No. 447 E.D. Misc. Dkt., 1980, Appeal from the Order of the Court of Common Pleas of Philadelphia Trial Division, Criminal Section, entered June 16, 1980, declaring 42 Pa. C.S.§ 5104 (c) unconstitutional, at Information Nos. 646-648, 734-735, 1207-1208, 1210-1214 December Term, 1979; Nos. 2802-2804 March Term, 1980; and No. 912 June Term, 1980. No. 477 E.D. Misc. Dkt., 1980. Appeal from the Order of the Court of Common Pleas of Philadelphia, Trial Division, Criminal Section, entered July 7, 1980, declaring 42 Pa. C.S. § 5104(c) unconstitutional, at Information Nos. 1210-1214 December Term, 1979.
Steven H. Goldblatt, Deputy Dist. Atty., Ellen Mattleman, Asst. Dist. Atty., for petitioner.
Phyllis Subin, Leonard Sosnov, Asst. Defenders, Michael G. DeFino, Philadelphia, for respondent.
Roberts, J., filed an Opinion in Support of Affirmance. Flaherty, J., joins in the Opinion in Support of Affirmance of Roberts, J. O'Brien, C. J., joins in Parts, I, II, and V of the Opinion in Support of Affirmance of Roberts, J. Nix, J., filed an Opinion in Support of Reversal. Larsen and Kauffman, JJ., filed an Opinion in Support of Reversal.
The Court being equally divided, the orders are affirmed.
Opinion IN SUPPORT OF AFFIRMANCE
Pursuant to Pennsylvania Rule of Criminal Procedure 1101, two judges of the Court of Common Pleas of Philadelphia, in two separate cases, upheld the authority of the trial court to approve a defendant's motion to waive trial by jury despite opposition by the prosecution. In so doing, the courts properly held unconstitutional 42 Pa. C.S. § 5104(c), which inters this Court's Rule 1101 by granting the Commonwealth an absolute right to jury trial upon demand.
In urging the reversal of the trial courts' determinations, the joint opinion of Justices Larsen and Kauffman and the opinion of Mr. Justice Nix would both abdicate the exclusive constitutional responsibility of this Court to govern the practice, procedure and conduct of all courts of this Commonwealth and abrogate the essential constitutional authority of trial court judges to assure that trial procedures meet the requirements of due process. Manifestly, 42 Pa. C.S. § 5104(c), which conflicts irreconcilably with this Court's Rule 1101, must be declared unconstitutional. Hence, the orders of the trial court must be affirmed.
Pa.Const. art. V, § 10 provides:
"(a) The Supreme Court shall exercise general supervisory and administrative authority over all the courts . . . .
(c) The Supreme Court shall have the power to prescribe general rules governing practice, procedure and the conduct of all courts, . . . including the power to provide for . . . the administration of all courts and supervision of all officers of the judicial branch, if such rules are consistent with this Constitution and neither abridge, enlarge nor modify the substantive rights of any litigant, nor affect the right of the General Assembly to determine the jurisdiction of any court or justice of the peace, nor suspend nor alter any statute of limitation or repose. All laws shall be suspended to the extent that they are inconsistent with rules prescribed under these provisions."
Acting upon this explicit rule-making power, and drawing upon the expertise gained in the performance of its constitutional obligation to supervise and administer the Commonwealth's unified judicial system, this Court has adopted and, where necessary, amended rules to govern practice and procedure in the courts of this Commonwealth.
Pa.R.Crim.P. 1101, adopted by this Court in 1968 and amended in 1973, governs the procedure by which criminal
cases are to be tried when an accused voluntarily elects to forgo his constitutional right to be tried by a jury. Rule 1101 provides:
In all cases, the defendant may waive a jury trial with the consent of his attorney, if any, and approval by a judge of the court in which the case is pending, and elect to be tried by a judge without a jury. The judge shall ascertain from the defendant whether this is a knowing and intelligent waiver, and such colloquy shall appear on the record . . . ."
Pursuant to Rule 1101, an accused may be tried by a judge without a jury whenever the court approves a non-jury trial. When a defendant files a motion to waive trial by jury, that motion, like all other motions, is ruled upon by the court. As with other motions, it is the obligation of both the defense counsel and prosecuting attorney to bring relevant facts and considerations to the attention of the court. See, e. g., Commonwealth v. Correa, 485 Pa. 376, 402 A.2d 1011 (1979) (trial court denial of defendant's motion to waive jury trial affirmed); Commonwealth v. Lee, 262 Pa. Super. 280, 396 A.2d 755 (1978) and Commonwealth v. Garrison, 242 Pa. Super. 509, 364 A.2d 388 (1976) (same; record indicated "judge shopping" by defendant). The final determination to grant or to deny the motion is then made by an impartial judicial decision-maker removed from the passions of the adversary system.
