# Commonwealth v. Zettlemoyer > Supreme Court of Pennsylvania · December 30, 1982 · 500 Pa. 16 URL: https://www.frixlaw.com/law-library/cases/9760034 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Keith ZETTLEMOYER, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 30, 1982 - **Citations:** 500 Pa. 16; 454 A.2d 937; 1982 Pa. LEXIS 679 - **Precedential status:** Published - **Opinion:** Dissent by Nix - **Judges:** O'Brien, Roberts, Nix, Larsen, Flaherty, McDermott, Hutchinson - **Cited by:** 497 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Abrogated on other grounds by Commonwealth v. Freeman, 573 Pa. 532 (2003). - Negative treatments: 1 - Distinguished by: 1 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9760034 ## How later opinions describe it (automated extraction) - holding that the “rights secured by the Pennsylvania prohibition against ‘cruel punishments’ are co- extensive with those secured by the Eighth and Fourteenth Amendments” - explaining that “significant issues perceived sua sponte by this Court ... will be addressed and, if possible from the record, resolved” under § 9711(h)(3) - holding Section 9711 does not violate a defendant’s due process protections by placing on the defendant the burden of proving, by a preponderance of the evidence, the existence of mitigating circumstances - holding that the current death penalty statute was acceptable under both the federal and the state Constitutions ## Opinion text NIX, Justice, dissenting. I am satisfied that the sanction of capital punishment is not prohibited either by the federal or our state constitution. *82 I am also convinced that this sanction does provide a significant deterrent effect for those who would consider the perpetration of a deliberate and premeditated murder, even in the absence of a capability to accumulate statistical data in support of this position. Nevertheless, the utilization of this sanction imposes upon the judicial system the responsibility to scrupulously oversee its use and to avoid arbitrary, discriminatory or capricious application. Paramount is the obligation to insure the fairness of the proceeding. I cannot agree with the majority in its affirmance of the judgment of sentence of death because (1) the statutory standard determining the sentence to be imposed has as yet to be clearly defined and (2) the instructions given by the trial court on this subject were ambiguous and confusing. The statute has provided that where the jury finds the existence of both aggravating and mitigating factors the sentence of death must be returned if the aggravating circumstances outweigh the mitigating circumstances. 42 Pa.C.S.A. § 9711(c)(iv). 1 The statute has failed to express the standard to be applied in this measurement. The majority implicitly suggests that the scale can be tipped in favor of death by a scintilla of weight. See p. 954, n. 18. I cannot accept the legislature intended the decision of life or death to turn on the weight of a feather. I recognize a statutory deficiency can be cured by the interpretation of the court of last resort, however, the majority in this instance has failed to come to grips with this question and implies an interpretation that I find to be totally unacceptable. Most importantly for the judgment to stand it must be apparent from the face of the record that the fact finder had before it the proper standard. Here, that obviously was not the case. *83 In addition to the statutory inadequacy, the record reveals that the charge as it related to this subject was at best ambiguous and unclear. At one point the court told the jury if the mitigating circumstances outweigh the aggravating circumstances the jury must bring in a sentence of life imprisonment. N.T. at 36. Later, the court instructed the jury that the death penalty was required if an aggravating circumstance was found to exist beyond a reasonable doubt and there was either no mitigating circumstance or that the aggravating circumstance outweighed any mitigating circumstance. N.T. 39. This later statement, characterized in the majority opinion at p. 954 as curative, is neither corrective nor curative of the earlier erroneous charge. No mention was made of the fact that the mitigating circumstances need not outweigh the aggravating circumstances. In fact a request for such instructions were specifically refused. We have in the past, in non-capital cases, reversed and granted new trials on the basis of inadequate, unclear, misleading or inappropriate charges. Commonwealth v. Wortham, 471 Pa. 243, 248 , 369 A.2d 1287, 1290 (1977); Commonwealth v. Goins, 457 Pa. 394 , 321 A.2d 913 (1974); Commonwealth v. Tiernan, 455 Pa. 88 , 314 A.2d 310 (1974); Commonwealth v. Taylor, 453 Pa. 539 , 309 A.2d 367 (1973); Commonwealth v. Mills, 350 Pa. 478 , 39 A.2d 572 (1944). At best, the charge is contradictory, assigning first to one party and then to the other the burden of proving its case. Conceding that in several instances the court correctly assessed upon the Commonwealth the burden of proving guilt beyond a reasonable doubt, nevertheless, the incorrect instructions remained unaltered. The possibility of confusion as a result of conflicting directives may not be permitted on such a fundamental issue as the burden of proof. See Commonwealth v. Ewell, 456 Pa. 589 , 319 A.2d 153 (1974); Commonwealth v. Ross, 266 Pa. 580 , 110 A. 327 (1920). The function of the charge is to elucidate the relevant legal principles not to obfuscate them. Commonwealth v. Wortham, supra 471 Pa. at 247 , 369 A.2d at 1289 . *84 Here we are faced with a standard of determining life or death, an even more fundamental issue than that of burden of proof. And finally, it is clearly our responsibility to examine the record with detached scrutiny. The majority opinion not only fails to meet this responsibility, but in my opinion, cavalierly employs a presumption of the absence of harmful error in justifying the charge of the court below. Accordingly, I join in the affirmance of the conviction of murder of the first degree and would vacate the sentence of death and impose a sentence of life imprisonment. . Although subsection (c)(iv) is ambiguous in that the explicit language states “or if the jury unanimously finds one or more aggravating circumstances which outweigh any mitigating circumstances” (Emphasis supplied) it is fair to assume, as the majority properly does, that the word “any” means “all.” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9760034. Public record. Not legal advice.