Commonwealth v. Fowler

• Decision Date: 04 May 1973
• Citation: Commonwealth v. Fowler, 304 A.2d 124, 451 Pa. 505 (Pa. 1973)
• Parties: COMMONWEALTH of Pennsylvania v. Clarence FOWLER, Petitioner.
• Court: Pennsylvania Supreme Court

304 A.2d 124

451 Pa. 505

COMMONWEALTH of Pennsylvania v. Clarence FOWLER, Petitioner.

Supreme Court of Pennsylvania.

May 4, 1973.

Lipschitz & Danella-Louis Lipschitz, Philadelphia for petitioner.

Arlen Specter, Dist. Atty., Richard A. Sprague, First Asst. Dist Atty., Milton M. Stein, Melvin Dildine, Asst. Dist. Attys for respondent.

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

OPINION

NIX, Justice.

The petitioner, Clarence Fowler, was convicted by a jury of murder in the first degree and other charges not here relevant as a result of a shooting death and robbery.His motions for a new trial and in arrest of judgment are still pending.Petitioner filed an application for bail, which was denied by the lower court after a hearing on January 11 1973.This petition for bail follows.

The narrow issue presented by this petition concerns the right of an individual convicted of first degree murder and facing a mandatory sentence of life imprisonment ^[1] to bail pending the disposition of post-trial motions in the court below.

The constitutional basis for release on bail for persons confined within this Commonwealth emanates from Art. I, Secs. 13and14 of the Pennsylvania Constitution.P.S.We hold that neither of these sections confers an absolute right to bail on one convicted of first degree murder between verdict and formal sentencing.

The language of Art. I, Sec. 13 is identical to the bail clause of the Eighth Amendment to the United States Constitution.^[2] This portion of the Eighth Amendment has never been interpreted as requiring bail for every offender of state laws irrespective of the gravity of the offense, prior to trial.

'While it is inherent in our American concept of liberty that a right to bail shall generally exist, this has never been held to mean that a state must make every criminal offense subject to such a right or that the right provided as to offenses made subject to bail must be so administered that every accused will always be able to secure his liberty pending trial.Traditionally and acceptedly, there are offenses of a nature as to which a state properly may refuse to make provision for a right to bail.'

Mastrian v. Hedman,326 F.2d 708, 710(8th Cir.1964), cert. denied, 376 U.S. 965, 84 S.Ct. 1128, 11 L.Ed.2d 982(1964).Cited with approval in United States ex rel. Fink v. Heyd,287 F.Supp. 716, 718(E.D.La.1968), aff'd408 F.2d 7(5th Cir.1969), cert. denied, 396 U.S. 895, 90 S.Ct. 192, 24 L.Ed.2d 172(1969).

After a verdict of guilt, the right of a state to deny bail under the Eighth Amendment is unquestioned, provided that the denial is not arbitrary or discriminatory and is founded on a sound, reasonable basis.Bloss v. Michigan,421 F.2d 903(6th Cir.1970)(conviction for sale of obscene literature);Sellers v. Georgia,374 F.2d 84(5th Cir.1967)(conviction for burglary);United States ex rel. England v. Anderson,347 F.Supp. 115(D.Del.1972)(guilty plea to burglary);United States ex rel. Klien v. Deegan,290 F.Supp. 66(S.D.N.Y.1968)(conviction of a recidivist);United States ex rel. Fink v. Heyd,287 F.Supp. 716(E.D.La.1968); aff'd 408 F.2d 7(5th Cir.1969), cert. denied, 396 U.S. 895, 90 S.Ct. 192, 24 L.Ed.2d 172(1969)(conviction and sentence to five or more years imprisonment);Winningham v. Oklahoma,488 P.2d 1351(Okl.Cr.1971) (revocation of a suspended sentence for the commission of a felony.^[3] At this juncture, the observation of Justice Douglas is most informative:

'It would seem that while bail normally should be granted pending review where the appeal is not 'frivolous' nor 'taken for delay' there is still discretion to deny it. . . .One convicted of rape or murder is not necessarily turned loose on bail pending review, even though substantial questions were presented in the appeal.If, for example, the safety of the community would be jeopardized, it would be irresponsible judicial action to grant bail.'Carbo v. United States,82 S.Ct. 662, 7 L.Ed.2d 769(1962)(PerDouglas, J. as Circuit Justice).(Citations omitted).

From these decisions it is apparent that the Eighth Amendment has not been construed to mandate an absolute right to bail before trial and certainly not after a verdict of guilt has been entered.We have been offered no compelling reason why we should interpret the exact same language in Art. I, Sec. 13 of our Constitution otherwise.

