*1 A.2d 442 Pеnnsylvania, Appellant, COMMONWEALTH Theodore MOODY. Pennsylvania. Court
Argued April 1977.
Decided Nov. J.,
Nix, dissented with an opinion. deposits to what extent Rules bail of Criminal Procedure allow applied imposed upon and costs collection fines Compare May defendant. 4015 with Act Pa.R.Crim.P. amended, 72, suspended by P.L. § 19 P.S. Pa.R.Crim.P. 4018(h). *2 F. Goldblatt, Emmett Dist. H. Fitzpatrick, Atty., Steven Div., Chief, Glass, Asst. Dist. Deborah E. Atty., Appeals Asst. Atty., Dist. for appellant. Carroll, Joseph III,
John D. Philadel- Rogers Montgomery phia, appellee. POMEROY, EAGEN, O’BRIEN, NIX, J.,
Before C. MANDERINO, JJ. OPINION EAGEN, Chief Justice.
In this appeal by the Commonwealth we are asked to determine of section 1311 of the Sen- constitutionality Code, tencing 1977-78), 18 Pa. which (Supp. C.S.A. § establishes sentencing and standards procedures regulating *3 jury determinations of whether not the death penalty murder, should be which a imposed punishment for and of of held panel Philadelphia Court Common Pleas to be unconstitutional. We affirm. shall
I Appellee Moody by jury Theodore was convicted of murder the of first and criminal in the degree conspiracy death on Price, December of one James a fellow inmate at Prison in Holmesburg Pursuant to Philadelphia. 1311(c) Code,1 section was Sentencing hearing then sentencing hearing. 1. “Procedure at such verdict is recorded —After permitted jury separate, proceed and the before to the court shall to previously receive such additional evidence not from received the may upon question aggra- trial as be relevant and of admissible the vating mitigating permit argument and shall circumstances and such by counsel, just charge and deliver such thereon as be and proper Aggravating the circumstances. circumstances must be . proved beyond Mitigating a reasonable doubt. circumstances must proved by preponderance jury of the evidence. The shall then aggravating mitigating retire and the consider and circumstances and respecting they agree upon. render such verdict them as shall A jury agree upon aggravating mitigating failure the and impeach way not shall be held to or in affect the validity recorded, already of the verdict and whenever the court shall held to additional and jury testimony receive permit and aggravating on the arguments question circum- In order to establish aggravating circumstances. stances, an assistant United called Commonwealth C., who from D. testified Washington, States attorney in the District Moody had been convicted previously deliberate Columbia counts of and premeditated of seven of first-degree felony- murder and seven counts first-degree murder, twenty to a term of and that he had been sentenced cross-ex- During life on each count.2 years imprisonment attack- Moody’s amination appeals the witness testifiеd these were The Common- ing pending. convictions still at wealth also the evidence adduced argued jury means trial of Price was “committed killing indicated of torture,” circumstance.3 aggravating another statutory circumstances, In an effort establish statutory mitigating to her son’s mother, defense called who testified Moody’s her belief killing at time of the age twenty-one —and — jury opinion be of the in an it thereof, that further will not result deliberation circumstances, agreement aggravating discretion, may, discharge jury from further consideration its directed, shall if the court in which event no retrial imprisonment upon sentence to life the verdict thereto- the defendant shall fore as aforesaid and the rendered recorded impose prior be so shall informed to their court deliberations. as in the sentence so fixed other cases.” statutory 1311(d)(1)(ix) following aggravating cir 2. Section lists the cumstance: State “The has been Federal or defendant convicted of another offense, committed either the time the offense before or at issue, imprisonment was for which a sentence life or death imposable imprisonment undergoing life or the defendant was sentence *4 for the reason at the time of the commission of offense.” Moody’s previous upon murder convictions had been based the persons highly publicized deaths of seven the Hanafi Muslim killings January Holmesburg of 1973. His confinement Prison at the time of the instant murder was unrelated to these convictions. During trial, however, presented the instant the Commonwealtli victim, Price, given police evidence that the had the statement to grand jury testimony Moody implicating and bia ed him. in the of District Colum- killings, Moody implicat- and that aware that had been Price had 1311(d)(1)(viii). 3. 18 Pa. C.S.A.
that he not was mature” and that he was “quite “easily led.”4 After further deliberations the returned with a jury finding that the of Price killing accompanied by was aggra- circumstances and no circumstances. Al- vating mitigating this of the though finding required imposition death penalty,5 the court deferred formal sentencing pending disposition post-verdict of motions.
Subsequently, a motions court three-judge post-verdict denied motions in for new Moody’s judgment arrest of and trial, but a of to impose that court concluded that majority the death on be unconstitutional on penalty Moody would two First, the circumstances grounds. statutory mitigating were found because a reasonable “unconstitutionally vague would have to at the of guess meaning ‘age,’ ‘youth’ ” and ‘lack of deci- maturity,’ with and “arbitrary capricious sions Second, ... an inevitable result.” the court concluded that because at the time of trial this Moody’s Court had promulgated no of рrocedural imposition rules the death trial penalty by courts in trials or non-jury guilty- plea proceedings,6 trial courts had no power impose therefore, contexts, such and that pursuant Jackson, United States v. U.S. 88 S.Ct. 138 (1968), L.Ed.2d of the death after trial “placed burden chilling and unconstitutional exercise of the constitutional trial right by One jury.” on the judge ground. concurred Jackson solely age, 1311(d)(2)(i) mitigating maturity, 4. Section lists of lack “[t]he youth killing.” or of the defendant at time “Aggravating 5. and a murder circumstances. —If degree following accompanied aggravat- first at least one of the ing following mitigating circumstances none circumstanc- es, person convicted shall be sentenced death. If a murder degree accompanied by any following the first aggravat- is not ing accompanied by following circumstances or is one of the least person convicted shall be sentenced to imprisonment 1311(d). life . . . .” Pa. C.S.A. § “Guilty pleas non-jury pleas guilty, trials. —In cases court, impose trial the court shall sentence accordance with promulgated Rules of Criminal Procedure as Court Pennsylvania.” 1311(e). 18 Pa. C.S.A. § *5 The court certified that its decision on the death penalty involved a of law as to which there is controlling question substantial ground difference of and that an opinion immediate appeal advance the might materially ultimate determination matter, of the it all stayed proceedings meanwhile; we allowed the appeal.7
In addition to in of the arguing support grounds advanced post-verdict motions court for holding imposition the death unconstitutional, penalty Moody urges, also as he below, did that section 1311 restricts unconstitutionally evidence the in jury may consider mitigation penalty. We agree. the order of the Accordingly, affirming Court Pleas, Common we do not reach the which that grounds court found decisive.8
II
Commonwealth v.
