Petition — Pennsylvania v. Moody

Supreme Court brief1978

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’

, 7 Supreme Court, U.S ~

{ FILED \]

@ IN THE |

SUPREME COURT OF THE viiITED STATES ‘FEB 27 1978

OCTOBER TERM, 197_ MICHAEL RODAK, JR., CLERK

. NO, 77-120 5

COMMONWEALTH OF PENNSYLVANIA,

PETITIONER

Vv.

e THEODORE MOODY,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

THE SUPREME COURT OF PENNSYLVANIA

STEVEN H. GOLDBLATT

Deputy District ATTORNEY FOR LAW

] GAELE McLAUGHLIN BARTHOLD

Ass1IsTANT DisTRICT ATTORNEY

EDWARD G. RENDELL

District ATTORNEY OF

PHILADELPHIA COUNTY

e Jornep By: ROBERT P. KANE

ATTORNEY GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA

VINCENT X. YAKOWICZ

SOLICITOR GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA

2400 Centre Square West

PHILADELPHIA, PENNSYLVANIA 19192

INDEX

PAGE

OPINIONS BELOw ]

JURISDICTION 2

QuESTIONS PRESENTED 2

CONSTITUTIONAL PRoVISIONS INVOLVED 2-3

STATUTORY PRovISIONS INVOLVED 3

STATEMENT OF THE CASE 3-9

REASONS FOR GRANTING THE WRIT 10-26

1. THE PENNSYLVANIA DEATH PENALTY STATUTE, WHICH

MARGINALLY RESTRICTS THE MITIGATING CIRCUM-

STANCES TO BE CONSIDERED AND WHICH LIMITS

MITIGATION TO THE DEFENDANT’S STATUS AT THE

TIME OF THE COMMISSION OF THE OFFENSE, IS

NOT VIOLATIVE OF THE EIGHTH AND FOURTEENTH

AMENDMENTS. 10-22

II, EVEN IF THE PENNSYLVANIA MITIGATING CIRCUM-

STANCES PROVISION COULD OTHERWISE BE CON-

SIDERED UNDULY RESTRICTIVE, A DEATH

SENTENCE WHICH IS IMPOSED UPON A DEFENDANT

SERVING A LIFE SENTENCE AT THE TIME OF THE

COMMISSION OF THE RELEVANT OFFENSE IS VALID

UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS, 23-26

CONCLUSION 27

APPENDICES TO THE BRIEF

AppenpIx A: Opinion oF Supreme CourT oF

PENNSYLVANIA 1A - 42A

AppenpIx B: OPINION OF THE CoURT EN BANC

OF THE CourT oF ComMMON PLEAS OF

PHILADELPHIA CouNTY 1B - 4OB

INDEX (CONTINUED)

C: OrpeR oF THE COURT EN BANC OF

metas: Court oF ComMON PLEAS OF PHILA-

DELPHIA COUNTY

Appenpix D: 18 Pa.C.S.A. $1102 anp §131]

(Supp, 1977-1978)

1c - 2¢

1D - 4D

TABLE OF CITATIONS

FepeRAL CASES

FURMAN V, GEORGIA, 408 U.S. 238, 92 S.Ct. 2726 (1972)

GREGG V. GEORGIA, 428 U.S. 153, 96 S.Cr. 2909 (1976)

JUREK V. TEXAS, 428 U.S. 262, 96 S.Ct. 2950 (1976)

PROFFITT V. FLORIDA, 428 U.S. 242, 96 S.Ct. 2960

(1976)

ROBERTS V. LOUISIANA, 428 U.S. 325, 96 S.Ct. 3001

(1976)

UNITED STATES V. JACKSON, 390 U.S. 570, 88 S.CT.

1209 (1968)

WOODSON V, NORTH CAROLINA, 428 U.S. 280, 96 §.Cr. 3001

(1976)

PENNSYLVANIA CASES

COMMONWEALTH V. MOODY, __ Pa.

No. 280 (FILED NovemBer 30, 1977)

CONSTITUTIONAL AND STATUTORY PROVISIONS

United STATES CONSTITUTION, AmenpmMenTt VIII

Uni TED STATES CONSTITUTION, AMENDMENT XIV

Act oF Decemper 6, 1972, P.L. 1482, No. 334, $l,

$306; 18 C.P.S.A. $306

Act oF Decemper 6, 1972, P.L. 1482, No. 334, §1,

$309; 18 C.P.S.A. $309

Act of MarcH 26, 1974, P.L. 213, No. 46, §2,

appinG $1102; 18 Pa.C.S.A. §1192

PAGE

12,13,21,25

10,13,14

10,11

10,18

10,21,23

10,11

__, January Term, 1977,

PASSIM

2,5,10,22

2-3,5,10,22

3,4

TABLE OF CITATIONS (conTINUED)

PAGE

CONSTITUTIONAL AND STATUTORY PROVISIONS (CONTINUED)

Act oF Decemper f, 1972, P.L. 1482, No. 334; $1311,

appep Marcu 26, 1974, P.L. 213, No. 46, 83;

AS AMENDED DecemBer 30, 1974, P.L. 1952, No. 545,

$1; 18 Pa.C.S.A. $1311

Act of Marcu 26, 1974, P.L. 213, No. 46, 54,

AMENDING $2502; 18 Pa.C.S.A. 82502 15

Act of DecemBer 6, 1972, P.L. 1482, No, 334, SecTION

3; 18 C.P.S.A. Section 3 (18 C.P.S.A., Vor.

$6101 to Enp, at 127) 25

3,4,15,16-18,24

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 197_

No.

COMMONWEALTH OF PENNSYLVANIA,

PETITIONER

THEODORE MOODY,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

THE SUPREME COURT OF PENNSYLVANIA

THE PETITIONER, THE COMMONWEALTH OF PENNSYLVANIA, RESPECT-

FULLY PRAYS THAT A WRIT OF CERTIORARI ISSUE TO REVIEW THE

JUDGMENT AND OPINION OF THE PENNSYLVANIA SuPREME COURT ENTERED

on Novemper 30, 1977, IN THE ABOVE-CAPTIONED CASE.

OPINIONS BELOW

THe OPINION BELOW OF THE PENNSYLVANIA SuPREME CouRT IS

SET ouT IN Appenpix A, INFRA AT 1A - 42A, (THIS OPINION

HAS NOT YET BEEN PUBLISHED IN THE NATIONAL REPORTER SYSTEM

OR THE OFFICIAL STATE REPORTS.) ALSO INCLUDED IN THE APPENDIX

1S THE OPINION AND SUBSEQUENT ORDER OF THE COURT EN BANC

oF THE Court oF Common PLEAS OF PHILADELPHIA County, (APPENDIX

B, INFRA AT 1B - 4OB; Appenpix C, iwera at IC - 20.)

JURISDICTION

THE ORDER OF THE PENNSYLVANIA SuPREME COURT WAS ENTERED

on NovemBer 39, 1977, THIS PETITION FOR CERTIORARI WAS FILED

WITHIN NINETY (99) DAYS OF THE ENTRY OF THAT ORDER. THE

JURISDICTION OF THIS CoURT IS INVOKED PURSUANT TO 28 U.S.C.

§1254(1),

QUESTIONS PRESENTED

1. Is THE PENNSYLVANIA DEATH PENALTY STATUTE WHICH SUB-

STANTIALLY RESTRICTS THE IMPOSITION OF THAT PENALTY

AND WHICH ONLY MARGINALLY RESTRICTS THE MITIGATING

EVIDENCE THAT MAY BE CONSIDERED AT SENTENCING, VIOLA-

TIVE OF THE EIGHTH AND FourRTEENTH AMENDMENTS?

2. EVEN IF THE MITIGATING CIRCUMSTANCES PROVISION OF THE

PENNSYLVANIA DEATH PENALTY STATUTE IS OTHERWISE

UNDULY RESTRICTIVE, IS A SENTENCE OF DEATH WHICH

1S IMPOSED UPON A DEFENDANT SERVING A LIFE SEN-

TENCE AT THE TIME OF THE COMMISSION OF THE RELEVANT

OFFENSE NEVERTHELESS VALID FOR FEDERAL CONSTITUTIONAL

PURPOSES?

CONSTITUTIONAL PROVISIONS INVOLVED

Unitep States Constitution, AMENDMENT

EIGHT.

EXCESSIVE BAIL SHALL NOT BE REQUIRED, NOR EXCESSIVE

FINES IMPOSED, NOR CRUEL AND UNUSUAL PUNISHMENTS INFLICTED.

Unitep States ConsTiTuTION, AMENDMENT FourRTEEN,

Section One.

ALL PERSONS BORN OR NATURALIZED IN THE UNITED STATES, AND

SUBJECT TO THE JURISDICTION THEREOF, ARE CITIZENS OF THE UNITED

e RESPONDENT’S TRIAL COMMENCED ON JuLy 15, 1975, BEFORE THE

HONORABLE LAWRENCE PRATTIS AND A yurRY. On Jucy 22, 1975,

HE WAS FOUND GUILTY OF FIRST DEGREE MURDER AND CRIMINAL

STATES AND OF THE STATE WHEREIN THEY RESIDE. No STATE SHALL

MAKE OR ENFORCE ANY LAW WHICH SHALL ABRIDGE THE PRIVILEGE OR

IMMUNITIES OF CITIZENS OF THE UNITED STATES; NOR SHALL ANY

consprracy (R, 1914),

STATE DEPRIVE ANY PERSON OF LIFE, LIBERTY, OR PROPERTY, WITHOUT

ad THE STATUTES APPLICABLE TO THE TRIAL OF RESPONDENT’S

DUE PROCESS OF LAW; NOR DENY TO ANY PERSON WITHIN ITS JURIS-

CASE PROVIDED THAT A PERSON CONVICTED OF FIRST DEGREE MURDER

BE SENTENCED TO DEATH OR LIFE IMPRISONMENT AFTER A HEARING

STATUTORY PROVISIONS INVOLVED TO DETERMINE THE EXISTENCE OF AGGRAVATING AND/OR MITIGATING

Ss CIRCUMSTANCES (18 Pa.C.S.A, $1192 anp $131], INFRA IN APPENDIX

D at 1D - 4D, HEREAFTER COLLECTIVELY REFERRED TO AS THE

PENNSYLVANIA DEATH PENALTY STATUTE). PRIOR TO THAT HEARING,

DICTION THE EQUAL PROTECTION OF THE LAWS,

THE STATUTORY PROVISIONS HERE AT ISSUE ARE 18 Pa.C.

S.A. §1102 (Supe. 1977-1978, at pace 45), WHICH IS ENTITLED

“SENTENCE FOR MURDER,” AND 18 Pa.C.S.A. $131] (Supp, 1977-

1978, aT PAGE 48-50), WHICH IS ENTITLED “SENTENCING FOR MURDER.”

THE FULL TEXT OF THESE STATUTES IS SET OUT IN APPENDIx D,

INFRA AT 1D - 4D,

RESPONDENT OBJECTED TO THE STATUTORILY MANDATED PROCEDURE,

e AND CHALLENGED THE CONSTITUTIONALITY OF THE STATUTE (R,

1920a - 1922a). THE HEARING WAS NEVERT_LESS HELD. AT ITS

CONCLUSION, THE JURY FOUND THE EXISTENCE OF AGGRAVATING

STATEMENT OF THE CASE CIRCUMSTANCES AND THE ABSENCE OF ANY MITIGATING CIRCUMSTANCES

@ (R, 1943a).2 As A CONSEQUENCE, IMPOSITION OF THE DEATH

PRocEDURAL IIISTORY PENALTY WAS STATUTORILY REQUIRED (18 Pa.C.S.A. §1311(p)).

RESPONDENT, THEODORE MooDY, WAS CHARGED IN THE CourT oF i

Common PLEAS OF PHILADELPHIA County, AS OF FEBRUARY SESSIONS, e THE AGGRAVATING CIRCUMSTANCES RELIED ON BY THE COMMONWEALTH

1975, N 1429-1430 AT THE HEARING WERE THAT THE OFFENSE WAS COMMITTED BY MEANS

» Nos. -1450, WITH MURDER, VOLUNTARY MANSLAUGHTER, OF TORTURE (§1311(D)(1)(v111)) AND THAT RESPONDENT WAS SERVING

INVOLUNTARY MANSLAUGHTER, AND CRIMINAL CONSPIRACY. THESE ig tp By a i Aye

CHARGES AROSE OUT OF THE DEATH OF JAMES PRICE, WHOSE MUTILATED RESPONDENT, TO ESTABLISH THE PRESENCE OF MITIGATING CIRCUM-

STANCES, CALLED HIS MOTHER WHO TESTIFIED AS TO HIS AGE (22) AND

BODY WAS DISCOVERED IN AN UNOCCUPIED CELL INSIDE HOLMESBURG e THE FACT THAT HE HAD NOT COMPLETED THE TENTH GRADE (R, 1028).

Prison, PHILADELPHIA, P IN ADDITION, SHE STATED THAT HE WAS “EASILY LED” AND, IN

: ¥ » PENNSYLVANIA, ON DeceMBER 29, 1974, HER OPINION, NOT “QuiITE MATURE” (R, 1928).

e 4

THEREAFTER POST-VERDICT MOTIONS WERE FILED WHICH INCLUDED

A CONSTITUTIONAL CHALLENGE TO THE DEATH PENALTY STATUTE. ON

Octoper 19, 1976, AN OPINION WAS FILED BY TWO MEMBERS OF A

COURT EN BANC, THE HONORABLE LAWRENCE PRATTIS AND THE HONORABLE

Juanita Kipp Stout, WHICH DECLARED THE DEATH PENALTY STATUTE

UNCONSTITUTIONAL, INDICATED THAT A SENTENCE OF LIFE IMPRISONMENT

SHOULD BE IMPOSED, AND REJECTED RESPONDENT'S OTHER ALLEGATIONS

oF ERROR (Appendix B, INFRA AT 1B - 38B). THE THIRD MEMBER

OF THE CourRT, THE HonorABLE David N. SAVITT, CONCURRED WITH

THAT PORTION OF THE MAJORITY OPINION WHICH DEEMED NON-MERITORIOUS

RESPONDENT'S ARGUMENTS IN SUPPORT OF A NEW TRIAL AND WHICH

HELD THAT UNITED States v, Jackson, 390 U.S. 570, 88 S.Ct. 1209

(1968), PROHIBITED THE IMPOSITION OF THE DEATH PENALTY IN

THIS CASE BUT NEITHER REACHED NOR EXPRESSED ANY OPINION

UPON THE CONSTITUTIONALITY OF THE STATUTE UNDER THE EIGHTH

AND FouRTEENTH AMENDMENTS (APPENDIX B at 39B).

SUBSEQUENTLY, ON NovemBerR 9, 1976, THE COURT EN BANC

ISSUED AN ORDER (1) DENYING A COMMONWEALTH PETITION FOR RECON-

SIDERATION, (2) DENYING RESPONDENT’S POST-VERDICT MOTIONS,

(3) CERTIFYING THAT THE QUESTION OF THE CONSTITUTIONALITY OF

THE DEATH PENALTY WAS AN APPROPRIATE ISSUE FOR AN INTERLOCUTORY

APPEAL, AND (4) STAYING ALL PROCEEDINGS (AppenDIx C at 1C - 2(C).

FOLLOWING THE GRANT OF A PETITION FOR PERMISSION TO APPEAL,

WHICH WAS FILED BY THE COMMONWEALTH, THE SuPREME CourRT OF PENNSYL-

VANIA, ON NovemBerR 30, 1977, AFFIRMED THE ORDER OF THE COURT

EN BANC WHICH HAD DECLARED THE DEATH PENALTY STATUTE UNCON-

STITUTIONAL (COMMONWEALTH V, Moopy, INFRA AT 1A - 424A),

Facts

AT TRIAL, THE COMMONWEALTH ESTABLISHED THAT JAMES Price’s

BODY WAS FOUND HANGING FROM A HEATING VENT, INSIDE AN UNOCCUPIED

CELL ON “D” BLOCK IN HOLMESBURG PRISON, PHILADELPHIA, SHORTLY

AFTER 3:00 P.m. ON DecemBer 29, 1974 (R, 84a-86a). AT THE TIME

OF HIS DEATH, PRICE SHARED A CELL ON “D” BLOCK WITH RESPONDENT,

THeopore Moopy (R, 106a). “D” BLOCK WAS ITSELF A DETENTION

BLOCK WITHIN THE CONFINES OF THE PRISON; AS A CONSEQUENCE,

VISITORS FROM OTHER CELL BLOCKS WERE PROHIBITED AND THE MOVEMENTS

oF “D” BLOCK INMATES WERE HIGHLY RESTRICTED (R, 93a-95a),

AT THE TIME PRICE WAS DISCOVERED, HIS BODY WAS SUSPENDED

FROM THE HEATING VENT BY BED SHEETS WHICH WERE WRAPPED AROUND

HIS NECK (R, 87A). UNDER THOSE SHEETS, THERE WAS SECURED

AROUND THE DECEDENT’S NECK A LIGATURE OR GARROT FASHIONED

FROM THREE SHOELACES, WHICH PRODUCED DEATH BY MEANS OF STRANGULATION

(R, 218A). AN EXAMINATION OF THE BODY REVEALED NUMEROUS RECENT

INJURIES TO THE DECEDENT MOST NOTABLY IN THE AREA OF HIS

TESTICLES AND RECTUM.2 THESE INJURIES, WHICH WERE CAUSED BY

MULTIPLE INSERTIONS OF A SHARP INSTRUMENT AND WHICH COULD NOT HAVE

BEEN SELF-INFLICTED, UNQUESTIONABLY WERE INFLICTED BEFORE DEATH

OCCURRED AND CAUSED EXCRUCIATING PAIN (R, 231A-232a, 234A),

AMONG THOSE INJURIES WERE A 2-1/8 INCH LONG TEAR IN THE

DECEDENT’S SKIN, JUST TO THE RIGHT OF HIS RECTAL OPENING,

WHICH EXTENDED FROM THE MIDDLE OF THE SCROTUM HALFWAY TO

THE ANAL OPENING; A 1-2/5 INCH WOUND INVOLVING THE BACK

PORTION OF THE AREA TOWARD THE SPINE; AND AN ANGLED CUT,

IN THE AREA CLOSEST TO THE SCROTUM, WHICH SHOWED UNDERMINING

OR TUNNELING-OUT (R, 228A). ADDITIONAL INJURIES FOUND IN

THIS AREA OF THE DECEDENT’S BODY INCLUDED: (1) A HOLE OR

WOUND EXTENDING TO THE RECTUM CLOSURE MUSCLE; (2) DISCOLOR-

ATION INVOLVING THE LINING OF THE BOWEL AT THE ANAL RING;

(3) A SHARPLY TAPERED WOUND, AT LEAST 3-3/4 INCHES LONG,

WHICH PENETRATED THE PELVIC AREA; AND (4) EXTENSIVE

HEMORRHAGING IN BOTH TESTICLES (R, 229a-23]a),

TwO PERSONS, WHO WERE DETAINED IN “D” BLOCK WHEN THIS

MURDER OCCURRED, OFFERED EVIDENCE RELEVANT TO THE TIME AND

CIRCUMSTANCES OF PRICE’S DEATH. JAMES GRAVES TESTIFIED

THAT HE WAS IN ADMINISTRATIVE SEGREGATION IN CELL 461 ON

THAT DATE AND, THEREFORE, WAS NOT ALLOWED TO LEAVE HIS CELL

(R, 49la, 4920). AT SOME POINT DURING THE DAY, WHEN MOST

BLOCK INMATES WERE IN THE YARD FOR EXERCISE, HE HEARD SOMEONE

SCREAMING “GOD HELP ME, | THINK THEY'RE KILLING ME” (R,

44a, 403A). SUBSEQUENTLY, HE HEARD SOUNDS WHICH SUGGESTED

TO HIM THAT THE PERSON CRYING OUT “WAS BEING MUFFLED” (R,

45a),

THE SECOND INMATE, CALVIN HUNTER, TESTIFIED THAT HE WAS

SENT TO “D” BLOCK ON THE MORNING OF DecemBer 29, 1974, AND

PLACED IN CELL 453, AS A CONSEQUENCE OF A DISCIPLINARY

VIOLATION ON “C” BLock (R, 266a). AT APPROXIMATELY 9:09

A.M, ON THAT DATE, THE EXERCISES IN THE YARD STOPPED AND

THE BLOCK “GOT UNUSUALLY QUIET” (R, 272A, 274A). HE THEN

HEARD A NOISE COMING FROM THE FRONT OF THE CELL BLOCK,

As THE NOISE CAME CLOSER, HE LOOKED UP AND SAW RESPONDENT,

THEODORE BROWN, AND JOHN GRIFFIN (TWO CO-DEFENDANTS) WITH

"THIS LITTLE GUY ZPRICE, THE DECEDENT/ IN BETWEEN THEM” (R,

276A). SHORTLY THEREAFTER, HUNTER HEARD, FROM A POINT BEYOND

HIS CELL TOWARD CELL 455, A MAN SCREAMING FOR HELP AND YELLING

"THEY'RE KILLING ME” (R, 288A, 281A, 285A). WHEN THE NOISE

STOPPED, HUNTER SAW RESPONDENT, THEODORE BROWN, AND JOHN

GRIFFIN WALK BACK UP THE BLOCK (R, 288a) .°

Because oF CALVIN HUNTER’S DEATH PRIOR TO TRIAL, THIS TESTIMONY

AS INTRODUCED BY READING TO THE JURY THE TRANSCRIPT OF THE

CONTINUED ON NEXT PAGE

ADDITIONAL EVIDENCE PRESENTED BY THE COMMONWEALTH WAS

PROBATIVE ON THE QUESTION OF MOTIVE. TESTIMONY RELEVANT TO

THIS ISSUE WAS OFFERED BY JOHN EvaANs, Esquire, AN ASSISTANT

Unitep STATES ATTORNEY FOR THE District oF CocumBIA (R, 482).

