Commonwealth v. Travaglia

*507 NIX, Justice,

concurring.

I am fully in accord with the majority’s affirmance of the verdicts of guilt in these appeals. My concern is directed to the majority’s disposition of the objection to the allowance into evidence as an aggravating circumstance of the appellants’ guilty pleas to the homicide charges in Indiana County (the William C. Nicholls killing). The majority focused its analysis upon whether the term “convicted” as used in section 9711(d)(10), 42 Pa.C.S. § 9711(d)(10), requires the imposition of sentence before such evidence can be admissible for this purpose. 1 In my judgment the issue raised is the finality of the conviction that is being offered as an aggravating circumstance. Where as here there have been challenges to the pleas entered in Indiana County, 2 I am convinced that section 9711(d)(10) must be interpreted as providing for review by this Court of those claims prior to the execution of the judgments of sentence of death affirmed by the Court today. I therefore join in the Court’s mandate *508 today with the caveat that the death penalty will be carried out only after a review of those complaints by this Court and only if after such review it is determined that the pleas were voluntarily and knowingly entered and the request for withdrawal was properly refused.

In Gregg v. Georgia, 428 U.S. 153 , 96 S.Ct. 2909 , 49 L.Ed.2d 859 (1976), the United States Supreme Court painstakingly stressed the importance of the sentence-review function to be undertaken by the state’s highest tribunal where the death penalty has been imposed. As noted by that Court in Zant v. Stephens,-U.S.-,-, 103 S.Ct. 2733, 2747 , 77 L.Ed.2d 235, 255 (1983): “[Although not every imperfection in the deliberative process is sufficient, even in a capital case, to set aside a state court judgment, the severity of the sentence mandates careful scrutiny in the review of any colorable claim of error.” Surely an attack upon the validity of a guilty plea that has been used as the basis for a finding of an aggravating circumstance constitutes the type of contention that must be reviewed before the execution of the capital sentence may be allowed.

An interpretation of section 9711(d)(10) which provides for such a final review by this Court of a challenge of this nature is also dictated by the law of this Commonwealth. Our Constitution mandates a right of appeal in all cases. Pa. Const, art. V, § 9; see Section 5105 of the Judicial Code, 42 Pa.C.S. § 5105. Moreover, our case law has recognized the qualitative difference between death and any other permissible form of punishment by relaxing rules of waiver which would otherwise preclude review of the merits of claims where the death sentence has been imposed. See Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania, - U.S. -, 103 S.Ct. 2444 , 77 L.Ed.2d 1327 (1983); Commonwealth v. McKenna, 476 Pa. 428 , 383 A.2d 174 (1978). In light of such precedent, it would clearly create an anomaly to foreclose a challenge upon the validity of a plea of guilt where that plea constitutes the aggravating circumstance upon which the death sentence is predicated.

*509 It must be recognized that the validity of each aggravating circumstance is an important consideration even where there may be more than one aggravating circumstance upon which the jury could have reached its decision. Pennsylvania’s death penalty statute provides that where the jury finds the existence of both aggravating and mitigating circumstances the jury must then engage in a “weighing” process. If, after the weighing process, the jury determines that the aggravating circumstances outweigh the mitigating circumstances, it must return the death sentence. 42 Pa.C.S. § 9711(c)(iv). It is evident that this weighing process is squarely within the province of the jury and that a reviewing court cannot determine with any certainty the exact weight which the jury attached to each aggravating and mitigating circumstance. 3 In a case involving a decision as important as life and death we are not in a position to speculate about what decision the jury might have reached had it not considered one particular aggravating circumstance. Therefore, if the validity of even one aggravating circumstance is in dispute, 4 the death sentence should not be executed until the resolution of that dispute has become final.