Bradley,
Pa.
Section 1311 retains
provisions of
split-verdict
statute;
previous
is,
that
if the
finds the defendant
of murder of the
guilty
first-degree,
it then proceeds to hear
additional evidence
arguments
and
and
render
a separate
verdict with regard to the penalty.
statute,
The new
how-
ever, in an effort
to avoid the untrammeled discretion and
lack of
for
standards
determining
condemned in
penalty
Furman,11 both limits the death
murders of the
first
which the
degree
jury finds to be accompanied
by
least one of nine specified
and
aggravating circumstances
none of three specified
re-
and
it be
a
quires
imposed when such
finding made. The
statute
also provides that aggravating
circumstances must
bе
proved beyond
reasonable doubt and
circum-
934,
Pennsylvania,
2852,
(1972).
408 U.S.
92 S.Ct.
See
(1975).
Commonwealth v.
465 Pa.
Ill
Last
year
United
States
Court ad
dressed itself for the first time to the
constitutionality
death-penalty statutes enacted
to Furman.
In a
subsequent
series of five decisions announced on the same
day,
Court found the new statutes of
Texas, and Florida
Georgia,
constitutional and invalidated statutes from North Carolina
and Louisiana.12 None of the statutes there involved corre
*7
sponds
with the
precisely
issue,
statute here
Pennsylvania
at
but we must look
decisions,
to these
as well as to subsequent
pronouncements
Court,
Supreme
guidance
determining
of section
constitutionality
1311. Our task
is complicated
the fact
that no clear
view with
majority
regard
ascertaining
of a
constitutionality
capital-pun
ishment statute has
from these
emerged
decisions. Justices
Brennan and Marshall would have invalidated all five of the
statutes at issue in the 1976 cases because of their consist
ently-expressed view that the death
in all circum
stances constitutes cruel and unusual
Chief
punishment.
Justice Burger and Justices White, Blackmun,
Rehn
quist would have found all five constitutional. The decisions
of the Court were thus controlled
aby “plurality” consisting
Stewart,
Justices
Powell, and
which in
Stevens
each case
constituted
of the
part
decisional
with one of
majority
these
justices
writing
opinion
announcing
judgment
Court. The conclusion which emerges from these decisions
is that the death
not,
as a
punishment for murder is
Gregg
153,
2909,
Georgia,
428 U.S.
96
49
859
S.Ct.
L.Ed.2d
(1976);
Texas,
262,
2950,
Jurek v.
428 U.S.
96 S.Ct.
231
at least at
cruel and unusual
present, inevitably
punishment
Amendment,13
in violation of the
but that
statute
Eighth
for even a
authorizing capital punishment
narrowly-limited
if it
of murder violates the
Amendment
category
Eighth
sentencing
does not
sufficiently permit
authority
the particular
sentence to take into account
determining
history
circumstances of the crime and
individual
Louisiana,
character of the
Roberts v.
criminal. See Harry
633,
52
637 (1977).
U.S.
L.Ed.2d
S.Ct.
in effect
to have
appears
Court plurality
discerned an element of due
in the
Amend-
Eighth
process
ment which is
cases.14
applicable
sentencing
capital
Thus,
words Mr. Justice Stewart:
“This Court has
previously recognized
‘[f]or
sentences,
determination of
justice generally requires con
sideration more than the
acts
which the
particular
crime was committed and that there be taken into account
the offense
with the charac
together
ter and
propensities
offender.’ Pennsylvania
Ashe,
(1937).
U.S.
S.Ct.