HE INDICATED THAT, IN CONNECTION WITH HIS POSITION, HE HAD

OCCASION TO SUPERVISE AND ASSIST IN THE INVESTIGATION OF

THE HANAFI MUSLIM MURDERS, WHICH OCCURRED IN WASHINGTON,

D.C., on January 16, 1973 (R. 483a, 482A). PuRSUANT TO THAT

INVESTIGATION, MR, EVANS HAD EXTENSIVE DISCUSSIONS WITH THE

DECEDENT, JAMES PRICE, A SUSPECT IN THOSE KILLINGS (R, 483a-

485). As A CONSEQUENCE OF THOSE DISCUSSIONS, PRICE AGREED

TO COOPERATE WITH THE AUTHORITIES AND GAVE A WRITTEN STATEMENT

WHICH HE ADOPTED IN THE PRESENCE OF A GRAND JURY ON JULY 5,

1973 (R. 485a, 486a, 508A). CERTAIN PORTIONS OF THAT STATE-

MENT, WHICH IMPLICATED THE RESPONDENT IN THE HANAFI MuSLIM

MASSACRE, WERE READ AT TRIAL.’ ADDITIONAL TESTIMONY ESTABLISHED

THAT PRICE'S STATEMENT, WHICH IMPLICATED RESPONDENT, WAS TURNED

OVER TO RESPONDENT AND HIS ATTORNEYS ON Aprit 2, 1974 (R,

519a-520a),

FOOTNOTE 3 CONTINUED

TESTIMONY GIVEN BY HIt AT THE P ELIMIWARY HEARING WHICH WAS

. SA

Pam (CAG aS Pe AVID VITT ON FEBRUARY

AT THE a oF THE PRICE SLAYING, RESPONDENT WAS SERVING

FOURTEEN (14) TWENTY YEAR TO LIFE yo one SENTENCES AS

A CONSEQUENCE OF HIS we eo FOR SEVEN (/) COUNTS OF FIRST

DEGREE MURDER AND SEVEN (/) COUNTS OF fy DEGREE FELONY

MURDER 7) CONNECTION WITH THE SEVEN (7) HANAFI MUSLIM MURDERS.

EVEN (/) OF THESE SENTENCES WERE ORDERED TO RUN CONSECUTIVELY,

HE REMAINING WERE ORDERED TO RUN CONCURRENTLY. OR THE PURPOSES

OF THIS hg RESPONDENT SHALL BE CONSIDERED TO HAVE BEEN

SERVING SEVEN j LIFE SENTENCES AT THE TIME OF THE COMMISSION

OF THE NEW OFFENSE.

BY WAY OF DEFENSE, RESPONDENT PRESENTED TESTIMONY TO

ESTABLISH THAT HE AND PRICE HAD A GOOD RELATIONSHIP (R, 59]a-

592, 623a, 649a-650a). He ALSO ATTACKED HUNTER’S VERACITY

BY INTRODUCING A PRIOR INCONSISTENT STATEMENT WHICH HAD BEEN

MADE BY HuNTER (R. 782A - 790A) AND CALLED TWO WITNESSES

WHO PRESENTED EVIDENCE BEARING UPON WHAT CONSIDERATION HUNTER

EITHER RECEIVED, OR MIGHT HAVE RECEIVED, IN RETURN FOR HIS

TESTIMONY (R, 804a-842a),

MOODY HIMSELF DISAVOWED ANY INVOLVEMENT IN PRICE'S DEATH

AND OFFERED ALIBI TESTIMONY WHICH WAS CORROBORATED BY FOUR

INMATES WHO TESTIFIED ON HIS BEHALF (R, 85]A-859a, 678a-684a,

711a-713a, 733a-734a, 754a-756a). THE JURY, WHICH CHOSE TO DIS-

BELIEVE THIS TESTIMONY, CONVICTED RESPONDENT OF FIRST

DEGREE MURDER AND CRIMINAL CONSPIRACY (R, 19]4a),

REASONS FOR GRANTING THE WRIT

I. | THE PENNSYLVANIA DEATH PENALTY STATUTE, WHICH MARGINALLY

RESTRICTS THE MITIGATING CIRCUMSTANCES TO BE CONSIDERED

AND WHICH LIMITS MITIGATION TO THE DEFENDANT’S STATUS AT

THE TIME OF THE COMMISSION OF THE OFFENSE, IS NOT VIOLATIVE

OF THE EIGHTH AND FOURTEENTH AMENDMENTS.

THe Supreme CourT OF PENNSYLVANIA, RELYING ON THIS

Court’s 1976 DECISIONS REVIEWING THE CONSTITUTIONALITY

OF THE DEATH PENALTY STATUTES OF GEORGIA, TEXAS, FLORIDA,

NorTH CAROLINA, AND LourstANa> DECLARED THE PENNSYLVANIA

DEATH PENALTY STATUTE TO BE IN VIOLATION OF THE EIGHTH AND

FouRTEENTH AMENDMENTS TO THE UNITED STATES ConstiTuTION.©

THE RESULT REACHED BY THE PENNSYLVANIA SUPREME COURT WAS

PREDICATED UPON A TWO-PRONGED ANALYSIS WHICH RELIED IN THE FIRST

INSTANCE UPON TWO EXCERPTS FROM THE PLURALITY OPINIONS FILED

1n Woopson vy, NorTH CAROLINA, SUPRA, AND JUREK V, TEXAS, SUPRA.

ON THE BASIS OF ITS UTILIZATION OF THOSE STATEMENTS, THE

PENNSYLVANIA COURT FIRST CONCLUDED:

§28-0.8: "562, 68. Sea sim aty Ata

RIDA, 428 U.S. 242, 96 S.Ct. 2960 (1976);

AROLINA, 428 U.S. 289, 96 S.Ct. 2978 (1976);

428 U.S. 325, 96 S.Ct. 3001 (1976).

January Term, 1977, Ho.

FILED NOVEMBER 4 To773" (APPENDIX, INFRA AT 1A - 20A),

THE TWO EXCERPTS RELIED UPON BY THE PENNSYLVANIA SUPREME

CouRT STATED, IN PART,:

(CONTINUED ON NEXT PAGE)

COMMONWEALTH VY. Moopy, INFRA AT 12A, 16A (EMPHASIS IN ORIGINAL).

THE PENNSYLVANIA SUPREME CoURT ALSO CONCLUDED THAT, EVEN IF

THE PENNSYLVANIA DEATH PENALTY STATUTE’S MITIGATING CIRCUMSTANCES

ARE BROADLY CONSTRUED, THE STATUTE IS NEVERTHELESS CONSTITU-

IN OUR VIEW, HOWEVER, THE CONSTITUTIONAL DEFECT

OF (THE PENNSYLVANIA DEATH PENALTY STATUTE) IS THAT,

UNLIKE THE STATUTES APPROVED BY THE SuPREME CouRT,

IT SO NARROWLY LIMITS THE CIRCUMSTANCES WHICH THE JURY

MAY CONSIDER MITIGATING THAT IT PRECLUDES THE JURY

FROM A CONSTITUTIONALLY ADEQUATE CONSIDERATION OF THE

CHARACTER AND RECORD OF THE DEFENDANT...

(1)N ORDER TO PROTECT A DEFENDANT FROM CRUEL

AND UNUSUAL PUNISHMENT IN A CAPITAL CASE, IT IS

NOW NECESSARY BOTH THAT THE AGGRAVATING CIRCUM-

STANCES THAT WILL JUSTIFY THE IMPOSi TION OF THE

DEATH PENALTY BE CLEARLY DEFINED FOR THE SENTENCING

AUTHORITY, AND THAT THE SENTENCING AUTHORITY BE

ALLOWED TO CONSIDER WHATEVER MITIGATING EVIDENCE

RELEVANT TO HIS CHARACTER AND RECORD THE DEFENDANT

CAN PRESENT,

TIONALLY INFIRM BECAUSE IT RESTRICTS THE FACTORS WHICH MAY

BE CONSIDERED BY THE JURY TO THOSE BEARING UPON THE DEFENDANT’S

STATUS OR SITUATION AT THE TIME OF THE KILLING. SPECIFICALLY,

THE Court, IN N. 19, STATED:

FooTNoTE 7 CONTINUED

(

(W)E BELIEVE THAT IN CAPITAL CASES THE FUNDAMENTAL

RESPECT FOR HUMANITY UNDERLYING THE EIGHTH AMENDMENT

»++REQUIRES CONSIDERATION OF THE CHARACTER AND RECORD

OF THE INDIVIDUAL OFFENDER AND THE CIRCUMSTANCES OF

THE PARTICULAR OFFENSE...

supra, 428 U.S. at 304, 96 S.Cr.

2991, CITATION OMITTED;) AND

A JURY MUST BE ALLOWeD TO CONSIDER ON THE BASIS OF ALL

RELEVANT EVIDENCE NOT ONLY WHY A DEATH SENTENCE SHOULD

BE IMPOSED BUT ALSO WHY IT SHOULD NOT BE IMPOSED.

(JuREK vy. TEXAS, SUPRA, 428 U.S. at 271, 96 S.Ct. at 2956).

See COMMONWEALTH Vv, Moopy, 9A - 1JA INeRa.

CONTRARY TO IMPLICATIONS IN THE DISSENTING OPINION

+++ WE DO NOT ASSUME THAT EVIDENCE OF AN OFFENDER'S

PREVIOUS HISTORY AND BACKGROUND WOULD BE IRRELEVANT

TO DETERMINING HIS MATURITY OR LACK THEREOF AT THE

TIME OF THE KILLING, THE PROBLEM IS THAT, IN MAKING

ITS ULTIMATE DETERMINATION OF WHETHER OR NOT MITI-

GATING CIRCUMSTANCES EXIST, THE JURY IS RESTRICTED

BY THE STATUTE TO HIS STATUS OR SITUATION AT THE TIME

OF IHE KI‘ LING.

COMMONWEALTH V. Moopy, INFRA AT 17A (EMPHASIS IN ORIGINAL),

PETITIONER CAN FIND NO SUPPORT IN THE DECISIONS OF THIS

CouRT FOR THE STATE COURT’S CONCLUSION THAT THE MITIGATING

CIRCUMSTANCES CANNOT BE STATUTORILY LIMITED TO THE DEFENDANT'S

STATUS AT THE TIME OF THE COMMISSION OF THE MURDER.

ALTHOUGH THIS CouRT, IN 1976, UPHELD THREE DEATH PENALTY

STATUTES WHICH PROVIDED FOR A BROAD RANGE OF MITIGATING

CIRCUMSTANCES TO BE PRESENTED TO THE SENTENCING AUTHORITY AND

STRUCK DOWN TWO DEATH PENALTY STATUTES WHICH PROVIDED FOR

MANDATORY IMPOSITION OF THE DEATH PENALTY WITHOUT ANY CON-

SIDERATION OF MITIGATING CIRCUMSTANCES, THESE FIVE POST-

Furman® DECISIONS WERE NOT INTENDED BY THIS CouRT TO BE

EXHAUSTIVE OR DISPOSITIVE AS TO THE CONSTITUTIONALITY OF

EVERY POSSIBLE SYSTEM GOVERNING THE IMPOSITION OF THE DEATH

Furman Vv. Georcia, 408 U.S. 238, 92 S.Ct. 272h (1972).

Act, EFFECTIVELY HELD THAT THIS CouRT’S DECISIONS CONSTI TU-

4 TIONALLY PRECLUDE A LEGISLATURE FROM DEFINING OR LIMITING

PENALTY. FOR THAT REASON, THE PENNSYLVANIA SuPREME CourT’s MITIGATING CIRCUMSTANCES. IT IS FOR THIS REASON THAT REVIEW

ATTEMPT TO EXTRAPOLATE FROM THOSE DECISIONS A DISPOSITIVE BY THIS COURT IS REQUESTED.

BASIS FOR JUDGING THE CONSTITUTIONALITY OF PENNSYLVANIA’S THAT THIS COURT HAS UNDERTAKEN, IN CONNECTION WITH ITS

= t

DEATH PENALTY STATUTE IS ERRONEOUS. REVIEW OF THE OHIO DEATH PENALTY STATUTE (BELL vy, Oulo, 76-

THE PENNSYLVANIA STATUTE DOES NOT PRESENT TO THIS CouRT 6513, anp Lockett v. Ou1o, 76-6997, arcuep January 17, 1978),

A SITUATION COMPARABLE TO THAT CONSIDERED BY THE COURT IN TO CONSIDER LEGISLATIVE LIMITATIONS UPON THE MITIGATING

FuRMAN V, GEORGIA, a

SUPRA; NOR IS IT ANALOGOUS TO THE POST e CIRCUMSTANCES WHICH MAY BE PRESENTED TO A SENTENCING AUTHORITY,

EURMAN DEATH PENALTY STATUTES WHICH THIS COURT HAS REVIEWED. SUGGESTS THE LACK OF A PRIOR DEFINITIVE RESOLUTION OF THIS

RATHER, THE PENNSYLVANIA DEATH PENALTY STATUTE DIRECTLY QUESTION. HOWEVER, RESOLUTION OF THAT QUESTION CANNOT

PRESENTS TO THIS COURT A QUESTION WHICH REMAINS LARGELY BE SOLELY WITHIN THE CONTEXT OF THE OHIO STATUTE WHICH DIFFERS

UNANSWERED: WHETHER, IN WHAT CIRCUMSTANCES, AND TO WHAT 10 As

e SUBSTANTIALLY FROM ITS PENNSYLVANIA COUNTERPART. WAS

EXTENT, A LEGISLATURE MAY CONSTITUTIONALLY DEFINE THE FACTORS SUGGESTED BY THIS COURT IN GREGG, SEE N.9, INFRA, “EACH

AGAINST IMPOSITION OF THE DEATH PENALTY? THE PENNSYLVANIA UNLIKE OHIO AND MANY OTHER JURISDICTIONS, THE DEATH PENALTY

Supreme CourT, IN STRIKING DOWN THE PENNSYLVANIA DEATH PENALTY e MAY BE IMPOSED IN PENNSYLVANIA ONLY IF (1) THE DEFENDANT COMMITS

A PREMEDITATED AND INTENTIONAL MURDER AND (2) THE MURDER WAS

ACCOMPANIED BY AT LEAST ONE OF NINE (9) STATUTORILY SPECIFIED

AGGRAVATING CIRCUMSTANCES AND (3) THE SENTENCING AUTHORITY

EXPRESSLY FINDS THAT NONE OF THE SPECIFIED MITIGATING CIRCUM-

STANCES EXIST. THUS, IF A MITIGATING CIRCUMSTANCE IS FOUND

TO EXIST, THE DEFENDANT MUST BE SENTENCED TO LIFE IMPRISON-

MENT EVEN IF ALL NINE (9) AGGRAVATING CIRCUMSTANCES ARE ALSO

In GREGG v, Georcia, 428 U.S. at 195, 96 S.Ct. at 2935-2936,

THIS CoURT STATED:

WE DO NOT INTEND TO SUGGEST THAT ONLY THE ABOVE-

DESCRIBED PROCEDURES WOULD BE PERMISSIBLE UNDER e

FEURMAN OR THAT ANY SENTENCING SYSTEM CONSTRUCTED

ALONG THESE GENERAL LINES WOULD INEVITABLY SATISFY

THE CONCERNS OF FURMAN FOR EACH DISTINCT SYSTEM

MUST BE EXAMINED ON AN INDIVIDUAL BASIS. RATHER,

WE HAVE EMBARKED UPON THIS GENERAL EXPOSITION TO

MAKE CLEAR THAT IT IS POSSIBLE TG CONSTRUCT CAPITAL- ®

’

SENTENCING SYSTEMS CAPABLE OF MEETING

CONSTITUTIONAL CONCERNS,

(EMPHASIS ADDED, FOOTNOTES OMITTED. )

FOUND TO EXIST.

HE DIFFERENCES IN THE PENNSYLVANIA AND OHIO STATUTES THEMSELVES

AND THE JUDICIAL GLOSS WHICH HAS BEEN PLACED UPON THOSE STATUTES

13 e ARE SUCH THAT NO ATTEMPT WILL BE MADE TO COMPARE THESE SCHEMES.

THE ONLY CRIME FOR WHICH THE DEATH PENALTY MAY BE IMPOSED

IN PENNSYLVANIA IS FIRST DEGREE MURDER WHICH CONSTITUTES AN

INTENTIONAL KILLING. 22 THUS, THE PENNSYLVANIA LEGISLATURE HAS

NARROWLY CONFINED THE TYPE OF CRIME SUBJECT TO POSSIBLE

IMPOSITION OF THE DEATH PENALTY. IN MOST OTHER JURISDICTIONS,

AND CERTAINLY IN THOSE JURISDICTIONS REVIEWED BY THIS CouRT,

FELONY MURDER IS SUBJECT TO THE DEATH PENALTY. ~~

ig Pa.C.S.A. Section 2502 (Supe. 1977-1978) cLASSIFIES MURDER

AS FOLLOWS:

(A) MURDER OF THE FIRST DEGREE.--A CRIMINAL HOMICIDE

CONSTITUTES MURDER OF THE FIRST DEGREE WHEN IT IS

COMMITTED BY AN INTENTIONAL KILLING,

(B) MURDER OF THE SECOND DEGREE.--A CRIMINAL HOMICIDE

CONSTITUTES MURDER OF THE SECOND DEGREE WHEN THE

DEATH OF THE VICTIM OCCURRED WHILE DEFENDANT WAS

ENGAGED AS A PRINCIPAL OR AN ACCOMPLICE IN THE

PERPETRATION OF A FELONY,

MURDER SHALL BE MURDER OF THE THIRD DEGREE. MURDER

OF THE THIRD DEGREE IS A FELONY OF THE FIRST DEGREE,

18 Pa.C.S.A. Section 2502(p) (Supp. 1977-1978) DEFINES AN

INTENTIONAL KILLING AS A “KILLING BY MEANS OF POISON, OR BY

LYING IN WAIT, OR BY ANY OTHER KIND OF WILLFUL, DELIBERATE

AND PREMEDITATED KILLING.”

N ACCOMPLICE IN A MURDER CASE, IN ORDER TO BE CONVICTED OF

FIRST DEGREE MURDER, WOULD HAVE TO BE SHOWN TO HAVE ACTED

WITH THE INTENT TO TAKE LIFE IN HIS ROLE AS AN ACCOMPLICE

(18 C.P.S.A. §306(c) and (p)). MOREOVER, WHILE THE

COMMISSION OF AN INTENTIONAL KILLING, DURING THE PERPETRATION

OF A FELONY, WOULD CONSTITUTE AN AGGRAVATING CIRCUMSTANCE,

AN UNPREMEDITATED KILLING IN THE SAME SITUATION WOULD NOT

CONSTITUTE FIRST DEGREE muRDER (18 Pa.C.S.A. §2502(a);

18 Pa.C.S.A. §1311(p)(1) (v1); 18 C.P.S.A. §306(c) and (p)).

AFTER ANY CONVICTION FOR FIRST DEGREE MURDER, THE

FOLLOWING STATUTORILY MANDATED PROCEDURE MUST BE UTILIZED:

PROCEDURE AT SENTENCING HEARING.--AFTER SUCH

VERDICT IS RE@ORDED AND BEFORE THE JURY IS PERMITTED

TO SEPARATE, THE COURT SHALL PROCEED TO RECEIVE SUCH

ADDITIONAL EVIDENCE NOT PREVIOUSLY RECEIVED FROM THE

TRIAL AS MAY BE RELEVANT AND ADMISSIBLE UPON THE

QUESTION OF AGGRAVATING AND MITIGATING CIRCUMSTANCES

AND SHALL PERMIT SUCH ARGUMENT BY COUNSEL, AND

DELIVER SUCH CHARGE THEREON AS MAY BE JUST AND

PROPER IN THE CIRCUMSTANCES. AGGRAVATING CIRCUM-

STANCES MUST BE PROVED BY A PREPONDERANCE OF THE

EVIDENCE. THE JURY SHALL THEN RETIRE AND CONSIDER

THE AGGRAVATING AND MITIGATING CIRCUMSTANCES AND

RENDER SUCH VERDICT RESPECTING THEM AS THEY SHALL

AGREE UPON. A FAILURE OF THE JURY TO AGREE UPON

THE AGGRAVATING AND MITIGATING CIRCUMSTANCES SHALL NOT

BE HELD TO IMPEACH OR IN ANY WAY AFFECT THE VALIDITY

OF THE VERDICT ALREADY RECORDED, AND WHENEVER THE

COURT SHALL BE OF THE OPINION THAT FURTHER DELIBERATION

BY THE JURY WILL NOT RESULT IN AN AGREEMENT UPON THE

AGGRAVATING AND MITIGATING CIRCUMSTANCES, IT MAY,

IN ITS DISCRETION, DISCHARGE THE JURY FROM FURTHER

CONSIDERATION THEREOF, IN WHICH EVENT IF NO RETRIAL

IS DIRECTED, THE COURT SHALL SENTENCE THE DEFENDANT

TO LIFE IMPRISONMENT UPON THE VERDICT THERETOFORE

RENDERED BY THE JURY AND RECORDED AS AFORESAID AND

THE JURY SHALL BE SO INFORMED PRIOR TO THEIR DELIBERA-

TIONS. THE COURT SHALL IMPOSE THE SENTENCE SO FIXED

AS IN THE OTHER CASES.

