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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 ...

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