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decided: November 17, 1972.


Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Nov. T., 1971, Nos. 1621 and 1622, in case of Commonwealth of Pennsylvania v. Mack Truesdale.


James D. Crawford, Deputy District Attorney, and H. Rosenberger, II, Assistant Attorney General, with them Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, petitioner.

A. Benjamin Johnson, Dennis H. Eisman, Joseph M. Smith and Louis Lipschitz, with them Abraham T. Needleman, Gerald A. Stein, Jack Levine, Needleman, Needleman, Tabb & Eisman and Fitzpatrick & Smith, for respondent.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Chief Justice Jones dissents.

Author: Eagen

[ 449 Pa. Page 327]

On October 20, 1971, Blanche Buchler was shot and killed in front of her home in Philadelphia, Pennsylvania. Three days later respondent, Mack Truesdale, was arrested by the Philadelphia police and charged with murder and conspiracy in connection with the killing. Thereafter, on October 27, 1971, Truesdale was afforded a preliminary hearing and, after the presentation of evidence, was bound over for the grand jury. At this hearing it was further determined that bail should be denied because the proof was evident and the presumption great, and the offense rose to the level of murder in the first degree, and pursuant to Article 1, Section 14 of the Pennsylvania Constitution the offense being a capital one was not bailable. On November 8, 1971, Truesdale petitioned the Court of Common Pleas of Philadelphia for a writ of habeas corpus alleging he was improperly being detained; the petition was subsequently denied with the court finding that his detention was proper. On December 2, 1971, Truesdale was indicted on the charges of murder and conspiracy, in connection with the death of Blanche Buchler, by a

[ 449 Pa. Page 328]

    grand jury and is now awaiting trial on the indictments.

Thereafter, certain pretrial proceedings took place and on June 30, 1972, Truesdale made another application for his release on bail. The foundation of his new application rested on the recent decision of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726 (1972), which abolished the death penalty as it theretofore had existed in Pennsylvania. A hearing was held, and the trial court granted bail in the amount of ten thousand dollars.

The Commonwealth immediately filed a petition in this Court requesting the assumption of plenary jurisdiction pursuant to Section 205 of the Appellate Court Jurisdiction Act, Act of July 31, 1970, P. L. 673, Art. II, § 205, 17 P.S. § 211.205,*fn1 and Truesdale joined in the request. A rule to show cause issued and argument was held on Saturday, July 29, 1972. The sole question presented is whether a defendant who is awaiting trial on the charge of murder, which rises to the level of murder in the first degree, has a right to bail pending trial. We assume plenary jurisdiction and now proceed to a determination of the issue on the merits.

Article 1, Section 14 of the Constitution of Pennsylvania of 1968*fn2 provides the following with respect to bailable offenses: "All prisoners shall be bailable by

[ 449 Pa. Page 329]

    sufficient sureties, unless for capital offenses when the proof is evident or presumption great . . . ."*fn3 Consequently, the Constitution of the Commonwealth mandates all persons have a right to be released on bail prior to trial in all cases except those involving capital offenses. In the recent past this has meant that all persons, except those charged with murder in the first degree,*fn4 had a right to bail while awaiting trial, subject to the accused giving adequate assurance he would appear for trial. If a person was charged with murder which rose to the level of murder in the first degree, he could be denied bail when the proof was evident or the presumption great.*fn5 This result was dictated by the decisions of this Court which have consistently interpreted the constitutional phrase "capital offense" to mean only murder in the first degree, since this was the only crime for which the death penalty could be imposed. In Commonwealth ex rel. Alberti v. Boyle, 412 Pa. 398, 195 A.2d 97 (1963),*fn6 this Court stated:

[ 449 Pa. Page 330]

"A 'capital offense' within the meaning of the Constitution means a crime of such a character that the penalty or sentence of death may be imposed even though the crime is punishable by death or life imprisonment, or by a lesser sentence. . . . In other words, a capital offense is a crime for which the death penalty may, but need not be inflicted." Id. at 400, 195 A.2d at 98.

[ 449 Pa. Page 331]

See also Commonwealth v. Caye, 447 Pa. 213, 290 A.2d 244 (1972) and Commonwealth v. Keller, 433 Pa. 20, 248 A.2d 855 (1969).

With the decision of the United States Supreme Court in Furman v. Georgia, supra, and Commonwealth v. Scoleri, 432 Pa. 571, 248 A.2d 295 (1968), cert. granted, 408 U.S. 934, 92 S. Ct. 2852 (1972), as well as this Court's decision in Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), which cases have invalidated the death penalty as it presently exists in Pennsylvania, we are left to decide if the definition of "capital offense" which we adopted in Alberti requires that the bail set for Truesdale was proper.

