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decided: January 26, 1978.



Thomas A. Walrath, Wellsboro, Leonard J. Frawley, Public Defender, Towanda, William A. Hebe, Wellsboro, for appellant.

W. Marshall Dawsey, Bradford County Dist. Atty., Towanda, Arthur R. Shuman, Jr., Philadelphia, for appellee.

NAACP Legal Defense Fund, Inc., Norris E. Gelman, Philadelphia, for amicus curiae.

Eagen, C. J., and O'Brien, Pomeroy, Nix and Manderino, JJ. Roberts, J., did not participate in the consideration or decision of this case. Manderino, J., concurs in the result. Nix, J., filed a concurring opinion.

Author: Pomeroy

[ 476 Pa. Page 431]


Appellant, Gerard Paul McKenna, was convicted on December 9, 1974 by a jury of murder of the first degree, and rape. A sentencing proceeding was then conducted*fn1 and after being charged on the penalty, the jury fixed the penalty at death. Timely post-trial motions were filed and in due course denied. On October 16, 1975 appellant was sentenced to imprisonment for a term of 10-20 years on the rape charge and to death on the murder conviction. This appeal followed.*fn2

McKenna alleges some nine trial errors, any one of which, he argues, requires the grant of a new trial. Having carefully reviewed the record, we find merit in none of these claims of error and affirm the convictions of murder and rape.*fn3 It remains to determine whether the sentence of

[ 476 Pa. Page 432]

    death was lawfully imposed with respect to the murder conviction. We hold not.

Following the return of the jury's verdict that the death penalty should be imposed, appellant filed a motion in arrest of judgment, a motion for a new trial and a motion to remand sentence to life imprisonment. Some four months later, however, and before decision by the trial court, appellant withdrew his motion to reduce the sentence to life imprisonment; he continued to press his other motions. Thus there is not before us any challenge by appellant to the constitutionality of the statute under which he has been sentenced to death.*fn4 That question has been presented only

[ 476 Pa. Page 433]

    by the amicus curiae,*fn5 whose standing to do so is open to question.*fn6 We cannot, however, be blind to the fact that for the reasons set forth hereafter the statutory provision under which sentence was imposed, see n.1, supra, is void on its face. We must therefore ask ourselves whether we can allow this appellant to be executed under such a statute. We have concluded that the sentence cannot stand and must be vacated, appellant's professed desire to the contrary notwithstanding.


In 1972, the Supreme Court of the United States in the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) ruled that in order to be valid a death penalty statute cannot leave unbridled discretion in the sentencing body to determine whether or not a sentence of death should be imposed in a particular case. In Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), this Court, in light of the Furman decision, struck down the Pennsylvania statute then in effect*fn7 as violative of the

[ 476 Pa. Page 434]

Eighth and Fourteenth Amendments of the Constitution of the United States. The Bradley decision was virtually fore-ordained by the Supreme Court of the United States when, on the same day that it announced its decision in Furman, the Court vacated sentences under § 701 of the Act of 1939, supra. See Phelan v. Brierly, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972); Scoleri v. Pennsylvania, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972). Thereafter, at least six decisions of this Court have made it abundantly clear that a statute which gave such discretion to the jurors as was bestowed by the Act of 1939, supra, could not pass constitutional muster. See Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975) (plurality opinion); Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975); Commonwealth v. Scoggins, 451 Pa. 472, 304 A.2d 102 (1973); Commonwealth Page 435} v. Ross, 449 Pa. 103, 296 A.2d 629 (1972); Commonwealth v. Lopinson, 449 Pa. 33, 296 A.2d 524 (1972); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972).

Apparently in response to the void in Pennsylvania law regarding the imposition of a death penalty left in the wake of Bradley, the General Assembly included § 1102 in the New Crimes Code (see n.1, supra). That section, stark in its brevity, was distinguished by a complete lack of direction as to the circumstances that would warrant imposition of the death penalty. In contrast to the elaborate mechanism of the Act of 1939, supra, n.7, the new legislation provided only that "[a] person who has been convicted of murder of the first degree shall be sentenced to death or to a term of life imprisonment." It is manifest that in no way could § 1102 have been designed to cure the constitutional infirmities of the Act of 1939. It would seem, instead, that § 1102 had no purpose other than to provide some legislative authority for the imposition of a death sentence until the General Assembly could formulate an adequate response to the implications of the Furman decision.*fn8 But because § 1102 leaves totally

[ 476 Pa. Page 436]

    unbridled discretion in the finders of fact to determine whether execution or life imprisonment is the proper penalty, it was clearly within the interdiction of our Bradley decision and the other Pennsylvania progeny of Furman cited above.

