No. 80-1-154, Appeal from the Judgment of Sentence of the Court of Common Pleas of Allegheny County, Criminal Division, CC7405836, Entered July 21, 1980.
Charles M. Schwartz (Court-appointed), Welsh White, Pittsburgh, for appellant.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., Dara A. DeCourcy, Asst. Dist. Atty., Pittsburgh, for appellee.
O'Brien, C. J., and Roberts, Nix, Larsen, Flaherty, Kauffman, and Wilkinson, JJ. Nix, J., filed a concurring opinion. Larsen, J., files a dissenting opinion in which Flaherty and Kauffman, JJ., join.
Appellant, Stanton Story, has been tried and convicted in March of 1975 for an offense committed in July of 1974, sentenced pursuant to a death penalty statute declared unconstitutional while his appeal was pending, and granted
a new trial on appeal in January of 1978 because of the prosecution's introduction of improper evidence. He now appeals from a judgment of sentence of death imposed pursuant to the Act of September 13, 1978, P. L. 756, following the retrial. We do not disturb the conviction. However, because we conclude that the Act of September 13, 1978, does not apply, we set aside the sentence of death and impose a sentence of life imprisonment.*fn1
Under the statute in effect in July of 1974, when the killing which gave rise to the present prosecution occurred, the Legislature mandated the imposition of the penalty of death where a murder of the first degree was accompanied by any one of nine aggravating circumstances and none of three mitigating circumstances existed. Act of March 26, 1974, P. L. 213, § 3. In March of 1975, appellant was found guilty of murder of the first degree and sentenced to death under this statutory scheme.
In November of 1977, while appellant's appeal was pending, this Court held the Act of 1974 unconstitutional. Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977), cert. denied, 438 U.S. 914, 98 S.Ct. 3143, 57 L.Ed.2d 1160 (1978). This Court concluded that the statute "so narrowly limits the circumstances which the jury may consider mitigating that it precludes the jury from a constitutionally adequate consideration of the character and record of the defendant."
Pa. at 233, 382 A.2d at 447. The sentence of death imposed in Moody was vacated and a sentence of life imprisonment entered.
In January of 1978, this Court determined that appellant's conviction was improperly obtained. Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978). The sentence of death imposed under the unconstitutional death penalty statute was set aside, and a new trial granted.
At appellant's retrial, the prosecution originally planned to seek only a sentence of life imprisonment, the sole remaining constitutional punishment for murder of the first degree in light of Moody. However, shortly before the commencement of retrial, the prosecution announced its intention to proceed pursuant to the Act of September 13, 1978, a new death penalty statute. Conviction and sentence of death followed.
That the Legislature did not intend the Act of September 13, 1978, to apply to an offense committed in 1974 is obvious from this Court's interpretation of the Legislature's express mandate that "[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." 1 Pa.C.S. § 1926.*fn2 In
a case involving previous Pennsylvania death penalty statutes, Justice Pomeroy stated on behalf of this Court:
"The provisions of [the death penalty statute enacted in 1974] are not applicable to [this] trial because the homicide occurred in the year 1973, long prior to the effective date of the Sentencing Code. In Pennsylvania there is a presumption that statutes are not to have retroactive effect."
Commonwealth v. McKenna, 476 Pa. 428, 439-40 n. 13, 383 A.2d 174, 180 n.13 (1978). Like the statute considered in McKenna, the Act of September 13, 1978, states only that "[t]his act shall take effect immediately." § 2. Appellant, therefore, is subject to punishment only under the law preceding the newly-enacted statute. Because the previous law governing this case has been declared unconstitutional insofar as it authorizes the death penalty, Commonwealth v. Moody, supra, the sole permissible maximum punishment for appellant's crime committed in 1974 is life imprisonment.
