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decided: July 31, 1970.


Petition for habeas corpus and request that Court take case in original jurisdiction, No. 79, Miscellaneous Docket No. 18, in case of Commonwealth of Pennsylvania ex rel. Isaac Hartage v. Edward J. Hendrick.


David Kairys, Assistant Defender, and Vincent J. Ziccardi, Acting Defender, for petitioner.

James D. Crawford, Deputy District Attorney, and Arlen Specter, District Attorney, for Commonwealth, respondent.

Edwin P. Rome, Edwin B. Wolf, and Harry A. Feldman, for amicus curiae.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Pomeroy. Dissenting Opinion by Mr. Chief Justice Bell. Dissenting Opinion by Mr. Justice Roberts. Mr. Justice O'Brien joins in this dissent.

Author: Pomeroy

[ 439 Pa. Page 586]

This case is before us upon a petition for habeas corpus of which we are asked to take original jurisdiction. The petition asserts, inter alia, that petitioner has been denied his rights under the Eighth Amendment, the due process clauses of the Fourteenth Amendment, and the Sixth Amendment to the Constitution of the United States. The assertion is grounded on the proposition that his constitutional right to nonexcessive bail has been denied because the Constitution must be read "to prohibit bail in excess of what petitioner can afford." It is also claimed that his bail was set "without consideration of individual circumstances pertinent to the probability of his appearance at trial." The petition states that the issues presented are of vital importance throughout the Commonwealth and should be resolved by this Court. It alleges that this can be accomplished only through the exercise of original jurisdiction, because petitioner's claim of unconstitutional pretrial detention "will . . . likely become moot before it can fairly be considered by this Court if he is compelled to follow the time-consuming appellate route through the Superior Court to this Court." He points out, in support of this statement, that this is what occurred in Commonwealth ex rel. Ford v. Hendrick, 215 Pa. Superior Ct. 206 (1969).

A responsive answer was filed on behalf of the Commonwealth, placing in issue the principal allegations of the petition, and to this a reply was filed by petitioner. It is clear from these pleadings and the transcripts of the proceedings in the lower court, first at the bail hearing before the committing magistrate, and again at the hearing on the habeas corpus petition, that there were not presented on behalf of petitioner the

[ 439 Pa. Page 587]

    facts relative to defendant's financial situation or the factors bearing on the likelihood of his appearance at trial which are now contained in the petition for us. Petitioner admits that the bail hearing was inadequate,*fn1 and that the habeas corpus judge was not asked to conduct a hearing, but merely to rule on the question of constitutionality. No question was raised as to noncompliance with Rule 4005(a).*fn2 The Commonwealth states in its answer that it "did not and does not oppose the consideration of these factors [pertinent to the probability of defendant's appearance at trial, and his

[ 439 Pa. Page 588]

    alleged indigency] in determining reasonable bail or alternatives to bail."

On this record, we are unable to agree that petitioner has demonstrated "the futility of the ordinary appellate procedures," as he puts it, or that original jurisdiction in this Court affords petitioner "the only proper and efficacious relief from his unconstitutional detention." That there are grave problems in connection with the administration of the bail system may be granted, but the practical necessity of adjudicating the issues in this Court in the first instance has not been sufficiently shown. There is not here the "imperative necessity or apparent reason why expedition is desirable or required," that this Court normally requires in a habeas corpus proceeding in order to dispense with the benefit of full and adequate consideration by a lower court. Commonwealth ex rel. Paylor v. Claudy, 366 Pa. 282, 287, 77 A.2d 350 (1951); cf. Commonwealth ex rel. Torrance v. Salzinger, 406 Pa. 268, 177 A.2d 619, cert. denied, 369 U.S. 888 (1962). For us to accept the instant petition on this most meager factual record would be to make it a vehicle for what would be, in effect, an advisory opinion. We think this would be an unwise use of our original jurisdiction powers. We will therefore deny the petition.

In so doing, we do not intend to minimize the seriousness of the problems connected with bail and pretrial detention, particularly as applied to indigents. These problems have been receiving increasing attention from legal writers, concerned organizations, and various governmental bodies,*fn3 but have not yet received adequate attention from the courts, including no doubt

[ 439 Pa. Page 589]

    those of Pennsylvania. The Standards of the American Bar Association Relating to Pretrial Release, Approved Draft, 1968, are an excellent contribution to the thinking on this subject, and deserve the careful study of all those who wish to see improvement in this field. It well may be that they, together with other recent studies particularly pertinent to Pennsylvania, should form the basis of a revision and expansion of our bail rules. (Pennsylvania Rules of Criminal Procedure 4001-4016, adopted November 22, 1965, effective June 1, 1966, 419 Pa. lxii.) Approached in this fashion, the subject in all its aspects and with regard to all sections of the Commonwealth would be considered first by the Criminal Procedural Rules Committee, drawing upon such resources and assistance as they might see fit. Their recommendations would then come to this Court. This approach to a complex and pervasive socio-legal problem appears to us much sounder than an ad hoc approach of taking original jurisdiction in a particular case.

Petition denied.


Petition denied.

Dissenting Opinion by Mr. Chief Justice Bell:

I very strongly favor granting the petition for original jurisdiction and deciding the case and the vitally important issues raised therein on the merits.

Dangerous criminals who are out on bail are jeopardizing the safety and the lives of the law-abiding public by committing additional crimes. This frightening situation is made possible by unrealistic or mollycoddling Judges who release on unrealistic bail prisoners who are accused of ruthless ...

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