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COMMONWEALTH PENNSYLVANIA EX REL. F. EMMETT FITZPATRICK v. MATTHEW W. BULLOCK (02/28/77)

decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA EX REL. F. EMMETT FITZPATRICK, DISTRICT ATTORNEY OF PHILADELPHIA COUNTY
v.
MATTHEW W. BULLOCK, JUDGE, PHILADELPHIA COURT OF COMMON PLEAS



COUNSEL

Abraham J. Gafni, Deputy Dist. Atty. for Law, Steven H. Goldblatt, Asst. Dist. Atty., Chief Appeals Div., Deborah, E. Glass, Asst. Dist. Atty., for petitioner.

Jonathan Vipond, III, Philadelphia, for respondent.

John Patrick, Philadelphia, for Yul B. Hayward.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., concurs in the result.

Author: Eagen

[ 471 Pa. Page 293]

OPINION OF THE COURT

The Commonwealth, through the District Attorney of Philadelphia, is here seeking a writ of prohibition

[ 471 Pa. Page 294]

    against Judge Matthew W. Bullock of the Court of Common Pleas of Philadelphia. This is the background.

On March 5, 1976, Yul Brynner Hayward, who was then fifteen and a half years old, was arrested and charged with murder, robbery, and related weapons offenses arising out of an incident on February 24, 1976. Subsequently, informations were filed against Hayward, pretrial motions were disposed of, and the case was assigned to Judge Bullock for trial. On August 11, 1976, at a conference with counsel prior to jury selection, Judge Bullock asked the prosecuting attorney whether the Commonwealth was seeking the death penalty, and the latter replied: "I cannot in all candor say because I think it is a jury question." The judge then stated that, as he had indicated previously in a letter to the district attorney's office, it was his intention in such a case to make "a preliminary determination whether or not I consider a reasonable jury could find the death penalty if the death penalty is still in the case." He thus scheduled a hearing "at which time I will expect the Commonwealth to make any offer of proof as to the facts and basis of which it believes the jury could reasonably find the death penalty." Further, he sua sponte ordered that Hayward be given a psychiatric examination and that the psychiatrist testify at the hearing as to Hayward's "maturity or lack thereof." The judge also subpoenaed Hayward's school records.

Although the assistant district attorney assigned to prosecute the case for the Commonwealth had originally indicated that both he and his office were satisfied with this procedure, when the hearing was convened the following day he objected to its propriety on the ground that it was a usurpation of a function assigned by statute to the jury, and he indicated that the Commonwealth would not participate in the hearing. The judge then called a psychiatrist and a psychologist, both of whom had official positions as consultants to the court and both

[ 471 Pa. Page 295]

    of whom had examined Hayward at the court's request. The judge took the lead in questioning both witnesses. The psychiatrist testified that he had examined Hayward for about forty minutes and concluded that, although he found no "thinking disorder" in the defendant, the latter was a "schizoid personality" who under stress "could compensate into a real psychotic state which I did not see during the interview." The psychologist testified that he had examined Hayward for about an hour, that his tests indicated a "dull-normal" I.Q. of 84 but that he had a potential I.Q. of 105; the psychologist concluded that Hayward was "functioning well below his potential . . . because of emotional problems" and that intellectually he was functioning at the level of a twelve-and-a-half-year old and emotionally at the level of a nine-year old. The supervisor of pupil personnel and counseling at Hayward's school was also called as the custodian of the defendant's school records, and these records were admitted into evidence.*fn1 Although defense counsel had originally indicated that he intended to call both the defendant and his father for the limited purpose of determining whether the jury might reasonably impose the death penalty, the defense ultimately decided to present no evidence of its own. At the conclusion of the hearing, Judge Bullock requested briefs and indicated he would schedule an oral argument, but he also stated: " I have already ruled that the death penalty is not in this case and I ...


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