18 Pa.C.S.A, §1311(c).

THE STATUTORY PROVISION WHICH SPECIFIES THE AGGRAVATING

AND MITIGATING CIRCUMSTANCES TO BE CONSIDERED BY THE JURY

AND THE EFFECT OF A JURY’S DETERMINATION OF THESE QUESTIONS

IS AS FOLLOWS:

(p) AGGRAVATING AND MITIGATING CIRCUMSTANCES, ~~

IF A MURDER OF THE FIRST DEGREE IS ACCOMPANIED BY AT

LEAST ONE OF THE FOLLOWING AGGRAVATING CIRCUMSTANCES AND

NONE OF THE FOLLOWING MITIGATING CIRCUMSTANCES, THE

PERSON CONVICTED SHALL BE SENTENCED TO DEATH. IF A

MURDER OF THE FIRST DEGREE IS NOT ACCOMPANIED BY ANY

OF THE FOLLOWING AGGRAVATING CIRCUMSTANCES OR IS

ACCOMPANIED BY AT LEAST ONE OF THE FOLLOWING MITI~

GATING CIRCUMSTANCES THE PERSON CONVICTED SHALL BE

SENTENCED TO LIFE IMPRISONMENT:

(1) AGGRAVATING CIRCUMSTANCES:

(1) THE VICTIM WAS A FIREMAN, PEACE OFFICER

OR PUBLIC SERVANT ey IN OFFICIAL DETENTION

AS DEFINED IN SECTION OF THIS TITLE (RELATING

ote Gara. WHO WAS KILLED IN THE PERFORMANCE OF

H .

(11) THE DEFENDANT PAID OR WAS PAID BY ANOTHER

PERSON OR HAD CONTRACTED TO PAY OR BE PAID BY

ANOTHER PERSON OR HAD CONSPIRED TO PAY OR BE PAID

BY ANOTHER PERSON FOR THE KILLING OF THE VICTIM,

(111) THE VICTIM WAS BEING HELD BY THE DEFENDANT

FOR RANSOM OR REWARD, OR AS A SHIELD OR HOSTAGE,

(1v) THE DEATH OF THE VICTIM OCCURRED WHILE

DEFENDANT WAS ENGAGED IN THE HIJACKING OF AN

IRCRAFT,

(v) THE VICTIM WAS A WITNESS TO A MURDER OR

OTHER FELONY COMMITTED BY THE DEFENDANT AND WAS

KILLED FOR THE PURPOSE OF PREVENTING HIS TESTIMONY

AGAINST THE DEFENDANT IN ANY GRAND JURY OR CRIMINAL

PROCEEDING INVOLVING SUCH OFFENSES,

(v1) THE DEFENDANT COMMITTED A KILLING WHILE

IN THE PERPETRATION OF A FELONY,

(vit) IN THE COMMISSION OF THE OFFENSE THE

DEFENDANT KNOWINGLY CREATED A GRAVE RISK OF DEATH

TO ANOTHER PERSON IN ADDITION TO THE VICTIM OF

THE OFFENSE,

(vI11) THE OFFENSE WAS COMMITTED BY MEANS OF

TORTURE,

(1x) THE DEFENDANT HAS BEEN CONVICTED OF

ANOTHER 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 OR THE DEFENDANT WAS UNDERGOING A SENTENCE

OF LIFE IMPRISONMENT FOR ANY REASON AT THE TIME OF

THE COMMISSION OF THE OFFENSE,

(2) MITIGATING CIRCUMSTANCES:

(1) THE AGE, LACK OF MATURITY, OR YOUTH OF

THE DEFENDANT AT THE TIME OF THE KILLING.

(11) THE VICTIM WAS A PARTICIPANT IN OR

CONSENTED 19,THE PEPENDANT S CONDUCT AS SET FORTH

IN SECTION 1311(D) OF THIS TITLE OR WAS A PARTICI-

PANT IN OR CONSENTED TO THE KILLING,

(111) THE DEFENDANT WAS UNDER DURESS ALTHOUGH

NOT SUCH DURESS AS TO CONSIJJUTE A DEFENSE TO

PROSECUTION UNDER SECTION OF THIS TITLE

(RELATING TO DURESS).

18 Pa.C.$.A. $1311(p). 22

THIS IS ALSO A FAR MORE RESTRICTIVE APPROACH THAN HAS

BEEN TAKEN IN OTHER JURISDICTIONS; THE FINDING OF A MITIGATING

CIRCUMSTANCE OPERATES AS A BAR TO THE IMPOSITION OF THE DEATH

PENALTY, 24

IT IS EVIDENT THAT THE PENNSYLVANIA LEGISLATURE, IN

ENACTING THE STATUTE, DID LIMIT THE EVIDENCE WHICH MIGHT

BE CONSIDERED BY WAY OF MITIGATION. HOWEVER, THESE REASONABLE

LIMITATIONS, WHEN VIEWED IN CONJUNCTION WITH THE SUBSTANTIALLY

RESTRICTED PROFILE OF THE PERSONS WHO MAY BE SUBJECT TO

THE DEATH PENALTY REGARDLESS OF MITIGATION, PRESENT A CONSTI-

TUTIONALLY VALID SENTENCING SCHEME,

, ae 309, REFERRED TO IN §13]11(p)(2) (111), PROVIDES

AS FOLLOWS:

Duress

(a) GENERAL RULE.--IT IS A DEFENSE THAT THE ACTOR

ENGAGED IN THE CONDUCT CHARGED TO CONSTITUTE AN OFFENSE

BECAUSE HE WAS COERCED TO DO SO BY THE USE OF, OR A

THREAT TO USE, UNLAWFUL FORCE AGAINST HIS PERSON OR

THE PERSON OF ANOTHER, WHICH A PERSON OF REASONABLE

FIRMNESS IN HIS SITUATION WOULD HAVE BEEN UNABLE TO

RESIST,

(B) EXCEPTION.--THE DEFENSE PROVIDED BY SUBSECTION

(A) OF THIS SECTION IS UNAVAILABLE IF THE ACTOR RECKLESSLY

PLACED HIMSELF IN A SITUATION IN WHICH JT WAS PROBABLE

THAT HE WOULD BE SUBJECTED TO DURESS. HE DEFENSE IS

ALSO UNAVAILABLE IF HE WAS NEGLIGENT IN PLACING HIMSELF

IN SUCH A SITUATION, WHENEVER NEGLIGENCE SUFFICES TO

ESTABLISH CULPABILITY FOR THE OFFENSE CHARGED.

18 C.P.S.A. $399.

HUS, EVEN THE DISCRETION OF A SENTENCING AUTHORITY TO WEIGH

AGGRAVATING AND MITIGATING CIRCUMSTANCES HAS BEEN REMOVED

IN PENNSYLVANIA, See PROFFITT v. Froripa, 428 U.S. at 257,

96 S.Ct. at 2969,

THe PENNSYLVANIA SUPREME CourRT DID NOT EXPRESSLY CONSTRUE

THE EXACT MEANING OF THE PENNSYLVANIA MITIGATING CIRCUMSTANCES

PROVISION. IN RELEVANT PART, THAT CourRT STATED:

PROVISIO

DEFENDANT TO PRESENT A BROAD RANGE OF MITIGATING

EVIDENCE BEARING UPON HIS CHARACTER AND RECORD,

THEREFORE, CLEARLY THE JURY, ABSENT CONSENT OR

DURESS, CAN ONLY CONSIDER SUCH EVIDENCE, OR ANY

OTHER RELEVANT EVIDENCE PRESENTED AT TRIAL, TO

THE EXTENT IT SHOWS THE DEFENDANT'S AGE, YOUTH,

R LACK OF MATURITY AT THE TIME OF THE KILLING. 2?

— THUS CONCLUDE ed EVEN IF he IS | IBERALLY

NTERPRETED LTHE EATH PENALTY

TATUTE/, UNLIKE THE !EXAS STATUTE APPROVED IN

EVEN IF Ly a: LANGUAGE /THE MITIGATING CIRCUMSTANCES

IN MAKING ITS ULTIMATE DECISION TO FOCUS SUFFICIENTLY

UPON THE ENTIRE CHARACTER AND RECORD OF THE OFFENDER.

CONTRARY TO IMPLICATIONS IN THE DISSENTING OPINJON

.eey WE DO NOT ASSUME THAT EVIDENCE OF AN OFFENDER S

PREVIOUS HISTORY AND BACKGROUND WOULD BE IRRELEVANT

TO DETERMINING HIS MAT RITY OR LACK THEREOF AT THE

TIME OF THE KILLING. HE PROBLEM IS THAT, IN MAKING

ITS ULTIMATE DETERMINATION OF WHETHER OR NOT MITIGATING

CIRCUMSTANCES EXIST, THE JURY 1S RESTRICTED BY THE

STATUTE TO HIS STATUS OR SITUATION AT IHE TIME

OF IHE KILLING..-+:

CoMMONWEALTH V. MoopY, INFRA AT 17A, FOOTNOTE 20 OMITTED.

THus, THE PENNSYLVANIA SUPREME CouRT HAS STATED THAT,

EVEN IF THIS PROVISION IS BROADLY INTERPRETED, SO AS TO

ALLOW CONSIDERATION OF A WIDE RANGE OF FACTS BEARING UPON

AGE, YOUTH, OR LACK OF MATURITY) > IT WOULD STILL FALL

, a THE PENNSYLVANIA SUPREME CouRT DID NOT SPECIFICALLY

DEFINE THE PARAMETERS OF He EVIDENCE WHICH couLD BEAR UPQN

LACK OF MATURITY, THAT LOURT DID STATE, JN Ns 9, THAT WE

DO NOT ASSUME THAT EVIDENCE OF AN OFFENDER S$ PREVIOUS HISTORY

AND BACKGROUND WOULD BE IRRELEVANT TO DETER INE HIS MATURITY

OR LACK THEREOF AT THE TIME, OF THE KILLING, DDITIONALLY,

IN N, 15, THE COURT STATED, WE ASSUME, AS DID THE, TRIAL CQURT,

WITHOUT DECIDING THAT AGE IN THE STATUTE ,, MEANS ‘OLD AGE

coy. OF ITS JUBTAPOS ATION WITH ‘YOUTH.

BECAUSE THE JURY IS RESTRICTED TO CONSIDERING MITIGATING

CIRCUMSTANCES BEARING UPON A DEFENDANT'S STATUS OR SITUATION

AT THE TIME OF THE KILLING. To REQUIRE, AS A MATTER OF FEDERAL

CONSTITUTIONAL LAW, IAT THE MITIGATING FACTORS MUST ENCOMPASS

SOMETHING MORE THAN THE ~TATUS OF THE OFFENDER AT THE TIME

OF THE KILLING HAS NO SUPPORT IN ANY OF THIS COURT'S OPINIONS.

INDEED, ONLY THE DEFENDANT'S STATUS, STATE OF MIND, OR SITUATION

AT THE TIME OF THE KILLING WOULD APPEAR TO BE RELEVANT TO THE

QUESTION OF PENALTY. IF A THIRTY-FIVE YEAR OLD DEFENDANT HAD

AN UPBRINGING WITH ANY NUMBER OF DEFICIENCIES WHEN HE WAS EIGHT

YEARS OLD, SUCH FACTORS WOULD BE RELEVANT AND ADMISSIBLE UNDER

THE PENNSYLVANIA STATUTE IF THEY HAD ANY IMPACT ON HIS STATUS

OR SITUATION AT THE TIME OF THE COMMISSION OF THE KILLING.

IF NO SUCH IMPACT EXISTED, SUCH EVIDENCE WOULD BE IRRELEVANT

AS A MATTER OF LOGIC, Tuus, THE PENNSYLVANIA CourT’S DECISION,

THAT IT IS VIOLATIVE OF THE UNITED STATES CONSTITUTION TO RESTRICT

MITIGATING CIRCUMSTANCES TO CIRCUMSTANCES AFFEC1ING THE

DEFENDANT'S STATUS AT THE TIME OF THE KILLING, HAS NO BASIS

IN ANY DECISION OF THIS CourT AND DOES NOT SUGGEST A NEW

AND VIABLE CRITERION FOR STRIKING DOWN A DEATH PENALTY STATUTE.

THe PENNSYLVANIA STATUTE, BECAUSE IT SO NARROWLY

LIMITS THE TYPE OF OFFENSE WHICH CAN EVEN TRIGGER CONSIDERATION

OF THE DEATH PENALTY, PROVIDES AMPLE JUSTIFICATION FOR SIMILARLY

PROVIDING THE JURY WITH CLEAR GUIDELINES AS TO WHAT FACTORS,

AS A MATTER OF LEGISLATIVE POLICY, MAY BE CONSIDERED FOR PURPOSES

OF MITIGATION. THE RANGE OF THE PENNSYLVANIA MITIGATING

CIRCUMSTANCES PROVISION, WHICH ALLOWS THE JURY TO CONSIDER

THE GENERAL CHARACTER AND BACKGROUND OF THE DEFENDANT, TO

ESTABLISH AGE, YOUTH, OR LACK OF MATURITY, DOES NOT EVEN

RESEMBLE THE MANDATORY DEATH PENALTY STATUTE WHICH THIS

CouRT HAS DETERMINED TO BE uNconsTITuTIONAL. -€ ,

IT IS ANOMALOUS TO CONCLUDE, AS THE PENNSYLVANIA SUPREME

CouRT HAS, THAT, ALTHOUGH A LEGISLATURE MAY SPECIFY THOSE FACTORS

WHICH A JURY IS ALLOWED TO CONSIDER AS EVIDENCE OF AGGRAVATING

CIRCUMSTANCES, IT IS ABSOLUTELY AND IRREVOCABLY BARRED

FROM SIMILARLY SPECIFYING THOSE FACTORS WHICH MAY ESTABLISH

MITIGATION. THE ONLY LIMITATION, WHICH SHOULD BE CONSTITU-

TIONALLY IMPOSED, IS THAT THE LEGISLATIVE DEFINITIONS OF

AGGRAVATION AND MITIGATION BE REASONABLE. STATE LEGISLATURES

SHOULD HAVE THE AUTHORITY TO PLACE REASONABLE BOUNDARIES ON

THE MITIGATING FACTORS WHICH CAN BE CONSIDERED, ESPECIALLY

WHERE, AS UNDER THE PENNSYLVANIA DEATH PENALTY STATUTE, THE

FINDING OF ANY ONE OF THOSE MITIGATING FACTORS STATUTORILY BARS

IMPOSITION OF THE DEATH PENALTY. THE PENNSYLVANIA SCHEME MORE

CLOSELY COMPLIES WITH THE ORIGINAL DICTATES OF EURMAN THAN ANY

OF THE STATUTES WHICH HAVE HERETOFORE BEEN CONSIDERED BY THIS

Court. ALTHOUGH PENNSYLVANIA HAS PERHAPS TAKEN A SOME-

WHAT DIFFERENT APPROACH TI'*% THE FLORIDA, GEORGIA, AND TEXAS

STATUTES PREVIOUSLY APPROVED BY THIS COURT, NOTHING CONTAINED

IN ANY OF THIS CouRT’S OPINIONS SUGGESTS THAT THAT APPROACH

IS IMPERMISSIBLE,

See ROBERTS Vv. LOUISIANA, SUPRA.

THE SOCIETAL IMPORTANCE OF THE DEATH PENALTY IS SO

COMPELLING THAT, IF PETITIONER IS CORRECT IN ITS CONCLUSION

THAT THE PENNSYLVANIA SUPREME COURT HAS MISCONSTRUED THIS

CourT’S DECISIONS, IT IS ABSOLUTELY ESSENTIAL THAT PENNSYLVANIA

NOT BE DENIED THE BENEFIT OF ITS LEGISLATURE’S APPROACH

TO THE IMPOSITION OF THE DEATH PENALTY BECAUSE OF AN ERRONEOUS

STATE COURT INTERPRETATION OF FEDERAL taw..7 ADDITIONALLY,

THIS CASE PRESENTS QUESTIONS, PREVIOUSLY UNRESOLVED BY THIS

CourT, WHICH EFFECT OTHER JURISDICTIONS AS WELL AS PENNSYLVANIA.

,* PENNSYLVANIA CourRT’S SOLE RELIANCE UPON FEDERAL CONSTITUTIONAL

HE COURT’S RELIANCE UPON THE DICTATES OF THE CIGHTH AND

OURTEENTH AMENDMENTS IS eS FROM BOTH THE MAJORITY

OPINION AND FROM Mr, JUSTICE IX S STATEMENT, IN HIS

DISSENTING OPINION, THAT_HIS DISSENT IS BASED SOLELY UPON

oe COURT S eo ON FEDERAL —_— GROUNDS.

» LNERA AT ‘

Ine Cou IN STRIKING DOWN THE DEATH PENALTY STATUTE IS CLEAR.

I], EVEN IF THE PENNSYLVANIA MITIGATING CIRCUMSTANCES

PROVISION COULD OTHERWISE BE CONSIDERED UNDULY

RESTRICTIVE, A DEATH SENTENCE WHICH IS IMPOSED

UPON A DEFENDANT SERVING A LIFE SENTENCE AT THE

TIME OF THE COMMISSION OF THE RELEVANT OFFENSE

I$ VALID UNDER THE EIGHTH AND FOURTEENTH AMENDMENTS.

THE CIRCUMSTANCES OF THIS CASE ARE SUCH THAT REVIEW IS

ALSO REQUESTED AS TO A QUESTION WHICH THIS COURT HAS EXPRESSLY

RESERVED FOR CONSIDERATION: WHETHER THE EXISTING CONSTITUTIONAL

GUIDE!INES FOR THE IMPOSITION OF THE DEATH PENALTY ARE APPLICABLE

WHERE THE DEFENDANT, AT THE TIME OF THE KILLING, WAS SERVING

A LIFE SENTENCE.2° RESPONDENT, AT THE TIME HE COMMITTED THE

CRIME FOR WHICH HE WAS SENTENCED TO DEATH, WAS SERVING NOT

ONE BUT SEVEN (7) LIFE SENTENCES. ALTHOUGH THE PENNSYLVANIA

SUPREME COURT WAS REQUESTED BY THE COMMONWEALTH TO REVIEW

THE CONSTITUTIONALITY OF THE PENNSYLVANIA MITIGATING CIRCUM-

STANCES IN THAT SPECIFIC SITUATION; NAMELY, WHERE AN EXISTENT

AGGRAVATING CIRCUMSTANCE WAS THAT THE DEFENDANT WAS SERVING

A LIFE SENTENCE; THE COURT DECLINED TO CONSIDER THAT QUESTION

AND STATED AS FOLLOWS:

IN ROBERTS Vv. LOUISIANA, SUPRA AT N. 9, 428 U.S. at 334,

96 S.Ct. at 3096-3997, tH1s Court sTATED:

9. ONLY THE THIRD CATEGORY OF THE LOUISIANA FIRST-

DEGREE MURDER STATUTE, COVERING INTENTIONAL

KILLING BY A PERSON SERVING A LIFE SENTENCE OR

BY A PERSON PREVIOUSLY CONVICTED OF AN UNRELATED

MURDER, DEFINES THE CAPITAL CRIME AT LEAST IN

SIGNIFICANT PART IN TERMS OF THE CHARACTER OR RECORD

OF THE INDIVIDUAL OFFENDER, ALTHOUGH EVEN THIS

NOT PERMIT THE JURY

POSSIBLE MITIGATING FACTORS, A PRISONER SERVING Ap

ANTE, ffs P, FE G a

Hoanson-v._HoRTH CAROL NA. ANTE, __ U.S. P,

a N. 25, 96 S.Ct. Pp. 2983 n. 7, 2985

N. 25,

(EMPHASIS ADDED, )

FINALLY, JHE COMMONWEALTH NOTES THAT THE PLURALITY

OF THE UNITED STATES SUPREME LOURT HAS EXPRESSLY RESERVED

THE QUESTION OF WHETHER A PRISONER ALREADY SERVING A

IFE. SENTENCE MAY BE SUBJECT TO A MANDATQRY DEATH PENALTY.

EE SUPRA, HE COMMONWEALTH

THEREFORE CONTENDS THAT, SINCE MOODY WAS ytd SEVEN

CONSECUTIVE LIFE SENTENCES AT THE TIME OF FRICE S KILLING,

HE MAY CONSTITUTIONALLY BE SENTENCED TO DEATH eo!

OF ANY GENERAL CONSTITUTIONAL DEFECTS 'N SECTION

RELATING TO MITIGATING CIRCUMSTANCES, HE QUESTION,

HOWEVER, OF A MANDATORY DEATH SENTENCE FOR A MURDERER

ALREADY SERVING A EahI SENTENCE IS NOT PROPERLY BEFORE

US, SINCE SECTION POEs NOT MAKE DEATH MANDATORY

IN SUCH CIRCUMSTANCES,

We NOTE ALSO THAT MoopyY WAS NBr SERVING A PENNSYLVANIA

LIFE SENTENCE AT THE TIME OF FRICE S KILLING, AND THAT

AT THE JIME OF HIS CONVICTION INSTANTLY HIS SENTENCES

IN THE DISTRICT OF LOLUMBIA WERE STILL ON APPEAL.

