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decided: November 30, 1977.



F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Deborah E. Glass, Asst. Dist. Atty., for appellant.

John Rogers Carroll, Joseph D. Montgomery III, Philadelphia, for appellee.

Eagen, C. J., and O'Brien, Pomeroy, Nix, and Manderino, JJ. Roberts, J., took no part in the consideration or decision of this case. Nix, J., filed a dissenting opinion.

Author: Eagen

[ 476 Pa. Page 225]


In this appeal by the Commonwealth we are asked to determine the constitutionality of section 1311 of the Sentencing Code, 18 Pa. C.S.A. § 1311 (Supp. 1977-78), which establishes sentencing procedures and standards regulating jury determinations of whether or not the death penalty should be imposed as punishment for murder, and which a panel of the Court of Common Pleas of Philadelphia held to be unconstitutional. We shall affirm.


Appellee Theodore Moody was convicted by a jury of murder of the first degree and criminal conspiracy in the death on December 29, 1974, of one James Price, a fellow inmate at Holmesburg Prison in Philadelphia. Pursuant to section 1311(c) of the Sentencing Code,*fn1 a hearing was then

[ 476 Pa. Page 226]

    held to permit the jury to receive additional testimony and arguments on the question of aggravating and mitigating circumstances. In order to establish aggravating circumstances, the Commonwealth called an assistant United States attorney from Washington, D. C., who testified that Moody had previously been convicted in the District of Columbia of seven counts of premeditated and deliberate first-degree murder and seven counts of first-degree felony-murder, and that he had been sentenced to a term of twenty years to life imprisonment on each count.*fn2 During cross-examination the witness testified that Moody's appeals attacking these convictions were still pending. The Commonwealth also argued to the jury that the evidence adduced at trial indicated the killing of Price was "committed by means of torture," another statutory aggravating circumstance.*fn3 In an effort to establish statutory mitigating circumstances, the defense called Moody's mother, who testified to her son's age -- twenty-one at the time of the killing -- and her belief

[ 476 Pa. Page 227]

    that he was not "quite mature" and that he was "easily led."*fn4 After further deliberations the jury returned with a finding that the killing of Price was accompanied by aggravating circumstances and no mitigating circumstances. Although this finding required the imposition of the death penalty,*fn5 the court deferred formal sentencing pending the disposition of post-verdict motions.

Subsequently, a three-judge post-verdict motions court denied Moody's motions in arrest of judgment and for a new trial, but a majority of that court concluded that to impose the death penalty on Moody would be unconstitutional on two grounds. First, the statutory mitigating circumstances were found "unconstitutionally vague because a reasonable jury would have to guess at the meaning of 'age,' 'youth' and 'lack of maturity,'" with "arbitrary and capricious decisions . . . an inevitable result." Second, the court concluded that because at the time of Moody's trial this Court had promulgated no procedural rules for imposition of the death penalty by trial courts in non-jury trials or guilty-plea proceedings,*fn6 trial courts had no power to impose the death penalty in such contexts, and that therefore, pursuant to United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the imposition of the death penalty after a jury trial "placed a chilling and unconstitutional burden upon the exercise of the constitutional right to trial by jury." One judge concurred solely on the Jackson ground.

[ 476 Pa. Page 228]

The court certified that its decision on the death penalty involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate determination of the matter, and it stayed all proceedings meanwhile; we allowed the appeal.*fn7

In addition to arguing in support of the grounds advanced by the post-verdict motions court for holding imposition of the death penalty unconstitutional, Moody also urges, as he did below, that section 1311 unconstitutionally restricts the evidence the jury may consider in mitigation of the penalty. We agree. Accordingly, in affirming the order of the Court of Common Pleas, we do not reach the grounds which that court found decisive.*fn8


In Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), this Court recognized that the Supreme Court of the United States, by its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), had in effect invalidated Pennsylvania's prior death-penalty statute*fn9 as

[ 476 Pa. Page 229]

    violative of the Eighth and Fourteenth Amendments. Section 1311 was enacted in 1974*fn10 by the Pennsylvania legislature in an effort to cure what were perceived to be the constitutional defects of the invalidated statute. See Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 370 A.2d 309 (1977).