*510 Moreover, in view of our statutory responsibility to thoroughly review the record in death penalty cases, the resolution of any such dispute within the jurisdiction of this Commonwealth must be made by this Court. 5 Such disputes need not be decided within the context of the death penalty appeal; for example, appellant Lesko’s guilty plea challenge, lodged initially in the Superior Court, was decided by this Court in a separately briefed and argued appeal. 6 However, where an appeal which has bearing on the validity of an aggravating circumstance relied upon in arriving at the death sentence is pending in another court of this Commonwealth at the time that sentence is reviewed by this Court, at least that portion of such appeal which affects the efficacy of the aggravating circumstance should be certified to this Court for disposition. Where a proceeding which has given rise to a finding of an aggravating circumstance is at the pre-sentencing stage, a direct appeal to this Court should be permitted upon sentencing. Until we have disposed of such related appeals this Court’s statutorily mandated review of the death sentence is not complete, and execution of sentence should be stayed.

. Section 9711(d)(10) provides:

(d) Aggravating circumstances.—Aggravating circumstances shall be limited to the following:

♦ * * * * *

(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.

. Appellant Travaglia filed a motion to withdraw his guilty plea to the Indiana County charge on January 23, 1981, during the trial of the instant case. That motion was denied on April 30, 1981 and Travaglia was sentenced to a term of life imprisonment. There is no indication in the record whether an appeal was taken from that judgment of sentence.

Appellant Lesko initially filed a motion to withdraw his guilty plea in the Indiana County case on December 3, 1980, prior to the trial in Westmoreland County, and filed an amended motion to withdraw on April 13, 1981. His motion, as amended, was denied on June 5, 1981. Lesko’s challenge to that denial was rejected, and he was sentenced on July 17, 1981 to a term of life imprisonment. Lesko appealed to the Superior Court, which transferred the appeal to this Court. In Commonwealth v. Lesko, 502 Pa. 511 , 467 A.2d 307 (1983), this Court affirmed the judgment of sentence. Thus as to Lesko my concern expressed here is satisfied.

. See Williams v. State, 274 Ark. 9 , 621 S.W.2d 686 (1982), cert. denied,-U.S.-, 103 S.Ct. 460 , 74 L.Ed.2d 611 (1983); Elledge v. State, 346 So.2d 998 (Fla. 1977); State v. Irwin, 304 N.C. 93 , 282 S.E.2d 439 (1981); State v. Moore, 614 S.W.2d 348 (Tenn.1981); Hopkinson v. State, 632 P.2d 79 (Wyo.1981), cert. denied sub nom. Hopkinson v. Wyo., 455 U.S. 922 , 102 S.Ct. 1280 , 71 L.Ed.2d 463 (1982).

. In the case of Zant v. Stephens,-U.S.-, 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983), the U.S. Supreme Court held that under a state statute which did not require this weighing process, and where no suggestion is made that the presence of more than one aggravating circumstance should be given special weight, the subsequent invalidity of one of the aggravating circumstances does not invalidate the death sentence. The court in Zant stated the following:

[W]e note that in deciding this case we do not express any opinion concerning the possible significance of a holding that a particular aggravating circumstance is “invalid” under a statutory scheme in which the judge or jury is specifically instructed to weigh statutory aggravating and mitigating circumstances in exercising its discretion whether to impose the death penalty.

Id. at-, 103 S.Ct. at 2750, 77 L.Ed.2d at 258.

. Where an aggravating circumstance such as a conviction in the court of another state or in federal court is at issue, such a dispute will be considered resolved when passed upon the highest court of that jurisdiction.

. See footnote (2), supra. As noted in that footnote, the status of appellant Travaglia’s guilty plea remains to be established. In light of this Court’s pronouncement in Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982), cert. denied sub nom. Zettlemoyer v. Pennsylvania,-U.S.-, 103 S.Ct. 2444 , 77 L.Ed.2d 1327 (1983); Commonwealth v. McKenna, 476 Pa. 428 , 383 A.2d 174 (1978), a subsequent challenge to the validity of that plea may not be assumed to be waived.