CoMMONWEALTH Vv, Moopy, 20A -21A INFRA.

THE PENNSYLVANIA SuPREME COURT MISCONSTRUED THE QUESTION

PRESENTED. 9 THE QUESTION PRESENTED BY THIS CASE IS WHETHER,

FOR FEDERAL CONSTITUTIONAL PURPOSES, THE PENNSYLVANIA MITIGATING

CIRCUMSTANCES ARE UNDULY RESTRICTIVE WHERE, AND ONLY WHERE,

THE STATUTORILY PROVIDED AGGRAVATING CIRCUMSTANCE, THAT

THE DEFENDANT WAS SERVING A LIFE SENTENCE AT THE TIME OF

THE CRIME, IS FOUND TO EXIST.

THe Court’s RELIANCE, IN Footnote 21, upon (1) THE FACT THAT

RESPONDENT WAS NOT SERVING ‘ Bess yi Vania LIFE SENTENCE AT THE

TIME OF THE KILLING, AND (2) THE FACT THAT THE CONVICTIONS

FOR THE SEVEN LIFE SENTENCES WERE STILL ON APPEAL IS

MEANINGLESS UNDER THE EXPRESS PROVISIONS OF THE STATUTE

ITSELF. |THE NINTH AGGRAVATING CIRCUMSTANCE IS AS FOLLOWS:

THE DEFENDANT HAS BEEN CONVICTED OF ANOTHER 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 OR THE

DEFENDANT WAS UNDERGOING A SENTENCE OF LIFE IMPRISON-

MENT FOR ANY REASON AT THE TIME OF THE COMMISSION OF

THE OFFENSE,

18 Pa.C.S.A. $1311(p) (1x) (Supe. 1977-1978). THus, THE FACTORS

AND CONSIDERATIONS NOTED BY THE PENNSYLVANIA SUPREME CouRT

IN FOOTNOTE 21 ARE IRRELEVANT.

THe PENNSYLVANIA SuPREME CouRT’S CONCLUSION, THAT THIS

QUESTION IS NOT PRESENT BECAUSE A DEATH SENTENCE IS NOT STATUTORILY

MANDATED IN SUCH CIRCUMSTANCES, QUITE SIMPLY MISSES THE

POINT.“ THE COMMONWEALTH, BY NOTING THAT THIS COURT HAS

LEFT OPEN THE QUESTION OF WHETHER A MANDATORY DEATH SENTENCE

CAN BE IMPOSED WHERE A DEFENDANT IS SERVING A LIFE SENTENCE,

WAS NOT SUGGESTING THAT PENNSYLVANIA COULD SO APPLY ITS OWN

STATUTE. RATHER, THE COMMONWEALTH WAS SUGGESTING THAT THE

ENTIRE QUESTION OF THE ADEQUACY OF THE PENNSYLVANIA MITIGATING

CIRCUMSTANCES HAD TO BE REVIEWED IN THIS CASE UNDER SUBSTANTIALLY

DIFFERENT STANDARDS THAN THOSE ENUNCIATED IN EURMAN, SUPRA, AND

ITS PROGENY, BECAUSE THOSE CASES DID NOT NECESSARILY APPLY WHERE

A LIFE PRISONER WAS INVOLVED,

THe PENNSYLVANIA SUPREME COURT DID NOT REFUSE TO REACH THIS

ISSUE ON THE BASIS OF SEVERABILITY CONSIDERATIONS. INDEED,

THE APPLICABLE SEVERABILITY CLAUSE READS AS FOLLOWS:

SECTION 3,

IF ANY PROVISION OF THIS ACT OR THE APPLICATION

THEREOF TO ANY PERSON OR CIRCUMSTANCES IS HELD INVALID,

SUCH INVALIDITY SHALL NOT AFFECT OTHER PROVISIONS OR

APPLICATIONS OF THE ACT WHICH CAN BE GIVEN EFFECT

WITHOUT THE INVALID PROVISION OR APPLICATION, AND TO

THIS END THE PROVISIONS OF THIS ACT ARE DECLARED TO

BE SEVERABLE.

18 C.P.S.A. Section 3. IF, BECAUSE OF THE PLAIN LANGUAGE OF THE

SEVERABILITY CLAUSE, THE PENNSYLVANIA DEATH PENALTY STATUTE

CAN BE APPLIED CONSTITUTIONALLY ONLY WHERE THE DEFENDANT IS

A LIFE PRISONER, THAT “APPLICATION” MUST BE SAVED REGARDLESS

OF WHETHER, UNDER ANY OTHER AGGRAVATING CIRCUMSTANCE, A

DEFENDANT COULD NOT BE SUBJECT TO THE DEATH PENALTY,

PETITIONER, AS IT URGED THE PENNSYLVANIA Supreme Court,

URGES THIS COURT TO CONSIDER THE ADEQUACY OF PENNSYLVANIA’S

MITIGATING CIRCUMSTANCES WHERE, AS HERE, AN EXISTFNT AGGRAVATING

CIRCUMSTANCE WAS RESPONDENT'S LIFE PRISONER STATUS. As

THIS COURT HAS EXPRESSLY RESERVED DECISION ON THE QUESTION

OF WHETHER MANDATORY IMPOSITION OF THE DEATH PENALTY IS CON-

STITUTIONAL IN THIS LIMITED CONTEXT, PETITIONER SUBMITS THAT

THE PENNSYLVANIA MITIGATING CIRCUMSTANCES ARE FAR BROADER

THAN THE CONSTITUTION REQUIRES. ACCORDINGLY, RESPONDENT

MoopY’S SENTENCE OF DEATH WAS PROPERLY IMPOSED.

CONCLUSION

FOR ALL THE FOREGOING REASONS, PETITIONER, THE COMMON-

WEALTH OF PENNSYLVANIA, RESPECTFULLY REQUESTS THAT A WRIT

OF CERTIORARI ISSUE TO REVIEW THE DECISION BELOW,

JomnepD By:

2400 Centre Souare West

RESPECTFULLY SUBMITTED,

; lual Lely

STEVEN H. GOLDBLATT

Deputy District AtTorNeY FoR LAW

GAELE McLAUGHLIN BARTHOLD

Assistant District ATTORNEY

EDWARD G, RENDELL

District ATTORNEY oF

PHILADELPHIA CouNTY

ROBERT P. KANE

ATTORNEY GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA

VINCENT X. YAKOWICZ

SOLICITOR GENERAL OF THE

COMMONWEALTH OF PENNSYLVANIA

PHILADELPHIA, PENNSYLVANIA 19112

IN THE SUPREME COURT OF THE UNITED STATES

COMMONWEALTH OF PENNSYLVANIA : OCTOBER TERM,

PETITIONER

Vv.

THEODORE MOODY >: Te ees

RESPONDENT

CERTIFICATION OF SERVICE

1, STEVEN H. GOLDBLATT, ESQUIRE, CounseL For PETITIONER,

COMMONWEALTH OF PENNSYLVANIA, HEREBY CERTIFY THAT I HAVE CAUSED

A COPY OF THIS PETITION FOR A WRIT OF CERTIORARI TO BE SERVED

upon JOHN ROGERS CARROLL, ESQUIRE. anp JOSEPH D. MONTGOMERY,

III, ESQUIRE, Counsec For Responpent, THEODORE MOODY, By

DEPOSITING THREE COPIES IN THE UNITED States MAIL, FIRST

Crass, PostaGe Prepaip, appressed tT: JOHN ROGERS CARROLL,

ESQUIRE, 326 Tree Penn CenTER, PHILADELPHIA, PENNSYLVANIA,

19102, AND THREE COPIES IN THE UNITED States MAIL, First

CLASS, POSTAGE PREPAID, ADDRESSED To JOSEPH D. MONTGOMERY,

III, ESQUIRE, Two Girarp PLaza, TENTH FLOOR, PHILADELPHIA,

PENNSYLVANIA, 19192, on Fripay, Fepruary 24, 1978,

STEVEN H. GOLDBLATT

APPENDIX A

1A @

(J. 178]

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, No. 280 JANUARY TERM ®

Appellant 1977

Vv. Appeal from the Order

of the Court of Common

Pleas of Philadelphia,

Trial Division,

Criminal Section, at

No. 1429 February

Sessions, 1975.

THEODORE MOODY

Entered: January 28,

1977

OPINION

FILED: November 30,

1977

EAGEN, C. J.

In this appeal by the Commonwealth we are asked

to determine the constitutionality of section 1311

of the Sentencing Code, 18 Pa. C.S.A. §1311 (Supp.

1°77-78), which establishes sentencing procedures

and standards regulating jury determinations of

whether or not the death penalty should be imposed

as punishment for murder, and which a panel of the

Court of Common Pleas of Philadelphia held to be

unconstitutional. We shall affirm.

Appellee Theodore Moody was convicted by a

jury of murder of the first degree and criminal

conspiracy in the death on December 29, 1974, of

one James Price, a fellow inmate at Holmesburg

Prison in Philadelphia. Pursuant to section

13ll(c) of the Sentencing code, a hearing was then

held to permit the jury to receive additional testi-

mony and arguments on the question of aggravating

and mitigating circumstances. In order to establish

aggravating circumstances, the Commonwealth called

an assistant United States attorney from Washington,

D. C., who testified that Moody had previously been

convicted in the District of Columbia of seven

counts of premeditated and deliberate first-degree

murder and seven counts of first-degree felony-

murder, and that he had -been sentenced to a term of

twenty years to life imprisonment on each count .2

1 "Procedure at sentencing hearing.-- After such

verdict is recorded and before the jury is permitted

to separate, the court shall proceed to receive such

additional evidence not previously received from the

trial as may be relevant and admissible upon the

question of aggravating and mitigating circumstances

and shall permit such argument by counsel, and de-

liver such charge thereon as may be just and proper

in the circumstances. Aggravating circumstances

must be proved beyond a reasonable doubt. Mitiga-

ting circumstances must be proved by a preponder-

ance of the evidence. The jury shall then retire

and consider the aggravating and mitigating circum-

stances and render such verdict respecting them as

they shall agree upon. A failure of the jury to

agree upon the aggravating and mitigating circum-

stances shall not be held to impeach or in any way

affect the validity of the verdict alceady recorded,

and whenever the court shall be of the opinion that

further deliberation by the jury will not result in

an agreement upon the aggravating and mitigating

circumstances, it may, in its discretion, discharge

the jury from further consideration thereof, in

which event if no retrial is directed, the court

shall sentence the defendant to life imprisonment

upon the verdict theretofore rendered by the jury

and recorded as aforesaid aud the jury shall be so

informed prior to their deliberations. The court

shall impose the sentence so fixed as in the other

cases."

2 Section 1311(d) (1) (ix) lists the following

During cross-examination the witness testified that

Moody's appeals attacking these convictions were

still pending. The Commonwealth also argued to the

jury that the evidence adduced at trial indicated

the killing of Price was "committed by means of

torture," another statutory aggraving circumstance.

In an effort to establish statutory mitigating

circumstances, the defense called Moody's mother,

2 Continued -

statutory aggravating circumstance:

"The defendant has been convicted of

another Federal or State offense, com-

mitted either before or at the time of

the offense at issue, for which a sen-

tence of life imprisonment or death was

imposable or the defendant was under-

going a sentence of life imprisonment for

any reason at the time of the commission

of the offense."

Moody's previous murder convictions had been

based upon the deaths of seven persons in the

highly publicized Hanafi Muslim killings of

January 16, 1973. His confinement in Holmesburg

Prison at the time of the instant murder was un-

related to these convictions. During the instant

trial, however, the Commonwealth presented evi-

dence that the victim, Price, had given a state-

ment to the police and grand jury testimony impli-

cating Moody in the District of Columbia killings,

and that Moody had been aware that Price had

implicated him.

3 18 Pa. C.S.A. §1311(d) (1) (viii).

who testified to her son's age--twenty-one at the

time of the killing--and her belief that he was not

"quite mature" and that he was “easily led."4

After further deliberations the jury returned with

a finding that the killing of Price was accompanied

by aggravating circumstances and no mitigating cir-

cumstances. Although this finding required the im-

position of the death penalty, the court deferred

formal sentencing pending the disposition of post-

verdict motions.

Subsequently, a three-judge post-verdict

motions court denied Moody's motions in arrest of

judgment and for a new trial, but a majority of

that court concluded that to impose the death

penalty on Moody would be unconstitutional on two

grounds. First, the statutory mitigating circum-

stances were found "unconstitutionally vague be-

cause a reasonable jury would have to guess at the

meaning of ‘age’, ‘youth' and ‘lack of maturity,'"

with “arbitrary and caprious decisions ... an

inevitable result." Second, the court concluded

that because at the time of Moody's trial this

Court had promulgated no procedural rules for im-

position of the death penalty wy trial courts

4 Section 1311(d)(2)(i) lists as mitigating "[t]he

age, lack of maturity, or youth of the defendant at

the time of the killing."

3 "Aggravating and mitigating circumstances.--If

a murder of the first degree is accompanied by at

least one of the following aggravating circum-

stances and none of the following mitigating circum-

stances, the person convicted shall be sentenced to

death. If a murder of the first degree is not

accompanied by any of the following aggravating cir-

cumstances or is accompanied by at least one of the

following mitigating circumstances, the person con-

victed shall be sentenced to life imprisonment . .

- -" 18 Pa. C.S.A. §1311(d).

in non-jury trials or guilty-plea proceedings,

trial courts had no power to impose the death

penalty in such contexts, and that therefore, pur-

suant to United States v. Jackson, 390 U.S. 570,

88 s.ct. 1209 (1968), the imposition of the death

penalty after a jury trial "placed a chilling and

unconstitutional burden upon the exercise of the

constitutional right to trial by jury." One judge

concurred solely on the Jackson ground. The court

certified that its decision on the death penalty

involved a controlling question of law as to which

there is substantial ground for difference of

Opinion and that an immediate appeal might materially

advance the ultimate determination of the matter, and

it stayed all proceedings meanwhile; we allowed

the appeal.7

In addition to arguing in support of the grounds

advanced by the post-verdict motions court for hold-

ing imposition of the death penalty unconstitutional,

Moody also urges, as he did below, that section 131l

unconstitutionally restricts the evidence the jury

may consider in mitigation of the penalty. We agree.

Accordingly, in affirming the order of the Court of

Common Pleas, we do not reach the grounds which that

court found decisive.8

pleas of guilty, or trial by court, the court shall

impose sentence in accordance with Rules of Criminal

Procedure as promulgated by the Supreme Court of

Pennsylvania." 18 Pa. C.S.A. §13ll(e).

q See Appellate Court Jurisdiction Act of 1970,

Act of July 31, 1970, P.L. 673, No. 223, Art. V,

§501(b); 17 P.S. §211.501(b) (Supp. 1977-78). The

only issues involved in the present appeal are those

relating to the constitutionality of the death

penalty. The Attorney General of Pennsylvania has

intervened and filed a brief in support of the

Commonwealth's position; the American Civil Liberties

Union, greater Philadelphia branch, and the American

Civil Liberties Foundation of Pennsylvania have filed

an Amicus Curiae brief in support of Moody.

Moody also contends that imposition of the death

In Commonwealth v. Bradley, 449 Pa. 19, 295

A.2d 842 (1972), this Court recognized that the

Supreme Court of the United States, by its decision

in Furman v. Georgia, 408 U.S. 238, 97 S.Ct. 2726

(1972), had in effect invalidated Pennsylvania's

prior death-penalty statute? as violat.ve of the

Eighth and Fourteenth Amendments. Section 1311 was

enacted in 1974 19 by the Pennsylvania legislature

in an effort to cure what were perceived to be the

constitutional defects of the invalidated statute.

See Commonwealth ex rel. Fitzpatrick v. Bullock,

Pa. , 370 A.od 309 (1977).

8 Continued

penalty is a per se violation of Art. I, §13, of

the Pennsylvania Constitution, which proscribes the

infliction of “cruel punishments." This contention

was not advanced below and is asserted on appeal in

response to the appellant Commonwealth's argument

that the death penalty does not per se violate the

Pennsylvania Constitution. In view of our disposi-

tion of this appeal, we do not reach this issue.

9 Act of June 24, 1939, P.L. 872, §701, as

amended, 18 P.S. §4701. At the time it decided

Furman, the Supreme Court in fact vacated two death

Sentences imposed pursuant to this statute. Phelan

v. Brierley, 408 U.S. 939, 92 S.Ct. 2875 (1972);

Scoleri v. Pennsylvania, 408 U.S. 934, 92 S.Ct.

2852 (1972). See Commonwealth ’v. Martin, 465 Pa.

134, 348 A.2d 391 (1975).

10 act of December 6, 1972, P.L. 1482, No. 334,

§1311, added March 26, 1974, P.L. 213, No. 46, §3,

imd. effective. On December 30, 1974, the section

was reenacted without change and made part of the

new Sentencing Code. Section 1102 of the Crimes

Code, enacted on December 6, 1972, and effective

on June 6, 1973, had merely provided that "[a]

person who has been convicted of a murder of the

Section 131l retains the split-verdict provi-

sions of the previous statute; that is, if the jury

finds the defendant guilty of murder of the first-

degree, it then proceeds to hear additional evi-

dence and arguments and to render a separate verdict

with regard to the penalty. The new statute, how-

ever, in an effort to avoid the untrammeled dis-

cretion and lack of standards for determining the

penalty condemned in Furman 1 poth limits the

death penalty to murders of the first degree which

the jury finds to be accompanied by at least one

of nine specified aggravating circumstances and by

none of three specified mitigating circumstances

and requires that it be imposed when such a finding

is made. The statute also provides that aggravating

circumstances must be proved beyond a reasonable

doubt and mitigating circumstances by a preponder-

ance of the evidence and further provides for

automatic review by this Court of all death sen-

tences. See 18 Pa. C.S.A. §131l(g). The result

clearly is to reduce substantially the scope of

discretion in jury determinations of the penalty

for murder of the first degree.

10 Continued

first degree shall be sentenced to death or to a

term of life imprisonment” without establishing any

procedures or standards to be utilized in deter-

mining the appropriate sentence. 18 Pa. C.P.S.A.

§1102. On March 26, 1974, section 1102 was amended

to conform with the new section 131l. 18 Pa.

C.P.S.A. §1102 (Supp. 1977-78).

Because the per curiam decision in Furman

merely held that Ere Statutes there at issue

were unconstitutional, with the five justices who

concurred in the result each writing a separate

opinion and not joining in any of the others, the

full meaning and scope of that decision were

difficult to discern. Of the approximately 35

states that enacted new death-penalty legislation

in response to Furman, over half adopted

III

Last year the United States Supreme Court

addressed itself for the first time to the consti-

tutionality of death-penalty statutes enacted sub-

sequent to Furman. In a series of five decisions

announced on the same day, that Court found the new

statutes of Georgia, Texas, and Florida constitu-

tional and invalidated statutes from North Carolina

and Louisiana.l2 None of the statutes there in-

volved corresponds precisely with the Pennsylvania

statute here at issue, but we must look to these

decisions, as well as to subsequent pronouncements

by the Supreme Court, for guidance in determining

the constitutionality of section 131l. Our task is

complicated by the fact that no clear majority view

with regard to ascertaining the constitutionality

of a capital-punishment statute has emerged from

these decisions. Justices Brennan and Marshall

would have invalidated all five of the statutes at

issue in the 1976 cases because of their consist-

ently-expressed view that the death penalty in all

circumstances constitutes cruel and unusual punish-

ment. Chief Justice Burger and Justices White,

Blackmun, and Rehnquist would have found all five

constitutional. The decisions of the Court were

thus controlled by a "plurality" consisting of

Justices Stewart, Powell, and Stevens which in

each case constituted part of the decisional major-

ity with one of these justices writing the opinion

announcing the judgment of the Court. The conclu-

sion which emerges from these decisions is that the

death penalty as a punishment for murder ig not, at

least at present, inevitably cruel and unusual

punishment in violation of the Eighth Amendment , 23

ll Continued

mandatory death penalties for specified crimes,

while the rest adopted statutes providing for various

forms of limited discretion. Rockwell v. Superior

Court, 18 Cal. 3rd 420, 134 Cal. Rptr. 650, be; P.2d

, 1118 (1976) (Concurring Opinion, Clark, J.)

12 Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909

(1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950

but that a statute authorizing capital punishment

for even a narrowly-limited category of murder

violates the Eighth Amendment if it does not suffi-

ciently permit the sentencing authority in deter-

mining the sentence to take into account the parti-

cular circumstances of the crime and the indivi-

dual history and character of the criminal. See

Harry Roberts v. Louisiana, U.S. oe SF 8.68.

1993 (1977).

The Supreme Court plurality in effect appears

to have discerned an element of due process in the

Eighth AmendMent which is applicable to sentencing

in capital cases.!4 Thus, in the words of Mr.

Justice Stewart:

12 Continued

(1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct.

2960 (1976); Woodson v. North Carolina, 428 U.S.

280, 96 S.ct. 2578 (1576); Stanislaus Roberts v.

Louisiana, 428 U.S. 325, 96 S.Ct. 3001 (1976).

13 ,

In Coker v. Georgia, U.S. » 97 S.Ct.

