1. (A) Unless the issue is decided pretrial pursuant to Rule 843, in a case in which the defendant has asserted that imposition of a sentence of death is precluded by reason of his or her mental retardation, after a return of a verdict of guilty of murder in the first degree, a sentencing hearing shall be held in which all sentencing evidence shall be presented, including, but not limited to, evidence of the defendant’s mental retardation and evidence of aggravating and mitigating circumstances.
2. (B) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A) and the sentencing hearing is conducted before the jury, the following procedures shall apply:
3. (1) After presentation of the evidence, the judge shall determine if sufficient evidence exists for the jury to decide whether the imposition of a sentence of death should be precluded by reason of mental retardation.
4. (a) If the judge determines sufficient evidence exists for the jury to consider the issue of the defendant’s mental retardation, the case will proceed according to the procedures in paragraphs (B)(2)—(6).
5. (b) If the judge determines that there is not sufficient evidence for the jury to consider the issue of the defendant’s mental retardation, the case will proceed as any other capital case.
6. (2) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant’s alleged mental retardation and arguments for or against a sentence of death. The defendant’s argument shall be made last.
7. (3) Upon completion of argument, the judge shall instruct the jury solely upon the issue of the defendant’s mental retardation and shall submit a special issue to the jury as to whether the defendant is mentally retarded.
8. (4) The question of the defendant’s mental retardation shall be considered and answered by the jury prior to the consideration of any other sentencing issue and the determination of sentence.
9. (5) If the jury determines the defendant to be mentally retarded, the judge shall sentence the defendant to life imprisonment.
10. (6) If the jury does not find the defendant mentally retarded, the judge shall instruct the jury on the mitigating and aggravating circumstances and the jury shall deliberate on whether or not to impose the death penalty.
11. (C) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A), and the defendant waives a sentencing proceeding before a jury and the trial judge determines the penalty, the following procedures shall apply:
12. (1) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant’s alleged mental retardation and arguments for or against a sentence of death. The defendant’s argument shall be made last.
13. (2) The trial judge shall consider and answer the question of the defendant’s mental retardation prior to the consideration of any other sentencing issue and the determination of sentence.
14. (3) If the trial judge determines the defendant to be mentally retarded, the trial judge shall sentence the defendant to life imprisonment.

15. (4) If the trial judge does not find the defendant to be mentally retarded, the trial judge will evaluate the mitigating and aggravating circumstances and determine whether or not to impose a sentence of death.

    Comment

    In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (Pa. 2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), a determination that a defendant is precluded from receiving the death penalty by reason of mental retardation is to be made as the first issue in sentencing. This rule provides the procedures for that determination whether made by a jury or a judge when the issue has not been decided pretrial pursuant to Rule 843.

    Paragraph (B) addresses sentencing proceedings before a jury. The rule contemplates that a single capital sentencing hearing will be held in such cases but the jury’s deliberations will be conducted sequentially with the defendant’s mental retardation decided first. If the jury finds the defendant not mentally retarded, the judge will instruct the jury on the issues related to the imposition of a sentence of death, including the mitigating and aggravating circumstances, after which the jury will deliberate on the sentence.

    Paragraph (C) addresses sentencing proceedings before a judge. See Rule 809 for the form of the trial judge sentencing verdict slip when the defendant has waived a jury for the sentencing proceeding.

    Except as otherwise provided in Part B of this Chapter, sentencing shall proceed as provided in Chapter 7.

    Official Note

    New Rule 844 adopted July 31, 2013, effective October 1, 2013.

    Committee Explanatory Reports:

    Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).

Source

The provisions of this Rule 844 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.