Several other jurisdictions share the view expressed by this Court in McKenna. California, People v. Teron, 22 Cal.2d 103, 151 Cal.Rptr. 633, 588 P.2d 773 (1979), Idaho, State v. Lindquist, 99 Idaho 766, 589 P.2d 101 (1979), Illinois, People v. Hill, 78 Ill.2d 465, 36 Ill.Dec. 676, 401 N.E.2d 517 (1980), Kentucky, Hudson v. Commonwealth, 597 S.W.2d 610 (Ky., 1980), Louisiana, State v. Collins, 370 So.2d 533 (La., 1979), and South Carolina, State v. Rodgers, 270 S.C. 285, 242 S.E.2d 215 (1978), have all held that, in light of a prohibition against retroactive construction of statutes, a newly-enacted death penalty statute cannot be applied to cases once governed by an unconstitutional statute. Illustrative is the statement of the Supreme Court of Kentucky:
"KRS 446.080(3) clearly and unequivocally states: 'No statute shall be construed to be retroactive, unless expressly so declared.' Nothing in the act of the legislature redefining the crime of murder and adopting the standards
by which capital punishment may be considered and may be imposed even hints at retroactive application, much less expressly declares other than prospective application. 1976 Ky.Acts, Ch. 15, Secs. 1-4 (ex.sess.) The legislature has proclaimed that it will expressly indicate those instances in which an act is retrospective in nature. It has not done so here. Therefore, statutorily, the death penalty may only be imposed in those cases in which the crime was committed after the effective date of the revised death penalty statute. Not only is this result required by the statutory rule of construction, it is in accord with the common law of this Commonwealth, unchanged for over a hundred years. Watts v. Commonwealth, 78 Ky. (1 J. Rodman) 320 (1880); see Long v. City of Louisville, 97 Ky. 364, 30 S.W. 987 (1895); O'Donoghue v. Akin, 63 Ky. (2 Duv.) 478 (1866)."
597 S.W.2d at 611. Similarly, the Supreme Court of Louisiana has stated:
"Nowhere in the 1976 capital punishment legislation itself is there any provision which purports to apply the new laws retroactively to crimes which were committed before the legislation's effective date. Therefore, these acts are governed by the original legislative intention that criminal code provisions shall not apply to a crime committed before their effective date, La.R.S. 14-142,*fn3 and the legislature's express stipulation that no section of the Revised Statutes is retroactive unless expressly so stated. La.R.S. 1:2."*fn4
370 So.2d at 534-35. See also R. Kertz & R. Weisberg, "In Mitigation of the Penalty of Death," 69 Calif.L.Rev. 317, 364 (1981).
The Commonwealth's reliance upon Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), is wholly misplaced. There, the offense had been committed while an unconstitutional death penalty statute was in effect, but the defendant was not brought to trial until after the enactment of a new death penalty statute. Here, the defendant has been tried twice, once under the unconstitutional statute in effect when the offense was committed, and again under a newly-enacted statute.
Under Dobbert, this distinction is critical. In Dobbert, the defendant argued that, under the equal protection clause, he was entitled to a sentence of life imprisonment like all Florida prisoners who had been sentenced under a former, unconstitutional death penalty statute and then resentenced to life imprisonment. The Court rejected Dobbert's contention on the ground that, unlike those Florida prisoners who had been resentenced, Dobbert had not been brought to trial until after the enactment of the new death penalty statute. According to the Court,
"Florida obviously had to draw the line at some point between those whose cases had progressed sufficiently far in the legal process as to be governed solely by the old statute, with the concomitant unconstitutionality of its death penalty provision, and those whose cases involved acts which could properly subject them to punishment under the new statute. There is nothing irrational about Florida's decision to relegate petitioner to the latter class, since the new statute was in effect at the time of his trial and sentence."