2861 (1977), a majority of the Court concluded that

death in all circumstances is cruel and unusual

punishment for the crime of rape.

i¢ See Comment, Resurrection of Capital Punish-

ment--The 1976 Death Penalty Cases, 81 Dickinson

Law Rev. 543, 564-66 (1977). In McGautha v. Calif-

ornia, 402 U.S. 183, 91 S.ct. 1457 (1971), a

majority of theSupreme Court had held that the

absence of sentencing standards or bifurcated pro-

ceedings in capital cases did not violate due pro-

cess. But see Gardner v. Florida, U.S. ’

97 S.Ct. 1197 (1977), in which at least five

justices concluded that the failure of a trial

judge to make available to the defendant and his

counsel a confidential sentencing report which the

judge utilized in determining that the death

penalty should be imposed violated due process.

Si oleaie:

“Tp ea Oot

SRE UA SIEST EP Me eve APE

10A

"This Court has previously

recognized that '[fJor the determina-

tion of sentences, justice generally

requires consideration of more than

the particular acts by which the crime

was committed and that there be taken

into account the circumstances of the

offense together with the character and

propensities of the offender.'

Pennsylvania v. Ashe, 302 U.S. 51, 55,

ES ct. 59, 61, 82 L.Ed. 43 (1937).

Consideration of both the offender and

the offense in order to arrive at a

just and appropriate sentence has been

viewed as a progressive and humanizing

development. See Williams v. New York,

337 U.S. 241, 247-249, 69 S.Ct. 1079,

1083-1084, 93 L.Ed. 1337 (1949);

Furman v. Georgia, 408 U.S., at 402-403,

92 S.Ct.,at 2810-2811 (Burger, C.J.,

dissenting). While the prevailing prac-

tice of individualizing sentencing deter-

minations generally reflects simply en-

lightened policy rather than a constitu-

tional imperative, we believe that in

capital cases the fundamental respect

for humanity underlying the Eighth Amend-

ment, see Trop v. Dulles, 356 U.S., at

100, 78 S.Ct., at 597 (plurality opinion),

requires consideration of the character

and record of the individual offender and

the circumstances of the particular

offense as a constitutionally indispensable

part of the process of inflicting the

penalty of death.

"This conclusion rests squarely on

the predicate that the penalty of death

is qualitatively different from a sentence

of imprisonment, however, long. Death, in

its finality, differs more from life im-

prisonment than a 100-year prison term

differs from one of only a year or two.

Because of that qualitative difference,

there is a corresponding difference in the

need for reliability in the determination

that death is the appropriate punishment

in a specific case." [Footnote omitted, ]

11A

Woodson v. North Carolina, supra, 428 U.S. at

, 96 S.Ct. at 2991-92, Moreover, as stated

by Mr. Justice Stevens:

". . « a sentencing system that

allowed the jury to consider only

aggravating circumstances would al-

most certainly fall short of pro-

viding the individualized sentencing

determination that we today have held

in Woodson v. North Carolina, post,

U.S. , PP. , 96 S.Ct.

, pp. 2991-2992, 48 L.Ed. 2d

, to be required by the Eighth

and Fourteenth Amendments. For such

a system would approach the mandatory

laws that we today hold unconstitutional

in Woodson and Roberts v. Louisiana, post.

A jury must be allowed to consider on the

basis oe all relevant evisere not onl

Ww a death sentence should be imposed,

But also why it nd a bs ia

[Footnote omitted. phasis a °

Jurek v. Texas, supra, 428 U.S. at » 96 S.Ct. at

2956.

We must determine, therefore, whether section

1311 permits the jury to consider sufficiently “the

character and record of the individual offender"

and, in particular, whether it permits the jury to

consider "on the basis of all relevant evidence"

why a death sentence should not be imposed.

Plainly, unlike the mandatory North Carolina and

Louisiana statutes struck down by the Supreme Court,

the Pennsylvania statute does permit the jury in

determining punishment to go beyond the crime itself

and consider some mitigating circumstances. For

this reason, the Commonwealth would have us uphold

section 131ll as essentially similar to the Georgia,

Florida, and Texas statutes the Court found consti-

tutional. Clearly in bifurcating the guilt and

penalty phase of the trial, in limiting the death

penalty to murders of the first degree attended by

12A

specific aggravating circumstances, and in provid-

ing for automatic appellate review of all death

sentences, the legislature has adopted procedures

for the protection of defendants in capital cases

which have been specifically approved and endorsed

by the Supreme Court. See Gre v. Georgia, supra;

Proffitt v. Florida, supra. In our view, however,

the constitutional defect of section 1311 is that,

unlike the statutes approved by the Supreme Court,

it so narrowly limits the circumstances which the

jury may consider mitigating that it precludes

the jury from a constitutionally adequate considera-

tion of the character and record of the defendant.

Section 1311(d) limits the circumstances which

the jury is to consider mitigating to "the follow-

ing circumstances" and lists three:

"(2) Mitigating circumstances:

(i) The age, lack of maturity, or

youth of the defendant at the time of the

killing.

(ii) The victim was a participant

in or consented to the defendant's conduct

as set forth in section 131l(d) of this

title or was a participant in or consented

to the killing.

(iii) The defendant was under duress

although not such duress as to constitute

a defense to prosecution under section 309

of this title (relating to duress)."

Of the three listed, only subsection (d) (2) (i) can

be said to focus the jury's attention upon the

character and record of the defendant as opposed to

the circumstances of the crime, and that only to the

limited extent of determining nis age, lack of

maturity, or youth at the time of the killing. Al-

though a prior conviction for an offense scat shable

by life impriscnment is an aggravating circumstance,

the absence of a prior criminal record or even

13A

positive achievements or good works cannot be con-

sidered as mitigating. Whatever the offender's

potential for rehabilitation, his life is to be ter-

minated without consideration of it unless his

status or situation at the time of the killing can

be found to be a mitigating circumstance,15

In contrast, the statute approved in Gregg v.

Georgia, supra, while limiting the sentencing

authority's power to impose the death penalty for

murder to situations in which it finds beyond a

reasonable doubt at least one statutory aggravating

circumstance, does not even mention specific miti-

gating circumstances other than the absence of

prior convictions; in directing the sentencing

authority to weigh aggravating and mitigating fac-

tors, it thus gives defendant and sentencing author-

ity wide latitude as to the type of mitigating evi-

dence he may present and it may consider, and a re-

commendation of mercy by the jury is binding upon

the trial court without any finding of a specific

mitigating circumstance. With regard to jury de-

terminations of the penalty, the Supreme Court

plurality emphasized that "accurate sentencing in-

formation is an indispensable prerequisite to a

reasoned determination of whether a defendant shall

live or die" if the jury is to fulfill its role in

capital cases of maintaining "'a link between con-

temporary values and the penal system.'" Id., 428

spoon v. Illinois, 391 U.S. 510, 519 n.15, 88 S.Ct.

, 1775 n. (1968). Further, the plurality in

Gr expressly indicated that, so long as the de-

Fondant is not prejudiced thereby, it is preferable

not to impose restrictions on the evidence and argu-

ments presented to the jury at the penalty hearing;

it also indicated that the possibility of a jury

affording mercy to a particular defendant did not

render the procedure unconstitutionally arbitrary.

15 We assume, as did the trial court, without de-

ciding that “age” in the statute means "old age”

because of its juxtaposition with "youth."

14A

The Florida statute approved in Proffitt v.

Florida, supra, lists seven mitigating circumstances,

Significantly including "[t]he defendant has no sig-

nificant history of prior criminal activity,” which

are to be weighed against eight statutory aggrava-

ting circumstances. In addition, however, the

plurality noted that the Florida statute does not

limit the mitigating factors which may be considered

by the sentencing authority to the statutory mitiga-

ting circumstances. Id., 428 U.S. at n.8, 96

S.Ct. at 2965 n.8. Further, since the jury's

penalty verdict in Florida is only advisory, the

judge in sentencing the defendant may also make use

of a presentence investigation report, which may

also present mitigating factors relevant to the

offender's character and record. Id., 428 U.S. at

n. 9, 96 S.Ct. at 2966 n. 9. See also

Gardner v. Florida, supra. Thus, in Florida also

there appears to be essentially no limitation on

the mitigating factors which the defendant may have

the sentencing authority consider.

The Commonwealth argues that section 131l is

actually more favorable to offenders in that it

mandates a life sentence if the jury finds a miti-

gating circumstance,while the Georgia and Florida

statutes aliow the imposition of the death penalty

if the aggravating circumstances outweigh the miti-

gating circumstances. This distinction, however,

is helpful only if the defendant is able to esta-

blish one of the narrow mitigating circumstances

mentioned in section 131l(d). Gregg and Proffitt

suggest, rather, that the sentencing authority must

be given the opportunity to weigh and consider in

mitigation whatever evidence might be relevant te

passing an informed judgment upon the defendant. 6

1¢ The Commonwealth also points out that the sen-

tencing scheme of section 1311 derives from the

Model Penal Code, which was quoted with approval by

the Gr plurality, and urges that the mitigating

circumstances in section 131l are essentially the

same as those found in the Model Code. The Common-

wealth, however, overlooks the fact that the Model

15A

This view is fortified by an examination of

Jurek v. Texas, supra. The Texas statute there

approved limits capital-murder to five situations,

which the plurality concluded were comparable to

the aggravating circumstances specified by Georgia

and Florida. After a defendant is convicted of

capital-murder in Texas, a sentencing proceeding

follows during which the jury is required to answer

three questions based upon the evidence it has

heard. For the death penalty to be imposed, the

state must prove beyond a reasonable doubt that

the answer to each question is yes. One of these

questions, which in effect raise the issue of

mitigating circumstances, focuses upon the charac-

ter and record of the defendant. The jury is

thereby asked to determine "whether there is a

probability that the defendant would commit criminal

acts of violence that would constitute a continuing

threat to society." In finding the Texas statute

constitutional, the plurality strongly emphasized

that the Texas Court of Criminal Appeals inter-

preted this question to permit the defendant to

present to the jury whatever mitigating evidence

he can adduce:

"Thus, Texas law essentially requires

that one of five aggravating circum-

stances be found before a defendant

can be found guilty of capital-murder,

and that in considering whether to im-

pose a death sentence the jury may be

asked to consider whatever evidence of

mitigating circumstances the defense

can bring before it.

16 Continued

Code not only specifies a broader range of mitiga-

ting circumstances, but it also permits the jury to

consider additional evidence in mitigation as well

as that relevant to the specified mitigating cir-

cumstances. It forbids imposition of the death pen-

alty unless the jury finds a specified aggravating

circumstance and "that there are no substantial

mitigating factors." Model Penal Code, §201.6

(Tentative Draft No. 9, 1959).

16A

zx keke

“What is essential is that the jury

have before it all possible relevant

information about the individual de-

fendant whose fate it must determine."

Idee 428 U.S. at , 96 s.Ct. at 2957-58.

We thus conclude that what is now constitu-

tionally required with regard to the scope of the

evidence in mitigation which may be considered by

the jury is essentially similar to what_had long

been Pennsylvania law in capital cases. As Mr.

Justice (later Chief Justice) Benjamin R. Jones

put it in Commonwealth v. Green, 396 Pa. 137, 148,

151 A.2d 241, (1959):

"The imposition of the death penalty

by a judicial tribunal should be made

only when it is the sole penalty justi-

fied both by the criminal act and the

criminal himself and then only after

a full and exhaustive inquiry into both

the criminal act and the criminal him-

self. Time and again in referring to

the duty of juries in fixing the penalty

between death and life imprisonment we

have insisted that the jury exercise

its discretion only after it has con-

sidered all the evidence, culpatory and

exculpatory, incriminating and extenua-

ting, including what manner of man the

criminal is and has been." [Citations

omitted.] [Bmphasis in original.]

Thus, in our view, in order to protect a defendant

from cruel and unusual punishment in a capital case,

it is now necessary both that the aggravating cir-

cumstances that will justify the imposition of the

death penalty be clearly defined for the sentencing

authority, and that the sentencing authority be

allowed to consider whatever mitigating evidence

relevant to his character and record the defendant

can present.

17 In non-capital cases, compare Commonwealth v.

17A

The Commonwealth argues that section 1311 may

be liberally interpreted to permit the defendant to

introduce a broad range of mitigating evidence at

the penalty hearing. Section 13ll(c) provides that

"the court shall proceed to receive such additional

evidence not previously received from the trial as

may be relevant and admissible upon the question of

aggravating and mitigating circumstances," but sec-

tion 1311(d) expressly limits mitigating circum-

stances to "the following." Even if this

language can be construed as permitting the defend-

ant to present a broad range of mitigating evidence

bearing upon his character and record, therefore,

clearly the jury, absent consent or duress, can

only consider such evidence, or any other relevant

evidence presented at trial, to the extent it shows

the defendant's age, youth, or lack of maturity at

the time of the killing.19 We thus conclude that,

17 Continued

Riggins, Pa. P A.2d (1977) (J. 154,

Fried August 17, 1977); Commonwealth v. Martin,

466 Pa. 118, 351 A.2ad 650 (1976).

18 In contrast, the Act of 1939 as amended pro-

vided that "the court shall proceed to receive such

additional evidence not previously received in the

trial as may be relevant and admissible upon the

uestion of t

he penalty to be imposed upon the de-

endant.” [Emphasis added~) 13 5s § ° aa

a9 Contrary to implications in the dissenting

opinion of Mr. Justice Nix, we do not assume that

evidence of an offender's previous history and

background would be irrelevant to determining his

maturity or lack thereof at the time of the killing.

The problem is that, in making its ultimate deter-

mination of whether or not mitigating circumstances

exist, the jury is restricted by the statute to his

status or situation at the time of the killing. We

cannot presume that the jury will nullify its

18A

even if it is liberally interpreted, section 13ll,

unlike the Texas statute approved in Jurek, does

not permit the sentencing authority in Making its

ultimate decision to focus sufficiently upon fhe

entire character and record of the offender.?

19 Continued

instructions and disregard the law as to the circum-

stances it may find mitigating. Of course, if the

penalty determination were to depend upon "a parti-

cular jury's willingness to act lawlessly," the

arbitrariness and lack of standards in sentencing

condemned in Furman would remain. Woodson v. North

Carolina, supra, 428 U.S. at , 96 S.Ct. at 2991,

ae A comparable situation was presented to the

Court of Appeals of Maryland when it found that

state's death-penalty statute invalid:

"It is true, of course, that [the statute]

permits elements of mitigation to be pre-

sented to the jury, i.e., proof of the

defendant's age and of the motive for the

act in the context of resolving the ques-

tion of the proximate cause of the victim's

death. We are unable to conclude, however,

that the presentation of these two elements

requires the sentencing authority to focus

on the specific circumstances of the crime

and the particular characteristics of the

offender to the extent constitutionally re-

quired by the controlling Supreme Court de-

cisions. That Blackwell was afforded an

opportunity to present, and did present,

broad circumstances of mitigation to the

jury hardly suffices as the measure of the

statute's constitutionality; the jury was

neither required nor permitted by the

statute to weigh or objectively focus on

Blackwell's character and record before re-

turning its verdict and causing the death

sentence to be imposed upon him."

19A

In addition, the Commonwealth argues that,

even if section 1311 does not permit sufficient con-

sideration of the character and recoxd of the

offender, Moody lacks standing to complain since he

offered no evidence of mitigating circumstances

other than that of his asserted youth and lack of

maturity. The record reveals, however, that

Moody's counsel prior to the penalty hearing did

object to the insufficient consideration of mitiga-

ting circumstances permitted by section 13]ll.

Furthermore, this Court has previously indicated

that a person sentenced to death under a statute

unconstitutional on its face has standing to com-

plain regardless of the actual proceedings in his

case. See Commonwealth v. Martin, 465 Pa. 134,

348 A.2d 391 (1975); Commonwealth v. Dobrolenski,

460 Pa. 630, 334 A.2d 268 (1975). We thus conclude

that Moody does have standing to attack the consti-

tutional deficiences of section 131ll.

Finally, the Commonwealth notes that the

plurality of the United States Supreme Court has

expressly reserved the question of whether a

prisoner already serving a life sentence may be

subject to a mandatory death penalty. See Har

Roberts v. Louisiana, supra. The Commonwealth

therefore contends that, since Moody was serving

seven consecutive life sentences at the time of

Price's killing, he may constitutionally be sen-

tenced to death regardless of any general constitu-

tional defects in section 131l relating to mitiga-

ting circumstances, The question, however, of a

20 Continued

Blackwell v. State, 278 Md. 466, , 365 A.2d

545, 549 (1976). See also Rockwell v. Superior

Court, 18 Cal. 3rd 420, 134 Cal. Rptr. 550, 556 55

P.2d 1101 (1976). But see State v. Bell, 48 Ohio

St. 2d, 358 N.E. 2d 556 (1976), cert. granted June

27, 1977; State v. Richmond, 114 Ariz. 186, 560

P.2d 41 (1576), cert. denied June 27, 1977.

20A

mandatory death sentence for a murderer already

serving a life sentence is not properly before us,

since section 1311 does not make death mandatory

in such circumstances, 21

Accordingly, for the reasons stated above,

the order of the trial court is affirmed.

Mr. Justice Roberts took no part in the considera-

tion or decision of this case.

Mr. Justice Nix filed a dissenting opinion.

21 We note also that Moody was not serving a

Pennsylvania life sentence at the time of Price's

killing, and that at the time of his conviction

instantly his sentences in the District of Columbia

were still on appeal.

22A

21A

United States Supreme Court decisions that followed

Furman v. Georgia, 408 U.S. 238 (1972), leads me to

conclude that the Pennsylvania scheme for the impo-

sition of the death penalty in cases of murder of

the first degree is in accord with the Federal Con-

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, No. 280 January Term

Appellant 1977 stitutional mandates and I therefore must disagree

with t jority.

" Appeal from the Order i he conclusion reached by the majority

of the Court of Common I

THEODORE MOODY, Pleas of Philadelphia, ,

Appellee Trial Division, In the afternoon of December 29, 1974, the

Criminal Section, at

No. 1429 February

Sessions, 1975.

body of James Price, an inmate of Holmesburg Prison,

was found hanging by a bedsheet suspended from a

grate inside cell 457 of "D" block of the prison by

a prison guard.2) Death was determined to have

occurred between four to eight hours prior to the

discovery of the body. The pathologist's examina-

tion revealed that the cause of death was strangu-

lation. Additionally, it was ascertained that the

victim,had been tortured and mutilated before

death.

ee 70 ef 8 088 8 88

Entered: January 28,

1977

DISSENTING OPINION

NIX, J. Filed: November 30,

1977

Calvin Hunter testified that he was an inmate

of the prison at the time in question and that he

had been transferred to "D" block on the morning of

December 29, 1974, as a consequence of a disciplin-

ary violation on "C" block where he had formerly

been assigned. At approximately 9:00 A.M. on that

date, Hunter stated that the area became unusually

The majority has determined that the legis-

lature in drafting Section 1311 of the Sentencing

Code, 18 Pa. C.S.A. §1311 (Supp. 1977-78) has

failed to meet the standards required under the

Eighth and Fourteenth Amendments to the Federal

Constitution and consequently holds that the death

sentence imposed in, this case under Section 131l

must be set aside. 1) My interpretation of the

2) Cell block "D" is a maximum security area.

3) The instrument causing death was a ligature or

garrote fashioned from three shoe laces, which was

secured around the victim's neck. There were

numerous recent injuries on the body; the most

noticeable were in the area of the testicles and

1) Although Theodore Moody, through his counsel,

raised the question as to the propriety of the

death sentence under Art. I, §13 of the Pennsyl-

vania Constitution, neither the court en banc nor

the majority of this Court considered that issue. ey nn ;

I will therefore confine my discussion in this rectum. These injuries were determined to have

opinion to a consideration of the Federal Constitu- been caused by multiple insertions of a sharp

tional questions raised under the Eighth and instrument that would have caused excruciating pain.

Fourteenth Amendments. My decision not to address @

the problems that might be raised under Art. I, §13

at this time should not be construed as indicative

of my view as to the merits of those issues.

23A

quiet. He then heard noises from the front of the

block and as the noise came closer he was able to

observe, appellee, Theodore Moody, Theodore Brown

and John Griffin with the victim between them. 4)

The group proceeded in the direction of cell 457

at which point Hunter heard the victim screaming

for help and yelling "They're killing me". When

the noise stopped, appellee, Theodore Brown and

John Griffin retraced their steps past Hunter's

cell going in the opposite direction. Hunter

called out to Griffin and inquired as to the reason

for the noise. In response, Griffin stated,

"Nothing that concerns you."

The Commonwealth also presented evidence as

to the question of motive. The victim, Price, had

cooperated with Federal authorities and testified

before the grand jury relating to the Hanafi Muslim

murders which occurred in Washington, D. C., on

January 16, 1973. The testimony of the victim im-

plicated Theodore Moody in the Hanafi massacre. As

a result, Moody was indicted, charged and convicted

of 14 ccunts of murder. On the day in question,

Moody was aware that Price had cooperated with the

Federal authorities in bringing poout his convic-

tion for the Washington crimes.”

4) Hunter described their respective positions as

being somewhat like a football huddle with Price

in between the three men.

