No. 75 May Term, 1977, Appeal from the Judgment of the Sentence of the Court of Common Pleas of York County, Pennsylvania. No. 943 August Sessions, 1974.
John H. Chronister, Public Defender, for appellant.
John C. Uhler, Dist. Atty., Sheryl Ann Dorney, Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix and Manderino, JJ., concur in the result.
Appellant Michael Myers pled guilty to murder generally. After a degree of guilt hearing on December 18, 1974, a two-judge panel of the Court of Common Pleas of York County was unable to agree on whether, under the Crimes Code, 18 Pa.C.S.A. § 2502 (Supp.1978), appellant had committed murder of the first or second degree. After the addition of a third judge, the panel held a new degree of guilt hearing on March 14, 1975. The three judge panel, one judge dissenting, found appellant guilty of murder of the first degree and sentenced him to death.
Appellant filed post-verdict motions, challenging sufficiency of the evidence, admissibility of a statement he gave while his counsel was not present, and the legality of the death sentence. He also moved for a hearing to present evidence of mitigating circumstances to reduce his penalty to life imprisonment. The court granted a hearing. After the hearing, held January 7, 1976, the three judge panel, again by a 2-1 vote, fixed appellant's penalty at death and permitted him to file additional post-verdict motions. Appellant filed such motions, but raised only the claims previously made. The court denied the motions and imposed sentence of death, one judge dissenting.
In this appeal,*fn* appellant first challenges the legality of his death sentence. The court sentenced appellant to
death under 18 Pa.C.S.A. §§ 1102, 1311 (Supp.1978). In Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, U.S. , 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978), this Court held unconstitutional the death penalty provisions of this statute. No sentence of death may be imposed under an invalid death penalty statute. See Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978). At the time of this prosecution, the only authorized penalty for murder of the first degree was life imprisonment. 18 Pa.C.S.A. § 1102. As we did in Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978), we vacate judgment of sentence of death and impose sentence of life imprisonment.
Appellant also asserts the court erred in admitting the challenged statement at his second degree of guilt hearing. We believe the statement was properly admitted.
Generally, when a defendant enters a plea of guilty, he waives his right to challenge on appeal all non-jurisdictional defects except the legality of his sentence and the validity of his plea. E. g., Commonwealth v. Triplett, 476 Pa. 83, 381 A.2d 877 (1977); Commonwealth v. Culbreath, 439 Pa. 21, 264 A.2d 643 (1970); Pa.R.Crim.P. 1405(c) (errors in sentencing). After a plea of guilty to murder generally, however, the court must, under Pennsylvania Rule of Criminal Procedure 352 (formerly Pa.R.Crim.P. 319A), hold a degree of guilt hearing to determine whether the homicide was murder of the first, second or third degree, or voluntary manslaughter. A defendant, by a plea of guilty to murder generally, does ...