The only argument presented by the Commonwealth in support of the validity of the Act of 1972 is that it was not, in the instant case, applied in an arbitrary or discriminatory manner. We have previously considered and rejected a similar argument in Commonwealth v. Dobrolenski, supra, and in Commonwealth v. Martin, supra, which followed Dobrolenski. In Dobrolenski, we stated:

"The Commonwealth's principal contention is that the application of the death penalty in Pennsylvania has not been arbitrary, capricious, or discriminatory. It argues that this history saves the statute in effect at the time of these murders from the ban of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

We have repeatedly held that Furman precludes imposition of the death penalty under the statute in question. Commonwealth v. Scoggins, 451 Pa. 472, 481, 304 A.2d 102, 108 (1973); Commonwealth v. Ross, 449 Pa. 103, 105, 296 A.2d 629, 630 (1972); Commonwealth v. Lopinson, 449 Pa. 33, 34, 296 A.2d 524, 525 (1972); Commonwealth v. Sharpe, 449 Pa. 35, 44, 296 A.2d 519, 524 (1972); Commonwealth v. Bradley, 449 Pa. 19, 23-24, 295 A.2d 842, 845 (1972); cf. Commonwealth v. Senk, 449 Pa. 626, 296 A.2d 526 (1972). The Commonwealth recognizes this but offers an evidentiary record, not present in those cases, purporting to show that there has been no discrimination in the imposition of the death penalty on the basis of race, wealth, or nature of the proceeding leading to conviction (jury trials

[ 476 Pa. Page 437]

    vs. pleas of guilty). However, as we recognized in the above cases, Furman holds that 'the imposition of the death penalty under statutes, such as here involved, is violative of the Eighth and Fourteenth Amendments.' Commonwealth v. Scoggins, supra, 451 Pa. at 481, 304 A.2d at 108 (emphasis added). Had we viewed evidence of the actual application of the statute as necessary for determination of its constitutionality, we would have directed evidentiary hearings in those cases. As we understand Furman, the constitutional prohibition extends at least to all death sentences imposed pursuant to statutes which give the sentencing authority unfettered discretion in imposition of the death penalty. Because this statute gives such discretion, the constitution forbids the execution of any death sentences imposed under its authority." 460 Pa. at 642-43, 334 A.2d at 274 (footnotes omitted).

Accordingly, we must and do hold that the death penalty section of the Crimes Code, as enacted in 1972, see n.1, supra, is unconstitutional and that the sentence of death imposed upon Gerard McKenna under the statute cannot stand.


Although we have already concluded that the Act of 1972 is invalid on its face, we must nevertheless address the procedural peculiarity of the present case, namely, that Gerard Paul McKenna has expressly refused to challenge the validity of that statute, or to allow his lawyer to do so.

It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party to an appeal, will not be considered by an appellate court. See Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966); Commonwealth v. Stowers, 363 Pa. 435, 70 A.2d 226 (1950); Nicola v. American Stores Inc., 351 Pa. 404, 41 A.2d 662 (1945). For many years we recognized an exception to that rule, and allowed an appellant to raise an issue on appeal even though not preserved if

[ 476 Pa. Page 438]

    the overlooked issue was "basic and fundamental." See, e. g., Commonwealth v. Jennings, 442 Pa. 18, 274 A.2d 767 (1971); In Re Noonday Club of Delaware County, Inc., 433 Pa. 458, 252 A.2d 568 (1968); Commonwealth v. O'Brien, 312 Pa. 543, 168 A. 244 (1933); White v. Moore, 288 Pa. 411, 136 A. 218 (1927). In the case of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) however, that exception to the normal rule as it had been applied in criminal cases was abrogated.*fn9 And in Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974) the Court held that a failure to object to the validity of a sentence at the time of sentencing foreclosed appellate review of that issue, even though the issue sought to be raised was the constitutionality of the sentencing statute. Thus, where an issue of sentencing is not raised by the defendant until the appeal stage, the appellate court should not consider the issue.*fn10 Implicit in this concept is another cardinal rule of appellate jurisprudence in this state, viz., an appellate court is not to raise sua sponte issues which it perceives in the record where, as here, those issues are not presented at the appeal level. See Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975). For the reasons hereafter discussed, however, we decline to apply the rationale of these several cases in a situation where a finding of waiver will result in the imposition of a sentence of death by the Commonwealth of Pennsylvania in a manner clearly contrary to the express law of the land.*fn11

[ 476 Pa. Page 439]

We recognize, of course, that the doctrine of waiver is, in our adversary system of litigation, indispensable to the orderly functioning of the judicial process. There are, however, occasional rare situations where an appellate court must consider the interests of society as a whole in seeing to it that justice is done, regardless of what might otherwise be the normal procedure.*fn12 One such situation is surely the imposition of capital punishment. That this is a unique penalty requiring special jurisprudential treatment is a concept now embodied in the statutory law of this Commonwealth. Thus section 1311(g) of the Crimes Code expressly provides that "[a] sentence of death shall be subject to automatic review by the Supreme Court of Pennsylvania . . . ."*fn13 See also Rule 1941 of the Pennsylvania Rules

[ 476 Pa. Page 440]

    of Appellate Procedure. This is illustrative of a general proposition that while a defendant may normally make an informed and voluntary waiver of rights personal to himself, his freedom to do so must give way where a substantial public policy is involved; in such a case an appeals court may feel fully warranted in seeking to reach an issue.*fn14 We have no doubt that this is such a case. Because imposition of the death penalty is irrevocable in its finality, it is imperative that the standards by which that sentence is fixed be constitutionally beyond reproach.*fn15 See Woodson v. North Carolina, 428 U.S. 280, 304-05, 96 S.Ct. 2978, 49 L.Ed.2d 944, 961 (1976); see also C. Black, Jr., Capital

[ 476 Pa. Page 441]

Punishment: The Inevitability of Caprice and Mistake, 30-35 (1974).

