Commonwealth v. Holcomb

NIX, Chief Justice,

concurring and dissenting.

While I continue to find fault with the vague and thus far unclarified weighing process prescribed by 42 Pa.C.S. § 9711(c), see Commonwealth v. Zettlemoyer, 500 Pa. 16, 81 , 454 A.2d 937, 971 (1982) (Nix, J., dissenting), the instant record reveals that the jury deviated so far from even that statutory procedure as to require that the resulting death sentence be set aside.

*474 The Commonwealth attempted to prove only two (2) aggravating circumstances, that “[t]he defendant committed a killing while in the perpetration of a felony,” 42 Pa.C.S. § 9711(d)(6), and that “[t]he defendant has a significant history of felony convictions involving the use or threat of violence to the person,” 42 Pa.C.S. § 9711(d)(9). The jury’s sentencing verdict in this case, however, reveals their total confusion as to the possible aggravating circumstances which hopelessly infected the weighing process.

The jury found three purported “aggravating circumstances” and concluded that they outweighed any mitigating circumstances. However, those “aggravating circumstances” are nowhere to be found in the death penalty statute. As recorded on the verdict slip, those circumstances were: ‘1 Wilfully taking the life of another. 2 Repeated offenses. 3 Failure of rehabilitation.” The first and third findings do not correspond to any of the aggravating circumstances enumerated by the legislature, see 42 Pa.C.S. § 9711(d), and are thus clearly irrelevant to the jury’s sentencing decision, as the trial court conceded.

Finding number two (2), “[rjepeated offenses,” while somewhat similar to statutory aggravating circumstance number nine (9), is sufficiently broad as to encompass crimes of any nature, including non-violent felonies and misdemeanors. To permit non-violent felonies or misdemeanors to support a finding of an aggravating circumstance permitting the imposition of the sentence of death is clearly not permitted under the legislative scheme. Nevertheless the purported aggravating circumstance found by this jury, i.e., repeated offenses, could well have referred to such crimes.

The jury’s purported finding of aggravating circumstance number one — “wilfully taking the life of another” — is obviously not appropriate. This finding is the predicate for the verdict of murder in the first degree. For the jury to consider this factor as the basis for the imposition of the death sentence reflects a fundamental confusion between a finding of murder of the first degree and a finding of an *475 aggravating circumstance that would justify the imposition of the sentence of death. To contend that this merely suggests the jury’s inability “to quote the provisions of the sentencing code verbatim”, see majority opinion fn. 16, provides a gloss which is not worthy in a matter as serious as this.

The jury, which found but did not describe mitigating factors in appellant’s favor, weighed them against at least two improper aggravating factors of their own invention. Thus the weighing process engaged in was totally invalid. To permit the resulting determination to stand would shock the conscience and offend even the most minimal notion of due process. 1

Moreover, even assuming arguendo that the jury found one statutory aggravating circumstance, i.e., number (9), the evidence would not support such a finding. Appellant’s “significant history” of violent felony convictions consists of a 1973 conviction on charges of rape and a lesser included offense, assault with intent to ravish, the two crimes merging for purposes of sentencing. 2 Without denigrating the seriousness of those charges, I refuse to accept the majority’s conclusion that this prior record is sufficient to establish the requisite “significant history” contemplated by *476 the statute. Clearly the legislature, in using the term “history” and the plural “convictions,” 3 intended multiple violent felony convictions over a period of time to be an aggravating circumstance. In drafting the aggravating circumstance section of the death penalty statute, the legislature made a clear distinction between convictions for which a sentence of death or life imprisonment was imposable, 42 Pa.C.S. § 9711(d)(10), and other violent felony convictions, 42 Pa.C.S. § 9711(d)(9). A single prior conviction of “another” offense of the former category constitutes an aggravating circumstance, as opposed to the “significant history” of convictions of the latter, less serious, type required to establish an aggravating factor under section (d)(9). If it had intended a single conviction to satisfy that section (d)(9), the legislature could have expressly provided, “The defendant has been convicted of another felony conviction involving the use or threat of violence to the person”; it did not. Instead, the legislature chose the phrase “a significant history.”

Moreover, if a single conviction of a violent felony for which the maximum sentence is less than life imprisonment can support the finding of an aggravating circumstance, the qualitative difference in degree of culpability between a crime such as voluntary manslaughter and first degree murder would be obliterated. A prior conviction of either offense would be an aggravating circumstance even though society considers one crime to be much more serious than the other. In addition, section (d)(10), which is limited to prior convictions for which a sentence of death or life imprisonment was imposable, becomes mere surplusage. Any conviction which satisfied section (d)(10) would also be an aggravating circumstance under section (d)(9).

*477 Under a far more rational interpretation, the phrase “a significant history” means a prior criminal record of a sufficient number of violent felonies to establish the defendant’s predilection for crimes of violence. Multiple felony convictions may be highly relevant in evaluating the defendant’s character; a single incident 4 is not. In the instant case the jury was presented with evidence of a single prior criminal episode which resulted in a single prison sentence. I would hold that such a fact is insufficient as a matter of law to support the finding of the only aggravating circumstance even arguably returned by the jury in this case. See Commonwealth v. Goins, 508 Pa. 270 , 495 A.2d 527 (1985). But see Commonwealth v. Cross, 508 Pa. 322 , 496 A.2d 1144 (1985).

Since the sentencing decision in the instant case was egregiously improper, I would vacate the death sentence and impose a sentence of life imprisonment.

. Neither Zant v. Stephens, 462 U.S. 862 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983), nor Barclay v. Florida, 463 U.S. 939 , 103 S.Ct. 3418 , 77 L.Ed.2d 1134 (1983), supports the constitutionality of the sentence in the instant case. In Zant the United States Supreme Court considered a death sentence imposed pursuant to a statutory scheme which did not provide for the weighing of aggravating and mitigating circumstances. The Court explicitly reserved judgment on the effect of the finding of an invalid aggravating circumstance where such a weighing process is statutorily mandated. Zant v. Stephens, supra, 462 U.S. at 890 , 103 S.Ct. at 2749 , 77 L.Ed.2d at 258 . Although the Florida death penalty statute subsequently reviewed in Barclay did provide for the weighing of aggravating circumstances against mitigating circumstances, the death sentence upheld in that case was predicated upon a finding of four valid aggravating circumstances and no mitigating circumstances. In the instant case the jury found there were mitigating circumstances.

. Assault with intent to ravish, a crime under the Penal Code of 1939, see Act of June 24, 1939, P.L. 872, No. 375, § 722, 18 P.S. § 4722 (repealed 1972), merged with rape. Commonwealth ex rel. Shaddock v. Ashe, 340 Pa. 286 , 17 A.2d 190 (1941).

. Even if one accepts the view that multiple felony convictions arising from a single criminal episode may be offered to establish "significant history” as contemplated by section (d)(9), see Commonwealth v. Goins, 508 Pa. 270 , 495 A.2d 527 (1985), such an interpretation should not apply to a major felony and a lesser included offense. Here the crime of assault with intent to ravish was clearly a component of the rape charge. See footnote (2), supra.

. While what is said on the Senate floor may not be relied upon in ascertaining legislative intent, see Commonwealth v. Alcoa Properties, Inc., 440 Pa. 42 , 269 A.2d 748 (1970), it is interesting to note that members of the Senate, in discussing section (d)(9) prior to the enactment of the death penalty statute, spoke in terms of "five" and “ten” prior convictions. 1978 Pa.Legis.J. — Senate 88.