# Commonwealth v. Wharton

> Supreme Court of Pennsylvania · April 28, 1992 · 530 Pa. 127

URL: https://www.frixlaw.com/law-library/cases/9705238

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Robert WHARTON, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** April 28, 1992
- **Citations:** 530 Pa. 127; 607 A.2d 710; 1992 Pa. LEXIS 276
- **Precedential status:** Published
- **Opinion:** Dissent by Larsen
- **Judges:** Nix, Larsen, Flaherty, McDermott, Zappala, Papadakos, Cappy
- **Cited by:** 76 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9705238

## How later opinions describe it (automated extraction)

- recognizing that Richardson "rejected a rule of automatic severance of co-defendants' trials in these situations because of the `vital role in the criminal justice system' which joint trials play"
- finding a conversation between a detective and a witness admissible when in response to defense counsel's questioning about other possible suspects that may have been overlooked by the police
- concluding that defendants ere- ated grave risk of death to infant, after having killed infant’s parents, by abandoning infant in house with heat turned off in February
- holding that the trial court’s failure to instruct the jury on torture during the penalty phase was prejudicially deficient
- holding that the phrase “grave risk of death to another person” is not unconstitutionally vague

## Opinion text

LARSEN, Justice,
dissenting.
I dissent to the portion of the majority opinion vacating appellant’s judgments of sentence.
The Sentencing Code, in § 9711(h)(4), provides as follows: (4) If the Supreme Court determines that the death penalty must be vacated because none of the aggravating circumstances are supported by sufficient evidence or because the sentence of death is disproportionate to the penalty imposed in similar cases, then it shall remand for the imposition of a life imprisonment sentence. If the Supreme Court determines that the death penalty must be vacated for any other reason, it shall remand for a new sentencing hearing pursuant to subsections (a) through (g). 42 Pa.C.S.A. § 9711(h)(4) (emphasis added).
The majority concludes that when a death sentence is based in part on an invalid or improperly defined aggravating circumstance, the appropriate remedy is to vacate the sentence of death and remand the case for a new sentencing hearing. Since this conclusion is not mandated by the Sentencing Code, which uses the conditional language, “If the Supreme Court determines that the death penalty must be vacated ...” (emphasis added), the decision to vacate and remand under such circumstances should be reexamined. *156 Such reexamination is particularly appropriate in light of Clemons v. Mississippi, 494 U.S. 738 , 110 S.Ct. 1441 , 108 L.Ed.2d 725 (1990), in which the United States Supreme Court held that a state appellate court may reweigh the remaining aggravating and mitigating circumstances when an aggravating circumstance relied on by the jury has been invalidated.
The rationale underlying Clemons is that appellate reweighing accords with the primary concerns of the Eighth Amendment: measured, consistent application of the death penalty and fairness to the defendant. Sentencing determinations, in order to meet these objectives, must be based on the circumstances of the crime and the character of the defendant. Id. 110 S.Ct. at 1448 . The Clemons Court concluded that state appellate courts, in reviewing death sentences, can and do give each defendant an individualized and reliable sentencing determination. In reaching this conclusion, the Clemons Court noted the fact that a process of weighing aggravating and mitigating circumstances is involved in an appellate court’s proportionality review. I believe that there is little value in assembling another jury for a sentencing proceeding when it is constitutionally permissible and eminently reasonable for this Court to undertake a careful weighing of remaining aggravating and mitigating circumstances. The ability to weigh aggravating and mitigating factors is not a characteristic unique to juries. The United States Supreme Court, in Barclay v. Florida, 463 U.S. 939, 950 , 103 S.Ct. 3418, 3425 , 77 L.Ed.2d 1134 (1983), reiterated the essential elements of sentencing decisions in capital cases as follows:
Any sentencing decision calls for the exercise of judgment ... The thrust of our decisions on capital punishment has been that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action (citations omitted).
The critical concern, then, is that capital sentencing decisions be legitimate, not that they be made by juries. To remand this case for a new sentencing hearing does nothing to enhance the legitimacy of the sentence.
*157 The majority opinion states that the record supports the following aggravating circumstances found by the jury: appellant committed a killing while in the perpetration of a felony, 42 Pa.C.S. § 9711(d)(6) and in commission of the offenses, appellant knowingly created a grave risk of death to others. 42 Pa.C.S. § 9711(d)(7). It is entirely proper and preferable for this Court to weigh these aggravating circumstances against the following mitigating circumstances found by the jury: no significant history of prior criminal convictions, 42 Pa.C.S. § 9711(e)(1); age of the defendant (twenty years old) at the time of the offenses; and other evidence of mitigation concerning the character and record of the defendant and the circumstances of his offense. 42 Pa.C.S. § 9711(e)(8). This evidence included testimony from appellant’s mother that he was a loving son and testimony from members of the community that appellant was a gentleman and a high school wrestler with leadership abilities.
I believe that in the reweighing process, this Court would find that the remaining aggravating circumstances continue to outweigh the mitigating circumstances. With or without the consideration of torture, it is evident that the robbery and brutal murders of these two individuals and the life-threatening treatment of their infant daughter outweigh the fact that appellant was twenty years old at the time of these offenses, had no significant history of criminal convictions and was a gentleman and a loving son. As the majority opinion points out, “Appellant was convicted of two counts of murder of the first degree, and the evidence showed that these homicides were not the product of some hastily formed intent to kill, but were fully thought out and planned, and methodically and coldly executed.” (Majority Opinion at 152).
Accordingly, I would affirm the convictions of murder of the first degree and affirm the judgments of sentence.
McDERMOTT, J., and PAPADAKOS, J., join this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705238. Public record. Not legal advice.