The other provision of the Pennsylvania Constitution pertaining to bail is Art. I, Sec. 14 which provides:

'All prisoners shall be bailable by sufficient sureties, unless for capital offenses when the proof is evident or the presumption great. . . .'

In our recent decision in Commonwealth v. Caye,447 Pa. 213, 215, 290 A.2d 244, 245(1972), this Court recognized that Art. I, Sec. 14 applies only to defendants awaiting trial.^[4]

'The right to bail before trial is specifically guaranteed by Article I, Section 14 of the Pennsylvania Constitution. . . .The Constitution makes it clear that unless the proof is evident or presumption great' that a capital offense has been committed, the defendant prior to trial is entitled to bail.'(Citations omitted).

See also, United States ex rel. Parson v. Johnson,329 F.Supp. 1034(E.D.Pa.1971).

The petitioner, while implicitly acknowledging the lack of a Constitutional basis for his position, argues that P.R.Cr.P. 4004(a), 19 P.S.Appendix, ^[5] which read with our recent decision in Commonwealth v. Truesdale,449 Pa. 325, 296 A.2d 829(1972) provides a convincing foundation for his argument.As has been stated, Art. I, Sec. 14 grants a defendant facing non-capital charges an absolute right to bail before trial.P.R.Cr.P. 4004(a) purports to confer upon the prisoner who is between verdict and sentencing the same rights as those possessed by the prisoner who awaits trial.The petitioner therefore argues that, since we have determined in Commonwealth v. Truesdale, Supra, that first degree murder is no longer a capital offense and that a defendant prior to trial, even though the charge is first degree murder, is entitled to bail, that we are necessarily forced to the conclusion that between verdict an formal sentencing the same result should be obtained.We do not agree.

The petitioner's argument is premised upon the assumption that a procedural rule can confer a substantive right.The rulemaking power of this court is not for the purpose of defining new rights of litigants but rather to provide the procedure by which established rights are to be effecutated.^[6]

"The procedural rules were not intended to change the substantive rights of the parties. . . .''(The) rules are not ends in themselves but means whereby justice, as expressed in legal principles, is administered.They are not to be exalted to the status of substantive objectives."

Templeton Appeal, 399 Pa. 10, 16, 159 A.2d 725, 729(1960)(citations omitted).See also, Reading Co. v. Willow Development Co.,407 Pa. 469, 471, 181 A.2d 288(1962);Coppage v. Smith,381 Pa. 400, 405, 113 A.2d 247(1955);McKay v. Beatty,348 Pa. 286, 287, 35 A.2d 264(1944).Therefore, while Rule 4004(a) purports to give the same right to the defendant between trial and sentencing as the defendant awaiting trial possesses, such is not the case unless that right is found to exist in the statutory or decisional law of this Commonwealth, independent of the rule.

Our research reveals that the substantive law supporting Rule 4004(a) had not been articulated either through legislative enactment or court decision before our opinion in Commonwealth v. Caye, Supra.It is equally clear that the holding in Caye provided for uniformity of bail rights for offenders before and after trial only in cases that were not considered capital at the time of that decision--i.e., before Furman and Truesdale.At the time Caye was decided, the rule in this Commonwealth was that:

'(I)f the Commonwealth's evidence which is presented at the bail hearing, together with all reasonable inferences therefrom, is sufficient in law to sustain a verdict of murder in the first degree, bail should be refused.'

Commonwealth ex rel. Alberti v. Boyle,412 Pa. 398, 400--401, 195 A.2d 97, 98(1963).Caye was not then and should not now be considered applicable to cases of first degree murder.

The rationale behind our decision in Caye also fails to aid the petitioner's position because Caye was specifically limited to defendants whose sentence had not yet been imposed.In contrast, the petitioner was found guilty of first degree murder which carries a mandatory sentence of life imprisonment (see fn. 1, supra), and the trial judge followed the accepted practice of instructing the jury to fix a life sentence.In such a situation, a verdict of guilty is for all practical purposes equivalent to the sentencing, and the actual imposition of sentence is but a mere formality.The existing law in this Commonwealth as reflected in Rules of Criminal Procedure 4004(b)^[7] and (c)^[8] provides that after the imposition of sentence bail pending post trial review is discretionary except where the sentence imposed is a fine or imprisonment not exceeding two years in which case the right to bail is absolute.SeeCommonwealth v. Keller,433 Pa. 20, 248, A.2d 855(1969).Having concluded that an adjudication of first degree murder is tantamount to sentencing since the element of doubt as to the sanction to be imposed is non-existent, to grant an absolute right to bail for the most serious offense cognizable under our law exacting the most severe penalty and at the same time denying that right to individuals who have been convicted of certain lesser charges would create an anomaly completely indefensible in logic and reason.Consistency would...