432 U.S. at 301, 97 S.Ct. at 2302.
It cannot be disputed that, had appellant been unsuccessful on his appeal from the conviction underlying the original sentence of death imposed against him, he would have received a sentence of life imprisonment. On every occasion where the conviction has been found to be valid, an appellant facing a death sentence imposed pursuant to an unconstitutional death penalty statute has received a sentence of
life imprisonment.*fn5 This is so whether or not the appellant has requested relief from the death sentence. Commonwealth v. McKenna, 476 Pa. 428, 383 A.2d 174 (1978). In this case, where appellant was successful on his appeal, 476 Pa. 391, 383 A.2d 155 (1978), appellant faced and received the death penalty anew, even though an unconstitutional sentence of death had been imposed on the original conviction.
Whatever rationality can be ascribed to Florida's system of line-drawing in Dobbert, there can be no rationality where those appellants who are validly convicted obtain life sentences and only the appellant who was invalidity convicted and is entitled to a new trial remains subject to the death penalty. Both classes of cases, in the words of Dobbert, have progressed "sufficiently far in the legal process as to be governed solely by the old statute, with the concomitant unconstitutionality of its death penalty provision . . . ." Thus, rather than permitting the present death penalty, Dobbert forbids it.
The impropriety of the present sentence of death is evident not only from the language of the Supreme Court of the United States in Dobbert but also from the case law of the Florida Supreme Court, whose decision was affirmed in Dobbert. In Lee v. State, 340 So.2d 474 (Fla. 1976), the defendant was tried, convicted, and sentenced to death under
an unconstitutional death penalty statute. The original sentence of death was set aside, and the State appealed. While the appeal was pending, all other persons sentenced to death under the unconstitutional statute were resentenced to life imprisonment. However, also while the appeal was pending, the Florida Legislature enacted a new death penalty statute. The Florida Supreme Court initially permitted the State to seek resentencing. 294 So.2d 305 (Fla. 1974). However, on the defendant's appeal from the second sentence of death, the court conceded the error of its previous determination, and set aside the sentence of death.
The same conclusion that the Florida Supreme Court reached in Lee is required here. Just as in Florida, all those persons who have been sentenced to death in Pennsylvania under unconstitutional death statutes have received life sentences. Because appellant was tried, convicted, and sentenced to death under an unconstitutional statute, he must be treated the same as all those persons whose death penalties have been set aside.
The Commonwealth's effort to diminish the significance of the principles articulated in Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969), is as misguided as its reliance on Dobbert. In Littlejohn, this Court held it contrary to due process to subject a defendant to the death penalty on retrial where the defendant originally had been sentenced to life imprisonment. See also Commonwealth v. Floyd, 451 Pa. 366, 304 A.2d 131 (1973); Commonwealth v. Falcone, 440 Pa. 61, 269 A.2d 669 (1970). Although in Littlejohn, unlike here, the defendants did not pursue their appeals, this distinction carries no force under Littlejohn's due process analysis. There, as here, "the price exacted for [appellant's] attempt to ensure [his] constitutional right to a fair trial and [his] statutory right to appeal was the risk that on the second trial [he] would receive the death penalty." 433 Pa. at 343, 250 A.2d at 814. Such a price is an impermissible penalty for the exercise of appellate rights.
The Legislature's own canons of statutory construction recognize that a statute must be construed to avoid
unconstitutional results. 1 Pa.C.S. § 1922(3). Where, as here, application of the death penalty statute on retrial would violate equal protection and due process, the statute must be construed not to apply.
In those instances in which prejudicial error has been committed at the sentencing stage of a capital case, it is this Court's unvarying practice to vacate the sentence of death and impose a sentence of life imprisonment. Commonwealth v. Alvarado, 442 Pa. 516, 276 A.2d 526 (1971) (prosecutorial failure to honor plea-bargain); Commonwealth v. Aljoe, 420 Pa. 198, 216 A.2d 50 (1966) (prosecutorial misconduct at sentencing hearing). Where, as here, the sentence of death was improperly put before the sentencing jury, the same relief must be granted. As in Alvarado, Aljoe, and all of the Pennsylvania cases where the death penalty has been unconstitutionally entered, the sentence of death must be vacated and a sentence of life imprisonment imposed.