flects rather than a simply enlightened policy we that in cases the funda- capital al believe imperative, the Eighth respect humanity underlying mental Amendment, Dulles, see at 78 356 U.S. Trop requires at opinion), S.Ct. L.Ed.2d (plurality the individual consideration of the character and record of offense offender and circumstances the particulаr part process as constitutionally indispensable inflicting of death. on predicate
“This conclusion rests squarely from a sentence of death different is qualitatively its Death, however imprisonment, long. finality, pris- differs more from than a imprisonment 100-year life on term differs or two. Because only year from one difference, of that qualitative there is a corresponding difference in the need for in the determination reliability that death is in a punishment specific the appropriate case.” [Footnote omitted.] 304-5, Carolina,
Woodson v. North at 428 U.S. supra, Moreover, at 2991-92. Mr. Justice Ste- S.Ct. stated by vens: “ . . .a that allowed sentencing system would almost
consider only aggravating fall sentenc- short of individualized certainly providing in Woodson v. determination that we have held ing today Carolina, 303-305, 96 North post, U.S. pp. 2991-2992, pp. required by 48 L.Ed.2d to be and Fourteenth For such a Eighth system Amendments. would hold approach mandatory today laws that we Louisiana, unconstitutional in Woodson and Roberts v. A jury must be allowed to on the basis of post. consider all relevant evidence not sentence should only why death but it imposed, imposed.” also should not be why [Emphasis [Footnote omitted.] added.] Texas, Jurek v. at U.S. 96 S.Ct. supra, determine, therefore, We must whether section “the character and consider permits sufficiently *9 and, record of the individual offender” wheth- particular, er it permits jury to consider “on the basis of all relevant evidence” a death sentence should not why be imposed. unlike the Plainly, North Carolina and mandatory Louisiana statutes Court, struck down Supreme the Pennsylva- nia statute does permit jury determining punishment the crime itself and go beyond consider some mitigating reason, circumstances. For this the Commonwealth would have us section 1311 as uphold similar to the essentially Florida, and Texas statutes the Georgia, Court found consti- tutional. Clearly bifurcating guilt penalty phases trial, the death limiting murders of the circumstances, first attended degree by specific aggravating and in providing for automatic review of all death appellate sentences, the legislature has for the adopted procedures protection of defendants in capital cases which have been specifically approved and endorsed Supreme Court. Gregg See Georgia, supra; Florida, Proffitt v. supra. view, our however, the constitutional defect of section 1311 that, unlike the statutes approved by Court, it so limits the narrowly circumstances which the jury may consider that it precludes the from a consti- tutionally adequate consideration of the character and rec- ord of the defendant.
Section 1311(d)limits circumstancеs which the to consider to “the circum- following mitigating stances” and lists three:
“(2) Mitigating circumstances:
(i) The lack age, maturity, youth the defendant at the time of the killing.
(ii) The victim awas in or participant consented to the defendant’s conduct as set forth in 1311(d) section of this title or was a in or participant consented to the killing.
(iii) The defendant was under duress not such although duress as to constitute a defense to prosecution under section 309 of this title duress).” (relating listed, Of the three only (d)(2)(i) subsection can be said to focus the jury’s attention character and record of
the defendant as to the opposed crime, circumstances of the and that to the limited extent only his determining age, lack of at the time of maturity, youth Al- killing. though prior conviction for an offense life punishable by an is imprisonment aggravating circumstance, the absence of a criminal prior record or even positive achievements or cannot good works be considered as mitigating. Whatever the offender’s potential rehabilitation, for his life is to be terminated without consideration of it unless his status or situation at the time of the can killing be found to be a circumstance.15 mitigating contrast,
In
the statute
approved
Gregg
Georgia,
while
supra,
limiting
sentencing
authority’s power
the death
impose
murder to situations in which
it finds
a reasonable
beyond
doubt аt least one statutory
circumstance, does not even
aggravating
mention specific
circumstances other than the
mitigating
absence of prior
convictions; in
directing
sentencing
authority
weigh
factors,
it
aggravating
mitigating
thus
defendant
gives
and sentencing authority wide latitude as to the
type
evidence he
may present
consider,
and it may
a recommendation of mercy
jury
binding
trial court without
of a
any finding
specific mitigating
circumstance. With
regard
jury determinations of the
penalty,
Supreme Court
plurality emphasized
“accu-
rate
information is an
sentencing
indispensable prerequisite
to a reasoned determination of whether a defendant shall
live or
if
die”
is to fulfill its role in
cases of
capital
“ ‘a link between
maintaining
values
contemporary
and the
” Id.,
190,
at
penal system.’
U.S.
S.Ct.
Illinois,
519 n.
quoting Witherspoon
U.S.
1775 n.
The Florida statute
approved
supra,
circumstances,
seven mitigating
lists
significantly including
has
significant
defendant
no
criminal
history
prior
“[t]he
are
which
to be
activity,”
weighed against eight statutory
addition, however,
circumstances.
aggravating
the plu-
noted that
the Florida statute does not
rality
limit
factors which
considered
the sentenc-
ing authority
statutory mitigating
circumstances.
Id.,
428 U.S. at
n.
The Commonwealth argues that section 1311 is actually to more favorable offenders in that it mandates a life sentence if the finds a jury mitigating circumstance, while Florida Georgia and statutes allow the if circumstances aggravating outweigh distinction, circumstances. This is however, is to helpful only if defendant able establish one of the narrow mitigating circumstances mentioned in section and Proffitt 1311(d). Gregg rather, suggest, sen- tencing authority must be given opportunity weigh and consider whatever evidence mitigation might be relevant an informed passing judgment upon defend- ant.16 points sentencing
16. The Commonwealth also out that scheme Code, quoted section 1311 from derives the'Model Penal which was approval by plurality, urges Gregg with essentially circumstances in section are the same as those Commonwealth, however, found the Model Code. The overlooks This view is fortified an examination of Texas, Jurek v. The Texas statute there supra. limits approved capital-mur- situations, der to five which the concluded were plurality comparable circumstances aggravating specified by and Florida. After a Georgia defendant is convicted of Texas, capital-murder a sentencing proceeding follows which the during is to answer jury required three questions based upon the evidence it has heard. For the death penalty to be imposed, the state must prove beyond reasonable doubt that the answer to each question yes. One of these questions, which in effect raise the issue of mitigating circumstances, focuses the character and record of the defendant. The asked to thereby determine “wheth- er there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat society.” finding Texas statute constitu- tional, the plurality strongly emphasized the Texas Court of Criminal Appeals interpreted this question per- mit the defendant to present to the whatever mitigat- ing evidence he can adduce:
“Thus, Texas law essentially requires that one of five
aggravating
be found before a defendant
can be found
guilty
capital-murder, and that in con-
whether to
sidering
impose a death sentence the jury may
be asked to consider whatever evidence of mitigating
n
*12
circumstances the defense can bring before it.
******
“What is essential is that
the jury have before it all
possible relevant information about the individual defend-
ant whose fate it must determine.”
