Jerome P. Cheslock, William H. Robinson, Jr., Stroudsburg, for appellant.
James F. Marsh, Dist. Atty., for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., files a dissenting opinion in which Manderino, J., joins. Manderino, J., files a dissenting opinion. Jones, former C. J., took no part in the consideration or decision of this case.
Appellant, John Joseph Gergel, was tried by a judge and convicted of murder in the first degree, criminal attempt-escape and aggravated assault. Post-verdict motions were denied and appellant was sentenced to life imprisonment for the murder conviction, with concurrent terms of three and one-half to seven years for the other convictions. This appeal followed.*fn1
The facts are as follows. On December 15, 1974, appellant was arrested in connection with a burglary investigation and placed in the Monroe County Jail. A recent escapee from a New Jersey prison, appellant had used an alias of Jason Bhillips. On December 16, appellant asked to be allowed to make a phone call. Once out of his cell, he pulled a large steel mop bucket handle from his trousers and began beating the two guards accompanying him. One of the guards, Samuel VanAuken, died of a skull fracture.
Appellant raises one issue on this appeal. He claims that he was denied his right to trial by jury under the provisions of the Sixth Amendment to the federal constitution because § 1311 of the Crimes Code provided for the imposition of the death penalty in a jury trial under certain circumstances, but no such provision was applicable to either non-jury trials
or guilty pleas.*fn2 Assuming this to be correct, we do not agree with appellant's position.
The Crimes Code provides, inter alia :
"(d) Aggravating and mitigating circumstances. -- If a murder of the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death. If a murder of the first degree is not accompanied by any of the following aggravating circumstances or is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment:
"(1) Aggravating circumstances:
"(i) The victim was a fireman, peace officer or public servant concerned in official detention as defined in section 5121 of this title (relating to escape), who was killed in the performance of his duties.
"(ii) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or had conspired to pay or be paid by another person for the killing of the victim.
"(iii) The victim was being held by the defendant for ransom or reward, or as a shield or hostage.
"(iv) The death of the victim occurred while defendant was engaged in the hijacking of an aircraft.
"(v) The victim was a witness to a murder or other felony committed by the defendant and was killed for the purpose of preventing his testimony against the defendant in any grand jury or criminal proceeding involving such offenses.
"(vi) The defendant committed a killing while in the perpetration of a felony.
"(vii) In the commission of the offense the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense.
"(viii) The offense was committed by means ...