Sentence of death vacated and life sentence imposed.
§ 9711. Sentencing procedure for murder of the first degree
(a) Procedure in jury trials. --
(1) After a verdict of murder of the first degree is recorded and before the jury is discharged, the court shall conduct a separate sentencing hearing in which the jury shall determine whether the defendant shall be sentenced to death or life imprisonment.
(2) In the sentencing hearing, evidence may be presented as to any matter that the court deems relevant and admissible on the question of the sentence to be imposed and shall include matters relating to any of the aggravating or mitigating circumstances specified in subsections (d) and (e). Evidence of aggravating circumstances shall be limited to those circumstances specified in subsection (d).
(3) After the presentation of evidence, the court shall permit counsel to present argument for or against the sentence of death. The court shall then instruct the jury in accordance with subsection (c).
(4) Failure of the jury to unanimously agree upon a sentence shall not impeach or in any way affect the guilty verdict previously recorded.
(b) Procedure in non-jury trials and guilty pleas. -- If the defendant has waived a jury trial or pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose unless waived by the defendant with the consent of the Commonwealth, in which case the trial judge shall hear the evidence and determine the penalty in the same manner as would a jury.
(c) Instructions to jury. --
(1) Before the jury retires to consider the sentencing verdict, the court shall instruct the jury on the following matters:
(i) the aggravating circumstances specified in subsection (d) as to which there is some evidence.
(ii) the mitigating circumstances specified in subsection (e) as to which there is some evidence.
(iii) aggravating circumstances must be proved by the Commonwealth beyond a reasonable doubt; mitigating circumstances must be proved by the defendant by a preponderance of the evidence.
(iv) the verdict must be a sentence of death if the jury unanimously finds at least one aggravating circumstance specified in subsection (d) and no mitigating circumstance or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances. The verdict must be a sentence of life imprisonment in all other cases.
(v) the court may, in its discretion, discharge the jury if it is of the opinion that further deliberation will not result in a unanimous agreement as to the sentence, in which case the court shall sentence the defendant to life imprisonment.
(2) The court shall instruct the jury on any other matter that may be just and proper under the circumstances.
(d) Aggravating circumstances. -- Aggravating circumstances shall be limited to the following:
(1) The victim was a fireman, peace officer or public servant concerned in official detention as defined in 18 Pa.C.S. § 5121 (relating to escape), who was killed in the performance of his duties.
(2) The defendant paid or was paid by another person or had contracted to pay or be paid by another person or has conspired to pay or be paid by another person for the killing of the victim.
(3) The victim was being held by the defendant for ransom or reward, or as a shield or hostage.
(4) The death of the victim occurred while defendant was engaged in the hijacking of an aircraft.
(5) The victim was a prosecution 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.
(6) The defendant committed a killing while in the perpetration of a felony.
(7) 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.
(8) The offense was committed by means of torture.
(9) The defendant has a significant history of felony convictions involving the use or threat of violence to the person.
(10) The defendant has been convicted of another Federal or State offense, committed either before or at the time of the offense at issue, for which a sentence of life imprisonment or death was imposable or the defendant was undergoing a sentence of life imprisonment for any reason at the time of the commission of the offense.
(e) Mitigating circumstances. -- Mitigating circumstances shall include the following:
(1) The defendant has no significant history of prior criminal convictions.
(2) The defendant was under the influence of extreme mental or emotional disturbance.
(3) The capacity of the defendant to appreciate the criminality of his conduct or to conform his conduct to the requirements of law was substantially impaired.
(4) The age of the defendant at the time of the crime.
(5) The defendant acted under extreme duress, although not such duress as to constitute a defense to prosecution under 18 Pa.C.S. § 309 (relating to duress), or acted under ...