Id.,
We thus conclude that is now constitutionally what with to the required regard scope the evidence in mitiga- only specifies range the fact that the Model Code not a broader circumstances, mitigating permits jury but it also to consider mitigation additional in evidence as well as that relevant specified mitigating imposition circumstances. It forbids penalty jury specified aggravating unless the finds a circum- mitigating stance and “that there are no substantial factors.” Model Code, (Tentative 9, 1959). Penal 201.6 Draft No. tion which be considered may essentially had in similar to what been long Pennsylvania capital law Benjamin cases.17 Mr. Justice Chief R. (later Justice) As Green, in Commonwealth 137, 148, 151 Jones it Pa. put (1959): A.2d
“The tribunal imposition judicial death penalty by sole should is the justified be made when it only penalty both the criminal act criminal and then and the himself a full only after and exhaustive into both the inquiry criminal and the again act criminal himself. Time and in referring duty juries fixing between death and life we have insisted imprisonment that exercise its discretion after it has only all considered the evidence, and culpatory exculpatory, incriminating manner of extenuating, including what man the criminal is and has been.” [Citations omitted.] [Emphasis original.]
Thus, view, our order to a defendant from cruel protect case, and unusual in a it punishment is now capital necessary both that circumstances aggravating will justify of the death be defined clearly and sentencing authority, sentencing authority be allowed to consider whatever evidence rele- mitigating vant to his character and present. record defendant can
IV The Commonwealth argues section 1311 liberally interpreted permit the defendant to introduce a broad range mitigating evidence the penalty hearing. 1311(c) provides Section that “the court shall proceed receive such additional evidence not received previously from the trial as may be relevant and admissible question of circumstances,” aggravating but section 1311(d) expressly limits cases, non-capital compare Riggins, Commonwealth v. Pa. *13 (1977); Martin, 140 A.2d Commonwealth v. Pa. (1976). A.2d 650 Even if this can be construed
“the following.”18 language a broad present range as the defendant permitting record, character and bearing upon evidence his duress, therefore, the absent consent or can jury, clearly relevant evidence evidence, or other consider such only the trial, to the extent it shows defendant’s at presented the killing.19 at the time of maturity or lack age, youth, that, even if it is liberally interpreted, We thus conclude Jurek, in 1311, unlike the Texas statute approved section its making sentencing authority does not the permit the entire char- upon to focus sufficiently ultimate decision acter and record of the offender.20 contrast, provided that “the court 18. In the Act of 1939 as amended previously proceed not shall to receive such additional evidence may as be relevant and admissible the received in the trial [Empha- question imposed upon the defendant.” of the to be sis 4701. P.S. § added.] Contrary implications dissenting opinion of Mr. Justice 19. Nix, previous offender’s we do not assume that evidence of an determining history rity making background his matu- would be irrelevant to that, killing. problem or lack thereof the time of whether or not its ultimate determination exist, jury is restricted the statute to his status killing. presume that the the time of the We cannot or situаtion at nullify disregard jury the law to the its instructions and will course, mitigating. if the find Of circumstances it jury’s willingness depend upon particular “a determination were to lawlessly,” of standards in sentenc- to act the arbitrariness and lack ing na, remain. Woodson v. North Caroli- condemned Furman would supra, 428 U.S. at at 2991. presented Appeals comparable A situation was to the Court of death-penalty Maryland when it found that state’s statute invalid: true, course, permits mitiga- “It is elements of [the statute] e., presented jury, proof age tion to be i. defendant’s resolving motive for the act in the context of and question proximate We are cause of the victim’s death. conclude, however, presentation unable to that the of these two requires sentencing authority specific elements to focus on particular circumstances of the crime and the offender Supreme characteristics of constitutionally required by controlling the extent oppor- That Blackwell was afforded an Court decisions. tunity present, present, mitiga- and did broad circumstances of hardly tion to the suffices as the measure of the statute’s required permitted by constitutionality; nor was neither weigh objectively focus on Blackwell’s character statute to
239
that,
if
even
addition,
argues
the Commonwealth
sufficient consideration of
nоt permit
1311 does
section
offender,
lacks standing
Moody
record
character and
no
of he offered
evidence
complain
since
of his asserted
and lack
youth
than that
circumstances other
reveals, however, that Moody’s
record
The
maturity.
did
to the insuffi
hearing
object
prior
counsel
permitted by
of mitigating
cient consideration
has
indi
Furthermore,
this Court
previously
section 1311.
a
to death under
statute
sentenced
that a person
cated
to complain regard
its face has standing
on
unconstitutional
his
case. See Common
proceedings
of the actual
less
134,
(1975);
Pa.
ROBERTS, J., took no in the part consideration or decision of this case.
NIX, J., filed a dissenting opinion.
NIX, Justice, dissenting.
has determined that the
majority
legislature
draft-
1311of the
ing
Code,
Section
Sentencing
Pa.C.S.A. §
*15
has failed to meet the standards
(Supp.1977-78)
