Commonwealth v. Goins

LARSEN, Justice,

concurring and dissenting.

If the death penalty is a deterrent, and I believe that it is; and if the death penalty serves the societal need for retribu *288 tion, and I believe that it does; and if the death penalty serves the cathartic needs of the survivors of a murder victim, and I believe that it does; and since the death penalty prevents the murderer from murdering again; then the majority today has ignored and frustrated these important objectives and purposes of the Pennsylvania death penalty statute by establishing that a murderer such as appellant must be convicted of murder three times before he will be eligible to receive the death penalty. Surely the Legislature did not intend this result.

As I believe the majority’s interpretation of subsection (d)(9), 42 Pa.C.S.A. § 9711(d)(9), thwarts the legislative intent and that the jury in this case properly determined that appellant’s two convictions for murder (i.e., the current conviction for murder of the first degree and the prior conviction for murder of the (present day equivalent) third degree) constitutes a significant history of felony convictions involving the use or threat of violence, I dissent to the majority’s decision to vacate the sentence of death and remand for imposition of a life sentence. I concur in the affirmance of appellant’s convictions. 1

We have held that the jury may consider, as evidence of the aggravating circumstances specified in subsections (d)(9) and (d)(10), a conviction not yet “final” because the defendant has not been sentenced for that conviction or because his conviction was on appeal. Commonwealth v. Travaglia, 502 Pa. 474 , 467 A.2d 288 (1983); Commonwealth v. Beasley, 505 Pa. 279 , 479 A.2d 460 (1984); Commonwealth v. Morales, 508 Pa. 51 , 494 A.2d 367 (1985). This same principle would permit a jury to consider the *289 murder of the first degree conviction which it has just returned as part of a defendant’s significant history of violent felony convictions. It requires only a straightforward application of the language of subsection (d)(9) to affirm the jury’s finding in this case — two convictions for murder surely may constitute a “significant history of felony convictions involving ... violence to the person.”

The majority in effect rewrites the statute by insertion of the concept “more than one prior” violent felony conviction into the aggravating circumstance set forth in subsection (d)(9); that is, the majority has interpreted that subsection to read “significant history of more than one prior felony conviction” involving violence to the person. 2 This modification is improper. The legislative history cited by the majority to support its interpretation of subsection (d)(9) actually supports the interpretation that “significant history of felony convictions involving ... violence” includes the conviction for which the defendant has just been tried. The majority notes “that the Senate had previously rejected an amendment ... which included as an aggravating circumstance that ‘[t]he defendant was previously convicted of another murder or a felony involving the use or threat of violence to the person.’ 1978 Legislative Journal — Senate at 103 (Emphasis added).” 508 Pa. at —, 495 A.2d at 534. The legislature refined the concepts expressed in the rejected amendment and, instead, split this proposed aggravating circumstance into two subsections, namely (d)(9) and (d)(10).

The concept of “another murder” was embodied in subsection (d)(10) which states that it is an aggravating circumstance where the “defendant has been convicted of another *290 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____” 42 Pa.C.S.A. § 9711(d)(10). In contrast, the concept of “a felony involving the use or threat of violence to the person” was finalized as subsection (d)(9) which establishes an aggravating circumstance where the “defendant has a significant history of felony convictions involving the use or threat of violence to the person.” 42 Pa.C.S.A. § 9711(d)(9). Under subsection (d)(10), therefore, the defendant’s “current” conviction for murder of the first degree cannot establish that aggravating circumstance because it is not another offense for which a sentence of death or life imprisonment is imposable. However, as the final version of the significant violent felony aggravating circumstance contains no similar limiting language (such as “another”, “other” or “prior” felony convictions involving violence), the legislature must have considered a defendant’s “current” conviction to constitute part of his significant history of felony convictions involving violence.

Further indication that the legislature intentionally omitted the concept of “prior” or “other” from subsection (d)(9) is gleaned from the mitigating circumstance of subsection (e)(1), that the “defendant has no significant history of prior criminal convictions.” 42 Pa.C.S.A. § 9711(e)(1). 3 Given the rejection of the amendment discussed above (which would have established an aggravating circumstance where the defendant had been “previously” convicted of ... a felony involving the use or threat of violence to the person), the use of the language “another Federal or State offense” in subsection (d)(10), the use of the language “significant history of prior criminal convictions” in subsec *291 tion (e)(1), and the conspicuous absence of similar language in subsection (d)(9), I believe it clear that the majority has thwarted the legislative intent by interpreting (d)(9) to read “significant history of more than one prior felony conviction involving ... violence”, in place of “significant history of felony convictions involving ... violence.” 4

