PRINTER'S NO. 2945
No. 2311 Session of 1978
INTRODUCED BY TRELLO, ABRAHAM AND MISCEVICH, APRIL 5, 1978
REFERRED TO COMMITTEE ON JUDICIARY, APRIL 5, 1978
AN ACT
1 Amending Title 18 (Crimes and Offenses) of the Pennsylvania
2 Consolidated Statutes, further providing for the imposition
3 of the penalty of death; and establishing aggravating and
4 mitigating circumstances.
5 The General Assembly of the Commonwealth of Pennsylvania
6 hereby enacts as follows:
7 Section 1. Subsections (c) and (d) of section 1311 of Title
8 18, act of November 25, 1970 (P.L.707, No.230), known as the
9 Pennsylvania Consolidated Statutes, are amended to read:
10 § 1311. Sentencing for murder.
11 * * *
12 (c) Procedure at sentencing hearing.--After such verdict is
13 recorded and before the jury is permitted to separate, the court
14 shall proceed to receive [such additional evidence not
15 previously received from the trial as may be relevant and
16 admissible upon the question of aggravating and mitigating
17 circumstances and shall permit such argument by counsel, and
18 deliver such charge thereon as may be just and proper in the
19 circumstances. Aggravating circumstances must be proved beyond a
1 reasonable doubt. Mitigating circumstances must be proved by a
2 preponderance of the evidence. The jury shall then retire and
3 consider the aggravating and mitigating circumstances and render
4 such verdict respecting them as they shall agree upon. A failure
5 of the jury to agree upon the aggravating and mitigating
6 circumstances shall not be held to impeach or in any way affect
7 the validity of the verdict already recorded, and whenever the
8 court shall be of the opinion that further deliberation by the
9 jury will not result in an agreement upon the aggravating and
10 mitigating circumstances, it may, in its discretion, discharge
11 the jury from further consideration thereof, in which event if
12 no retrial is directed, the court shall sentence the defendant
13 to life imprisonment upon the verdict theretofore rendered by
14 the jury and recorded as aforesaid and the jury shall be so
15 informed prior to their deliberations. The court shall impose
16 the sentence so fixed as in other cases], subject to the laws of
17 evidence, such additional evidence in extenuation, mitigation,
18 and aggravation of punishment, including the record of any prior
19 criminal convictions and pleas of guilty or pleas of nolo
20 contendere of the defendant, or the absence of any such prior
21 criminal convictions and pleas. Only such evidence in
22 aggravation as the Commonwealth has made known to the defendant
23 prior to his trial shall be admissible. The jury or judge shall
24 also hear argument by the defendant or his counsel and the
25 prosecuting attorney, as provided by law, regarding the
26 punishment to be imposed. The prosecuting attorney shall open
27 and the defendant shall conclude the argument to the jury or
28 judge. Upon the conclusion of the evidence and arguments, the
29 judge shall give the jury appropriate instructions and the jury
30 shall retire to determine the punishment to be imposed. The
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1 jury, or the judge in cases tried by a judge, shall fix a
2 sentence within the limits prescribed by law. The judge shall
3 impose the sentence fixed by the jury or judge, as provided by
4 law. If the jury cannot, within a reasonable time, agree to the
5 punishment, the judge shall impose sentence within the limits of
6 the law. Under no circumstances shall a judge impose the death
7 penalty when, in cases tried by a jury, the jury cannot agree
8 upon the punishment. If the trial court is reversed on appeal
9 because of error only in the presentence hearing, the new trial
10 which may be ordered shall apply only to the issue of
11 punishment.
12 (d) Aggravating and mitigating circumstances.--If a murder
13 of the first degree is accompanied by at least one of the
14 following aggravating circumstances [and none of the following
15 mitigating circumstances], the person convicted shall be
16 sentenced to death. If a murder of the first degree is not
17 accompanied by any of the following aggravating circumstances or
18 is accompanied by at least one [of the following] mitigating
19 [circumstances] circumstance the person convicted shall be
20 sentenced to life imprisonment. In all cases for which the death
21 penalty may be authorized, the judge shall consider, or he shall
22 include in his instructions to the jury for it to consider, any
23 mitigating circumstances or aggravating circumstances any of the
24 following statutory aggravating circumstances which may be
25 supported by the evidence:
26 (1) Aggravating circumstances.--
27 [(i) The victim was a fireman, peace officer or
28 public servant concerned in official detention as defined
29 in section 5121 of this title (relating to escape), who
30 was killed in the performance of his duties.