required
under the
and Fourteenth
to the Fed-
Eighth
Amendments
eral Constitution and
holds that
the death
consequently
sentence
in this
imposed
case under
1311must be set
Section
aside.1
of the
My interpretation
United States Supreme
Court decisions that
Furman
followed
408 U.S.
Georgia,
I. In the 29, 1974, afternoon December body James Price, an Prison, inmate of was found Holmesburg hanging a bedsheet from a inside cell 457 of “D” suspended grate block of the was deter- prison by prison guard.2 Death instantly
conviction his sentences the District of were Columbia appeal. still on counsel, Although Moody, through ques- 1. Theodore his raised the I, propriety tion as to the of the death sentence under Art. 13 of the § Constitution, Pennsylvania majori- neither the court en banc nor ty my of this Court considered that issue. I will therefore confine opinion discussion in this to a consideration of the Federal Constitu- questions Eighth tional raised under the and Fourteenth Amend- My problems might ments. decision not to address the be raised I, under Art. 13 at this time should not be construed as indicative of my view as to the merits of those issues. security “D” Cell block is a maximum area. hours eight prior mined have occurred between four to The examination body. pathologist’s discovery strangulation. revealed that the cause death was Addi- it was that the had been tortured tionally, ascertained victim and mutilated before death.3 an
Calvin Hunter testified that he inmate of the was at the time in and had been prison that he transfer- question red to “D” block on the of December as a morning consequence of a violation of “C” block disciplinary where he had assigned. been At 9:00 A.M. on formerly approximately date, Hunter stated that became area unusually He then heard noises from quiet. the front block and the noise he observe, as came closer was able to appellee, Theodore Theodore Brown and Griffin with the Moody, John between victim them.4 group proceeded direction cell 457 at which Hunter the victim point heard screaming When help “They’re me.” the noise yelling killing Theodore Brown John stopped, appellee, Griffin re- traced their in the steps Hunter’s cell past going opposite direction. Hunter out called to Griffin and inquired the reason for stated, the noise. response, Griffin “Noth- that concerns ing you.”
The also Commonwealth evidence as presented question victim, Price, motive. The had with cooperated Federal authorities and testified grand before the relat- to the Hanafi ing Muslim murders which occurred in Wash- D. C., on ington, January 1973. The testimony victim implicated Theodore in the Hanafi massacre. Moody result, a indicted, As Moodywas and convicted of charged counts murder. theOn in day question, Moody was aware that cooperated Price had with the Federal authori- causing garrote ligature 3. instrument death was a or fashioned laces, from three shoe which was secured around victim’s neck. .the injuries body; There were numerous recent on the most noticеa- injuries were in ble These area of the testicles and rectum. were by multiple sharp determined to have been caused insertions of a excruciating pain. instrument have would caused respective positions being 4. Hunter described their as somewhat like football huddle with Price in between men. the three ties in his bringing about conviction for the Washington crimes.5
II. Under scheme for the statutory providing of the death in penalty by jury jurisdiction, this an accused be must first found of murder of the guilty degree. first Murder of the first is as a degree defined criminal homicide committed an intentional 2502(a) killing. Pa.C.S.A. § An intentional is (Supp.1977-78). killing further defined as means of killing by poison, lying wait, or by any other kind of willful, deliberate premeditated and killing. 2502 (Supp.1977-78). Pa.C.S.A. has con- Pennsylvania § tinued its practice of bifurcated procedure which the not question sentence is considered until the determina- tion guilt has been made. 18 Pa.C.S.A. 1311 (Supp. § 1977-78). During sentencing hearing parties may introduce “such additional not evidence received previously trial from the relevant and admissible and question aggravating circumstances”. 18 mitigating 1311(c)(Supp.1977-78). Argument Pa.C.S.A. counsel is also permitted. Section further nine specifies aggra- circumstances and three vating circumstances.6 killing Moody 5. The instant occurred on December had May been convicted on for the Hanafl and murders was Although sentenced seven consecutive life sentences. it is not why Moody being Holmesburg clear from record was detained in Philadelphia facility, appears Prison in than in rather some federal it aggravated was on robbery, that he convicted eleven counts of January burglary rape and of 1975. These crimes were committed jurisdiction very probable it this that his detention at Holmesburg processing charges. was in connection with the of these 1311(d) provides: 6. Section (d) Aggravating circumstances. —If a murder of degree accompanied by following the first at least one of the aggravating circumstances, following mitigating circumstances and none of the person convicted shall be sentenced to death. degree accompanied by If a murder of the first is not *17 following aggravating accompanied by at circumstances or least following mitigating person one of the circumstances the convicted imprisonment: shall be sentenced to life (1) Aggravating circumstances: The is to instructed as to various mitigating circumstances and advised that a sentence of aggravating death be imposed not unless find the existence of they one aggravating or more circumstances a reasonable beyond doubt of the and determine that none enumerat- statutorily ed circumstances The рresent. are decision return thus the unanimous, the sentence death must be cir- failure to agree upon aggravating result sentence. cumstances will of a life above, As must be indicated aggravating proved reasonable doubt but the existence beyond (i) fireman, peace public The victim was a officer or servant concerned in official defined in of this detention as section 5121 (relating escape), performance title killed in the of his who was duties. (ii) paid paid by person The defendant or or was another had pay paid by person conspired or be contracted to another or had pay paid by person killing or be another for the of the victim. (iii) being The victim was held the defendant for ransom or reward, hostage. as a shield or or (iv) The death the victim occurred while defendant was en- gaged hijacking in the of an aircraft. (v) felony was The victim a witness to a murder or com- other purpose prevent- mitted ing the defendant and was killed for the testimony against any grand jury his defendant or proceeding involving criminal such offenses. (vi) killing perpetration The defendant while in committed a felony. of a (vii) knowingly In the commission of the offense the defendant grave person risk of created death to another in addition to the victim of the offense. (viii) The offense was cоmmitted means of torture. (ix) The defendant has been convicted another Federal or offense, State committed either or at before the time of the offense issue, imprisonment for which a life sentence of or was imposable undergoing or defendant was a sentence of life imprisonment reason at the time of the commission of the offense. (2) Mitigating circumstances: (i) age, youth maturity, lack of defendant at the killing. time of the (ii) participant was a in or The victim consented to the defend- 1311(d) ant’s as set forth in conduct section of this title or was a participant killing. in or consented to the *18 244
statutory circumstances need be only shown aby of the evidence. preponderance In addition to the conventional appellate available process cases, all criminal which in this Commonwealth provides there is a in homicide direct cases to the appeal Su- Court,7 preme provision special is made for direct expedited review Court of by Supreme Pennsylvania “within 60 after certification court of days sentencing the entire record.” 18 Pa.C.S.A. The law of 1311(g) (Supp.1977-78). § this provides Commonwealth also that a death sentence may 4, executive commuted Art. 9 of the clemency. § Constitution. Pennsylvania
III.
to the United
Responding
States
Court’s
decision
in the case of Furman v.