After extensive study and reflection we rule that the constitutional phrase "capital offense" is a definition of a penalty, i.e., the death penalty, rather than a definition of the crime of murder in the first degree. In Alberti, we stated: "In other words, a capital offense is a crime for which the death penalty may, but need not be inflicted" 412 Pa. 400, 195 A.2d at 98, and in our recent decision of Commonwealth v. Caye, supra, Mr. Justice Roberts, speaking for the Court stated: "'A capital offense is a crime for which the death penalty may. . . be inflicted.' . . . Only murder in the first degree is so punishable." 447 Pa. 216, 290 A.2d at 246 [emphasis added].*fn7 A reading of these cases leads to the conclusion that "capital offense" refers to the punishment or penalty which may be imposed upon the person found guilty of a crime, rather than a definition of a particular crime. Consequently, since there are presently no criminal offenses in the Commonwealth for

[ 449 Pa. Page 332]

    which the death penalty may be imposed, there are no "capital offenses"; hence, by mandate of our Constitution, all offenses are bailable prior to trial.

Not only is this result dictated by our own Constitution and the case law interpreting that document, it also follows from a reading of cases from other jurisdictions which have interpreted similar constitutional provisions. In State v. Johnson, 61 N.J. 351, 294 A.2d 245 (1972), and in Ex Parte Contella, S.W. 2d (1972),*fn8 the Supreme Court of New Jersey and the Court of Criminal Appeals of Texas, respectively, both found by intepretation of constitutional provisions similar to our own that bail was a matter of right in all cases now that the United States Supreme Court has invalidated the death penalty. Moreover, in State v. Pett, 253 Minn. 429, 92 N.W. 2d 205 (1958), the Supreme Court of Minnesota was faced with the exact same question we are confronted with after the Minnesota legislature had abolished the death penalty. After determining the term "capital offense" strictly referred to the death penalty, the Court stated: "Where words used in our constitution have a clear and well-defined meaning, there is no room for construction. Neither the courts nor the legislature have a right to substitute for words used in the constitution having a well-defined meaning other words having a different meaning. That is exactly

[ 449 Pa. Page 333]

    what we would be doing were we to substitute 'murder in the first degree' for 'capital offense.' Murder in the first degree is not a capital offense when it cannot be punished by death. The right to amend the constitution rests exclusively with the people, and, if, constitutionally, bail is to be withheld in cases other than capital offenses at the discretion of the trial court, that change must be brought about by an amendment of the constitution. As the constitution now reads, all crimes are bailable." Id. at 432-33, 92 N.W. 2d 207-08.*fn9 Lastly, the Supreme Court of Kansas reached the same result in the case of Ex Parte Ball, 106 Kan. 536, 188 P. 424 (1920), finding that once the legislature had abolished the death penalty in cases involving murder in the first degree, this crime was no longer a "capital offense" and therefore it was bailable as a matter of right, under the Kansas Constitution.*fn10

[ 449 Pa. Page 334]

Moreover, an analysis employed by the Supreme Court of New Jersey in State v. Johnson, supra, also dictates this result. In Johnson, the Court noted that in a prior decision, State v. Williams, 30 N.J. 105, 152 A.2d 9 (1959), it had held when a man is found guilty of murder in the second degree, such a finding constituted an acquittal of murder in the first degree and if the party won a reversal on appeal, he had a right to bail awaiting retrial, because he was no longer subject to a "capital offense." The Johnson Court then went on to discuss its decision in State v. Wolf, 46 N.J. 301, 216 A.2d 586 (1966) stating: "Wolf was convicted of murder in the first degree and the jury recommended life imprisonment. The conviction was reversed for trial errors . . . and retrial was ordered. Prior to retrial on defendant's application the trial court ruled that the State was barred from again seeking the death penalty. On appeal by the State we affirmed, holding that the jury having rendered a judgment against infliction of the death penalty, the issue must be considered as adjudicated and binding for purposes of the forthcoming trial. The distinction drawn between a verdict of guilt of first degree murder which carried the death penalty and such a verdict which imposed

[ 449 Pa. Page 335]

    life imprisonment obviously signified that murder which can produce only life imprisonment is not a capital offense, within the meaning of the Constitution." 61 N. J. 356, 294 A.2d at 248. The decision of this Court in Commonwealth v. Caye, supra, and Commonwealth v. Keller, supra, are exactly the same as the New Jersey Supreme Court's decision in the Williams case. And our decision in Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969) (imposition of life imprisonment precludes the imposition of the death penalty in a retrial) is substantially the same as the decision in Wolf. It follows from our opinions that after a verdict of life imprisonment, upon retrial, the offense is no longer a "capital offense," because the death penalty may not then be imposed. Cf. Commonwealth v. Caye, supra. Thus, we agree with the foregoing learned analysis of our sister state.*fn11

