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COMMONWEALTH v. FOWLER (05/04/73)

decided: May 4, 1973.

COMMONWEALTH
v.
FOWLER, PETITIONER



Appeal, No. 310, Miscellaneous Docket No. 19 from order of Court of Common Pleas, Trial Division, of Philadelphia, Sept. T., 1970, Nos. 852 and 853, May T., 1972, Nos. 2075 and 2076, in case of Commonwealth of Pennsylvania v. Clarence Fowler.

COUNSEL

Louis Lipschitz, with him Lipschitz & Danella, for petitioner.

Melvin Dildine, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, respondent.

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

Author: Nix

[ 451 Pa. Page 507]

The petitioner, Clarence Fowler, was convicted by a jury of murder in the first degree 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*fn1

[ 451 Pa. Page 508]

    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. 13 and 14 of the Pennsylvania Constitution. 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.*fn2 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 (1964). Cited with approval in United States ex rel. Fink v. Heyd, 287 F. Supp. 716, 718 (E.D. La. 1968), aff'd 408 F. 2d 7 (5th Cir. 1969), cert. denied, 396 U.S. 895 (1969).

[ 451 Pa. Page 509]

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 arbitary 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 (Del. 1972) (guilty plea to burglary); United States ex rel. Klein 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 (1969) (conviction and sentence to five or more years imprisonment); Winningham v. Oklahoma, 488 P. 2d 1351 (Okla. Ct. Crim. App. 1971) (revocation of a suspended sentence for the commission of a felony.*fn3 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, 7 L. Ed. 2d 769, 82 S. Ct. 662 (1962) (Per Douglas, J., as Circuit Justice). (Citations omitted.)

From these decisions it is apparent that the Eighth Amendment has not been construed to mandate an absolute

[ 451 Pa. Page 510]

    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.*fn4 "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 ...


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