5) The instant killing occurred on December 29,

1974. Moody had been convicted on May 17, 1974,

for the Hanafi murders and was sentenced to seven

consecutive life sentences. Although it is not

clear from the record why Moody was being detained

in Holmesburg Prison in Philadelphia rather than in

some federal facility, it appears that he was con-

victed on eleven counts of aggravated robbery, bur-

glary and rape in January of 1975. These crimes

were committed in this jurisdiction and it is very

probable that his detention at Holmesburg was in

connection with the processing of these charges.

res Se te Cee

24A

; Under the statutory scheme providing for the

imposition of the death penalty by a jury in this

jurisdiction, an accused must first be found guilty

of murder of the first degree. Murder of the first

degree is defined as a criminal homicide committed

by an intentional killing. 18 Pa. C.S.A. § 2502 (a)

(Supp. 1977-78). An intentional killing is fur-

ther defined as a killing by means of poison, or

by lying in wait, or by any other kind of willful

deliberate and premeditated killing. 18 Pa, C.S.A.

§2502 (Supp. 1977-78). Pennsylvania has continued

its practice of a bifurcated procedure in which

the question of sentence is not considered until

the determination of guilt has been made. 18 Pa.

C.S.A. §131l1 (Supp. 1977-78). During the sentencing

hearing the parties may introduce "such additional

evidence not previously received from the trial as

may be relevant and admissible upon the question of

aggravating and mitigating circumstances". 18 Pa.

C.S.A. §131l(c) (Supp. 1977-78). Argument by

counsel is also permitted. Section 131ll further

specifies nine Spprevatins circumstances and three

mitigating circumstances® The jury is to be

6) Section 1311(d) provides:

(d) Aggravating and mitigating cir-

cumstances.--If a murder of the first

degree is accompanied by at least one

of the following aggravating circun-

stances and none of the following miti-

gating circumstances, the person con-

victed shall be sentenced to death.

If a murder of the first degree is not

accompanied by any of the following

aggravating circumstances or is accom-

panied by at least one of the following

mitigating circumstances the person

convicted shall be sentenced to life

imprisonment:

(1) Aggravating circumstances:

(i) The victim was a fireman,

peace officer or public servant

concerned in official detention

25A

(Footnote 6 continued from page 24A)

as defined in section 5121 of this

title (relating to escape), who was

killed in the performance of his duties.

(ii) The defendant paid or was paid

by another person or had contracted to

pay or be paid by another person or had

conspired to pay or be paid by another

person for the killing of the victim.

(iii) The victim was being held by

the defendant for ransom or reward,

Or as a shield or hostage.

(iv) The death of the victim

occurred while defendant was engaged

in the hijacking of an aireraft.

(v) The victim was a witness to a

murder or other felony committed by

the defendant and was killed for the

purpose of preventing his testimony

against the defendant in any grand jury

or criminal proceeding involving such

offenses,

(vi) The defendant committed a

killing while in the perpetration of

a felony.

(vii) In the commission of the

offense the defendant knowingly created

a grave risk of death to another person

in addition to the victim of the

offense.

(viii) The offense was committed by

means of torture.

(ix) The defendant has been con-

victed on another 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

or the defendant was undergoing a

sentence of life imprisonment for

any reason at the time of the com-

mission of the offense.

26A

instructed as to the various mitigating and aggra-

vating circumstances and advised that a sentence

of death may not be imposed unless they find the

existence of one or more aggravating circumstances

beyond a reasonable doubt and determine that none

of the statutorily enumerated mitigating circum-

stances are present. Jlie decision to return the

sentence of death must be unanimous, thus the fail-

ure to agree upon the aggravating and mitigating

circumstances will result in the imposition of a

life sentence. As indicated above, the aggravating

circumstances must be proved beyond a reasonable

doubt but the existence of the statutory mitigating

circumstances need only be shown by a preponderance

of the evidence.

In addition to the conventional appellate

process available in all criminal cases, which in

this Commonwealth provides that there is a direct

appeal in homicide cases to the Supreme Court,/7)

(Footnote 6 continued from page 25A)

(2) Mitigating circumstances:

(i) The age, lack of maturity, or

youth of the defendant at the time

of the killing.

(ii) The victim was a participant

in or consented to the defendant's

conduct as set forth in s2ction

1311(d) of this title or was a parti-

cipant in or consented to the killing.

(iii) The defendant was under duress

although not such duress as to consti-

tute a defense to prosecution under

section 309 of this title (relating

to duress).

7) The jurisdiction of this Court over the instant

appeal is found in the Appellate Court Jurisdiction

Act of July 31, 1970, P.L. 673, No. 223, art. II,

§202(1), 17 P.S. §211.202(1) (Supp. 1976-77).

27A

provision is made for special expedited direct re-

view by the Supreme Court of Pennsylvania "within

60 days after certification by the sentencing court

of the entire record.” 18 Pa.C.S.A. §1311(g)

(Supp. 1977-78). The law of this Commonwealth also

provides that a death sentence may be commuted by

executive clemency. Art. 4, §9 of the Pennsylvania

Constitution.

III

Responding to the United States Supreme

Court's decision in the case of Furman v. Georgia,

supra, this Court struck down the Pennsylvania

statute then in effect8) as violative of the

Eighth and Fourteenth Amendments of the Federal

Constitution. Commonwealth v. Bradley, 449 Pa. 19,

295 A.2d 842 (1972). See also, Commonwealth v. :

Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975);

Commonwealth v. Scoggins, 451 Pa. 472, 304 A.2d ;

102 (1973); Commonwealth v. Ross, 449 Pa. 103,

296 A.2d 629 ; ommonwea v. Lopinson,

449 Pa. 33, 296 A.2d 524 (1972); Commonwealth v.

Sharpe, 449 Pa. 35, 296 A.2d 519 (1972). There-

after, the legislature enacted Section 1102 which

became effective June 6, 1973. 18 Pa.C.S.A. §1102.

Section 1102 provided:

"A person who has been convicted

of a murder of the first degree shall

be sentenced to death or to a term of

life imprisonment.”

This section was distinguished by a complete lack

of direction as to the circumstances that would

warrant imposition of the death penalty. Addi-

tionally, at that time the murder statute was de-

signed to include willful and deliberate killings

8) Act of June 24, 1939, P.L. 872, §701, as

amended, 18 P.S. §4701.

28A

as well as felony murders under the category of

murder of the first degree. 1972, Dec. 6, P.L.

9 No. (334, §l, eff. June 6, 1973; 18 Pa. C.S.A.

$2502 (a): It would appear that Section 1102

was not passed in an effort to meet the objections

raised in Furman, but rather for the sole purpose

of providing some legislative authority for the

imposition of a death sentence until an appropriate

scheme pursuant to the Furman mandate could be

formulated. Present Section 1311 is the provision

which the legislature designed in an effort to ful-

fill the Furman requirements.

IV.

The quintet of cases handed down by the

United States Supreme Court on July 2, 1976(10)

answered the question left open by that Court's

decision in Furman. These cases make it clear

that a state can design a procedure for the imposi-

tion of the death penalty for murder of the first

(9) This section provided:

(a) Murder of the first degree.--A

criminal homicide constitutes murder of

the first degree when it is committed by

means of poison, or by lying in wait, or

by any other kind of willful, deliberate,

and premeditated killing. A criminal

homicide constitutes murder of the first

degree if the actor is engaged in or is

an accomplice in the commission of, or an

attempt to commit, or flight after commit-

ting, or attempting to commit robbery,

rape, or deviate sexual intercourse by

force or threat of force, arson, burglary,

or kidnapping.

(10) See Gregg v. Georcia, 428 U.S. 153 (1976);

Jurek V. Tex2s, 428 U.S. 262 (1976); Proffitt v.

Florida, 428 U.S. 242 (1976); Woodson v. North

Carolina, 428 U.S. 280 (1976); Stanislaus Roberts

v. Louisiana, 428 U.S. 325 (1976).

29A

degree that may be found to be consistent with the

mandates of the Eighth and Fourteenth Amendments

to the satisfaction of a majority of the members

of the United States Supreme Court as it is

presently constituted. The task is complicated

however by the fact that the differing views ex-

pressed in Furman have yet to congeal to an extent

where there is a consensus by a clear majority of

Justices as to those factors which must be present

to assure compliance with the constitutional stan-

dards. Mr. Justice BRENNAN and Mr. Justice MARSHALL

have maintained their view that the Federal Consti-

tution prohibits capital punishment for all crimes

under all circumstances. Mr. Chief Justice BURGER

and Justices BLACKMUN and REHNQUIST, dissenters in

Furman, have continued to find all of the statutory

schemes considered by that Court to comport with

their concept of the Eighth and Fourteenth Amend-

ments. Mr. Justice WHITE, although concurring in

the result in Furman, has since been aligned with

the Chief Justice and Justices BLACKMUN and

REHNQUIST. Up to this point the constitutionality

of a statutory scheme for the imposition of the

death sentence has been dependent upon the view of

a plurality consisting of Mr. Justices STEWART,

POWELL (a dissenter in Furman) and STEVENS. Thus,

it is legitimate to conclude that if section 1311

provides a statutory scheme acceptable under the

standards articulated by this "plurality" it would

more than likely withstand a constitutional chal-

lenge in the Federal system.

Turning to an analysis of the view of the

"plurality", it is apparent that although they have

agreed that the punishment of death is not per se

violative of the Federal Constitution, Gregg v.

Georgia, 428 U.S. 153 (1976), a statutory scheme

may run afoul of the constitutional mandates if it

is not in accord with the "evolving standards of

decency that mark the progress of a maturing

society." In ascertaining these "evolving standards

of decency", the "plurality" has suggested that an

assessment of contemporary values and a determina-

tion of whether the penalty is in accord with “the

30A

dignity of man" are relevant considerations, ‘11

The plurality has also suggested that in any assess-

ment of a statutory scheme promulgated by the

legislature, there should be a heavy burden upon

those “who would attack the orerey of the repre-

sentative of the people.” (12) Utilizing these

(11) “A penalty also must accord with 'the

dignity of man,' which is the 'basic con-

cept underlying the Eighth Amendment.’

Trop v. Dulles, supra, at 100 (plurality

Opinion). This means, at least, that the

punishment not be ‘excessive.' When a

form of punishment in the abstract (in

this case, whether capital punishment

may ever be imposed as a sanction for

murder) rather than in the particular

(the propriety for a specific crime)

is under consideration, the inquiry into

"excessiveness' has two aspects. First,

the punishment must not involve the un-

necessary and wanton infliction of pain.

Furman v. Georgia, supra, at 392-393

(BURGER, C.J., dissenting). See

Wilkerson v. Utah, 99 U.S., at 136;

Weems v. United States, 217 U.S., at 381.

Second, the punishment must not be grossly

out of proportion to the severity of the

crime. Trop v. Dulles, supra, at 100

(Plurality opinion) (dictum); Weems v.

United States, supra, at 367."

Gregg v. Georgia, supra at 173.

(12) “Therefore, in assessing a punishment selected

by a democratically elected legislature

against the constitutional measure, we pre-

sume its validity. We may not require the

legislature to select the least severe

penalty possible so long as the penalty

selected is not cruelly inhumane or dis-

proportionate to the crime involved. And

a heavy burden rests on those who would

attack the judgment of the representatives

of the people.

31A

basic propositions the "plurality"”™ concluded:

"We hold that the death penalty is not

a form of punishment that may never be

imposed, regardless of the circumstances

of the offense, regardless of the charac-

ter of the offender, and regardless of the

procedure followed in reaching the de-

cision to impose it." Gregg v. Georgia,

supra at 187.

(Footnote 12 continued from page 30A)

This is true in part because the consti-

tutional test is intertwined with an assess-

ment of contemporary standards and the

legislative judgment weighs heavily in

ascertaining such standards. '‘'[I]n a

democratic society legislatures, not

courts, are constituted to respond to the

will and consequently the moral values of

the people." Furman v. Georgia, 408 U.S.,

at 383 (BURGER, C.J., dissenting). The

deference we owe to the decisions of the

state legislatures under our federal sys-

tem, id., at 465-470 (REHNQUIST, J., dis-

senting), is enhanced where the specifi-

cation of punishments is concerned, for

"these are peculiarly questions of legis-

lative policy." Gore v. United States,

357 U.S. 386, 393 (1958). Cf. Robinson

v. California, 370 U.S., at 664-665;

Trop v. Dulles, 356 U.S., at 447. Caution

is necessary lest this Court become, ‘under

the aegis of the Cruel and Unusual Punish-

ment Clause, the ultimate arbiter of the

standards of criminal responsibility...

throughout the country.’ Powell v. Texas,

392 U.S. 514, 533 (1968). A decision that

a given punishment is impermissible under

the Eighth Amendment cannot be reversed

short of constitutional amendment. The

ability of the people to express their pre-

ference through the normal democratic

processes, as well as through ballot re-

ferenda, is shut off. Revisions cannot be

32A

In considering the procedure to be followed

in reaching the decision of life or death, the

"plurality" has perceived the mandates of Furman

to require that the sentencing scheme must be SO

designed as to avoid "a substantial risk that it

[the death sentence] would be inflicted in an

arbitrary and capricious manner."

"Furman mandates that where discretion

is afforded a sentencing body on a

matter so grave as the determination

of whether a human life should be taken

or spared, that discretion must be

suitably directed and limited so as

to minimize the risk of wholly arbitrary

and capricious action."

Gregg v. Georgia, ‘ supra at 189.

The "plurality" has determined that the information

necessary to be supplied to a jury to permit it

to properly consider such a decision must include

facts relating to "the circumstances of the offense

together with the character and propensities of

the offender." Gregg v. Georgia, supra. The

"plurality" also requires that the sentencing

scheme must make some effort to provide the jury

with guidance regarding these factors about the

crime and the offender.

"While some have suggested that

standards to guide a capital jury's

sentencing deliberations are impos-

sible to formulate, the fact is that

such standards have been developed.

When the drafters of the Model Penal

(Footnote 12 continued from page 31A)

made in the light of further experience. See

Furman v. Georgia, supra, at 461-462 (POWELL,

J., dissenting) ."

Gregg v. Georgia, supra at 175-76

33A

Code faced this problem, they concluded ‘that

it is within the realm of possibility to

point to the main circumstances of aggra-

vation and of mitigation that should be

weighed, and weighed against each other,

when they are presented in a concrete

case." Model Penal Code §201.6,

Comment 3, p. 71 (Tent. Draft No. 9,

1959) (emphasis original). While such

standards are by necessity somewhat

general, they do provide guidance to

the sentencing authority and thereby

reduce the likelihood that it will

impose a sentence that fairly can be

called capricious or arbitrary. Where

the sentencing authority is required to

specify the factors it relied upon in

reaching its decision, the further safe-

guard of meaningful appellate review is

available to ensure that death sentences

are not imposed capriciously or ina

freakish manner." (Footnotes omitted).

Gregg v. Georgia, supra at 193-95.

In determining whether the procedure itself is

a fair one, the "plurality" has given its imprimatur

to schemes that allow the sentencing decision to be

made by a jury. They do however strongly indicate

that where the jury is to be entrusted with the

sentencing decision, a bifurcated procedure should be

emp loyed.

"Jury sentencing has been considered

desirable in capital cases in order to

maintain a link between contemporary

community values and the penal system--a

link without which the determination of

punishment could hardly reflect 'the

evolving standards of decency that mark

the progress of a maturing society." But

it creates special problems. Much of the

information that is relevant to the

sentencing decision may have no relevance

34A

to the question of guilt, or may even be

extremely prejudicial to a fair determina-

tion of that question. This problem,

however, is scarcely insurmountable. Those

who have studied the question suggest that

a bifurcated procedure--one in which the

question of sentence is not considered until

the determination of guilt has been made--

is the best answer."

Gregg v. Georgia, supra at 190-91.

The “plurality" has also looked favorably on

attempts to narrow the class of murders subject to

the extreme sanction and also provisions for expedited

appellate review. Gregg v. Georgia, supra. Although

expressing a strong preference for individualized

sentences rather than mandatory ones, Woodson v. North

Carolina, 428 U.S. 280 (1976); Roberts (Stanislaus)

Vv. Louisiana, 428 U.S. 325 (1976); Harry Roberts v.

Louisiana, 97 S. Ct. 1993 (1977); Green v. Oklahoma,

96 S. Ct. 3216 (1976); Sparks v. North Carolina, 96

S. Ct. 3213 (1976), there is a suggestion that the

"plurality" might find acceptable a narrowly-defined

category of offenders where mandatory sentences might

not be offensive. (13)

(13) One possible exception noted by the "plurality"

appears to be a mandatory death penalty statute limited

to an extremely narrow category of homicide such as

murder by a prisoner serving a life sentence. See

Woodson v. North Carolina, 428 U.S. 280, 286, n. 7,

292, n. 25 (1976). in Woodson, the "plurality"

suggested that where the accused is serving a life

sentence at the time of the killing that fact alone

might provide sufficient insight as to the character

of the offender to meet their concept of the Eighth and

Fourteenth Amendments' mandate in this regard. Id. at

286, n. 7. Also significant in this context is the

following observation which appears in the "plurality's"

opinion in Gregg.

"And there are some categories of murder, such

as murder by a life prisoner, where other sanctions

may not be adequate", Gregg v. Georgia, supra at

186.

35A

Analyzing the Pennsylvania scheme in view of the

considerations and factors deemed important by the

plurality, we must begin with the presumption that

the legislative enactment is to be accorded the pre-

sumption of constitutionality and that those challeng-

ing the statutory scheme must bear a heavy burden.

Gre v. Georgia, supra at 175. We are also obligated

to tallow the statutory law of this jurisdiction which

requires an interpretation of legislative intent to be,

wherever possible, consistent with the Constitution of

the United States as well as the Constitution of this

Commonwealth. 1 Pa. C.S.A. §1922(3) (Supp. 1977-78).

Turning to the first maxim that a penalty must

not be "excessive", it is apparent that section 131l

satisfies this requirement. The Pennsylvania legis-

lature has limited the imposition of capital punishment

to convictions of murder in the first degree, §131l1(b),

which in this jurisdiction is confined to killings

"committed by means of poison, or by lying in wait, or

by any other kind @f willful, deliberate, and pre-

meditated killing." 18 Pa. C.S.A. §2502(2) (1972).

The "plurality" has given its approval to the applica-

tion of the death penalty to broader definitions of

murder, e.g., felony-murder. Gre v. Georgia, supra;

Proffitt v. Florida, supra; Jurek v. Texas, supra.

In fact, under the Pennsylvania scheme, which limits

the type of murder which may be punished by death

to a deliberate taking of life, there is compliance

with the express language of the "plurality" in

Gregg.

",..when a life has been tak@én deliberately

by the offender, we cannot say that the

punishment is invariably disproportionate

to the crime. It is an extreme sanction,

Suitable to the most extreme of crimes."

Gregg v. Georgia, supra at 187.

(Footnote 13 continued from page 34A)

The appellee in the appeal presently before us has not

only been sentenced to seven consecutive life sentences,

but also the crime was committed while he was confined

under maximum security. It is therefore difficult to

postulate a factual situation more compelling than the

facts before us in this appeal where another life

sentence would be more inadequate.

36A

Thus, under the guidelines that have been articulated

by the "plurality" it is clear that the Pennsylvania

scheme provides a punishment which is not “grossly out

of proportion to the severity of the crime." To the

contrary, it fits neatly within the perimeters that

have been found to be acceptable by the plurality. (14)

Regarding the Court's concern with avoiding

unbridled discretion on the part of the jury, the

Pennsylvania legislature has provided safeguards

designed to prevent the risk of such arbitrary action.

Section 131ll(c) provides for a mandatory consideration

by the jury of aggravating and mitigating circumstances

in determining whether to impose the death penalty.

The circumstances listed in the statute, §1311(d),

provide the "direction" and "limitation" for the jury

that Furman and Gregg required "to minimize the risk

of wholly arbitrary and capricious action."

A somewhat comparable scheme of aggravating and

mitigating circumstances was approved in Proffitt v.

Florida, supra. It is significant that under the

Pennsylvania scheme the possibility of arbitrary action

is further minimized by the requirement that the

imposition of death is mandatory where one or more of

the statutorily enumerated aggravating circumstances

is present and there is an absence of any of the

mitigating factors. On the other hand, under the

Pennsylvania scheme, where there is a finding of one

of the mitigating circumstances or a finding that none

of the aggravating circumstances are present, then the

sentence must be life imprisonment. In contrast, the

Florida statute permits the jury to weigh the competing

factors without providing any specific weight to be

given to the various factors. Thus, the Pennsylvania

scheme clearly provides a more controlled exercise of

the sentencing discretion.

(14) As of the writing of this opinion, the "plurality"

has yet to express a view on the acceptable manner of

the imposition of the death sanction. It can only be

assumed that the traditional methods of execution will

not be found to be constitutionally prohibited.

37A

Finally, the plurality has expressed certain

preferences concerning the sentencing procedure

itself. The Pennsylvania procedure strongly

approximates the procedures upheld in Gregg,

, Proffitt and Jurek. The Pennsylvania statute, like

the Georgia, Florida and Texas statutes, provides for

a bifurcated proceeding, §131ll(c); and it provides

for the automatic expedited appellate review,

§1311(g) . (14a)

The conclusion by the majority of this Court

and the court en banc that section 1311 did not

comport with constitutional standards is premised

upon the belief that the section fails to provide

) for the dissemination of sufficient information

relating to the character and background of the

offender to the jury. In my judgment, this position

can only be supported by an unwarranted, restrictive

reading of the language of section 13ll. Further,

such a construction ignores ovr responsibility to

» interpret legislative enactments so that their terms

comply with constitutional directives. 1 Pa. C.S.A.

