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COMMONWEALTH PENNSYLVANIA v. RODERICK HERMAN FREY (02/03/89)

decided: February 3, 1989.

COMMONWEALTH OF PENNSYLVANIA
v.
RODERICK HERMAN FREY, APPELLANT



Appeal from the Judgment of Sentence of Death of the Court of Common Pleas of Lancaster County, entered on March 20, 1981 at No. 169 of 1980.

COUNSEL

Penn B. Glazier, Lancaster, for appellant.

Henry S. Kenderdine, Jr., Dist. Atty., John A. Kenneff, Asst. Dist. Atty., Robert A. Graci, Chief Deputy Atty. Gen., Brian P. Gottlieb, Deputy Atty. Gen., for appellee.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Deputy Dist. Atty., for amicus curiae, The Pennsylvania Dist. Attorney's Assoc.

Frederick D. Giles, Grantville, for amicus curiae, D. Michael Fisher, Senator, 37th Senatorial Dist., and Jeffrey E. Piccola, Representative, 104th House Dist.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala, Papadakos and Stout, JJ. Nix, C.j., files a concurring opinion. Larsen, J., joins the majority opinion and files a concurring opinion which is joined by Papadakos, J.

Author: Flaherty

[ 520 Pa. Page 341]

OPINION OF THE COURT

On May 14, 1980, Roderick Herman Frey was convicted of murder in the first degree in connection with the contract-murder of his wife. A verdict of death was returned by the jury pursuant to 42 Pa.C.S. § 9711(f). On appeal, the sentence of death was affirmed. Commonwealth v. Frey, 504 Pa. 428, 475 A.2d 700 (1984), cert. denied, 469 U.S. 963,

[ 520 Pa. Page 342105]

S.Ct. 360, 83 L.Ed.2d 296 (1984). Subsequently, a motion for a new trial was denied, and, on appeal, the sentence was again affirmed. Commonwealth v. Frey, 512 Pa. 557, 517 A.2d 1265 (1986), cert. denied, 481 U.S. 1007, 107 S.Ct. 1633, 95 L.Ed.2d 206 (1987). A warrant for Frey's execution was then issued by the Governor, following which Frey filed a petition for post-conviction relief. The petition and accompanying request for a stay of execution were denied by the court below. The present appeal ensued. On June 9, 1988, this Court granted a stay of execution pending appeal.

The first contention raised by appellant is that statutory authority in this Commonwealth for inflicting the death penalty by means of electrocution is no longer valid. We do not agree. It is to be noted at the outset, however, that the validity of the sentence of death is not tied to the method of imposition. Commonwealth v. Terry, 513 Pa. 381, 408, 521 A.2d 398, 412 (1987), cert. denied, 482 U.S. 920, 107 S.Ct. 3198, 96 L.Ed.2d 685 (1987).

The legislature has designated electrocution as the method of execution to be employed in effectuating sentences of death. Act of June 19, 1913, No. 338, P.L. 528, 61 Pa.S. §§ 2121-2129 (hereinafter Act of 1913). The Act of 1913 sets forth a comprehensive procedure governing the execution process, beginning with the following provision:

Every person, his aiders, abettors and counselors, hereafter convicted of the crime of murder of the first degree, shall be sentenced to suffer death in the manner herein provided, and not otherwise. Such punishment, in every case, must be inflicted by causing to pass through the body of the convict a current of electricity of intensity sufficient to cause death, and the application of such current must be continued until such convict is dead. The said punishment shall be inflicted by the warden or deputy warden of the Western Penitentiary, or by such person as the warden shall designate, and shall be inflicted in a

[ 520 Pa. Page 343]

    building to be erected on the land owned by the Commonwealth . . . .

61 Pa.S. § 2121.

Successive sections of the Act of 1913 prescribe transmittal of the trial transcript to the Governor, issuance of a warrant to proceed with the execution, confinement and visitation of the prisoner, observation of the execution, certification of the completed execution, post-mortem examination and disposition of the body, and payment of expenses associated with the execution. 61 Pa.S. §§ 2122-2128. Finally, in 61 Pa.S. § 2129, there appears the following provision:

This act is intended to furnish a comprehensive and complete method of inflicting the death penalty. If any portion of this act shall be declared invalid or unconstitutional by the Supreme Court of Pennsylvania, the entire act shall thereupon be null and void.

Relying upon this provision, and asserting that the first clause in 61 Pa.S. § 2121, supra is a mandatory sentencing provision that this Court has declared unconstitutional, appellant claims that the Act of 1913 is null and void in its entirety. Appellant has failed to bring to our attention, however, any decision in which the Supreme Court of Pennsylvania has addressed any of the provisions of the Act of 1913 and declared them invalid or unconstitutional. Indeed, this Court has never rendered such a decision. Our opinion in Commonwealth v. Terry, 513 Pa. at 408, 521 A.2d at 412, insofar as it contained brief dictum indicating that the Act of 1913 contained a mandatory sentencing provision that had been declared unconstitutional, was lacking in accuracy.