Georgia, supra,
this
Court struck
down the Pennsylvania
statute then in effect8 as violative
of the Eighth and Fourteenth Amendments of the Federal
Commonwealth v.
Constitution.
Bradley,
19,
449
Pa.
also,
Dobrolenski,
See
Commonwealth v.
(1972).
A.2d 842
630,
title jurisdiction 7. appeal of this over Court the instant is found in the Appellate 31, July 1970, 673, 223, Court Jurisdiction Act of P.L. No. II, 202(1), 211.202(1) (Supp.1976-77). art. 17 P.S. § § amended, 8. Act of June P.L. as § 18 P.S. § section distinguished complete This was lack of di- rection as to the circumstances that would warrant imposi- tion of the death at that penalty. time the Additionally, designed murder statute was to include willful and deliber- ate as well killings felony murders under category degree. 1972, murder of the first P.L. Dec. No. 1973; 1, eff. June 2502(a).9 Pa.C.S.A. It would § 1102 was not an Section effort to appear passed meet *19 in Furman, the objections raised but rather for the sole some for purpose providing legislative authority the impo- sition of a death sentence until an appropriate scheme to the Furman mandate could be pursuant formulated. is the Present Section 1311 provision legislature which designed in an effort to fulfill the Furman requirements.
IV.
of cases handed
quintet
down
the United
by
States
2,
Supreme
July
Court on
197610
answered
left
question
decision
by
Court’s
open
Furman. These cases make
clear
it
that a state can
design
for the
procedure
imposi-
tion
death
murder of the first degree that
be found
to be consistent with the mandates of the
and
Eighth
Fourteenth Amendments to the satisfaction of a
majority
the members of the United States Court as it is presently constituted. The task is complicated
however
the fact
views
by
differing
expressed
provided:
This
section
degree.
(a)
criminal homicide
Murder of the first
constitutes
—A
degree
by
murder of the first
when it is committed
means of
wait,
poison,
by lying
by any
willful,
or
or
other kind of
deliberate,
killing.
premeditated
and
A criminal homicide consti-
degree
engaged
tutes murder of
if
the first
the actor
in or is an
of,
accomplice
attempt
commit,
flight
in the commission
or an
to
or
committing,
attempting
robbery,
rape,
after
or
to commit
or devi-
force, arson,
ate sexual
burglary,
intercourse
force or threat of
kidnapping.
153,
Gregg Georgia,
2909,
10. See
428 U.S.
96
49
S.Ct.
L.Ed.2d 859
(1976);
Texas,
262,
2950,
Jurek v.
428 U.S.
96 S.Ct.
247 assessment scheme gested statutory promul- there should be a legislature, burden gated by heavy upon those “who would attack the of the judgment repre- sentatives of the these basic people.”12 Utilizing proposi- tions the concluded: “plurality” capital punishment may imposed
whether
murder)
ever be
as a sanction for
particular (the propriety
specific
rather than
for a
consideration,
crime)
inquiry
is under
into ‘excessiveness’ has
First,
aspects.
punishment
two
must not involve the unneces-
sary
pain.
Georgia, supra,
and wanton
infliction
Furman v.
408
U.S.,
392-393,
S.Ct.,
J.,
(Burger,
dissenting).
at
92
at 2805-2806
C.
Utah,
[130],
345];
See Wilkerson v.
99 U.S.
at 136
L.Ed.
[25
States,
[349],
[544],
Weems v. United
217 U.S.
at
30 S.Ct.
at
Second,
punishment
554
out
supra,
grossly
L.Ed.
must
793].
not be
[54
proportion
severity
Trop Dulles,
of the crime.
v.
U.S.,
100, S.Ct.,
(plurality opinion) (dictum);
356
at
78
at 597
States,
supra,
v.
Weems United
249 201.6, in a concrete case.’ Model Penal Code Comment 3, 9, Draft 1959) original). 71 No. p. (Tent. (emphasis necessity general, While such standards are somewhat guidance sentencing authority do they provide that it will a sen- impose reduce likelihood thereby capricious tence that can be called fairly arbitrary. authority required specify Where the is sentencing decision, factors it its the further reaching relied review available to meaningful is appellate safeguard,of ensure are not that sentences imposed capriciously omitted). or in a (Footnotes Gregg freakish manner.” v. 193-95, at at 2934. Georgia, supra 96 S.Ct. one, whether itself is a fair determining the procedure has its to schemes that “plurality” given imprimatur
allow the decision be made sentencing do by jury. They however indicate where the strongly to be entrusted decision, with a bifurcated proce- sentencing dure should be employed. sentencing has been considered
“Jury desirable capital cases in link order maintain a between contemporary values and the link community penal system without —a which punishment the determination of could re- hardly flect ‘the mark evolving standards decency progress of maturing society.’ But it creates special problems. ofMuch the information that to the is relevant decision no sentencing may question have relevance to of guilt, or even to a fair extremely prejudicial determination of that however, This question. problem, scarcely insurmountable. Those who studied the have question suggest a bifurcated procedure—one which the question sentence is not considered until the determination has been guilt made—is best an- swer.” 190-91, 96 Gregg Georgia, supra S.Ct. at has “plurality” also looked on favorably attempts to narrow the subject class murders sanction extreme and also for provisions review. expedited appellate Gregg v. Georgia, supra. Although expressing strong preference ones, individualized sentences than rather mandatory 250 Carolina,
Woodson v. North
428
280,
2978,
96
49
U.S.
