decided: October 15, 1987.
COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
CHARLES N. LEE, APPELLANT
Appeal from the Judgments of Sentence of the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Entered August 1, 1979, at Nos. 2086v and 2089 January Term, 1979.
Michael J. McAllister, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Deputy Dist. Atty., Ronald Eisenberg, Chief, Appeals Div., Susan Willcox, Marion E. MacIntyre, Deputy Atty. Gen., for appellee.
Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Zappala, J., did not participate in the consideration or decision of this case. Larsen, J., files a concurring opinion in which McDermott, J., joins.
[ 516 Pa. Page 306]
Opinion OF THE COURT
This is a direct appeal as of right from the imposition of a judgment of sentence of death, 42 Pa.C.S. § 722(4), 9711(h).*fn1 Appellant was tried by a jury in August, 1979, in the Court of Common Pleas of Philadelphia County, Judge Edwin S. Malmed presiding. Appellant was convicted of first degree murder and robbery of the victim, Joyce Hunsicker, and
[ 516 Pa. Page 307]
was sentenced to death pursuant to the jury's determination.*fn2
The record facts reveal that on Sunday, September 14, 1978, Joyce Hunsicker was found dead in her bed with a bullet lodged just below her left earlobe. Sometime during the late evening hours of September 12, or the early morning hours of September 13,*fn3 Hunsicker's killer was present in her bedroom, placed a pillow over her head, and shot her with a .38 caliber pearl-handled, semi-automatic pistol, killing her instantly. Missing from the decedent's left hand ring finger were two rings, a gold wedding band, and a matching diamond engagement ring.
[ 516 Pa. Page 308]
The Commonwealth's evidence implicating Appellant in the murder of Joyce Hunsicker and the robbery of her two rings was entirely circumstantial and consisted primarily of his incriminating admissions to two Commonwealth witnesses, Sandra Jenkins and Philip Fioravante.
Jenkins testified that she was socializing with the decedent, the Appellant, and other friends at her apartment on September 12, 1978. Early that evening, the decedent left the apartment but telephoned a half hour later to inquire whether Appellant would walk her home from a neighborhood restaurant. When advised of Hunsicker's request, Appellant left the apartment. Appellant, who was boarding in Jenkins' apartment at the time, telephoned a half hour later to say he wasn't returning that evening. Joyce Hunsicker was last heard from alive at 9:30 p.m. that night when she telephoned Jenkins that she had arrived home.
Jenkins further testified that around noon the next day, September 13, 1978, Appellant returned to her apartment, turned on both the radio and television news, and showed her a vial of valium, a gold ring, identified as Hunsicker's, and $20.00.*fn4 Jenkins stated that, to her knowledge, Appellant did not possess these three items on the previous day.
In late September or early October, 1979, Jenkins asked Appellant if he had killed Joyce Hunsicker. He initially denied his involvement, but later, in a second conversation, allegedly admitted to Jenkins that he had, in fact, slain Hunsicker.
Appellant raises a number of issues in his appeal to this Court, but only one need be addressed. Appellant correctly contends that this crime occurred prior to the effective
[ 516 Pa. Page 309]
passage of the present Death Penalty Statute under which Appellant was sentenced, the Act of September 13, 1978, P.L. 756, No. 141, § 1, 42 Pa.C.S. § 9711.
We take judicial notice of information supplied to this Court by the Librarian of the Pennsylvania Senate to the effect that in July of 1978, Governor Milton Shapp vetoed the Death Penalty Statute and the House and Senate began considering an override. The Senate voted to override the veto on September 12, 1978, and adjourned for the day at 11:00 a.m. The House voted to override the veto on September 13, 1978, at around noon and adjourned for the day at 2:10 p.m. Since the terms of the statute make it effective immediately, the earliest that the statute became effective was when the House overrode the veto at around noon on September 13, 1978.
It is clear from the record in this case, accepting the evidence presented by the Commonwealth, and viewed in a light most favorable to the Commonwealth, that this homicide occurred prior to noon on September 13, 1978.