Because this Court has exclusive constitutional authority to prescribe rules of procedure for the courts of this Commonwealth, procedural rules promulgated by this Court cannot constitutionally be abridged or modified by legislative action. Thus, in enacting 42 Pa. C.S. § 5104(c), which contravenes Rule 1101, the Legislature has impermissibly intruded upon the procedural rule-making authority exclusively granted to this Court by the Constitution of this Commonwealth. See Wajert v. State Ethics Comm'n, 491 Pa. 255, 420 A.2d 439 (1980); In re Pa. C.S. § 1703, 482 Pa. 522,
A.2d 444 (1978). See also Garrett v. Bamford, 582 F.2d 810 (3d Cir. 1978).
It is obvious that Rule 1101 and 42 Pa. C.S. § 5104(c) cannot co-exist. The statutory grant to the prosecution of an unrestricted, unreviewable veto over the trial court's approval of a non-jury trial irreconcilably conflicts with Rule 1101, which provides that the trial court shall make the ultimate determination whether a non-jury trial is to be permitted.
The joint Opinion in Support of Reversal of Justices Larsen and Kauffman is flawed not only by its failure to acknowledge that Rule 1101 and 42 Pa. C.S. § 5104(c) cannot co-exist, but also by its failure to recognize that there exist both substantive and procedural rights. Like the Opinion in Support of Reversal of Mr. Justice Nix, the joint opinion proceeds from the faulty premise that any "right" conferred by statute must inherently be substantive and thus within the authority of the Legislature. If this assumption were correct, the Legislature could abolish any procedural rule adopted by this Court merely by enacting a contravening statute whose language confers a "right" upon a litigant.*fn1
To permit such circumvention of this Court's rule-making power is to obliterate art. V, § 10 of the Constitution which grants this Court explicit, exclusive authority to govern practice and procedure in the courts of the Commonwealth. Further, to uphold such circumvention as constitutional on the ground that any right conferred by the Legislature is "substantive" is to ignore the jurisprudential distinction between rights which are "substantive" and rights which are "procedural," a distinction of historic and continuing vitality and one which gives meaning to this Commonwealth's constitutional separation of powers.
The Opinions in Support of Reversal mistakenly derogate the importance of procedure in our criminal justice system. In attempting to uphold as constitutional the Legislature's intrusion upon this Court's exclusive constitutional power to regulate the procedure of the courts of this Commonwealth, the opinions have erroneously translated "substantive" rights into "substantial" or "important" rights. They have made a right of procedure synonymous with "merely a procedural mechanism." Joint opinion, 435 A.2d at 171.
Trial by jury is, without doubt, an important and "substantial" right of the accused. However, jurisprudence, history and decisions of the Supreme Court of the United States and of this Court make unmistakably clear that the right to trial by jury is a right of procedure. Like other guarantees of the Sixth Amendment which are part of the procedure of a criminal trial, trial by jury has been deemed a valuable "procedure [which] is fundamental . . . a procedure [which] is necessary to an Anglo-American regime of ordered liberty." Duncan v. Louisiana, 391 U.S. 145, 149 n.14, 88 S.Ct. 1444, 1448 n.14, 20 L.Ed.2d 491 (1968) (accused's Sixth Amendment right to jury trial guaranteed in state courts by Fourteenth Amendment due process clause).
It is a basic principle of jurisprudence underlying criminal law and procedure that substantive law declares what acts are crimes and prescribes the punishment for their commission, while procedural law provides the means by which the substantive law is enforced. See State v. Smith, 84 Wash.2d 498, 501, 527 P.2d 674, 677 (1974); In re Florida Rules of Criminal Procedure, 272 So.2d 65, 65-66 (Fla. 1972); Frank, Courts on Trial 103 (1949).
Trial by jury is a "means whereby justice, as expressed in legal principles, is administered," Commonwealth v. Fowler, 451 Pa. 505, 511, 304 A.2d 124, 127 (1973) (plurality opinion of Nix, J.), and hence a matter of procedure within this Court's power to regulate by rule. "The function of rules is to regulate the practice of the court and to facilitate the transaction of its business. This function embraces, among
other things, . . . the prescribing of forms, modes and times for proceedings." Washington-Southern Nav. Co. v. Baltimore & Philadelphia Steamboat Co., 263 U.S. 629, 635, 44 S.Ct. 220, 222, 68 L.Ed. 480 (1924) (Brandeis, J.). As stated by Thayer, A Preliminary Treatise on Evidence at the Common Law 199 (1898), "a mode of trial" is "a form of procedure; not law, in our sense of substantive law." See also Frankfurter & Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 920 (1926) ("[o]ne of the procedural features . . . [of] the administration of the criminal law is . . . trial by jury"); Oppenheim, Waiver of Trial by Jury in Criminal Cases, 25 Mich.L.Rev. 695, 712 (1927) ("trial by jury . . . is a method, a form, a process. It is a part of a criminal trial procedure . . .").