§1922(3) (Supp. 1977-78). Even more grievous is the

fact that the construction urged by the majority

produces a result that is at variance with the long

standing sentencing policies in this jurisdiction.

The United States Supreme Court in ruling upon

the death penalty statutes that have been promulgated

since Furman, has properly considered the terms of

those enactments in light of the construction placed

upon them by the State's highest court. Gregg v.

" George Supra at 201-202; Proffitt v. Florida, supra

at —=256; Jurek v. Texas, Supra at 272. it is my

judgment that the language of section 1311 properly

construed by this Court would clearly meet constitu-

tional muster.

(14a) The Pennsylvania statute also places the

sentencing decision with the jury where the deter-

mination of guilt was made by the jury, a procedure

which was approved in Gregg, supra.

38A

It has been the long settled law of this

jurisdiction that even in non-capital cases a con-

sideration of the defendant's background and

character is an important element in the sentencing

decision. Commonwealth v. Martin, 466 Pa. 118,

351 A.2a 650 (1976).‘I5) Even prior to Furman, we

held in capital cases that a trial court abused its

discretion when it imposed the death penalty solely

on the basis of the criminal act. Commonwealth v.

Green, 396 Pa. 137, 151 A.2d 241 (1551). At that

@arly stage our cases made it clear that it was

improper to fail to consider the character of the

convicted individual and to make inquiry as to the

existence of any extenuating or mitigating circum-

stances. Commonwealth v. Green, supra. See also,

Commonwealth v. Garramone, 307 Pa. baT. 515, 161

: PR 2); Commonwealth v. Irelan, 341 Pa. 43,

47, 17 A.2d 897, 898-959 (1941). In Commonwealth v.

Green, supra, this Court stated:

"The imposition of the death penalty

by a judicial tribunal should be made

only when it is the sole penalty

justified both by the criminal act

and the criminal himself and then only

after a full and exhaustive inquiry

into both the criminal act and the

criminal himself. Time and again in

referring to the duty of juries in

fixing the penalty between death and

life imprisonment we have insisted

that the jury exercise its discretion

only after it has considered all the

evidence, culpatory and exculpatory,

incriminating and extenuating, including

what manner of man the criminal is and

has been: Com. v. Wooding, 355 Pa. 555,

(15) Although this writer dissenting in Commonwealth v.

Martin, 466 Pa. 118, 136, 351 A.2d 650, 659 (1976),

my disagreement was not related to the law as it was

expressed by the majority in that opinion, but rather

its application to the facts then before the Court.

39A

557, 50 A.2d 328; Com. v. Stabinsky, 313

Pa. 231, 237, 238, 169 A. 439; a v.

Dague, 302 Pa. 13, 15, 152 A. 839; Com. v.

Bentley, 287 Pa. 539, 135 A. 310. The

same rule binds a court sitting without

a jury to determine the penalty for murder

of the first degree."

Id. at 148, 151 A.2d at 259.

In addition to the Pennsylvania case law, the

legislature of this State since early in the

twentieth century has embraced the concept of

indeterminate and individualized sentencing. First,

this State required sentencing of minimum to maximum

terms of imprisonment. Act of June 19, 191l, P.L.

1055, §6, as amended, 19 P.S. §1057 (1964). MThen the

legislature reinforced this provision by allowing

suspension of sentence and probation, at the court's

discretion, in all but the most serious crimes. Act

of June 9, 191l, P.L. 1055, §1, as amended, 19 P.S.

§1051 (1964). Following that, the sentencing court

was conferred with the power to run sentences

consecutively or concurrently. Act of May 28, 1937,

P.L. 1036, §1. Finally, the legislature gave the

trial court the power to order a pre-sentence report

and a psychiatric and diagnostic examination of the

defendant to determine the appropriate disposition.

Act of March 31, 1860, P.L. 427, §73.1. Most

recently, the legislature codified their philosophy

of individual sentencing in requiring courts to

"call for the minimum amount of confinement that is

consistent with the protection of the public, the

gravity of the offense, and the rehabilitative needs

of the defendant." 18 Pa. C.S.A. §1321(b) (Supp.

1977-78). See generally Commonwealth v. Martin,

supra.

To ignore this abundant evidence of a firmly

established principle of sentencing in our con-

struction of the instant section is totally

unsupportable. This is particularly true in light

of the fact that section 131l1l is a part of the

oe ae

40A

sentencing code which has expressly reaffirmed its

adherence to the philosophy of individualized

sentencing. 18 Pa. C.S.A. §1321(b) (Supp. 1977-78).

To justify an interpretation of section 1311 which

would reject individualized sentencing would require

clear and unambiguous language in the enactment under

scrutiny evidencing such an intention. Such is

clearly not the case here.

The majority opinion and court en banc focuses

upon section 1311(d)(2)(i), regarding the age, lack

of maturity and youth of the defendant, in finding

the statute unconstitutional. By improperly focusing

upon the clause "at the time of the killing" the

majority argues that the section excludes a sufficient

consideration of the total character of the accused.

The spirit of the Pennsylvania case and statutory

law require a different result as the term "lack of

maturity" is easily susceptible to a broad inter-

pretation so as to encompass considerations of the

defendant's character and background. The term

"maturity" is defined by Webster's Third New

International Dictionary, as having attained the

normal peak of natural growth and deve lopment. (16)

In order to determine what stage of development an

individual has reached, there would necessarily

have to be an examination of all of the factors

influencing the developmental process. Relevant

to this analysis is the individual's home life

including whether he emerges from affluent or

deprived circumstances, the number of parents he

was raised by and the quality of the rearing, the

environment of the neighborhood in which he was

raised, his emotional and psychological makeup, his

education exposure, whether or not he has had any

military experience, his past criminal offenses, if

any, including both adult and juvenile convictions,

his religious training or lack of it, and any medical

or cosmetic infirmities that might reflect on his

maturity. Therefore, all of the constitutionally

required considerations are implicit in the defini-

tion of "lack of maturity."

T16) “Words and phrases shall be construed according

to rules of grammar and according to their common and

approved usage." 1 Pa. C.S.A. §1903(a) (Supp. 1977-

78).

41A

Additionally, “age" “youth” and “maturity” cannot

all be construed to have the same meaning. “Lack of

maturity” must have some relevance beyond chronological

age for it is a well-established rule of statutory

construction in this jurisdiction that the General

Assembly intends all of the statutory provisions to be

effective and certain, 1 Pa. C.S.A. §1922(2) (Supp.

1977-78) and the legislature cannot be deemed to intend

any language of a statute to be superfluous and

without import. Consumers Education and Protective

Association v. Nolan, Pa. , 308 A.2d 675 (1977).

The “plurality” of the United States Supreme

Court in Jurek v. Texas, supra, was willing to find

the Texas death penalty statute to be broad enough to

encompass the defendant's character. The death

penalty statute in Texas, Tex. Code Crim. Proc., Art.

37.071 (Supp. 1975-76), requires the jury to answer

three questions subsequent to a verdict of 7: **7 of

one of their enumerated capital homicides.(17) A

positive answer to all three questions will result in

the imposition of the death penalty. The constitu-

tionality of this procedure turned on whether the

questions allow consideration of particularized

mitigating factors. The Court found that question

two, concerning the probability of the defendant

committing further acts of violence, allows a

defendant to bring to the jury's attention whatever

mitigating circumstances he may be able to show,

TI?) "(1) whether the conduct of the defendant that

caused the death of the deceased was committed delib-

erately and with the reasonable expectation that the

death of the deceased or another would result;

"(2) whether there is a probability that the

defendant would commit criminal acts of violance that

would constitute a continuing threat to society; and

"(3) if raised by the evidence, whether the

conduct of the defendant in killing the deceased was

unreasonable in response to the provocation, if any,

by the deceased." Art. 37.071(b) (Supp. 1975-76).

e 42A

because the Texas Court of Criminal Appeals

indicated that it would interpret question two to

that effect. Likewise, if the Pennsylvania Supreme

Court would interpret “lack of maturity," as it

e should, to encompass the consideration of the

defendant's character and background, section 131l

would also be constitutionally sound.

Even accepting the narrow interpretation of the

majority opinion and the court en banc, the United

States Supreme Court has struck down only the manda-

tory death penalty statutes lacking any consideration

of mitigating factors. Woodson v. North Carolina,

supra; Roberts v. Louisiana, supra; Harry Roberts

v. Louisiana, supra. This suggests that perhaps

only a complete foreclosure of the introduction of

@ @ny mitigating circumstances would render a death

penalty statute unconstitutional. This possibility

is further supported by the suggestion of the

"plurality" that a mandatory death penalty statute

which is limited to the narrow category of murder

by a prisoner serving a life sentence may be valid.

@ See Woodson v. North Carolina, supra at 286, n. 7,

» mn. 25.

vI.

In conclusion it is my view that the Pennsylvania

@ Statutory scheme for the imposition of the death

Sanction in murder cases when fairly read is fully

in accord with the announced philosophy of the

"plurality" of the Supreme Court. To reach a

contrary conclusion the majority has strained and

tortured the unambiguous language of section 131ll.

@ It is particularly regrettable that my brethren

chose to express their apparent misguided sympathy

for the instant appellee. Even under the furthest

stretch of the imagination a credible theory cannot

be propounded to support the view that the imposition

of the death penalty for this offender would be

e repulsive to "the evolving standard of decency."

I feel that the majority's attempt to find a basis

for giving relief on a facial attack upon the section

is equally as untenable.

APPENDIX B

IN THE COURT OF COMMON PLEAS OF PHILADELPHIA

CRIMINAL TRIAL DIVISION

COMMONWEALTH OF PENNSYLVANIA : FEBRUARY TERM, 1975

vs.

NOS. 1429 - 1430

THEODORE MOODY

OPINION OF COURT EN BANC

STOUT, SAVITT PRATTIS,JJ.

(SAVITT, J. CONCURRING)

PRATTIS, J. October 19, 1976

I. STATEMENT OF FACTS

Sometime shortly after 3:00 p.m. on December

29, 1974, the body of James Price was found hang-

ing by a bedsheet suspended from a grate inside

cell 457 of "D" block, Holmesburg Prison, in

Philadelphia, Pennsylvania. Price's body was dis-

covered by a prison guard, Philip Harris. After

locating his partner, Harris returned to cell 457

and cut the body of Price down. Immediately there-

after, Harris ordered all the residents of "D

block to their cells. His attention was called by

one Calvin Hunter, an inmate of cell 453 on "D

block. Hunter stated to Harris that “they killed

a guy back there”. Shortly thereafter, at the

warden's instructions, Harris removed Hunter from

"D" block. Harris knew the deceased, James Price,

and his cellmate, defendant Theodore Moody.

Dr. Robert Seto was assigned to the medical

diagnostic unit at Holmesburg Prison on December

29, 1974. On that day he was summoned to *°D

block between 3 and 4 P.M., and after examining

James Price, pronounced him dead. Dr. Seto was of

the opinion that at the time of his examination

the condition of rigor mortis was present and,

because of that, estimated that James Price had

died from between 4 to 8 hours prior to 3:30 P.M.

On December 30, 1974, a post mortem examina-

tion of the body of James Price was performed by

Dr. Halbert Fillinger, an assistant medical ex-

aminer for the City of Philadelphia. bDr.

Fillinger found that there were 3 black shoelaces

around Price's neck which were tied with a square

knot. Also around Price's neck was a loop of

braided white cloth. In Dr. Fillinger's opinion

the cause of death was strangulation and that it

was the shoelaces and not the white cloth which

caused the strangulation. Dr. Fillinger also

found numerous other injuries on the body of

James Price, including discolorations of the lining

of both lips and of the lining of the mouth; skin

scrapings on the chin and the thigh; discoloration

of the lining of the bowels at the anus; pinpoint

hemmorrhaging of the eyelids and a tear in the

opening of the rectum extending from the back of

the scrotum to the anus. Dr. Fillinger's findings

on the interior of the body of the deceased showed

extensive hemorrhaging in both testicles and, in

his opinion, the injury to the para-rectal area

was inflicted with a sharp-edged instrument with

a pointed end. In Dr. Fillinger's opinion there

were multiple i sertions and these injuries were

inflicted before death. In Dr. Fillinger's

Opinion, the manner of death of James Price was

homicide.

At 8:00 A.M. on the morning of December 29,

1974, Calvin Hunter was transferred from "C" block

in Holmesburg Prison to "D" block and placed in

cell 453. At approximately 9:00 A.M. Hunter was

lying on his bed reading a book when he heard some

noise which he described as the sound of exercises

being conducted in harmony. Shortly thereafter,

the noise stopped and Hunter heard the sound of

persons walking down the cell block. Looking out

of the ceil door, he saw John Griffin, Theodore

Brown, Theodore Moody and James Price. Hunter

described their formation as being somewhat like

a football huddle with Price in between the three

others. Hunter observed these men go past his

cell towards the direction of cell 457 and he re-

sumed reading his book.

Shortly thereafter, he heard a man yelling

for help, saying "Help, they're killing me, please

help me, somebody please help me, they're killing

me", Hunter also heard noises as scuffling on

the floor. All of these noises were coming from

the rear of the block towards the direction of

cell 457. The cell block became quiet again and

Hunter shortly saw John Griffin, Theodore Moody

and Theodore Brown come walking past his cell

again away from the direction of cell 457. He

called out, "Hey Griff. . . what was all the

noise?" As if they were snapping to attention,

the three men turned to face him and John Griffin

stated "Nothing that concerns you."

Sometime that afternoon after 3:00 P.M.

Calvin Hunter was taken from his cell to the

Deputy Warden's office. He was shown photographs

of all of the inmates in the "D" block of Holmes-

burg Prison as of that date, and he identified

the photographs of Theodore Brown, John Griffin,

and the defendant, Theodore Moody, as the three

men that he saw with James Price that morning.

On February 13, 1975, Calvin Hunter testified

to the above facts at a preliminary hearing in

Room 453 City Hall, Philadelphia, Pennsylvania,

before the Honorable David Savitt. During that

hearing, counsel for defendant Moody, as well as

counsel for John Griffin and Theodore Brown,

availed themselves of the opportunity of cross-

examining Hunter at great length. Between

February 13, 1975 and the date of the trial of

this case, Calvin Hunter died. Detective Jack

Gillespie, of the Philadelphia Police Department,

after learning of the death of Calvin Hunter,

went to the Edward Baker Funeral Home, where he

saw and identified the body of Calvin Hunter.

Hunter's testimony at the preliminary hearing

was read at trial by Stanley Goldstein, court

stenographer at the preliminary hearing on February

13, 1975. Hunter's prior recorded testimony was

admitted into evidence in accordance with the re-

quirements of 19 P.C.S.A. §852.

James Greaves was a resident in "D" block,

cell #461 on December 29, 1974. On that date he

heard shouting and screaming to the effect "God

help me, I think they're killing me." At the

time of the screaming, Greaves was aware that the

other inmates of the cell block were out in the

yard exercising and he could hear the cadence of

the exercising being counted. Greaves also heard

noises like a bed scrapping against the floor.

The body of James Price was identified at

the office of the Philadelphia Medical Examiner

by his wife, Josephine Price. Mrs. Price described

her husband as a short and stocky man who was a

member of the Muslim faith.

On January 16, 1973, an incident occurred in

Washington, D.C. which is here referred to as the

Hanafi Muslim murders. On January 18, 1973, John

Evans, Esquire, an Assistant U. S. Attorney for

the District of Columbia, was assigned to the in-

vestigation and prosecution of these murders.

Price, Griffin and Moody were suspects in the

Hanafi Muslim murders, and prior to the time that

any arrests were made, Evans spoke with James

Price. As a result of these conversations, Price

agreed to cooperate with the government and in

fact gave a statement indicating his part in the

Hanafi murders. That statement implicated

Theodore Moody and others. While all of the de-

fendants were originally scheduled to be tried

jointly for the Hanafi murders in the District of

Columbia, the government's case against Price was

severed from the other defendants (including

Moody) on the ground that Price was intended to

be used as a government witness. Copies of the

motion to sever indicating the grounds for sever-

ance were served on defense counsel for Moody,

and Moody was present in court in the District of

Columbia when the motion was orally presented.

In addition, Price's statement was handed to all

defense counsel in open court in the District of |

Columbia, including District of Columbia counsel

for Theodore Moody.

Defendant offered the testimony of three

Holmesburg correction officers who worked the

7A.M. to 3 P.M. shift on December 29, 1974 on

"D" block. Generally, they testified that

during that time they heard or saw nothing un-

usual, that most of the inmates were in the exer-

cise yard during that morning, and that they knew

Moody and Price to be good friends.

Four persons who were inmates in Holmesburg

Prison, "D" block cn December 29, 1974, testified

that they were in the exercise yard that morning

and that they observed the defendant Moody in

the yard during all of the morning hours doing

exercises and playing various games,

The defendant also offered the testimony of

James Turner, a prisoner in the Detention Center

in Philadelphia, Pennsylvania, who testified that

he spoke with Calvin Hunter on an occasion when

Hunter bragged that he had received substantial

concessions from the Philadelphia District Attorney

in return for his testimony against Moody, Brown

and Griffin.

The defendant himself testified that on

December 29, 1974, he was in the exercise yard

during the morning hours and did not see Price

in the yard. He stated that he did not return

to his cell until lunchtime. The defendant testi-

fied that Price never mentioned the Washington

statement to him. Further, Moody asserted that

while he was aware that Price had been listed as

a government witness in the Hanafi Muslim murder

case in the District of Columbia, Price did not

testify in that case, and that there was no change

in their friendly relationship due to Price's

being listed as a witness. The defendant denied

any involvement in the death of James Price,

After completion of the presentation of evi-

dence, both counsel presented closing arguments

and the court charged the jury. After deliberation,

the jury found defendant guilty of murder in the

first degree.

The court then convened a penalty hearing in

accordance with the Act of 1974, March 26, No. 46,

18 Pa. C.S.A. §1311. Assistant United States

Attorney John Evans was recalled to the witness

stand by the Commonwealth, whereupon he testified

that defendant Moody was found guilty in the

District of Columbia trial of the Hanafi Muslim

murders, of 7 counts of premeditated murder and 7

counts of first degree felony murder. On each of

the aforementioned counts Moody was sentenced to

20 years imprisonment to life imprisonment.

Seven of the sentences were made to run concurrent-

ly with the remaining 7 sentences which were to run

consecutively. At the time of the instant trial,

these convictions were on appeal in the District

of Columbia.

In the penalty hearing, defendant's mother

testified that he had completed the 10th grade at

Benjamin Franklin High School in Philadelphia, and

that in her opinion he was not quite nature and

easily led.

The court then charged the jury as to the

meaning of aggravating and mitigating circumstances

under the Act. The jury was advised that if they

found the existence of an aggravating circumstance

(among the 2 aggravating circumstances which the

Commonwealth argued existed in this case) and no

mitigating circumstances, then the defendant would

be sentenced to death. The court further advised

the jury that in the event that a mitigating cir-

cumstance was found the defendant would receive a

sentence of life imprisonment. In addition, the

court instructed the jury that the burden of

proof of mitigating circumstances was by a pre-

ponderance of the evidence, and that in order to

find an aggravating circumstance, they would have

to find its existence beyond a reasonable doubt.

After further deliberation, the jury returned

stating they had found the existence of aggrava-

ting circumstances and no mitigating circumstances.

II. DISCUSSION OF THE LAW

A. FURMAN V. GEORGIA, 408 U.S. 238 (1972)

In Furman, a per curiam opinion held that the

imposition and carrying out of the death penalty

in the cases before it constituted cruel and un-

usual punishment in violation of the 8th and 14th

Amendments. The per curiam order was accompanied

by five concurring opinions and four dissenting

opinions. Of the five concurring justices,

Justices Brennan and Marshall held that the pen-

alty per se was cruel and unusual punishment.

Justice Douglas' main concern was that a

criminal statute, in order to satisfy the cruel

and unusual punishment clause of the 8th Amendment

must be evenhanded, nonselective, and nonarbitrary

so that it will not be applied sparsely, selec-

tively and spottily to unpopular groups. 408 U.S.

at 257. As can be seen, Justice Douglas was con-

cerned that the death penalty had been imposed in

the past against minority groups and this, he

felt, was a result of the unfettered discretion

in juries to impose or not to impose the death

penalty in a given case.

Justice Stewart was of the opinion that the

death sentences before him were "cruel" in the

sense that they are more excessive than necessary

to uphold any legitimate rationale regarding

punishment, and that the sentences were "unusual”

inasmuch as the penalty of death is so infrequently

imposed. However, Justice Stewart specifically

did not rest his conclusion upon those propositions

but was of the opinion that those who are sentenced

to death are among a "capriciously selected random

handful upon whom the sentence of death has in fact

been imposed. . ." He further concluded that the

8th and 14th Amendments could not tolerate the

infliction of a sentence of death in a legal system

that permits this "unique penalty to be so wantonly

and so freakishly imposed." 408 U.S. at 310.

Justice Stewart indicated that he was not dealing

with statutes where "the penalty of death shall

be the mandatory punishment for every person con-

victed of engaging in certain designated criminal

conduct,"

Justice White was more concerned with the

fact that the imposition of the death penalty un-

der the discretionary statutes reviewed in Furman

were so infrequently imposed that the social inter-

est served by the death penalty (the deterrence

theory) was no longer being served. Justice White

was of the opinion that since juries have unfetter-

ed discretion in the cases before him to sentence

or not to sentence to death, and since death sen-

tence was so infrequently imposed, there was indi-

cation that the community, in its judgment, did

not favor the death penalty. Given those facts,

Justice White felt that there would be no meaning-

ful basis for distinguishing the few cases in

which the death penalty was imposed from the many

cases in which it was not. 408 U.S. at 313.

