Commonwealth Ex Rel. Hartage v. Hendrick

268 A.2d 451, 439 Pa. 584, 1970 Pa. LEXIS 729

• Court: Supreme Court of Pennsylvania
• Decided: July 31, 1970
• Docket: 79, Miscellaneous Docket 18
• Status: Published

Opinions

Opinion by

Mr. Justice Pomeroy,

TMs case is before us upon a petition for babeas corpus of which we are asked to take original jurisdiction. The petition asserts, inter alia, that petitioner has been denied Ms rights under the Eighth Amendment, the due process clauses of the Fourteenth Amendment, and the Sixth Amendment to the Constitution of the United States. The assertion is grounded on the proposition that Ms constitutional right to nonexcessive bail has been denied because the Constitution must be read “to prohibit bail in excess of what petitioner can afford.” It is also claimed that Ms bail was set “without consideration of individual circumstances pertinent to the probability of his appearance at trial.” The petition states that the issues presented are of vital importance throughout the Commonwealth and should be resolved by this Court. It alleges that this can be accomplished only through the exercise of original jurisdiction, because petitioner’s claim of unconstitutional pretrial detention “will . . . likely become moot before it can fairly be considered by tMs Court if he is compelled to follow the time-consuming appellate route through the Superior Court to tMs Court.” He points out, in support of tMs statement, that this is what occurred in Commonwealth ex rel. Ford v. Hendrick, 215 Pa. Superior Ct. 206 (1969).

A responsive answer was filed on behalf of the Commonwealth, placing in issue the principal allegations of the petition, and to this a reply was filed by petitioner. It is clear from these pleadings and the transcripts of the proceedings in the lower court, first at the bail hearing before the committing magistrate, and again at the hearing on the habeas corpus petition, that there were not presented on behalf of petitioner the facts relative to defendant’s financial situation or the factors bearing on the likelihood of his appearance at trial which are now contained in the petition for us. Petitioner admits that the bail hearing was inadequate,¹ and that the habeas corpus judge was not asked to conduct a hearing, but merely to rule on the question of constitutionality. No question was raised as to noncompliance Avith Rule 4005(a).² The Commonwealth states in its answer that it “did not and does not oppose the consideration of these factors [pertinent to the probability of defendant’s appearance at trial, and his alleged indigency] in determining reasonable bail or alternatives to bail.”

On this record, we are unable to agree that petitioner has demonstrated “the futility of the ordinary appellate procedures,” as he puts it, or that original jurisdiction in this Court affords petitioner “the only proper and efficacious relief from his unconstitutional detention.” That there are grave problems in connection with the administration of the bail system may be granted, but the practical necessity of adjudicating the issues in this Court in the first instance has not been sufficiently shown. There is not here the “imperative necessity or apparent reason why expedition is desirable or required,” that this Court normally requires in a habeas corpus proceeding in order to dispense with the benefit of full and adequate consideration by a lower court. Commonwealth ex rel. Paylor v. Cloudy, 366 Pa. 282, 287, 77 A. 2d 350 (1951); cf. Commonwealth ex rel. Torrance v. Salzinger, 406 Pa. 268, 177 A. 2d 619, cert. denied, 369 U.S. 888 (1962). For us to accept the instant petition on this most meager factual record would be to make it a vehicle for what would be, in effect, an advisory opinion. We think this would be an unwise use of our original jurisdiction powers. We will therefore deny the petition.

In so doing, we do not intend to minimize the seriousness of the problems connected with bail and pretrial detention, particularly as applied to indigents. These problems have been receiving increasing attention from legal writers, concerned organizations, and various governmental bodies,³ but have not yet received adequate attention from the courts, including no doubt those of Pennsylvania. The Standards of the American Bar Association Relating to Pretrial Release, Approved Draft, 1968, are an excellent contribution to the thinking on this subject, and deserve the careful study of all those who wish to see improvement in this field. It well may be that they, together with other recent studies particularly pertinent to Pennsylvania, should form the basis of a revision and expansion of our bail rules. (Pennsylvania Rules of Criminal Procedure 4001-4016, adopted November 22,1965, effective June 1, 1966, 419 Pa. lxii.) Approached in this fashion, the subject in all its aspects and with regard to all sections of the Commonwealth would be considered first by the Criminal Procedural Rules Committee, drawing upon such resources and assistance as they might see fit. Their recommendations would then come to this Court. This approach to a complex and pervasive socio-legal problem appears to us much sounder than an ad hoc approach of taking original jurisdiction in a particular case.

Petition denied.

1 Petitioner’s reply to the answer to his habeas corpus petition before us states, additionally, that “Bail hearings for indigents who cannot retain counsel are virtually never adequate.” Petitioner was not represented by counsel but by a law student connected with the Bail Litigation Project of the University of Pennsylvania Law School, which is under the direction of present counsel for petitioner. The bail hearing in the instant ease established only that petitioner had no prior criminal record and that “according to our [defendant’s representative’s] information he can afford very little bail.” In contrast, Rule 4005(a) of our Rules of Criminal Procedure provides as follows: “The amount of bail shall be such as to ensure the presence of the defendant, and shall be determined according to, but not solely upon, the following criteria: (1) The nature and circumstances of the offense and the stage of the prosecution then existing; (2) The age, residence, employment, financial standing and family status of the defendant; (3) Defendant’s character, reputation and previous criminal history; and (4) Defendant’s mental condition.”

2 At the habeas corpus hearing below petitioner was represented by his present counsel. The complete transcript of that hearing is as follows: “The Coubt : The above matter came on and was heard before the undersigned on May 13, 1970. Present were David Iiairys [counsel for petitioner] and Martin Belsky [Assistant District Attorney]. Counsel for the petitioner informed the Court that the testimony in this matter had been taken earlier before Judge Reimel, and the testimony was concluded. This was explained to the Court that the only matter before us was the constitutionality of the bail requirements. AVe are here not concerned with any of the testimonial aspects. On the basis of the controlling law, we deny the petition.”

3 Judge Hoffman’s exhaustive dissenting opinion in Commonwealth ex rel. Ford v. Hendrick, supra, 215 Pa. Superior Ct. at 208, summarizes and reviews much of the recent literature, as does Justice Robebts’ dissenting opinion, infra.