This Court has held on a number of occasions that the Legislature did not intend the Death Penalty Statute of September 13, 1978, to apply to an offense committed prior to its effective date. Commonwealth v. Crenshaw, 504 Pa. 33, 470 A.2d 451 (1983); Commonwealth v. Truesdale, 502 Pa. 94, 465 A.2d 606 (1983); Commonwealth v. Story, 497 Pa. 273, 440 A.2d 488 (1981).
For this reason, the judgment of sentence of death entered in this case is vacated and a sentence of life imprisonment imposed. This appeal is transferred to Superior Court for review and disposition of the other issues raised by Appellant.
[ 516 Pa. Page 310]
LARSEN, Justice, concurring.
Reluctantly, I must agree with the majority that the death penalty provisions and procedures of the Sentencing Code, Act No. 141, P.L. 756 of September 13, 1978, 42 Pa.C.S.A. § 9711 (the Act), cannot be applied in appellant's murder prosecution because the murder occurred prior to the effective date of the Act.
As I stated in my dissenting opinion in Commonwealth v. Story, 497 Pa. 273, 282-319, 440 A.2d 488 (1981) (joined by Flaherty and Kauffman, JJ.), I am of the belief that the legislature did intend the Act to be applicable to murders committed prior to the date of its enactment, and I perceive no constitutional or other impediment to such application. A majority of this Court ruled in Story, however, that the Act was not applicable to murders committed prior to its effective date, and this ruling remains the law in this Commonwealth. Accordingly, I have joined subsequent decisions holding that the Act is not applicable to murders committed before its effective date, for it would be a denial of equal protection to apply it to some and not to others who were similarly situated. See, e.g., Commonwealth v. Truesdale, 502 Pa. 94, 465 A.2d 606 (1983).
In the instant case, an amazing coincidence of timing took place. Right about the time that the appellant was murdering his victim, the General Assembly was in the process of overriding the Governor's veto of the death penalty act.
On September 12, 1978, the Senate voted to override the Governor's veto of July 1, 1978. Senate Legislative Journal, September 12, 1978 at 815-17. The following day, September 13th at "around noon,"*fn1 the House of Representatives voted to override the veto. A bill becomes an act
[ 516 Pa. Page 311]
of the General Assembly upon completion of the final constitutional requirement for enactment into law. Simon v. Maryland Battery Service Co., 276 Pa. 473, 120 A. 469 (1923). Where the Governor has vetoed a bill, it will not become an act unless and until a two-thirds majority of each house votes to override the veto. Pa.Const. Art. IV, § 15. Thus, a bill passed notwithstanding the objections of the Governor becomes law when the second house (the final constitutional requirement) votes by two-thirds majority to override. Official Opinion of the Attorney General, No. 76-9, March 24, 1976. Therefore, the effective date of the Act was, as the majority states, at "around noon" on September 13, 1978. Prior to that, it was merely proposed legislation.
While we are not certain of the exact time of death, the trial court found that the Commonwealth's evidence established the time of death at no later than 12:00 noon on September 13, 1976. The Commonwealth points to certain testimony of the medical examiner during cross-examination that could support an inference that the murder occurred between 5:05 a.m. and 3:05 p.m. on September 13, 1978. Even were we to accept the Commonwealth's contention (which was contradicted by other evidence supporting the trial court's finding), the most favorable inference that such an inference would raise is, in the Commonwealth's own words, "that this crime could have occurred after the House vote." Supplemental brief at 8. "Could have" is simply not enough, for the Commonwealth had the burden of establishing that the murder was in fact committed when the Act was effective, not merely that it "might have been," or it "might not have been."
The Commonwealth has not proven that the murder occurred after the effective date of the Act; to the contrary, the record establishes that the murder occurred prior to 12:00 noon on September 13, 1978. Hence, under Story, appellant's judgment of sentence of death must be vacated, and a life sentence imposed.