Section 1311 retains the split-verdict provisions of the previous statute; that is, if the jury finds the defendant guilty of murder of the first-degree, it then proceeds to hear additional evidence and arguments and to render a separate verdict with regard to the penalty. The new statute, however, in an effort to avoid the untrammeled discretion and lack of standards for determining the penalty condemned in Furman,*fn11 both limits the death penalty to murders of the first degree which the jury finds to be accompanied by at least one of nine specified aggravating circumstances and by none of three specified mitigating circumstances and requires that it be imposed when such a finding is made. The statute also provides that aggravating circumstances must be proved beyond a reasonable doubt and mitigating circumstances

[ 476 Pa. Page 230]

    by a preponderance of the evidence and further provides for automatic review by this Court of all death sentences. See 18 Pa. C.S.A. § 1311(g). The result clearly is to reduce substantially the scope of discretion in jury determinations of the penalty for murder of the first degree.


Last year the United States Supreme Court addressed itself for the first time to the constitutionality of death-penalty statutes enacted subsequent to Furman. In a series of five decisions announced on the same day, that Court found the new statutes of Georgia, Texas, and Florida constitutional and invalidated statutes from North Carolina and Louisiana.*fn12 None of the statutes there involved corresponds precisely with the Pennsylvania statute here at issue, but we must look to these decisions, as well as to subsequent pronouncements by the Supreme Court, for guidance in determining the constitutionality of section 1311. Our task is complicated by the fact that no clear majority view with regard to ascertaining the constitutionality of a capital-punishment statute has emerged from these decisions. Justices Brennan and Marshall would have invalidated all five of the statutes at issue in the 1976 cases because of their consistently-expressed view that the death penalty in all circumstances constitutes cruel and unusual punishment. Chief Justice Burger and Justices White, Blackmun, and Rehnquist would have found all five constitutional. The decisions of the Court were thus controlled by a "plurality" consisting of Justices Stewart, Powell, and Stevens which in each case constituted part of the decisional majority with one of these justices writing the opinion announcing the judgment of the Court. The conclusion which emerges from these decisions is that the death penalty as a punishment for murder is not,

[ 476 Pa. Page 231]

    at least at present, inevitably cruel and unusual punishment in violation of the Eighth Amendment,*fn13 but that a statute authorizing capital punishment for even a narrowly-limited category of murder violates the Eighth Amendment if it does not sufficiently permit the sentencing authority in determining the sentence to take into account the particular circumstances of the crime and the individual history and character of the criminal. See Harry Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977).

The Supreme Court plurality in effect appears to have discerned an element of due process in the Eighth Amendment which is applicable to sentencing in capital cases.*fn14 Thus, in the words of Mr. Justice Stewart:

"This Court has previously recognized that '[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.' Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U.S. 241, 247-249, 69 S.Ct. 1079, 1083-1084, 93 L.Ed. 1337 (1949); Furman v. Georgia, 408 U.S. 238, at 402-403, 92 S.Ct. 2726, at 2810-2811 (Burger, C. J., dissenting). While the prevailing practice

[ 476 Pa. Page 232]

    of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. 86, at 100, 78 S.Ct. 590, at 597, 2 L.Ed.2d 630 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

"This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case." [Footnote omitted.]

Woodson v. North Carolina, supra, 428 U.S. at 304-5, 96 S.Ct. at 2991-92. Moreover, as stated by Mr. Justice Stevens:

". . . a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, post, 428 U.S. 280, pp. 303-305, 96 S.Ct. 2978, pp. 2991-2992, 48 L.Ed.2d 944, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, post. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed." [Footnote omitted.] [Emphasis added.]

Jurek v. Texas, supra, 428 U.S. at 271, 96 S.Ct. at 2956.

We must determine, therefore, whether section 1311 permits the jury to consider sufficiently "the character and

[ 476 Pa. Page 233]

    record of the individual offender" and, in particular, whether it permits the jury to consider "on the basis of all relevant evidence" why a death sentence should not be imposed. Plainly, unlike the mandatory North Carolina and Louisiana statutes struck down by the Supreme Court, the Pennsylvania statute does permit the jury in determining punishment to go beyond the crime itself and consider some mitigating circumstances. For this reason, the Commonwealth would have us uphold section 1311 as essentially similar to the Georgia, Florida, and Texas statutes the Court found constitutional. Clearly in bifurcating the guilt and penalty phases of the trial, in limiting the death penalty to murders of the first degree attended by specific aggravating circumstances, and in providing for automatic appellate review of all death sentences, the legislature has adopted procedures for the protection of defendants in capital cases which have been specifically approved and endorsed by the Supreme Court. See Gregg v. Georgia, supra; Proffitt v. Florida, supra. In our view, however, the constitutional defect of section 1311 is that, unlike the statutes approved by the Supreme Court, it so narrowly limits the circumstances which the jury may consider mitigating that it precludes the jury from a constitutionally adequate consideration of the character and record of the defendant.

Section 1311(d) limits the circumstances which the jury is to consider mitigating to "the following mitigating ...

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