Stout, J., did not participate in the consideration or decision of this Application for Reargument. Nix, C.j., filed a concurring statement in which Flaherty, J., joined. Papadakos, J., filed a concurring statement. Larsen, J., dissents and would grant the Commonwealth's Application for Reargument. McDermott, J., dissents.
ORDER ON APPLICATION FOR REARGUMENT
AND NOW, to wit, this 30th day of November, 1988, the Commonwealth's Application for Reargument is denied.
NIX, Chief Justice concurring.
I am constrained to write to explain my joinder in the order of the Court entered in this case in light of the views expressed by Mr. Justice Papadakos.
While I agree that our decision in Commonwealth v. Appel, 517 Pa. 529, 539 A.2d 780 (1988), interpreting Section 9711(d)(5) of the Sentencing Code, 42 Pa.C.S. § 9711(d)(5), which was filed after the filing of the opinion of this Court in this appeal, would produce a different result as to the validity of the jury's finding of the aggravating circumstance provided in the above cited section of the Sentencing Code, I do not believe that there is a need to grant reargument at this point. The deficiency of Caldwell in this context has been called to the attention of the Bar and rectified by the later opinion filed by this Court in Commonwealth v. Appel, supra. Therefore, there is no reason to believe that the challenged statement in Caldwell would provide a basis for future confusion on this issue.
More importantly, the ultimate result reached in Caldwell could not now be changed. Even if the Court in Caldwell had fully perceived the teaching of Appel and sustained the aggravating circumstance in the appeal of that case, we would have still been required to vacate the sentence of death.
The jury found mitigating circumstances of an unspecified nature and two aggravating circumstances. Where
the jury finds a mitigating circumstance, it is called upon to engage in a balancing process to determine whether the aggravating circumstances outweighed the mitigating circumstances found by it to have existed. This Court has also held that, under the language of the Sentencing Code, Section 9711(a) requires that the penalty be fixed by the same jury which determined guilt. Commonwealth v. Williams, 514 Pa. 62, 522 A.2d 1058 (1987). Therefore, even if we had found initially in this appeal that the aggravating circumstance of intending to kill a potential witness was properly found, we would still be faced with the dilemma that the jury's exercise of discretion was based on the fact of the existence of two, rather than one, valid aggravating circumstances. The "same jury" would have been discharged and no longer available for a reevaluation based on the single aggravating factor. Thus, a vacation of the sentence of death would have been required even if we had then sustained one of the asserted aggravating circumstances. Commonwealth v. Aulisio, 514 Pa. 84, 522 A.2d 1075 (1987).
Since that was the result reached and the necessary clarification of the language used in Caldwell has been achieved through our subsequent opinion in Appel, it would serve no ...