The fundamental purpose of bail is to secure the presence of the accused at trial.*fn12 However, in the absence of evidence the accused will flee, certain basic principles of our criminal law indicate bail should be granted, these are: (a) the importance of the presumption of innocence; (b) the distaste for the imposition of sanctions prior to trial and conviction; and (c) the

[ 449 Pa. Page 336]

    desire to give the accused the maximum opportunity to prepare his defense.*fn13

The Commonwealth argues that the urge to flee is so great where one faces a possible conviction of murder in the first degree and a sentence of imprisonment for life, that bail should not be allowed in such instances. This argument ignores the mandate of the Pennsylvania Constitution and also fails when analyzed pragmatically. Prior to the invalidation of the death penalty, there was a strong flight urge because of the possibility of an accused forfeiting his life, and the framers of our Constitution must have felt that if a person were accused of a crime and had to risk the possibility of receiving the death penalty or forfeiting

[ 449 Pa. Page 337]

    bail, he would obviously choose the latter. However, they did not feel the urge to flee was as great where the maximum penalty was life imprisonment, as indicated by the failure to draft the Constitution to read, bail may be denied in cases of "capital offenses or life imprisonment."*fn14 Thus, with the maximum penalty for murder in the first degree being life imprisonment, we believe the urge to flee is diminished. There are a number of criminal offenses in the Commonwealth which carry a possible penalty of life imprisonment,*fn15 and the offenses have traditionally been bailable.

We do not intend by this opinion that pretrial bail may not be denied regardless of the circumstances. As noted before, the right to release before trial is conditioned upon the accused giving adequate assurance he or she will appear for trial. If upon proof shown, the court reasonably concludes the accused will not appear for trial regardless of the character or the amount of the bail, then in such an instance bail may properly be denied, regardless of the nature of the charges. The

[ 449 Pa. Page 338]

    burden of proof is upon the Commonwealth.*fn16 This decision must be reached by the application of certain criteria, such as: (1) general reputation in the community; (2) past record; (3) past conduct while on bail; (4) ties to the community in the form of a job, family, or wealth. See Pa. R. Crim. P. 4005. However, the trial court must also consider that modern police methods, such as, exchange of photographs and fingerprints, act as a deterrent to flight.

The Commonwealth also urges us to rule that bail may be denied to protect the community from further criminal activity on the part of the accused, or in order to safeguard the well-being of witnesses in the case. We realize this is truly a pressing problem and the rights of the public and of witnesses to be protected from harm is of the greatest concern, however, what the Commonwealth is really asking us to do is provide for a system of preventive detention. This would be an unprecedented step on our part, and one that is fraught with constitutional problems in terms of due process. It would also be contrary to the whole foundation of our penal system, since our laws punish for past offense, rather than incarcerate a person to prevent future offenses. Moreover, the Commonwealth's suggestion requires a presumption on our part that an accused is guilty, rather than innocent, and also that he will commit additional crimes if released on bail. Likewise, the Commonwealth's suggestion indicates a lack of understanding of the purpose of the bail system. Bail was conceived as a means of securing the accused's presence

[ 449 Pa. Page 339]

    at trial, while at the same time according him liberty prior to trial so he could prepare his case. The traditional decision to deny bail was not a means of keeping an accused confined to protect the public, it was a means of assuring he would appear at trial. In short, the Commonwealth is asking us to apply the procedure of granting or denying bail to a purpose it was not designed to fulfill, i.e., pretrial incarceration as a preventive form of punishment for an act unconsummated. In this regard, Mr. Justice Jackson, of the United States Supreme Court, sitting as a circuit justice once stated: "The Government's alternative contention is that defendants, by misbehavior after conviction, have forfeited their claim to bail. Grave public danger is said to result from what they may be expected to do, in addition to what they have done since their conviction. If I assume that defendants are disposed to commit every opportune disloyal act helpful to Communist countries, it is still difficult to reconcile with traditional American law the jailing of persons by the courts because of anticipated but as yet uncommitted crimes. Imprisonment to protect society from predicted but unconsummated offenses is so unprecedented in this country and so fraught with danger of excesses and injustice that I am loath to resort to it . . ." Williamson v. United States, 184 F. 2d 280, 282 (1950). Thus, anticipated criminal activity alone cannot stand as a grounds for the denial of bail. This, however, is not to say it cannot be considered in setting the amount of bail*fn17 in conjunction with the aforementioned elements

[ 449 Pa. Page 340]

    in determining if the accused will flee. Moreover, it may be considered by a trial judge in setting the terms of bail,*fn18 but as the sole ground for the absolute denial of bail it is invalid.

[ 449 Pa. Page 341]

For the aforementioned reasons and because the instant record is absent of proof to warrant the conclusion Truesdale will not appear for trial, the order of the trial court granting him release on bail pending trial is affirmed.

It is so ordered.


Order affirmed.

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