Finally, this Court is required to review each sentence of death to determine whether it is “excessive or disproportionate to the penalty imposed in similar cases”. 42 Pa.C.S.A. § 9711 (h)(3)(iii). To that end, we have directed the Administrative Office of Pennsylvania Courts to compile and monitor an on-going, comprehensive death penalty study dealing with all aspects of cases of murder of the first degree. Commonwealth v. Frey, 504 Pa. 428 , 475 A.2d 700, 707-08 (1984), cert. denied — U.S. —, 105 S.Ct. 360 , 83 L.Ed.2d 296 (1984). This study greatly facilitates *292 our obligation to ensure that the death penalty sentencing procedures achieve their purpose of limiting and channeling the discretion of the sentencer so as to minimize the risk of arbitrary and capricious sentencing. Zant v. Stephens, 462 U.S. 862 , 103 S.Ct. 2733, 2741 (1983). Should our review disclose an arbitrary and capricious result in cases , dealing with the aggravating circumstance of subsection (d)(9), 5 this Court would then determine whether the application of the circumstance “significant history of felony convictions involving ... violence to the person” is constitutionally infirm.

For the foregoing reasons, I would hold that, for purposes of subsection (d)(9), the jury (or judge) may consider the defendant’s contemporaneous conviction for murder of the first degree as part of his or her “significant history of felony convictions involving the use or threat of violence”, and I would affirm the sentence of death based thereon.

. While not entirely clear from the majority opinion, a post-conviction evidentiary hearing was held before the Honorable Edwin S. Maimed, at which hearing appellant was represented by new counsel who argued the ineffectiveness of trial counsel. The facts pertaining to the allegations of ineffectiveness set forth in the majority opinion adequately demonstrate that appellant has failed to meet his burden of establishing how the witnesses not called and the evidence not introduced by trial counsel would have been beneficial to the defense. See Commonwealth v. Anderson, 501 Pa. 275 , 461 A.2d 208 (1983) and Commonwealth v. Pettus, 492 Pa. 558 , 424 A.2d 1332 (1981).

. The majority holds that it was "the manifest intent of the General Assembly to include as an aggravating circumstance more than one prior violent-felony conviction----” 508 Pa. at 284 , 495 A.2d at 534. See also id., 508 Pa. at 281-283 , 495 A.2d at 533 ("it is important to note that the statute reads ‘a significant history of felony convictions’ rather than ‘a history of significant felony convictions.’ The pertinent rule of grammar to be followed is that that modifier should be placed, if possible, next to the word to be modified. If the legislature had intended that the seriousness of the prior felonies be the measure of the aggravating circumstance, the latter construction would have been correctly used.”)

. The majority’s interpretation of subsection (d)(9) would also seem to conflict with this Court’s recent decision in Commonwealth v. Szuchon, 506 Pa. 228 , 484 A.2d 1365 (1984). In that case, a majority of this Court stated (albeit in dictum) that it was proper for the lower court to leave it to the jury to determine whether or not a defendant with a single prior conviction for robbery could be considered to have "no significant history of prior criminal convictions" under subsection (e)(1).

. Moreover, the majority errs in rejecting the lower court’s application of the ‘singular/plural’ rule of construction. The majority rejects this unambiguous rule of construction based upon some perceived "pertinent rule of grammar” which dictates, apparently, where "modifiers" must be placed, and the consequences of such placement. Such construction of the statute by resort to perceived rules of grammar see note 2, supra (for which rule no authority, source or reference is given) highlights the concern expressed in the Commonwealth’s brief in this case:

[Djefendant argues that the word “convictions” clearly reveals the Legislature’s intention to require a history of at least two convictions. In his post-verdict opinion, Judge Maimed made short work of this argument. Judge Maimed pointed to the governing rule of statutory construction, 1 Pa.C.S.A. § 1902, which provides that “the singular shall include the plural, and the plural the singular.” The reason for this rule is obvious; in common English usage, it is often awkward to use one form or the other. To assure that the most understandable phrasing would not result in wooden, semantical arguments over the intended meaning of such passages, the Legislature enacted Section 1902. Defendant’s attempt to read the death penalty statute as though § 1902 did not exist represents the very sort of stilted statutory interpretation the Legislature sought to avoid.

Brief for Appellee at 8. Rather than indulge in such artificial, semantical arguments over placement of modifiers to arrive at the intended meaning of "significant history of felony convictions involving ... violence,” I would leave it to the common sense and wisdom of the jury to determine whether a murderer’s record reveals such a significant history as to warrant the death penalty.

. As of June 4, 1985, there have been twenty-seven convictions of murder of the first degree wherein the aggravating circumstance of significant history of felony convictions involving violence had been presented to the jury. Twenty-one of those cases resulted in the imposition' of the death penalty. My review of the data compiled in those cases indicates neither excessiveness nor disproportionality but, rather, individualized determinations tailored to the circumstances of the offenses and the character of the defendant. In short, the aggravating circumstance of subsection (d)(9) has served its function of limiting and channeling, the discretion of the sentencer to avoid arbitrary and capricious sentencing.