This Court has vacated sentences of death and imposed sentences of life imprisonment in cases where death sentences were imposed under procedural statutes that were violative of the Eighth and Fourteenth Amendments. None of these cases involved the Act of 1913. Rather, most were decided under the Act of June 24, 1939, P.L. 872, § 701, as amended, 18 Pa.S. § 4701, a sentencing procedures statute which, although allowing imposition of sentences of either

[ 520 Pa. Page 344]

    life imprisonment or death in connection with convictions for murder of the first degree, did not meet constitutional standards set forth in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (discretion of the sentencing authority must be adequately channeled to avoid arbitrary action). See Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975); Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975), cert. denied, 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972); Commonwealth v. Ross, 449 Pa. 103, 296 A.2d 629 (1972); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972). Others were decided under section 1311 of the Sentencing Code of 1974, 18 Pa.C.S. § 1311, which, though unconstitutional in itself, had been enacted in an effort to cure the defects in sentencing procedures illuminated by the decision in Furman, supra. 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); Commonwealth v. Davis, 479 Pa. 274, 388 A.2d 324 (1978). See also Commonwealth v. McKenna, 476 Pa. 428, 433-37, 383 A.2d 174, 177-79 (1978) (history of legislative efforts to enact a constitutionally valid sentencing statute). At no time, however, has this Court declared any provision of the Act of 1913 invalid or unconstitutional.

It is clear, of course, that mandatory sentences of death do not meet constitutional standards. Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Commonwealth v. Moody, 476 Pa. at 232-33, 382 A.2d at 446-47; Commonwealth v. Cross, 508 Pa. 322, 333-36, 496 A.2d 1144, 1150-52 (1985). If the language in 61 Pa.S. § 2121 were construed as a mandatory sentencing provision, and if it were deemed to be still in effect, we would have no alternative but to declare it unconstitutional.

However, as stated in Commonwealth v. Terry, supra, the current sentencing statute, 42 Pa.C.S. § 9711, was enacted to correct constitutional deficiencies in sentencing procedures. The constitutionality of 42 Pa.C.S. § 9711 has been upheld. Commonwealth v. Zettlemoyer, 500 Pa. 16, 454

[ 520 Pa. Page 345]

A.2d 937 (1982), cert. denied, 461 U.S. 970, 103 S.Ct. 2444, 77 L.Ed.2d 1327 (1983). Appellant was sentenced in accordance with this statute, rather than under the Act of 1913. Indeed, the Act of 1913 has not been interpreted as a sentencing statute, but rather as a statute which merely defines the method to be utilized for inflicting the death penalty. Prior to the Act of 1913, death sentences were carried out by means of hanging rather than electrocution. As stated in Commonwealth v. Meyers, 290 Pa. 573, 585, 139 A. 374 (1927), "The Act of 1913 did nothing more than provide that, in cases where death was fixed as the penalty, the method of executing the sentence should be electrocution." See also 61 Pa.S. § 2129, supra ("This act is intended to furnish a comprehensive and complete method of inflicting the death penalty." (emphasis added)). Thus, we are not persuaded by appellant's argument that the introductory language contained in the Act of 1913, to wit, the first clause of 61 Pa.S. § 2121, supra, insofar as it recites that every person convicted of murder of the first degree shall be sentenced to death, constitutes a mandatory sentencing provision. As discussed in Commonwealth v. Meyers, 290 Pa. at 584-85, 139 A. at 378-79, this language was merely a prefatory recitation of the penalties existing under another statute at the time the Act of 1913 was adopted.

However, even assuming arguendo that the language in question had been construed as a sentencing provision, we would have no occasion to now declare it unconstitutional, since it is no longer in effect. Subsequent sentencing statutes, e.g., 42 Pa.C.S. § 9711, have, by eliminating mandatory sentences of death, clearly supplanted the challenged provision. See 1 Pa.C.S. § 1936 (statute latest in enactment must prevail). In light of these statutory modifications, the Act of 1913 must be read as if amended to state: "Every person convicted of the crime of murder of the first degree, and sentenced to death thereon, shall be executed in the manner herein provided, and not otherwise." This comports, too, with a presumption the legislature would not have enacted valid death penalty

[ 520 Pa. Page 346]

    sentencing procedures, 42 Pa.C.S. § 9711, without having in place a method for carrying out sentences of death. 1 Pa.C.S. § 1922(1) (presumption legislature does not intend a result that is absurd, impossible of execution, or unreasonable). In short, the legislature has removed the challenged provision from operation prior to there being any occasion for this Court to address its validity. It cannot be said, therefore, that any portion of the Act of 1913 has been, or should be, declared unconstitutional.*fn1

The next contention raised by appellant is that the jury instructions and verdict slip employed in the penalty phase of trial must be deemed deficient in light of the recent decision of the Supreme Court of the United States in Mills v. Maryland, 486 U.S. , 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988). This contention is without merit. In Mills, the jury instructions and verdict slip utilized at trial contained specific elements of language and form that created a substantial risk of jurors being misled to believe that, unless they agreed unanimously on the existence of any given mitigating circumstance, the circumstance could not be taken into account by any of the jurors during deliberations. 486 U.S. at , 108 S.Ct. at 1870, 100 L.Ed.2d at 400. The Mills decision is simply inapposite to the present case, however, for the jury instructions and verdict slip used in appellant's trial did not contain language similar to that found in Mills.

The present instructions did not express a need for unanimity in determining the existence of mitigating circumstances. (N.T. 1388-91). Nor did the form of the verdict slip infer a need for such unanimity.*fn2 The jury instructions

[ 520 Pa. Page 347]

    and verdict slip closely followed language in the sentencing statute stating that a unanimous verdict is necessary as to the ultimate decision to impose a sentence of death, 42 Pa.C.S. § 9711(c)(1)(v), but did not state or infer a requirement that any given mitigating circumstance must be unanimously recognized before it can be weighed against aggravating circumstances in reaching a verdict. See 42 Pa.C.S. § 9711(c)(1)(iv) ("[T]he 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 ...


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