Many of the most important rights guaranteed by the Constitution are rights of procedure without which the substantive rights of life, liberty and property would have little meaning. The procedures which constitute due process of law, like the right of an accused to trial by jury, are not ends in themselves but means of safeguarding these substantive rights. As Justice Frankfurter observed, "[t]he history of American freedom, is, in no small measure, the history of procedure." Malinski v. New York, 324 U.S. 401, 414, 65 S.Ct. 781, 787, 89 L.Ed. 1029 (1945) (concurring opinion). In speaking of the constitutional right of the accused to be tried by a jury and upholding his right to waive jury trial, the Supreme Court of the United States has said:
"[P]rocedural devices rooted in experience were written into the Bill of Rights not as abstract rubrics in an elegant code but in order to assure fairness and justice before any person could be deprived of 'life, liberty, or property'."
Adams v. United States ex rel. McCann, 317 U.S. 269, 276, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942) (Frankfurter, J.).
Innumerable cases of the Supreme Court of the United States recount that trial by jury developed as a procedural safeguard for the accused against arbitrary and oppressive
law enforcement. See, e. g., Ballew v. Georgia, 435 U.S. 223, 229, 98 S.Ct. 1029, 1033, 55 L.Ed.2d 234 (1978); Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1905-06, 26 L.Ed.2d 446 (1970); Duncan v. Louisiana, 391 U.S. 145, 151-56, 88 S.Ct. 1444, 1448-51, 20 L.Ed.2d 491 (1968); Singer v. United States, 380 U.S. 24, 27-31, 85 S.Ct. 783, 786-88, 13 L.Ed.2d 630 (1965); Adams v. United States ex rel. McCann, supra, 317 U.S. at 276, 63 S.Ct. at 240.
"'[T]he history and debates of the constitutional convention will not be found to sustain the idea that the constitutional safeguards in question were in any sense established as something necessary to protect the state or the community from the supposed danger that accused parties would waive away the interest which the government has in their liberties, and go to jail.
There is not now, and never was, any practical danger of that.'
The record of English and colonial jurisprudence antedating the Constitution will be searched in vain for evidence that trial by jury in criminal cases was regarded as a part of the structure of government, as distinguished from a right or privilege of the accused. On the contrary, it uniformly was regarded as a valuable privilege bestowed upon the person accused of crime for the purpose of safeguarding him against the oppressive power of the King and the arbitrary or partial judgment of the court."
Patton v. United States, 281 U.S. 276, 295-97, 50 S.Ct. 253, 257, 74 L.Ed. 854 (1930), quoting with approval Dickinson v. United States, 159 F. 801, 820 (1st Cir. 1908) (dissenting opinion of Aldrich, J.). See The Federalist No. 83 (A. Hamilton) (jury trial is "the security of liberty"); 3 Farrand, Records of the Federal Convention (1911) at 101 (James Wilson) (jury trial bars "the oppression of government"), 221 (Luther Martin) (jury trial is "the surest barrier against arbitrary power, and the palladium of liberty"). See generally Commonwealth v. Maxwell, 271 Pa. 378, 114 A. 825 (1921) (detailed discussion of state constitutional provision);
Forsyth, History of Trial by Jury (1878); Plucknett, A Concise History of the Common Law (1956).
The Opinions in Support of Reversal not only ignore the history of trial by jury as a valuable procedure to safeguard the liberty of the accused but also ignore the legion of Supreme Court decisions which state forthrightly that trial by jury is a procedural device. See, e. g., Bloom v. Illinois, 391 U.S. 194, 208, 88 S.Ct. 1477, 1486, 20 L.Ed.2d 522 (1968) ("procedural protection" of jury trial constitutionally guaranteed in criminal contempt proceedings); Id. at 214, 88 S.Ct. at 1460 (Fortas, J., concurring) (jury trial "is a system of administration of the business of the State"); Id. at 211, 88 S.Ct. at 1487 (Harlan, J., joined by Stewart, J., dissenting) (right to jury trial "rule of procedure"); Duncan v. Louisiana, supra, 391 U.S. at 149 n.14, 88 S.Ct. at 1448 n.14 (jury trial "particular procedure [which] is fundamental"); Adams v. United States ex rel. McCann, supra, 317 U.S. at 280, 63 S.Ct. at 242 (choice between judge and jury trial is "choice of procedure"); Territory of Hawaii v. Mankichi, 190 U.S. 197, 217, 23 S.Ct. 787, 791, 47 L.Ed. 1016 (1903) (jury trial is ...