Com. v. Keller

• Decision Date: 15 January 1969
• Citation: 248 A.2d 855,433 Pa. 20
• Parties: COMMONWEALTH of Pennsylvania v. Douglas Wayne KELLER, Appellant.
• Court: Pennsylvania Supreme Court

Page 855

248 A.2d 855

433 Pa. 20

COMMONWEALTH of Pennsylvania v. Douglas Wayne KELLER, Appellant.

Supreme Court of Pennsylvania.

Jan. 15, 1969.

[433 Pa. 21] Douglas Wayne Keller, in pro. per.

Harry W. Gent, Jr., Dist. Atty., Franklin, for appellee.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

This is an appeal from the Order of the Court of Oyer and Terminer dismissing Keller's petition for his release on bail. The unusual facts in this case require a detailed statement.

Petitioner and two co-defendants, all of whom were represented by counsel, were found guilty of Second-degree murder in 1961. A sentence of not less than 10 nor more than 20 years was imposed.

On July 29, 1964, Keller filed a petition for a writ of habeas corpus in the Court of Common Pleas, seeking his release from prison on the ground that he had been denied the benefit of counsel and had not been informed of his Constitutional rights and Escobedo warnings when he was being interrogated by police officers prior to his trial. This petition was dismissed by an Order (with accompanying Opinion) of the lower Court on February 23, 1965, and a petition for rehearing was subsequently dismissed by the same Court. We affirmed the Order of the lower Court in Commonwealth ex rel. Keller v. Maroney, 419 Pa. 318, 214 A.2d 249 (1965).

On June 1, 1965, Keller filed a post-conviction petition under the Post-Conviction Hearing Act of January 25, 1966, P.L 1580, 19 P.S. § 1180-1 et seq., requesting his release on the ground that his Constitutional rights were violated by (1) the destruction of the victim's home prior to trial, (2) petitioner's enforced participation in the reenactment of the homicide, (3) petitioner's arrest without a warrant and without probable cause. This petition was dismissed by the lower Court and no appeal was taken.

On January 20, 1967, Keller filed another petition under the Post-Conviction Hearing Act requesting his release on the ground that after he had been convicted of murder in the second degree, he had been erroneously advised by his former counsel that he might be convicted of murder in the first degree if he was tried again. At the Court hearing on this petition, counsel for Keller testified that he had informed petitioner that he could be convicted of first-degree murder if retried. On July 31, 1967, the lower Court issued an Order granting petitioner the right to file post-trial motions in arrest of judgment and for a New trial. ¹ On October 2, 1967, petitioner filed A motion for bail. This motion was denied by the lower Court on January 22, 1968, and it is from this Order that petitioner now appeals.

Article I, Section 14, of the Constitution of Pennsylvania, P.S. provides that 'All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or presumption great; * * *' In Com. ex rel. Alberti v. Boyle, 412 Pa. 398, page 400, 195 A.2d 97, page 98, the Court said: 'A 'capital offense' within the meaning of the Constitution means a crime of such a character that the penalty or sentence of death May ² be imposed even though the crime is punishable by death or life imprisonment, or by a lesser sentence. 8 Am.Jur.2d, Section 30, 'Bail and Recognizance', page 801; 8 C.J.S. Bail § 34, page 66; Wharton's Criminal Law and Procedures, 1957 Edition, Section 1811, page 652; Black's Law Dictionary, Fourth Edition, page 263, 'Capital Case or Crime.' In other words, a capital offense is a crime for which the death penalty may, but need not, be inflicted. Lee v. State, 31 Ala.App. 91, 13 So.2d 583, 587.'

Petitioner was convicted, we repeat, of second-degree murder in 1961. He has, therefore, not committed a capital offense within the purview of Article I, Section 14. Com. ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97, supra. However, Rule 4004(b) of the Pennsylvania Rules of Criminal Procedure, 19 P.S. Appendix expresses the long established practice in Pennsylvania that After conviction a defendant is entitled to bail, not as of right, but only In the discretion of the Court. Rule 4004(b) provides: 'After sentence, bail May ³ be allowed in such amount as shall be fixed by the trial judge conditioned upon the defendant perfecting an appeal within twenty days.'

While we have found no appellate Court decision in Pennsylvania directly in point, the law in other States supports Pennsylvania's interpretation and practice. See In re Halsey, 124 Ohio St. 318, 178 N.E. 271, 77 A.L.R. 1232 (1931); State v. Helton, 72 Wyo. 105, 261 P.2d 46 (1953); Younghans v. State of Florida, 90 So.2d 308 (Fla.1956); Carbo v. United States, 82 S.Ct. 662, 7 L.Ed.2d 769.

In the Helton case, the Supreme Court of Wyoming, in a Per Curiam Opinion, succinctly analyzed the problem in the following words: 'Section 14, Article 1, of our (Wyoming) constitution provides that: 'All persons shall be bailable by sufficient sureties, except for capital offenses when the proof is evident or the presumption great.' We held in the case of In re Boulter, 8 Wyo. 263, 39 P. 875, that this constitutional guarantee is lost after conviction and that appears to be the general rule.'

In the Halsey case, the Supreme Court of Ohio decided that the Constitutional provision providing for bail applies Only before a conviction, and pertinently said (124 Ohio St. page 320, 178 N.E. page 272): 'If the constitutional provision be given the sweeping meaning which has been argued in this case, the result would be that all convicted persons of all crimes could be admitted to bail, even after...