No. 80-3-356, Appeal from the Order of the Court of Common Pleas, Criminal, of Philadelphia, at No. 1646 March Term, 1979
Steven H. Goldblatt, Deputy Dist. Atty., Philadelphia, for petitioner.
Timothy A. Crawford, Philadelphia, for Cabeza.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen, Flaherty and Kauffman, JJ. Nix, J., joins the Opinion of the Court and files a separate concurring opinion in which Kauffman, J., joins. Eagen, C. J., concurs in the result. Larsen, J., concurs in the result, believing that bail should not be available to anyone under these circumstances. Kauffman, J., joins Nix, J., in concurring opinion and files a concurring opinion. Roberts, J., files a dissenting opinion.
This is a petition by the Commonwealth for review of an order entered in the Court of Common Pleas of Philadelphia, Criminal Division, reinstating bail for respondent, Davico Cabeza, during the pendency of his post-verdict motions.
On February 25, 1979, respondent Cabeza was, together with his mother, arrested in Philadelphia at the scene of the killing of Helen Cook. Cabeza was charged with murder, was tried by a jury, and on November 3, 1979, was convicted of murder of the first degree. On that date the trial court revoked Cabeza's bail, which had been set at $10,000, and remanded him to the custody of the Sheriff.
Ten days later, on November 13, 1979, respondent filed an application for reinstatement of bail; the application was denied. On January 4, 1980, the trial court convened for a hearing on yet another application for reinstatement of bail, which on this occasion it granted.
The rule in this Commonwealth concerning the granting of bail to persons convicted of murder of the first degree is embodied in Pa.R.Crim.P. 4010(A)(1):
"Capital and Life Imprisonment Cases. The Defendant shall not be released on bail upon a finding of guilty of an offense which is punishable by death or life imprisonment.*fn1 However, if post-verdict motions are not disposed of within a reasonable period of time thereafter, the judge may in his discretion allow bail."
At the January 4, 1980, hearing the trial court found that the delay of two months between conviction and the disposition of post-verdict motions, coupled with the estimate of the court reporter that transcription of the notes of trial testimony would not be completed for "another two to three more weeks," constituted "unreasonable delay" as contemplated by Pa.R.Crim.P. 4010(A)(1). Hence the trial court concluded whether or not to grant bail was a decision within
its discretion. Armed with this conclusion the court reinstated bail in the amount of $10,000. Hence this petition.*fn2
The Commonwealth advances but one issue for our resolution: Was the order of the trial court proper in light of the decision of this court in Commonwealth v. Fowler, 451 Pa. 505, 304 A.2d 124 (1973). Fowler dealt with the identical issue presented herein. We acknowledge that the "rule" in Fowler is not without some difficulty of ascertainment; a fractured court of seven members filed five opinions.
The opinion of the court in Fowler, authored by Mr. Justice Nix and joined by Mr. Justice O'Brien and Mr. Justice Pomeroy, re-emphasized our view that persons situated as is respondent have no entitlement to bail: "We hold that bail should not be granted to one convicted of murder in the first degree between the entry of the verdict and the imposition of formal sentence." Fowler, id., 451 Pa. at 515, 304 A.2d at 129.
We diluted that holding, however, with the observation that "[w]here there has been an unreasonable delay caused by the Commonwealth and not contributed to by the defense the conviction becomes suspect and the possibility of the innocence ...