# Petition — Pennsylvania v. Moody > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0528%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition - **Published:** January 1, 1978 - **Citation:** 438 U.S. 914 ## Text ’ , 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 TO 2 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 a 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 y 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 5 10,11 __, January Term, 1977, PASSIM 2,5,10,22 2-3,5,10,22 15 18 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 lV IN THE SUPREME COURT OF THE UNITED STATES OCTOBER TERM, 197_ No. COMMONWEALTH OF PENNSYLVANIA, PETITIONER V. THEODORE MOODY, RESPONDENT PETITION FOR WRIT OF CERTIORARI TO 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 3 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), Z 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), 6 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). 7 January Term, 1977, Ho. FILED NOVEMBER 4 To773" (APPENDIX, INFRA AT 1A - 20A), 7 THE TWO EXCERPTS RELIED UPON BY THE PENNSYLVANIA SUPREME CouRT STATED, IN PART,: (CONTINUED ON NEXT PAGE) 1 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. ll 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 8 Furman Vv. Georcia, 408 U.S. 238, 92 S.Ct. 272h (1972). Act, EFFECTIVELY HELD THAT THIS CouRT’S DECISIONS CONSTI TU- es 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 9 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. 4 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. 14 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. ~~ 7 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, (c) MURDER OF THE THIRD DEGREE.--ALL OTHER KINDS OF 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.” "h 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)). 15 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: 1f (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, 17 (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. $399. 4 HUS, EVEN THE DISCRETION OF A SENTENCING AUTHORITY TO WEIGH AGGRAVATING AND MITIGATING CIRCUMSTANCES HAS BEEN REMOVED IN PENNSYLVANIA, See PROFFITT v. Froripa, 428 U.S. at 257, 96 S.Ct. at 2969, 18 THe PENNSYLVANIA SUPREME CourRT DID NOT EXPRESSLY CONSTRUE THE EXACT MEANING OF THE PENNSYLVANIA MITIGATING CIRCUMSTANCES PROVISION. IN RELEVANT PART, THAT CourRT STATED: PROVISIO DEFENDANT TO PRESENT A BROAD RANGE OF MITIGATING EVIDENCE BEARING UPON HIS CHARACTER AND RECORD, THEREFORE, CLEARLY THE JURY, ABSENT CONSENT OR DURESS, CAN ONLY CONSIDER SUCH EVIDENCE, OR ANY OTHER RELEVANT EVIDENCE PRESENTED AT TRIAL, TO THE EXTENT IT SHOWS THE DEFENDANT'S AGE, YOUTH, R LACK OF MATURITY AT THE TIME OF THE KILLING. 2? — THUS CONCLUDE ed EVEN IF he IS | IBERALLY NTERPRETED LTHE EATH PENALTY TATUTE/, UNLIKE THE !EXAS STATUTE APPROVED IN EVEN IF Ly a: LANGUAGE /THE MITIGATING CIRCUMSTANCES IN MAKING ITS ULTIMATE DECISION TO FOCUS SUFFICIENTLY UPON THE ENTIRE CHARACTER AND RECORD OF THE OFFENDER. 19 CONTRARY TO IMPLICATIONS IN THE DISSENTING OPINJON .eey WE DO NOT ASSUME THAT EVIDENCE OF AN OFFENDER S PREVIOUS HISTORY AND BACKGROUND WOULD BE IRRELEVANT TO DETERMINING HIS MAT RITY OR LACK THEREOF AT THE TIME OF THE KILLING. HE PROBLEM IS THAT, IN MAKING ITS ULTIMATE DETERMINATION OF WHETHER OR NOT MITIGATING CIRCUMSTANCES EXIST, THE JURY 1S RESTRICTED BY THE STATUTE TO HIS STATUS OR SITUATION AT IHE TIME OF IHE KILLING..-+: CoMMONWEALTH V. MoopY, INFRA AT 17A, FOOTNOTE 20 OMITTED. THus, THE PENNSYLVANIA SUPREME CouRT HAS STATED THAT, EVEN IF THIS PROVISION IS BROADLY INTERPRETED, SO AS TO ALLOW CONSIDERATION OF A WIDE RANGE OF FACTS BEARING UPON AGE, YOUTH, OR LACK OF MATURITY) > IT WOULD STILL FALL , a THE PENNSYLVANIA SUPREME CouRT DID NOT SPECIFICALLY DEFINE THE PARAMETERS OF He EVIDENCE WHICH couLD BEAR UPQN LACK OF MATURITY, THAT LOURT DID STATE, JN Ns 9, THAT WE DO NOT ASSUME THAT EVIDENCE OF AN OFFENDER S$ 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. 19 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 29 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, 16 See ROBERTS Vv. LOUISIANA, SUPRA. 21 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. 22 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: 18 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, ) 23 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, 21 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. 19 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. 24 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, 20 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, 25 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. 26 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, 7 ; 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 27 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. I 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 2A 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 3A 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). 4A 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). 5A 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 6 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 © "Guilty pleas and non-jury trials.--In cases of 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 6A Il 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 7A 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). 11 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 8A 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 9A 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 IV 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 II ; 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) V. 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 1B 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 “ [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_0528%3A1. Public record. Not legal advice.