We conceive then, that in the circumstances of this case we have a duty to uphold the mandates of the constitution over the countervailing considerations of normal appellate procedure. The doctrine of waiver developed not only out of a sense of fairness to an opposing party but also as a means of promoting jurisprudential efficiency by avoiding appellate court determinations of issues which the appealing party had failed to preserve. It was not, however, designed to block giving effect to a strong public interest, which itself is a jurisprudential concern. It is evident from the record that Gerard McKenna personally prefers death to spending the remainder of his life in prison. While this may be a genuine conviction on his part, the waiver concept was never intended as a means of allowing a criminal defendant to choose his own sentence. Especially is this so where, as here, to do so would result in state aided suicide. The waiver rule cannot be exalted to a position so lofty as to require this Court to blind itself to the real issue -- the propriety of allowing the state to conduct an illegal execution of a citizen.*fn16

In short, where an overwhelming public interest is involved but is not addressed by the parties, this Court has a duty to transcend procedural rules which are not, in spirit, applicable, to the end that the public interest may be vindicated. Such an overwhelming public interest -- insuring that capital punishment in this Commonwealth comports with the Constitution of the United States -- is present here.

[ 476 Pa. Page 442]

The judgment of sentence for rape is affirmed; the judgment of sentence for murder is vacated and the case remanded for resentencing on that charge.

NIX, Justice, concurring.

I agree that this Court has a responsibility which requires us not to acquiesce in the imposition of a sentence where it is apparent that the tribunal imposing that sanction does not possess the proper legislative authority to do so. I also concur in the view that the legislative enactment under which the instant sentence was imposed*fn1 is unquestionably constitutionally infirm.*fn2 My disagreement is directed to the analysis of the majority and the rationale they employ in reaching the result. I therefore concur only in the result.

The majority seeks to resolve the issue presented in a waiver context. In my judgment a waiver analysis is inappropriate and tends to obfuscate the real problem presented. First, our rules of waiver provide a procedural device whereby contentions improperly framed and not previously considered will not be decided.*fn3 In contrast, we are here called upon to determine the appropriate response where we are

[ 476 Pa. Page 443]

    asked to ignore the fact that a court has imposed a sanction in excess of its legitimately prescribed authority.*fn4 Unlike the concept of waiver, designed to eliminate those questions not properly preserved for resolution, the essence of this controversy reaches the propriety of this Court's acquiescence in an obvious excess of sentencing power of one of its inferior tribunals, because it is the wish of the offender. Here we are not concerned with the preclusion of an issue because it has not been properly considered at an earlier stage of the litigation. Rather, the issue is the propriety of this Court's entertaining a claim for relief where the party who would benefit thereby has knowingly and intelligently requested that we refrain from such consideration.*fn5

While the majority's opinion purports to limit itself to situations where there is an attempt to impose the death sentence by patently constitutionally infirm standards, the

[ 476 Pa. Page 444]

    reasoning it employs lends itself to much broader application. By starting with the premise that the result sought could only be achieved by a relaxation of our procedural rules relating to waiver, see Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), and sua sponte appellate consideration, see Wiegand v. Wiegand, 461 Pa. 482, 337 A.2d 256 (1975), the majority was compelled to seize upon the gravity of the penalty of death as the justification. This suggestion that we are here carving an exception to our normal procedural rules solely because of the awesome nature of the penalty, unnecessarily invites future requests for further relaxation of our rules in death penalty cases.

As I perceive the issue, the controlling consideration is not the fact that the sentence imposed was death. It is unquestioned that death is the most severe and irreversible sanction that our system possesses. However, I do not agree that this fact alone should be the catalyst for the result reached today. In my judgment it would be repugnant to any fair system of jurisprudence to knowingly permit a court to impose a sanction (regardless of its nature) that exceeds that tribunal's authority.*fn6 This obligation does not arise from the kind of penalty, but rather is mandated by our responsibility

[ 476 Pa. Page 445]

    to preserve the integrity of our judicial system.*fn7 Whether the improper sanction sought to be imposed is one of death, imprisonment or even fine, is immaterial, the gravamen of the evil is the court's action in imposing a penalty that exceeds its power. For this Court to acquiesce in such an act would constitute a flagrant disregard of the supervisory powers invested in us by the Constitution of this Commonwealth.

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