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1 (ii) The defendant paid or was paid by another
2 person or had contracted to pay or be paid by another
3 person or had conspired to pay or be paid by another
4 person for the killing of the victim.
5 (iii) The victim was being held by the defendant for
6 ransom or reward, or as a shield or hostage.
7 (iv) The death of the victim occurred while
8 defendant was engaged in the hijacking of an aircraft.
9 (v) The victim was a witness to a murder or other
10 felony committed by the defendant and was killed for the
11 purpose of preventing his testimony against the defendant
12 in any grand jury or criminal proceeding involving such
13 offenses.
14 (vi) The defendant committed a killing while in the
15 perpetration of a felony.
16 (vii) In the commission of the offense the defendant
17 knowingly created a grave risk of death to another person
18 in addition to the victim of the offense.
19 (viii) The offense was committed by means of
20 torture.
21 (ix) The defendant has been convicted of another
22 Federal or State offense, committed either before or at
23 the time of the offense at issue, for which a sentence of
24 life imprisonment or death was imposable or the defendant
25 was undergoing a sentence of life imprisonment for any
26 reason at the time of the commission of the offense.
27 (2) Mitigating circumstances.--
28 (i) The age, lack of maturity, or youth of the
29 defendant at the time of the killing.
30 (ii) The victim was a participant in or consented to
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1 the defendant's conduct as set forth in section 1311(d)
2 of this title or was a participant in or consented to the
3 killing.
4 (iii) The defendant was under duress although not
5 such duress as to constitute a defense to prosecution
6 under section 309 of this title (relating to duress).]
7 (i) The offense was committed by a person with a
8 prior record of conviction for a felony, or the offense
9 of murder was committed by a person who has a substantial
10 history of serious assaultive criminal convictions.
11 (ii) The offense was committed while the offender
12 was engaged in the commission of another felony, or
13 aggravated assault, or the offense of murder was
14 committed while the offender was engaged in the
15 commission of burglary or arson in the first degree.
16 (iii) The offender by his act of murder or
17 kidnapping knowingly created a great risk of death to
18 more than one person in a public place by means of a
19 weapon or device which would normally be hazardous to the
20 lives of more than one person.
21 (iv) The offender committed the offense of murder
22 for himself or another, for the purpose of receiving
23 money or any other thing of monetary value.
24 (v) The murder of a judicial officer, former
25 judicial officer, district attorney or solicitor or
26 former district attorney or solicitor during or because
27 of the exercise of his official duty.
28 (vi) The offender caused or directed another to
29 commit murder or committed murder as an agent or employee
30 of another person.
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1 (vii) The offense was outrageously or wantonly vile,
2 horrible or inhuman in that it involved torture,
3 depravity of mind, or an aggravated battery to the
4 victim.
5 (viii) The offense of murder was committed against
6 any peace officer, corrections employee or fireman while
7 engaged in the performance of his official duties.
8 (ix) The offense of murder was committed by a person
9 in, or who has escaped from, the lawful custody of a
10 peace officer or place of lawful confinement.
11 (x) The murder was committed for the purpose of
12 avoiding, interfering with, or preventing a lawful arrest
13 or custody in a place of lawful confinement, of himself
14 or another.
15 (2) Statutory instruction.--The statutory instructions
16 as determined by the trial judge to be warranted by the
17 evidence shall be given in charge and in writing to the jury
18 for its deliberation. The jury, if its verdict be a
19 recommendation of death, shall designate in writing, signed
20 by the foreman of the jury, the aggravating circumstance or
21 circumstances which it found beyond a reasonable doubt. In
22 non-jury cases the judge shall make such designation. Unless
23 at least one of the statutory aggravating circumstances is so
24 found, the death penalty shall not be imposed.
25 * * *
26 Section 2. Subsection (f) of section 1311 of Title 18 is
27 repealed.
28 Section 3. This act shall take effect in 60 days.
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