# Commonwealth v. Goins > Supreme Court of Pennsylvania · July 11, 1985 · 508 Pa. 270 URL: https://www.frixlaw.com/law-library/cases/9757241 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. George B. GOINS, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** July 11, 1985 - **Citations:** 508 Pa. 270; 495 A.2d 527; 1985 Pa. LEXIS 359 - **Precedential status:** Published - **Opinion:** Concurrence by Hutchinson - **Judges:** Nix, Larsen, Flaherty, Hutchinson, Zappala, Papadakos, McDermott - **Cited by:** 39 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Superseded by statute, as recognized in Commonwealth v. Moran. - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9757241 ## Opinion text HUTCHINSON, Justice, concurring. I join in the majority opinion. It correctly holds that aggravating circumstance (d)(9), a “significant history of felony convictions involving use or threat of violence” (42 Pa.C.S. § 9711[d][9]), will not be triggered by a single such conviction. Any other interpretation would render 42 Pa.C.S. § 9711(d)(10) superfluous. I write separately, however, to point out that the single prior conviction involved in this case (the present equivalent of third-degree murder) satisfies the qualitative aspect of the statutory phrase “significant history” because of its close similarity to the conduct which resulted in the victim’s death in the present case. In short, this appellant has shown that he is prone to kill under certain particular circumstances, but has not done so often enough to meet the legislative definition of “significant history.” However, I believe that the dissenters unwisely venture into immaterial speculation when they state that the Legislature did not intend to allow a defendant to commit three murders before a significant history could be established. The hypothetical of three murders is not on point. The Legislature did not define any of the aggravating circumstances which permit a death sentence in terms of “murder.” It spoke precisely, as required by the mandates of the United States Supreme Court in Furman v. Georgia, 408 U.S. 238 , 92 S.Ct. 2726 , 33 L.Ed.2d 346 (1972), not in general terms of “murder,” but in interlocking terms of “significant history” of felony convictions involving violence or its threat (42 Pa.C.S. § 9711[d][9]), of a single felony for which the penalty is life or death (§ 9711[d][10]), and of a first degree murder committed in the perpetration of a felony (§ 9711[d][6]). *286 Taken together, these terms are precise enough to distinguish those first degree murders which warrant death from those which do not, and yet comprehensive enough to cover substantially all first degree murders for which society can legitimately demand death. Together they establish the definite, objective criteria which federal constitutional law requires of statutes authorizing capital punishment. See Commonwealth v. Zettlemoyer, 500 Pa. 16 , 454 A.2d 937 (1982) . The term “murder” as used in the dissent by Mr. Justice Larsen is not a term used by the Legislature. It includes not only first and second degree murder, which could trigger capital punishment after a single conviction under § 9711(d)(10), but also third degree murder, which can be part of the significant history of convictions that authorizes the imposition of capital punishment under § 9711(d)(9). Thus, under the various subsections of § 9711(d), one concurrent conviction for either first or second degree murder will establish an aggravating circumstance, § 9711(d)(10), and two or more prior violent felonies may constitute a history which satisfies § 9711(d)(9). In addition, aggravating felonies which are concurrent with the capital crime or part of the transaction or occurrence which leads up to it are dealt with in § 9711(d)(6). That subsection places no limit on the number or kind of felonies which qualify and thus can be satisfied by a single concurrent felony. All other subsections of § 9711(d) describe circumstances coincident to a first degree murder which so aggravate it that the death penalty is warranted solely on the nature of the killing at bar. To speak in terms of murder generally casts us loose from the statute’s constitutional mooring in these precise and interlocking sets of aggravating circumstances. I therefore join the majority on the facts of this case. I believe it follows that it is wrong to suggest that Commonwealth v. Travaglia, 502 Pa. 474 , 467 A.2d 288 (1983) , supports the view that § 9711(d)(9)’s significant history of felony convictions is satisfied by adding the guilty verdict for the first degree murder under sentencing consid *287 eration to a single conviction for an unrelated violent felony and that such an interpretation is necessary in order to prevent a felon from committing three murders before he must face a death sentence at a jury’s hands. Such a reading does injustice to the legislative intent which led to the concurrent enactment of 42 Pa.C.S. § 9711(d)(10). Under this view, any single conviction for a violent felony would support a jury’s finding of the § 9711(d)(9) aggravating circumstance and there would be no need for § 9711(d)(10) and little for § 9711(d)(6). Travaglia should not be extended in such a manner. Moreover, I note that the statute’s interlocking terms may cover felonies which do not include any homicide and thus are usually thought of as less serious than third degree murder. Consequently, I believe the emphasis solely on murder is on the one hand more sanguine than the legislative enactment and on the other less so. In short, it encompasses some first degree homicides for which the Legislature did not intend to authorize capital punishment, yet fails to include others upon which it did intend to visit that sanction. If the Legislature wanted to consider a single prior “murder” significant in and of itself, it could have easily done so. Instead, it enacted subsections limiting the use of a single felony as an aggravating circumstance to those crimes which are punishable by either life imprisonment or death if it is unrelated to the first degree murder at bar, or to a felony concurrent with that first degree murder. None of these definitions include a single third degree murder as such, and, I believe, the distinctions among them must be precisely observed and applied to avoid the vagueness and confusion which the Legislature went to such great pains to prevent. I therefore agree with the majority’s interpretation of subsection § 9711(d)(9). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9757241. Public record. Not legal advice.