S.Ct.
Roberts (Stanislaus)
Louisiana,
(1976);
L.Ed.2d 944
428
3001,
96
Rob-
U.S.
S.Ct.
L.Ed.2d 1214 (1976);
Sparks
U.S.
*23
3213,
Analyzing scheme in view of the consid Pennsylvania erations and factors deemed we important by plurality, must with the begin presumption legislative enact ment is to be accorded the of presumption constitutionality and that those scheme challenging statutory must bear a heavy burden. Gregg v. Georgia, supra, 175, U.S. S.Ct. 2909. We are to follow obligated the statutory also law of this jurisdiction which an requires of interpretation be, intent legislative wherever possible, consistent with the Constitution of the United as well as the States Consti tution of this Commonwealth. 1 Pa.C.S.A. 1922(3) (Supp. § 1977-78). possible exception by “plurality” appears
13. One
noted
to be a
mandatory
category
penalty
extremely
death
limited to an
narrow
statute
by
prisoner serving
of homicide such
a life
as murder
Carolina,
7,
sentence. See Woodson v. North
428 U.S.
n.
Woodson,
(1976).
n.
96 S.Ct.
In
“.
.
.
when
life
taken
has been
deliberately by
offender, we cannot
say
invariably
punishment
disproportionate
sanction,
It
crime.
is an extreme
*24
suitable to the most
of
Gregg Geor-
extreme
crimes.”
gia, supra,
Thus, under the that have guidelines been articulated the by it is clear “plurality” that the Pennsylvania scheme provides a punishment which is not out of “grossly proportion severity of the crime.” To the it fits within contrary, neatly the have perimeters acceptable been found to be the plurality.14
Regarding the Court’s concern with avoiding unbridled discretion on the of the the part jury, Pennsylvania legisla- ture has provided safeguards to the risk of designed prevent such action. arbitrary 1311(c) Section for a manda- provides tory consideration the of and jury aggravating mitigat- ing circumstances to determining impose whether the statute, The penalty. circumstances listed in the 1311(d), the provide § “direction” and “limitation” for the writing of opinion, “plurality” yet As the of express this the has acceptable a view on imposition the manner of the of the death only sanction. It can be assumed that the traditional methods constitutionally prohibited. execution will not be found to be risk “to minimize the Gregg that Furman and required and action.” capricious
оf wholly arbitrary and miti- A comparable aggravating somewhat scheme Florida, circumstances was Proffitt gating approved It is scheme Pennsylvania that under the supra. significant the action is further minimized arbitrary possibility the of death is requirement mandatory one or aggravat- where more enumerated statutorily there is an present circumstances absence ing hand, factors. the other under On scheme, where one of the finding there is Pennsylvania that none of the finding then the sentence circumstances are aggravating present, contrast, the statute life Florida must be imprisonment. without weigh factors competing permits the various weight given to be specific providing any Thus, the scheme Pennsylvania clearly provides factors. discretion. sentencing more controlled exercise has preferences certain Finally, plurality expressed itself. The concerning sentencing procedure Pennsylva- the procedures upheld nia procedure strongly approximates statute, Proffitt and The Gregg, Pennsylvania Jurek. statutes, like the for Florida Texas Georgia, provides bifurcated and it proceeding, 1311(c); provides § review, automatic expedited appellate 1311(g).14a V. conclusion of this Court and by majority court
en banc section 1311 did with constitution- comport not fails al standards is the belief that the section premised upon sufficient information provide for dissemination of *25 to to relating the character and the offender background sup- In can jury. judgment, only this my position unwarranted, the lan- by an restrictive ported reading Further, ignores section 1311. such a construction guage Pennsylvania places sentencing 14a. The statute decision also jury, guilt by with the where the determination of was made approved supra. procedure Gregg, a was which
253 our enactments so that responsibility interpret legislative terms with directives. 1 comply their constitutional Pa.C. more 1922(3) Even is the (Supp.1977-78). grievous S.A. § urged produces fact that the construction by majority sentencing long-standing with the result that is at variance policies jurisdiction. this in ruling
The United upon States Court death have since promulgated statutes that been Furman, has considered the terms of those enact- properly ments in of the construction them light placed v. Gregg Georgia, State’s court. 428 at supra, highest U.S. Florida, at supra, 428 U.S. v. 201-202, Proffitt 2909; 96 S.Ct. 2960; Jurek v. Texas, 255-256, 96 supra, 428 U.S. 272, 96 S.Ct. 2950. It is that my judgment language section 1311 would clearly construed this Court properly meet constitutional muster.
It has been the
of this
that
jurisdiction
settled law
long
even
non-capital cases
consideration of the defendant’s
background and
is an
in the
important
character
element
Martin,
decision. Cоmmonwealth v.
sentencing
466 Pa.
Furman,
only
Time and again
act and the criminal himself.
criminal
the
juries
fixing
of
duty
referring
we
insisted
have
imprisonment
between death and life
it has
after
only
the
exercise its discretion
evidence,
and exculpatory,
all the
culpatory
considered
what manner of
including
and
incriminating
extenuating,
v.
Wooding,
man
criminal is
has been: Com.
the
and
231,
328;
Pa.
313 Pa.
555, 557,
Stabinsky,
50 A.2d
Com. v.
A.
237,
439;
13, 15, 152
A.
302 Pa.
238, 169
Dague,
Com.
