Appeal, No. 239, Jan. T., 1954, from judgment of Court of Oyer and Terminer of Philadelphia County, Sept. T., 1952, No. 961, in case of Commonwealth of Pennsylvania v. Grover Cleveland Edwards. Judgment affirmed.
Thomas Nardello, with him John R. Meade, for appellant.
Samuel Dash, with him Michael von Moschzisker, First Assistant District Attorneys and Richardson Dilworth, District Attorney, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. JUSTICE JONES
The defendant was indicted and tried for murder for a killing committed in the perpetration of a robbery. The jury found him guilty of murder in the first degree and fixed the penalty at death. On this appeal from the judgment of sentence, the defendant assigns two alleged trial errors. He does not assert, however, that they entitle him to a new trial. His counsel frankly state that the seven witnesses called by the defendant (he himself did not take the stand) were produced "in an effort to raise the issue of punishment." Appellant's sole contention is that the matters whereof he now complains helped motivate the jury in fixing the penalty at death rather than life imprisonment and that, consequently, this court should substitute the latter penalty for the former. But, that, we are without lawful power to do.
Section 701 of The Penal Code of 1939, P.L. 872, 18 PS § 4701, vests in the jury the duty of fixing the penalty between death and life imprisonment upon a conviction of first degree murder. No discretion is allowed the trial court in sentencing for first degree murder where the penalty has been fixed by the jury. Nor has this court, upon the review of a judgment of sentence for first degree murder, which was imposed in accordance with the jury's verdict, any legal warrant to reduce the penalty so fixed; Commonwealth v. Taranow, 359 Pa. 342, 344-345, 59 A.2d 53; Commonwealth v. Neill, 362 Pa. 507, 518, 67 A.2d 276; Commonwealth v. Zietz, 364 Pa. 294, 300, 72 A.2d 282; and Commonwealth v. Carluccetti, 369 Pa. 190, 206, 85 A.2d 391. For this court to assume to act otherwise
would unconstitutionally trench upon the province of the Board of Pardons which functions as an agency of another coordinate branch of our State government.
In Commonwealth v. Neill, supra, where a conviction of first degree murder with penalty of death was affirmed, our present Chief Justice, in speaking for the court, aptly concluded his opinion with the succinct statement that "The jury ... imposed the penalty of death and, since it is they in whom the statute vests discretion to fix the penalty, it is not for this Court to review their decision." Or, as stated elsewhere by the same jurist, - "Whether the jury exercised a wise discretion in fixing the penalty at death is not a matter for this Court to determine": Commonwealth v. Simmons, 361 Pa. 391, 405, 65 A.2d 353. The lack of power in a court to change the penalty as specified by the jury for a conviction of first degree murder has been scrupulously regarded by this court ever since the duty of fixing the penalty in capital cases was first reposed in the jury by the Act of May 14, 1925, P.L. 759. Since that date, there has not been a single instance where the penalty for a first degree murder, as fixed by the jury, has been interfered with on appeal - a fact which we have heretofore remarked several times: Commonwealth v. Taranow; Commonwealth v. Zietz; and Commonwealth v. Carluccetti, supra.
There are two instances, neither of which is presently germane, where this court reduced the penalty of death to life imprisonment. But, in each, it was the trial court which both determined the degree of the murder and fixed the penalty therefor, following the accused's plea of guilty generally to the charge of murder; in short, the penalty was not one fixed by a jury: see Commonwealth v. Garramone, 307 Pa. 507, ...