Reading the three key opinions in Furman, it

does not seem that the concurring justices reached

a conclusion that any discretion whatsoever in a

death penalty statute would make it violate the

8th and 14th Amendments. Rather, it appears that

these justices would look at a particular statute

and ask: Is the potential for arbitrariness under

this statute so great that a jury or other sen-

tencing authority, in effect, has the discretion

to reach dissimilar results in similar cases. If

the potential for arbitrariness is that great,

the Court would conclude that the death penalty

would be so infrequently imposed that its applica-

tion would be "wanton", "freakish", and indis-

tinguisable from the majority of cases in which

it is not being imposed.

B. GREGG V. GEORGIA, PROFITT V. FLORIDA,

JUREK V. TEXAS

GREGG V. GEORGIA

Subsequent to the trial and post-trial argu-

ments in the instant case, the U. S. Supreme

Court in Gre v. Georgia, U. S. 44 L. W. 5230

(1976) ; Profitt Vv. Florida, U. S. 44 L. W. 5256

(1976); Jurek v. Texas, U. S. 44 L. W. 5262

(1976), upheld the Georgia, Florida and Texas

capital sentencing procedures, respectively,

against challenges that the procedures violated

the 8th and 14th Amendments.

Justices Stewart, Powell and Stevens, in

Gregg, concluded, inter alia, that:

"The concerns expressed in

Furman that the death penalty

not be imposed arbitrarily or

capriciously can be met by a

carefully drafted statute that

ensures that the sentencing

authority is given adequate in-

formation and guidance, concerns

best met by a system that pro-

vides for a bifurcated proceeding

at which the sentencing authority

is apprised of information

relevant to the imposition of

sentence and provided with

standards to guide its use of

that information..."

"The Georgia statutory system

under which the petitioner was sen-

tenced to death is constitutional.

The new procedures on their face

satisfy the concerns of Furman

Since before the death penalty can

10B

be imposed there must be

specific jury findings as

to the circumstances of the

crime or the character of

the defendant, and the

State Supreme Court there-

after reviews the compara-

bility of each death

sentence with the sentences

imposed on similarly situated

defendants to insure that the

sentence of death in a parti-

cular case is not dispro-

portionate ..."

Justices White and Rehnquist and the Chief Justice

concluded that:

"Georgia's new statutory

scheme enacted to overcome

the constitutional deficiencies

found in Furman v. Georgia,

408 U. S. 238, to exist under

the old system, not only guides

the jury in its exercise of

discretion as to whether or

not it will impose the death

penalty for first degree murder,

but also gives the Georgia

Supreme Court the power and

imposes the obligation to decide

whether in fact the death penalty was

13%B

being administered for any given

class of crime in a discriminatory,

standardless, or rare fashion. If

the court properly performs the task

assigned to it under the Georgia

statute, death sentences imposed for

discriminatory reasons or wantonly

or freakishly for any given category

Or crime will be set aside."

Justices Brennan and Marshall filed dissenting

Opinions in all three cases, consistent with

their opinions in Furman, that the death penalty

per se was cruel and unusual punishment.

Under the Georgia statutory scheme there

is a bifurcated procedure. During the first stage,

guilt or innocence is determined. At the second

Stage the punishment hearing is held, during which

time the judge or jury hears additional mitigating

and aggravating evidence. At least one aggrava-

ting circumstance must be found to exist, beyond

a reasonable doubt, before the death penalty may

be imposed. There are ten aggravating circum-

stances listed in the statute. The scope of the

mitigating circumstances is not delineated in the

Statute. If the death sentence is imposed, the

judge or jury must specify the aggravating cir-

cumstances found.

The Georgia statute is similar to the

Pennsylvania statute insofar as they both require

a bifurcated procedure amd the consideration of

aggravating circumstances before the death penalty

may be imposed. Georgia also has direct appellate

review to the Georgia Supreme Court. Such appel-

late review was considered by the U. S. Supreme

Court in Gre as an effective safeguard against

aa c

arbitrary apricious applications of the death

penalty.

Under the Pennsylvania statute, a sentence

of death is subject to automatic review by the

Pennsylvania Supreme Court. However, in Pennsyl-

vania there are no statutory guidelines for the

12B

review by the Supreme Court as have been enacted

by Georgia to direct the review by the Georgia

Supreme Court. This aspect of the Pennsylvania

statute will be discussed in greater detail in con-

nection with Profitt v. Florida, infra.

The Georgia Supreme Court, in determining

the appropriateness of imposing the sentence of

death in a particular case, must consider:

"(1) Whether the sentence of death was

imposed under the influence of

passion, prejudice or any other

arbitrary factor;

(2) Whether in cases other than treason

or aircraft hijacking, the evidence

supports the jury's or judge's

finding of statutory aggravating

circumstances as enumerated; and

(3) Whether the sentence is excessive

or disproportionate to the penalty

imposed in similar cases, consider-

ing both the crime and the defend-

ants."

If the Georgia Supreme Court affirms the penalty

of death, it must include in its decision refer-

ence to similar cases that it has taken into con-

sideration.

Under the Georgia statute the jury is not

required to find any mitigating circumstances in

order to recommend mercy, but it must find an ag-

gravating circumstance before recommending a sen-

tence of death. Under the Pennsylvania statute

if a murder of the first degree is accompanied by

at least one aggravating circumstance and none of

the mitigating circumstances, the person convicted

must be sentenced to death. If accompanied by at

least one mitigating circumstance, the person con-

victed can be sentenced only to life imprisonment.

The petitioner in Gregg challenged the

Georgia statute on the grounds of vagueness and

overbreadth. The Court, in response, concluded

13B

that although the wording of the statute might

be subject to overbroad interpretations or con-

sidered vague, the State Supreme Court had not

so interpreted the Statute, nor was there any

reason to assume the Georgia Supreme Court would

so interpret them, and in certain circumstances

the Georgia Supreme Court had provided restrict-

ive guidelines for the jurors. 44 L. W. at 5244.

The U. S. Supreme Court also concluded, in re-

sponse to petitioner's attack on the power of the

jury to decline to impose the penalty even if it

finds one or more of the statutory aggravating

circumstances, that although the procedure pro-

vides an opportunity for caprice, it is the role

of the Georgia Supreme Court to review and pre-

vent caprice. 44 L. W. at 5244,

PROFFITT V. FLORIDA

The Florida capital-sentencing procedure,

upheld by the U. S. Supreme Court in Profitt v.

Florida, resembles the Georgia system in that it

is a bifurcated procedure, and during the punish-

ment hearing both aggravating and mitigating cir-

cumstances are considered before the death pen-

alty may be imposed. Thereafter, direct appeal

lies to the State Supreme Court. The vital dif-

ference between the Florida and Georgia procedures

is that in Florida, the judge and not the jury is

the sentencing authority, the jury acts in an ad-

visory capacity only “ey respect to the sentenc-

ing phase of the trial. 1)

The Florida statute differs from the Pen-

nsylvania procedure in several respects. Under

the Florida statute, the decision of whether to

impose the death penalty turns upon whether cer-

tain statutory aggravating rina outweigh

any statutory mitigating circumstances “Th

(1) Fla. Stat. Ann. §921.141 (a) (b)-(c) (Supp.

1976-77).

(2) Fla. Stat. Ann, §921.121 (3) (Supp. 1976-77).

14B

Pennsylvania, if there are any mitigating cir-

cumstances, even if aggravating circumstances

exist, the death penalty cannot be imposed. In

Pennsylvania, there is no balancing process. As

mentioned above, under Florida law the judge is

the sentencing authority and the jury is merely

advisory.

One similarity of the. Florida statute with

that of Pennsylvania, is that neither procedure

requires the State Supreme Court to conduct any

specific form of review. In Gr v. Georgia,

the state procedure mandated Seert Tis guidelines

for review by the Georgia Supreme Court. In

Profitt, the Court held that the absence of any

Specific form of review was not fatal to the

statute. The U. S. Supreme Court held that just

because no standard of review was defined in

the statute, it does not follow that the review

process is ineffective or arbitrary. The Court

found that the Florida Supreme Court had, in

fact, adopted the type of comparability review

mandated by the Georgia statute. 44 L. W. at

5261. In Pennsylvania, there are no specific

guidelines for review and the Supreme Court has

not yet adopted the type of comparability review

mandated by the Georgia statute. The U. S.

Supreme Court also found that the Florida Supreme

Court had vacated over 1/3 of the death sentences

that have come before it. This fact rebutted the

petitioner's contention that the Florida Supreme

Court engaged in only cursory or rubber stamp

review of the death penalty cases, and that the

review was unnecessarily subjective and unpredict-

able. 44 L. W. at 5261.

JUREK V. TEXAS

The Texas statute, Jurek v. Texas, like

the Georgia, Florida and Pennsylvania statutes,

calls for a bifurcated procedure where the guilt

of the defendant and the sentences are determined

15B

in separate proceedings. The Texas stat

not contain either aggravating or senhaneaee ane

cumstances which must be considered before the

death penalty may be imp sed. The U. S. Supreme

Court concluded that while Texas has not adopted

a list of Statutory aggravating circumstances

the existence of which can justify the imposition

of the death penalty, its action in narrowing the

categories of murder for which a death sentence

may be imposed served much the same purpose

44 L. W. at 5264. In fact, each of the five

classes of murder made capital by the Texas

court is encompassed in Georgia and Plorida by

one Or more of their st

cumstances, statutory aggravating cir-

The Supreme Court furth

need for relevant evidence to “ quundaeee® te

— sae as to why the death penalty should not

imposed, 1.€., mitigating circumstances, to

Satisfy the dictates of Furman. The Court found

that although the Texas Statute does not expli-

Citly mention mitigating circumstances the

Texas procedure requires the jury to answer three

(3) questions before the death penaity may be im-

27 ag peas questions involve the con-

: evidence of miti

This was held sufficient to wah

Georgia's command for indi

ee ome ividualized determination.

16B

C. ACT 46, MARCH 26, 1974, 18 P.C.S.A. 1311

Section (a) of Act 46 provides:

"(a) Findings by Jury. - The jury before whom

any person sha ried for murder shall if

they find such person guilty thereof, ascer-

tain in their verdict whether the person is

guilty of murder of the first degree, murder

of the second degree, or murder of the third

degree." * * &

"(d) Aggravating and Mitigating Circumstances. -

If a murder o e firs egree is accompanied

by at least one of the following aggravating

circumstances, and none of the following miti-

gating circumstances, the person convicted

shall be sentenced to death. If a murder of the

first degree is not accompanied by one of the

following aggravating circumstances, or is

accompanied by at least one of the following

mitigating circumstances, the person convicted

shall be sentenced to life imprisonment ..." (3)

(3)

Aggravating circumstances:

(i) The victim was a fireman, peace officer or

public servant concerned in official detention as

defined in section 5121 of this title (relating

to escape) who was killed in the performance of

his duties.

(ii) The defendant paid or was paid by another

person or had contracted to pay or be paid by

another person or had conspired to pay or be paid

by another person for the killing of the victim.

(iii) The victim was being held by the defend-

ant for ransom or reward, or as a shield or

hostage.

(iv) The death of the victim occurred while de-

fendant was engaged in the hijacking of an air-

craft.

(v) The victim was a witness to a murder or

other felony committed by the defendant ang was

killed for the purpose of preventing his testi-

mony against the defendant in any grand jury or

criminal proceeding involving such offense.

17B ®@ 18B

"(e) Guilty Pleas and Non-Jury Trials. - Viewed in its entirety, however, Act 46 is

In cases of pleas of guilty or trial by deceptively simple and, when put into operation,

court, the court shall impose sentence generates problems of constitutional dimensions.

in accordance with rules of criminal

procedure, as promulgated by the e In Bell v. U.S., 349 U.S. 81 (1955) Mr.

Supreme Court of Pennsylvania." Justice Frankfurter, speaking for the Court, con-

struing an Act of Congress that the Court con-

Act 46 was undoubtedly drafted with the stric- cluded was latently ambiguous, found:

tures of Furman v. Georgia in mind. On its face it

greatly limits the discretion of the jury. The "When Congress has the will it has no

legislative plan apparently envisioned that a person e difficulty expressing it. . . When Con-

found guilty of first degree murder would have the gress leaves to the judiciary the task

statutory sentence imposed in an almost mechanical of imputing to Congress an undeclared

fashion, after the finding of facts with regard to will, the ambiguity should be resolved

the existence of aggravating and/or mitigating in favor of lenity. And this is not out

circumstances. of any sentimental consideration or want

(Footnote #3 cont'd)

(vi) The defendant committed a killing while

in the perpetration of a felony.

(vii) In the commission of the offense the

defendant knowingly created a grave risk of

death to another person in addition to the

victim of the offense.

(viii) The offense was committed by means of

torture.

(ix) The defendant has been convicted of

another Federal or State offense, committed

either before or at the time of the offense at

issue, for which a sentence of life imprison-

ment or death was imposable or the defendant

was undergoing a sentence of life imprisonment

for any reason at the time of the commission

of the offense.

Mitigating circumstances:

(i) The age, lack of maturity, or youth of

the defendant at the time of the killing.

(ii) The victim was a participant in or con-

sented to the defendant's conduct as set forth

in section 131l(d) of this title or was a

participant in or consented tio the killing.

(iii) The defendant was under duress although

not such duress as to constitute a defense to

prosecution under section 309 of this title

(relating to duress).

of sympathy with the purpose of Congress

in proscribing evil and/or anti-social

conduct. It may be fairly said to be a

pre-supposition of our law to resolve

doubts in the enforcement of a penal code

against the imposition of a harsher punish-

ment. This in no wise implies that the

language used in criminal statutes should

not be read with the saving grace of

common sense with which other enactments

not cast in technical language are to be

read. Nor does it assume that offenders

against the law carefully read the penal

code before they embark on crime, It

merely means that if Congress does not

fix the punishment for a federal offense

Clearly and without ambiguity, doubt will

be resolved against. . ."

This basic principle has been also applied by

the Supreme Court of Pennsylvania in its evolving

concepts of statutory construction. In Common-

wealth v. Hosendorf, 437 Pa. 219, 263 A.2d 439

(1970), Mr. Justice O'Brien faced with an ambi-

guity in a sentence by a lower court, vacated the

harsher interpretation of that sentence relying

upon Bell v. U.S., and, a “pre-supposition of our

law to resolve doubts in the enforcement of the

19B

penal code against the imposition of a harsher

punishment." The authority of Hosendorf was mini-

mized by the Court in Commonwealth v. Silverman,

442 Pa. 211, 218 (1971) because it did not express

the views of a majority of the Court. However,

the principles espoused by Mr. Justice Eagen in

Hosendorf are wholly consistent with long standing

basic rules of statutory construction repeatedly

followed by the appellate courts of Pennsylvania.

Thus, in Commonwealth v. Glover, 397 Pa. 543

(1959), the Pennsylvania Supreme Court, in con-

struing an act of the Legislature which imposed

a mandatory five year and $5,000 sentence, held:

"However, our interpretive

approach must of course be based

on the premise that this is a penal

statute and as such must be strictly

construed. . . In Commonwealth v.

Exler, 243 Pa. 155, 162, 89 A.968,

we said: ‘When a criminal statute

calls for construction, it is not the

construction that is supported by the

greater reason that is to prevail,

but that one which, if reasonable,

operates in favor of life and liberty'

The Court in Glover went on to review the

statute. It compared it with another mandatory

minimum type statute, which had previously passed

muster, and pointed out that language present in

the approved statute was not present in the

statute under consideration. The absence of those

words caused the ambiguity. The ambiguity

resulted in the rule of construction quoted supra.

Considering these principles of statutory con-

struction, it is appropriate to look at the pro-

vision of Act 46, 18 P.S. 1311(d)(2)(i) where the

statute delineated the mitigating circumstances,

the presence of any one of which is relevant to

imposition of the death penalty in this case.

20B

"The age, lack of maturity or

youth of the defendant at the time

of the killing."

Age in that provision apparently refers to

advanced age, since it is used in apposition to

lack of maturity or youth. The act does not give

any age guidelines. Is a 75 year old first de-

gree murderer immune from capital punishment? Is

the jury to guess at what age this provision

applies?

The youth of a defendant is a mitigating cir-

cumstance. The act gives neither definitions,

guidelines, nor standards for the jury. Juveniles

between 14 and 18 may, in Pennsylvania, be certi-

fied for trial as an adult. Is this what the

statute refers to? In Pennsylvania a defendant

between 18 and 25 | be a "youthful offender". (

The present defendant was 21 years of age when

the death sentence was imposed and when the crime

was committed,

Finally, “lack of maturity" is a phrase so

totally subjective in its ultimate meanings as to

be almost incomprehensible in the context of this

statute. Does the Legislature mean a 19 year old

with a mental and emotional age of 14? Does the

Legislature mean a 40 year old with a mental and

emotional age of 20, or the hundreds of thousands

of otherwise responsible adults to whom we give

the label "immature". There are no definitions,

standards or guidelines included in the statute.

It is abundantly clear that different juries

faced with crimes in all respects similar could

quite conscientiously come to different results

applying the "mitigating circumstances" that the

Legislature sets forth in 131l1(d)(1). This was

(4) Camp Hill Act, 61 P.S. 483 §4; Com. ex rel.

Johnston v. Pa. Board of Probation & Parole, 339

21B

precisely the evil that Furman v. Georgia sought

to abolish.

The present case is a demonstration of the

arbitrary. results that juries reach when required

to exercise discretion pursuant to an impermis-

sibly vague statute. The co-defendants in the

present case, Griffin and Brown, aged 24 and 23

respectively, were tried immediately after the

present defendant on essentially the same testi-

mony. Both received life sentences. In the

Griffin case, as in the present case, the Common-

wealth asked for the Death penalty. The same

aggravating circumstances were charged amd proven.

(Torture and prior conviction of first degree

murder). The defense in the Griffin case, as in

the present case, put the defendant's mother on to

testify to age and lack of maturity. The jury

fixed the penalty at life. Thus, an older co-

defendant in the same criminal incident escaped

the death penalty while the younger received it.

This is exactly the freakishly arbitrary jury

action that Furman, Gregg, Profitt and Jurek

all seek to abolish.

In the opinion of this Court, the statutory

wording of the mitigating circumstances of §1311l

(d) (2) (i), in and of itself, leaves so much dis-

cretion for arbitrary decision by a jury that

Furman is violated. The three enumerated factors

are totally vague. They cover not only the per-

son being too young to be sentenced to death, but

a person too old to be sentenced to death, and a

person who should be mature, given his age, but

who has not developed as he should. No standards

are given for any of these determinations, (5)

(5) Moreover, in a case where felony murder is

arguably present, the statute is again wholly in-

adequate under Furman. The jury, on the exact

same set of facts, being instructed as to the

three legislative degrees of murder could:

(1) find a defendant guilty of murder in the

second degree thus limiting his sentence

to life imprisonment; or

(2) guilty of first degree murder and find an

orereveteng circumstance mandating the

death penalty.

Le ee ee ee

22B

At first blush the opinions of the U. S.

Supreme Court in Jurek, and Profitt would appear

to make this constitutionally insignificant. In

those cases the mitigating circumstances were

spelled out or inferred with even less specificity

than in Act 46. But the U. S. Supreme Court held

that the very broadness of those mitigating con-

siderations saved them from constitutional pro-

scription. A defendant could not be held to com-

plain if a jury Seba prers iy saved him from

capital punishment, 6 In Act 46, however, the

Pennsylvania Legislature has severely restricted

the mitigating circumstances that a jury may

legally consider - enumeratio unius est exclusio

alterious, and has confine e jury to a con-

sideration of the three factors set forth supra.

While it is clearly constitutional to do this,

it must be done with the provision of “standards

to guide its use of that information." Gregg v.

Georgia, supra.

Act 46 gives absolutely no standards whatso-

ever for a judge or a jury to rely upon in dis-

tinguishing the situations discussed above. The

jury has unfettered discretion and hence more

scope for arbitrary results than the justices in

Furman would allow.

In this context the decision of the Supreme

Court of Pennsylvania in Commonwealth v. Mack,

359 A.2d 770 (July 6, 1976) is most enlightening.

There it was argued that a Pennsylvania criminal

statute was unconstitutionally vague as violative

of the test set forth in Papachristou v. Jackson-

ville, 405 U.S. 156, 162 TIs727

"Whether a criminal enactment 'give[s]

a person of ordinary intelligence fair

notice that his contemplated conduct

is forbidden by the statute’ and ‘en-

courages arbitrary and erratic arrests

and convictions’ ,. .."

(6) The Court did not comment on his complaint of

arbitrary freedom for a co-defendant, but not

for him,

23B

The Pennsylvania Court pointed out, however:

"The vagueness doctrine, however, is

more complex than mere statement of the

Papachristou test would indicate. A

statute may be ‘vague’ in the sense that

it contains no ascertainable standard of

conduct, or it may be ‘vague’ in the

sense that the ascertainable standard of

conduct may or may not include certain

types of conduct. Smith v. Gougen, 415

U.S. 566, 577-7

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