Commonwealth v. Miller
| Decision Date | 23 May 1973 |
| Citation | 452 Pa. 35,305 A.2d 346 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. James R. MILLER. |
| Court | Pennsylvania Supreme Court |
Robert W. Duggan, Dist. Atty., Carol Mary Los, J. Kent Culley, Asst. Dist. Attys., Pittsburgh, R. L. Campbell Pittsburgh, for appellant.
Timothy J. Sullivan, Jr., Pittsburgh, for appellee.
Before JONES C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
On September 8, 1970, appellee returned home from work in an intoxicated state. After arguing with his wife, the prosecutrix, he loaded his gun and threatened to take his own life. When prosecutrix went to the telephone to obtain help, appellee brandished his gun and assured prosecutrix that if she dialed the telephone, it would be her last telephone conversation. Appellee thereafter left the home of his wife and children but returned on several occasions in the same intoxicated and threatening condition.
On November 10, 1970, after a hearing before a Justice of the Peace appellee was ordered to enter an appearance bond and was held for the Allegheny County Common Pleas Court, Criminal Division. A hearing commenced on December 16, 1970, on appellee's charged violation of the Surety of Peace Statute. [1] On April 20, 1971, appellee was ordered by the court to pay prosecution costs, to enter a bond with surety in the sum of $1,000 and to keep the peace for one year. On May 6, 1971, the Court of Common Pleas dismissed the order of April 20, 1971, requiring appellee to post bond.
The question presented by this appeal is whether the Surety of Peace Act of 1860, P.L. 427, as amended by the Acts of 1909, P.L. 42 and P.L. 260, 19 P.S. §§ 23--28, is violative of Article I, Sections 6 and 9, of the Pennsylvania Constitution, P.S., and the Sixth and Fourteenth Amendments of the United States Constitution as a deprivation of appellee's right to a trial by jury and the denial of due process and equal protection of the law. The order and opinion of the court below answered each inquiry in the affirmative. Appeal was taken by the Commonwealth to this Court.
The elements of the statutory offense of surety of the peace are (1) the making of a threat (2) to some person or his property (3) with the result that the threatened person is put in fear or danger of being injured. [2]
The Act provides preventive justice and requires persons of whom there is probable cause to suspect future violent behavior to give full assurance to the public against the anticipated offenses. Offenders must post a surety bond and pay costs and, in default of payment, the justice may commit the person defaulting to the county jail until such time as costs are paid. [3]
The question whether the Act is violative of appellee's right to trial by jury and purported right to prosecution by indictment has never been decided by this Court. The procedure here employed, however, has been upheld by the Superior Court. Commonwealth v. Taub, 187 Pa.Super. 440, 144 A.2d 628 (1958); Commonwealth v. Cushard, 184 Pa.Super. 193, 132 A.2d 366 (1957). The Superior Court in Commonwealth v. Taub reasoned that the offense of surety of the peace has never been an indictable offense since the purpose of the statutory enactment is the prevention of the commission of a serious threatened crime. As crime prevention is the gravamen of these provisions, rather than prosecution of a crime already committed, time is of the essence in processing the action. Prosecution via time-consuming indictment is neither required by Article I, Section 9 of the Pennsylvania Constitution [4] nor practicable in view of the crime prevention posture of the Act.
Article I, Section 6 of the Commonwealth's Constitution provides: 'Trial by jury shall be as heretofore, and the right thereof remains inviolate.' Similarly, the Sixth Amendment to the United States Constitution insures that '(i)n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury. . . .' Application of the surety of the peace procedure evokes no violation of appellee's right to trial by jury. Appellee was not charged with an offense triable by jury at common law. The offense was created by statute and the procedure thus prescribed. Commonwealth v. Taub, 187 Pa.Super. 440, 144 A.2d 628 (1958). We hold that Commonwealth v. Taub was properly decided in that the right to prosecution by indictment and trial by jury do not invalidate this crime-preventive process.
The Court below determined that the surety of peace bond violated the due process clause of the Fourteenth Amendment since: (1) the Commonwealth is not called upon to establish proof beyond a reasonable doubt; (2) the burden of proof (of innocence) falls inappropriately upon the defendant; and (3) defendant is not afforded the opportunity to establish his defense under the procedural provisions of the acts.
A summary proceeding does not constitute an abuse of due process where the record discloses that a sufficient information was read to the accused, he pleaded not guilty, testimony sufficient to support the charge was adduced and the accused was found guilty. Com. ex rel. Jenkins v. Costello, 141 Pa.Super. 183, 14 A.2d 567 (1940). A defendant is convicted absent due process only where the proceedings are so summary and informal that there is a lack of accusation in proper form, notice and an opportunity to interpose a defense. The surety of peace procedure requires the filing of complaint and a 'full hearing and investigation of the facts.' Only when evidence is shown to the satisfaction of the justice that a threat was made with malicious intent and that the threat put the complainant in fear or danger of injury can the justice bind over defendant with sufficient surety.
That the prosecution is not put to its proof, as determined by the court below, is not evident from the express language of the statute. Nor is it supported by the substantial evidentiary record below. The position that defendant is given no opportunity to present a defense is unfounded. Defendants under the surety of peace proceeding have the right to be presented by counsel and can rebut the prosecutor's testimony with respect to each element of the charged offense. If the prosecutor fails to prove any element of the offense to the satisfaction of the justice or judge, the action is dismissed. Commonwealth v. Baker, 30 Pa.D. & C. 457 (1938).
The court below also determined that the surety of peace provisions violated the equal protection clause of the Fourteenth Amendment. If appellee's indigency had prevented him from posting bond and paying costs, with the result that appellee was imprisoned, then the lower court's analysis respecting equal protection might bear closer scrutiny. This Court, however, will not consider an illusory controversy. The issue of equal protection is not justiciable under the facts of this case.
The Order of the Common Pleas Court is reversed and the case remanded for the purpose of determining factually whether, at this time, the surety of the peace bond need necessarily be posted.
NIX, J., filed a concurring opinion, joined by JONES, C.J., and POMEROY, J.
This appeal raises the interesting question of whether the Surety of Peace Act of 1860, P.L. 427, § 6, as amended, by the Act of 1909, P.L. 42, § 1, 19 P.S. §§ 23, 24, [1] violates the Federal and State Constitutions in its failure to provide an alleged offender the right to trial by jury. In my judgment this is a most significant decision, not only because of the need in our law of a provision that will enable a court to take prompt and effective action to deter a threatened or imminent wrong, but also because the right to jury is so basic in our fabric of jurisprudence that its denial in any instance should be fully explained and cautiously limited. While I agree with the conclusion of the majority that this section does not offend either the United States or the Pennsylvania Constitutions in its failure to provide the right to trial by jury, I do so for the reasons set forth below.
The Sixth Amendment of the United States Constitution provides in pertinent part:
'In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, . . .'
In Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968), the United States Supreme Court held that this Sixth Amendment guarantee as applied to the States through the Fourteenth Amendment required that defendants accused of serious crimes be afforded the right of trial by jury. It also recognized and reaffirmed the long-established view that so-called 'petty offenses' may be tried without a jury. This distinction was again upheld by a majority of the court in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970). Thus, it is clear that the Federal constitutional requirement of trial by jury is not absolute and does not require a jury trial for every criminal offense.
While the division of the Court in Baldwin [2] and the change in the membership of that Court since that decision leave open the question as to the precise definition of 'petty offense', it seems clear that the most relevant factor in making that determination is the severity of the maximum penalty authorized for the offense. Moreover, while there is now serious question as to what period of imprisonment will render an offense 'serious', and whether the states will be permitted to develop their owns...
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