839;
539,
Pa.
of this since in the twentieth century State early sen- braced the of and individualized concept indeterminate of minimum First, sentencing this tencing. required State 19, 1911, of June to maximum terms of Act imprisonment. the Then amended, (1964). P.L. as 19 P.S. 1057 § § allowing suspension legislature reinforced this provision but discretion, the in all of sentence and court’s probation, 19, 1055, the Act of June P.L. most serious crimes. amended, that, the (1964). Following P.S. § § was run sen- power court conferred with the sentencing tences Act of consecutively or concurrently. May P.L. the trial court legislature gave Finally, § to order a and power pre-sentence report psychiatric examination of the defendant to determine diagnostic 31,1860, Act of P.L. appropriate disposition. March 73.1. codified their recently, legislature philoso- Most § courts individual to “call phy sentencing requiring amount of confinement that is consistent with minimum offense, protection public, gravity the rehabilitative needs of defendant.” 18 Pa.C.S.A. See Commonwealth 1321(b) (Supp.1977-78). generally Martin, supra.
To abundant evidence of a ignore firmly this established in our construction principle sentencing instant This is totally particularly section true unsupportable. 1311 a part the fact that section light sentencing *27 code which has reaffirmed its adherence to the expressly of individualized philosophy sentencing. Pa.C.S.A. an of 1321(b) interpretation To (Supp.1977-78). justify § section sentencing 1311 which would individualized reject would clear require unambiguous language and enact- ment under an intention. scrutiny evidencing such Such not case clearly here.
The majority and court en banc focuses opinion section 1311(d)(2)(i), lack of regarding age, and maturity of youth defendant, the statute unconstitu- finding tional. By the clause “at the improperly focusing upon time of the killing” majority argues the section excludes a sufficient of of ac- consideration the total character cused. The of the case and spirit Pennsylvania statutory law require a term “lack of maturity” different result as the is easily to a so as to susceptible broad encom- interpretation pass considerations of the defendant’s character and back- ground. The term Third is defined Webster’s “maturity” New International attained the nor- Dictionary, having mal peak of to natural and order growth development.16 determine what an individual has stage development reached, there would have be an examination necessarily of all of the factors influencing developmental process. Relevant to this is the life analysis individual’s home includ- ing whether he from affluent or emerges circum- deprived stances, the number оf he was raised and the parents quality of the rearing, environment of the neighborhood in which he raised, was his emotional and psychological makeup, his exposure, educational whether or not he has had any military experience, offenses, his criminal if past any, including both adult juvenile convictions, and his religious training it, or lack of and medical or cosmetic infirmities phrases according 16. “Words and shall be construed rules grammar according usage.” approved and to their common and 1903(a) 1977-78). (Supp. Pa.C.S.A. § Therefore, all reflect on his maturity. that might in the implicit considerations are constitutionally required definition “lack maturity.” and cannot all be Additionally, “youth” “maturity” “age” same “Lack of meaning. maturity” construed have the some merely chronological age must have relevance beyond rule of construction statutory for it is well-established all the General intends this jurisdiction Assembly certain, 1 to be effective and provisions Pa.C.S.A. statutory cannot be 1922(2) legislature (Supp.1977-78) superflu- to be to intend statute any language deemed and Protec- ous without Consumers Education import. Nolan, 675 (1977). 470 Pa. 368 A.2d tive Association Court in United States “plurality” Texas, Texas Jurek v. was to find the supra, willing statute to be broad defend- enough encompass *28 Texas, Tex. ant’s character. The death statute penalty Art. 37.071 the Crim.Proc., requires Code (Supp.1975-76), answer to a verdict of questions subsequent to three one homicides.17 A capital of of their enumerated guilty result the answer to all three will positive questions The of of death penalty. constitutionality the imposition allow questions turned on whether the consid- this procedure eration of factors. Court particularized mitigating two, the of the question concerning probability found that violence, a acts of allows committing defendant further the attention whatever mitigat- defendant to bring jury’s show, he able to because the ing be it indicated that would Appeals Texas Court Criminal “(1) whether the conduct of the defendant that caused the death deliberately and with the deceased was committed reasona- expectation of the another ble result; that the death deceased or would “(2) probability is a whether there the defendant would commit criminal acts of violence that would constitute ing continu- society; threat evidence, “(3) by if whether the conduct of the de- raised killing response fendant in deceased was unreasonable 37.071(b) (Supp.1975- provocation, any, Art. if the deceased.” 1976). Likewise, to that effect. if the interpret question two Court “lack of interpret would matu- Pennsylvania Supreme should, as it the consideration of encompass rity,” section 1311 bаckground, defendant’s character would sound. constitutionally also
Even
the narrow
of the
accepting
interpretation
majority
en banc,
and the
court
United States
opinion
only
has struck down
death
mandatory
Court
consideration
lacking
statutes
mitigating factors.
Carolina,
v. North
supra;
Louisiana,
Woodson
Roberts v.
Louisiana,
Roberts
This
Harry
supra.
suggests
supra;
of the
perhaps
complete
foreclosure
introduction
only
circumstances would render a death
any mitigating
penal-
statute unconstitutional. This
is further
ty
possibility
sup-
that a
ported
suggestion
“plurality”
mandatory
statute which is
limited to
narrow catego-
of murder
a life sentence
ry
prisoner serving
bemay
valid. See Woodson North Carolina,
supra,
U.S. at
n.
n.
VI. In conclusion it view my that the Pennsylvania statuto- scheme ry the death sanction in murder when cases fairly fully read accord with the announced philosophy “plurality” Supreme Court. To reach conclusion the contrary has majority strained and tortured the unambiguous language of section 1311. It is particularly regrettable my brethren chose to express their apparent for the instant misguided sympathy *29 appellee. Even under the furthest stretch of imagination a credi- ble theory cannot be propounded to the view support the imposition of the death for this offender would be repulsive to “the evolving standard of I feel decency.” that the majority’s attempt to find a basis relief giving on a facial attack the section equally untenable.