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.
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
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
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 ...