Commonwealth v. Wharton
| Citation | 495 Pa. 581,435 A.2d 158 |
| Parties | COMMONWEALTH of Pennsylvania, Appellant, v. Michael WHARTON. COMMONWEALTH of Pennsylvania, Appellant, v. Allen B. COLEMAN. |
| Decision Date | 24 September 1981 |
| Court | Pennsylvania Supreme Court |
Argued Sept. 26, 1980.
Steven H. Goldblatt, Deputy Dist. Atty., Ellen Mattleman, Asst. Dist. Atty., for petitioner.
Phyllis Subin, Leonard Sosnov, Asst. Defenders, Michael G. DeFino Philadelphia, for respondent.
The Court being equally divided, the orders are affirmed.
ROBERTS, J filed an Opinion in Support of Affirmance. FLAHERTY, J joins in the Opinion in Support of Affirmance of ROBERTS, J O'Brien, C. J., joins in Parts, I, II, and V of the Opinion in Support of Affirmance of ROBERTS, J.
NIX, J., filed an Opinion in Support of Reversal.
LARSEN and KAUFFMAN, JJ., filed an Opinion in Support of Reversal.
Pursuant to Pennsylvania Rule of Criminal Procedure 1101, two judges of the Court of Common Pleas of Philadelphia, in two separate cases, upheld the authority of the trial court to approve a defendant's motion to waive trial by jury despite opposition by the prosecution. In so doing, the courts properly held unconstitutional 42 Pa. C.S. § 5104(c), which inters this Court's Rule 1101 by granting the Commonwealth an absolute right to jury trial upon demand.
In urging the reversal of the trial courts' determinations, the joint opinion of Justices Larsen and Kauffman and the opinion of Mr. Justice Nix would both abdicate the exclusive constitutional responsibility of this Court to govern the practice, procedure and conduct of all courts of this Commonwealth and abrogate the essential constitutional authority of trial court judges to assure that trial procedures meet the requirements of due process. Manifestly, 42 Pa. C.S. § 5104(c), which conflicts irreconcilably with this Court's Rule 1101, must be declared unconstitutional. Hence, the orders of the trial court must be affirmed.
Pa.Const. art. V, § 10 provides:
Acting upon this explicit rule-making power, and drawing upon the expertise gained in the performance of its constitutional obligation to supervise and administer the Commonwealth's unified judicial system, this Court has adopted and, where necessary, amended rules to govern practice and procedure in the courts of this Commonwealth.
Pa.R.Crim.P. 1101, adopted by this Court in 1968 and amended in 1973, governs the procedure by which criminal cases are to be tried when an accused voluntarily elects to forgo his constitutional right to be tried by a jury. Rule 1101 provides:
Pursuant to Rule 1101, an accused may be tried by a judge without a jury whenever the court approves a non-jury trial. When a defendant files a motion to waive trial by jury, that motion, like all other motions, is ruled upon by the court. As with other motions, it is the obligation of both the defense counsel and prosecuting attorney to bring relevant facts and considerations to the attention of the court. See, e. g., Commonwealth v. Correa, 485 Pa. 376, 402 A.2d 1011 (1979) (); Commonwealth v. Lee, 262 Pa.Super. 280, 396 A.2d 755 (1978) and Commonwealth v. Garrison, 242 Pa.Super. 509, 364 A.2d 388 (1976) (). The final determination to grant or to deny the motion is then made by an impartial judicial decision-maker removed from the passions of the adversary system.
Because this Court has exclusive constitutional authority to prescribe rules of procedure for the courts of this Commonwealth, procedural rules promulgated by this Court cannot constitutionally be abridged or modified by legislative action. Thus, in enacting 42 Pa. C.S. § 5104(c), which contravenes Rule 1101, the Legislature has impermissibly intruded upon the procedural rule-making authority exclusively granted to this Court by the Constitution of this Commonwealth. See Wajert v. State Ethics Comm'n, 491 Pa. 255, 420 A.2d 439 (1980); In re Pa. C.S. § 1703, 482 Pa. 522, 394 A.2d 444 (1978). See also Garrett v. Bamford, 582 F.2d 810 (3d. Cir. 1978).
It is obvious that Rule 1101 and 42 Pa. C.S. § 5104(c) cannot co-exist. The statutory grant to the prosecution of an unrestricted, unreviewable veto over the trial court's approval of a non-jury trial irreconcilably conflicts with Rule 1101, which provides that the trial court shall make the ultimate determination whether a non-jury trial is to be permitted.
The joint Opinion in Support of Reversal of Justices Larsen and Kauffman is flawed not only by its failure to acknowledge that Rule 1101 and 42 Pa. C.S. § 5104(c) cannot co-exist, but also by its failure to recognize that there exist both substantive and procedural rights. Like the Opinion in Support of Reversal of Mr. Justice Nix, the joint opinion proceeds from the faulty premise that any "right" conferred by statute must inherently be substantive and thus within the authority of the Legislature. If this assumption were correct, the Legislature could abolish any procedural rule adopted by this Court merely by enacting a contravening statute whose language confers a "right" upon a litigant. [1]
To permit such circumvention of this Court's rule-making power is to obliterate art. V, § 10 of the Constitution which grants this Court explicit, exclusive authority to govern practice and procedure in the courts of the Commonwealth. Further, to uphold such circumvention as constitutional on the ground that any right conferred by the Legislature is "substantive" is to ignore the jurisprudential distinction between rights which are "substantive" and rights which are "procedural," a distinction of historic and continuing vitality and one which gives meaning to this Commonwealth's constitutional separation of powers.
The Opinions in Support of Reversal mistakenly derogate the importance of procedure in our criminal justice system. In attempting to uphold as constitutional the Legislature's intrusion upon this Court's exclusive constitutional power to regulate the procedure of the courts of this Commonwealth, the opinions have erroneously translated "substantive" rights into "substantial" or "important" rights. They have made a right of procedure synonymous with "merely a procedural mechanism." Joint opinion at 6.
Trial by jury is, without doubt, an important and "substantial" right of the accused. However, jurisprudence, history and decisions of the Supreme Court of the United States and of this Court make unmistakably clear that the right to trial by jury is a right of procedure. Like other guarantees of the Sixth Amendment which are part of the procedure of a criminal trial, trial by jury has been deemed a valuable procedure (which) is fundamental ... a procedure (which) is necessary to an Anglo-American regime of ordered liberty. " Duncan v. Louisiana, 391 U.S. 145, 149 n.14, 88 S.Ct. 1444, 1448 n.14, 20 L.Ed.2d 491 (1968) ().
It is a basic principle of jurisprudence underlying criminal law and procedure that substantive law declares what acts are crimes and prescribes the punishment for their commission, while procedural law provides the means by which the substantive law is enforced. See State v. Smith, 84 Wash.2d 498, 501, 527 P.2d 674, 677 (1974); In re Florida Rules of Criminal Procedure, 272 So.2d 65, 65-66 (Fla.1972); Frank, Courts on Trial 103 (1949).
Trial by jury is a "means whereby justice, as expressed in legal principles, is administered," Commonwealth v Fowler, 451 Pa. 505, 511, 304 A.2d 124, 127 (1973) (plurality opinion of Nix, J.), and hence a matter of procedure within this Court's power to regulate by rule. Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 635, 44 S.Ct. 220, 222, 68 L.Ed. 480 (1924) (Brandeis, J.). As stated by Thayer, A Preliminary Treatise on Evidence at the Common Law 199 (1898), "a mode of trial" is "a form of procedure; not law, in our sense of substantive law." See also Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 920 (1926) (...
To continue reading
Request your trial