Com. v. Martorano

• Decision Date: 08 November 1993
• Citation: 535 Pa. 178,634 A.2d 1063
• Parties: COMMONWEALTH of Pennsylvania, Petitioner, v. Raymond MARTORANO and Albert Daidone, Respondents.
• Court: Pennsylvania Supreme Court

Page 1063

634 A.2d 1063

535 Pa. 178

COMMONWEALTH of Pennsylvania, Petitioner, v. Raymond MARTORANO and Albert Daidone, Respondents.

Supreme Court of Pennsylvania.

Argued May 5, 1993.

Decided Nov. 8, 1993.

Ronald Eisenberg, Kathy L. Echternach, Arnold Gordon, Philadelphia, for petitioner.

Thomas C. Carroll, F. Emmett Fitzpatrick, Jr., Philadelphia, for respondents.

Before NIX, C.J., LARSEN, FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY and MONTEMURO, JJ.

OPINION OF THE COURT

PER CURIAM.

This appeal details another chapter in the prosecution of two members of La Cosa Nostra for the 1980 gangland-style slaying of union organizer, John McCullough. The Commonwealth is before us seeking to keep respondents in prison pending retrial, on first degree murder charges, for the slaying. It contends that this remains a capital case, and therefore, respondents are not entitled to bail. We agree.

Evidence from respondents' first trial established that Martorano and Daidone recruited Willard Moran to kill McCullough, planned the execution, assisted in its preparation, and helped Moran flee from the murder scene. Respondents wanted McCullough killed because he was organizing a new union in Atlantic City, New Jersey, which would have competed with an existing union controlled by organized crime. At the time of the murder, Respondent Daidone was vice-president of the existing union, Local 54.

On July 31, 1984, a jury convicted Martorano and Daidone of first degree murder and criminal conspiracy. Following a sentencing hearing, the jury was unable to reach a unanimous verdict as to penalty for either respondent; therefore, pursuant to Section 9711(c)(1)(v) of the Sentencing Code, 42 Pa.C.S. § 9701 et seq., the trial judge imposed sentences of life in prison. After being awarded a new trial by the Superior Court on appeal, respondents petitioned the lower court to set bail. That court denied the petition on March 10, 1992, because the Commonwealth had not yet exhausted its appeal rights. After this court denied the Commonwealth's allocatur petition, respondents again sought bail in March, 1993. The Commonwealth opposed bail, arguing that respondents were not entitled to release because they could be sentenced to death if convicted upon retrial. The trial court disagreed, and ruled that imposition of life sentences in the first trial precluded imposition of the death penalty upon retrial. The court then set bail at $2,000,000 for Martorano and $1,500,000 for Daidone, and imposed non-monetary conditions of bail as well. ¹ After the trial court set bail and denied the Commonwealth's petition to stay respondents' release pending appellate review, the Commonwealth filed a Petition for Review of Bail Order and Revocation of Bail and sought a stay from the Superior Court, which granted a temporary stay pending a hearing on the Commonwealth's petition. Argument was heard on April 12, 1993. On April 22, 1993, shortly before 5:00 p.m., the Superior Court issued a per curiam order vacating the stay of respondents' release, and denying the Commonwealth's petition. The court entered the order "without prejudice to the Commonwealth's position that the proceedings are capital in nature". ² On April 23, 1993, the Commonwealth came to this court, seeking an emergency stay of respondents' release. Following argument before Chief Justice Nix and Justice Montemuro, a temporary stay was entered pending argument before the court en banc. On May 5, 1993, the court had before it two petitions filed by the Commonwealth: 1) a Petition for Stay of Respondents' Release, and 2) a Petition for Review of the Bail Order of the Lower Court. Counsel for both sides advanced arguments in favor of or in opposition to the entry of a stay, and argued the issue of whether the Commonwealth could seek the death penalty upon retrial. Following argument, the court entered an order continuing the stay entered on April 23, 1993.

I. Petition For Stay Of Respondents' Release

Pennsylvania Rules of Appellate Procedure 1702(c) ³ and 3315 ⁴ authorize this court to review the Superior Court's denial of the Commonwealth's stay request and to enter an appropriate order. Reading Anthracite Co. v. Rich, 525 Pa. 118, 123, 577 A.2d 881, 883 (1990). The principal purpose of such a review is to prevent an inferior tribunal from causing damage, injustice, or irreparable harm by its decision to grant or deny the requested relief. Id. at 124, 577 A.2d at 883. Because of the nature of our review, it is limited to determining whether the intermediate appellate court abused its discretion in refusing to grant or deny the requested relief. Id. at 125, 577 A.2d at 884.

