state which I did not see during the interview.'The psychologist testified that he had examined Hayward for about an hour, that his tests indicated a 'dull-normal' I.Q. of 84 but that he had a potential I.Q. of 105; the psychologist concluded that Hayward was 'functioning well below his potential . . . because of emotional problems' and that intellectually he was functioning at the level of a twelve-and-a-half-year old and emotionally at the level of a nine-year old.The supervisor of pupil personnel and counselling at Hayward's school was also called as the custodian of the defendant's school records, and these records were admitted into evidence.¹Although defense counsel had originally indicated that he intended to call both the defendant and his father for the limited purpose of determining whether the jury might reasonably impose the death penalty, the defense ultimately decided to present no evidence of its own.At the conclusion of the hearing, Judge Bullock requested briefs and indicated he would schedule an oral argument, but he also stated: 'I have already ruled that the death penalty is not in this case and I will certify the issue for appeal.'(Emphasis added.)After an oral argument on August 31, 1976, the judge, in an opinion and order of September 2, held that the case was non-capital because of the youth and lack of maturity of the defendant at the time of the crime; he certified the issue for immediate appeal.The Commonwealth, however, petitioned instead for a writ of prohibition both vacating the instant order and prohibiting such pretrial determinations in the future.

I

We have serious reservations as to whether a writ of prohibition is the appropriate remedy instantly.Therefore, since the court certified the issue for appeal, since the matter is one of serious public importance, ² and since we believe delaying resolution of the issue will impair that public interest, we shall consider the Commonwealth's petition for a writ of prohibition as an appeal from the order of September 2.SeeAppellate Court Jurisdiction Act, Act of July 31, 1970, P.L. 673, No 223, Art. V, § 501(b),17 P.S. § 211.501(b)(Supp.1976--77).

II

In his opinion in support of the challenged order, Judge Bullock concludes that Pa.R.Crim.P. 1106(e), which states that '(i)n capital cases, the individual voir dire method must be used, unless the defendant waives that alternative,' requires him to make a pretrial determination of whether the case is indeed a capital one.The Commonwealth, on the other hand, argues that in a jury trial for murder the Sentencing Code requires that the question of whether the death penalty shall be imposed be determined only after the defendant has been found guilty of murder of the first degree, and that such determination shall, at least initially, be made by the jury that found him guilty.Hence, in the Commonwealth's view, the court must regard all murder cases as capital cases for the purpose of conducting the voir dire.

This Court has made it clear that, at least for the purpose of determining whether a defendant has the constitutional right to bail, a capital offense is 'a crime for which the death penalty may, but need not be inflicted.'Commonwealth v. Truesdale, 449 Pa. 325, 330, 296 A.2d 829, 832(1972);Commonwealth v. Keller, 433 Pa. 20, 23, 248 A.2d 855, 856(1969);Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 400, 195 A.2d 97, 98(1963).Under Pennsylvania's prior death-penalty statute, which we held unconstitutional in Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842(1972), pursuant to the decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346(1972), any case in which there was a possibility of finding the defendant guilty of murder of the first degree had to be regarded as a capital case, because there was always a possibility that the death penalty might be imposed for murder of the first degree.A jury which found a defendant guilty of murder of the first degree had absolute and unfettered discretion whether to punish by death or life imprisonment.It could thus disregard the recommendations of both the district attorney and the trial court, and its discretion in this regard was not even subject to appellate review.See, e.g., Commonwealth v. Baker, 413 Pa. 105, 196 A.2d 382(1964);Commonwealth ex rel. Johnson v. Rundle, 411 Pa. 497, 192 A.2d 381(1963), cert. denied376 U.S. 918, 84 S.Ct. 673, 11 L.Ed.2d 613(1964);Commonwealth v. Smith, 405 Pa. 456, 176 A.2d 619(1962).³Thus, clearly under that statutethe trial court had no authority to preempt the jury's power to imposed the death penalty by making a pretrial determination that the case was not a capital one.

After that statute had been ruled unconstitutional, however, we were presented with the question of whether a person charged with murder rising to the level of murder of the first degree was charged with a capital offense so that he could be denied bail, even though the death penalty could not have been imposed because the statute in force at the time of the crime had been invalidated.In Commonwealth v. Truesdale, supra, 449 Pa. at 331, 333, 296 A.2d at 832, we held that 'the constitutional phrase 'capital offense' is a definition of a penalty, i.e., the death penalty, rather than a definition of the crime of murder in the first degree' and that 'murder in the first degree is not a capital offense when it cannot be punished by death.'Subsequently, the legislature in 1974 enacted the present death-penalty statute as part of the new Sentencing Code. 18 Pa.C.S.A. § 1311 (Supp.1976--77).Rather than giving the jury unlimited discretion whether to punish a person convicted of murder of the first degree by death or life imprisonment, the present statute attempts to provide precise legal standards to govern the jury's determination.The statute thus sets forth nine 'aggravating circumstances' and three 'mitigating circumstances.'Section 1311(d) provides that:

'If a murder of the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death.If a murder of the first degree is not accompanied by any of the following aggravating circumstances or is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment . . ..'

Section 1311(c) provides, Inter alia: 'Aggravating circumstances must be proved beyond a reasonable doubt.Mitigating circumstances must be proved by a preponderance of the evidence.'Moreover, section 1311(g) provides for automatic review by this Court of every death sentence within sixty days after the sentencing court certifies the entire record.The...