When application is made to an intermediate appellate court seeking the stay of an order pending appeal, the party seeking the stay must make the following showing:

1. That they are likely to prevail on the merits of their appeal;

2. That they will suffer irreparable injury if they are not granted a stay;

3. That the issuance of a stay will not substantially harm other interested parties in the proceedings, i.e. Respondents; and

4. That the issuance of a stay will not adversely affect the public interest.

Pennsylvania Public Utility Commission v. Process Gas Consumers Group, 502 Pa. 545, 552-53, 467 A.2d 805, 808-09 (1983). These criteria require the intermediate appellate court to balance the interests of all parties and the public where applicable, and require the applicant to demonstrate a probability of success on the merits. Id. at 553, 467 A.2d at 809.

The Superior Court order does not explain its refusal to grant a stay. Therefore, we must conclude that the court refused to address the merits of the issue on appeal, and in so doing, could not have fully considered whether the Commonwealth was entitled to a stay. This was an abuse of discretion. As stated above, the issue on appeal was whether the Commonwealth is precluded from seeking the death penalty on retrial. Any decision regarding the right to bail pending retrial necessarily hinges on the resolution of this substantive issue, since a criminal defendant is not entitled to bail in a capital case when the proof is evident or the presumption great. Pa. Const. Art. I, § 14; Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963); Commonwealth v. Truesdale, 449 Pa. 325, 296 A.2d 829 (1972).

Applying the Process Gas standard to the instant case, we find that the issuance of a stay is justified. The Commonwealth has met its burden of showing that it is likely to prevail on the merits of its appeal. A thorough review of the law leaves no doubt that this remains a capital case. Since this is a capital case where the proof is evident, respondents are not entitled to bail in any amount. ⁵

It is equally clear that the Commonwealth would have suffered irreparable harm had we not granted the stay. Respondents have both the motive and the means to flee. Absent a stay, they would be free on bail when receiving our decision whether they would be facing the death penalty upon retrial. This possibility of being sentenced to death provides a significant incentive to flee. As noted in Truesdale, supra, the framers of our constitution recognized the virtual certainty of flight in the face of a possible death penalty. Here, ties to La Cosa Nostra effectively ensure that respondents have access to unlimited funds and other means necessary for escape. There is no amount of cash bail sufficient to deter flight in this case. Likewise, none of the non-monetary conditions of bail imposed by the trial court can adequately insure against flight. Respondents' submission to electronic monitoring is no guarantee that they will not flee; at most, it can only alert law enforcement authorities to their flight after they are gone. Since the monitoring equipment is manned only during the day, respondents could flee during the night and their absence would not even be noted until the following morning. Finally, both respondents are aware that the Commonwealth has two new witnesses who, upon retrial, will testify that the murder of McCullough was a contract killing ordered by Philadelphia's organized crime family.

Granting this stay did not adversely affect the public interest; on the contrary, given the possibility, indeed probability, of respondents' flight, the public's interest in a stay is compelling. Nor did the issuance of the stay substantially harm respondents since the court expedited its review of this matter.

II. Petition For Review Of The Bail Order Of The Lower Court

Having determined that the Commonwealth is entitled to a stay pending appellate review, we now turn to the issue which is central to the Commonwealth's petition for review, i.e., whether the Commonwealth is precluded from seeking the death penalty upon retrial. Before discussing the merits of this issue, however, we must address respondents' argument that the Commonwealth has not properly invoked this court's jurisdiction by filing its petition for review.

Respondents contend that the Commonwealth exhausted its statutory right to review in the Superior Court, and that this court's review is now discretionary. Such discretionary review must be sought by filing a petition for allowance of appeal or request for the invocation of extraordinary jurisdiction. Since the Commonwealth filed neither, respondents contend that the proper approach is to allow bail and require the Commonwealth to pursue the death penalty issue by pretrial motion. They argue that this is "less liberty intrusive," and causes no harm to the public interest.

While respondents are correct that the Commonwealth has no automatic right to appeal, that does not necessarily preclude our review of the issue at this stage of the proceedings. This court has, in a number of cases, treated an improvident appeal as a petition for allowance of appeal and granted review. See, Pa.R.A.P. 1102; Gossman v. Lower Chanceford Tp. Bd. of Supervisors, ...