PRINTER'S NO. 944
No. 804 Session of 2003
INTRODUCED BY BOSCOLA, PICCOLA, RAFFERTY, MUSTO AND WAUGH,
JUNE 9, 2003
REFERRED TO JUDICIARY, JUNE 9, 2003
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 jurisdiction and proceedings, for relief and order and for
4 sentencing procedure for murder of the first degree; and
5 providing for mental retardation of defendant.
6 The General Assembly of the Commonwealth of Pennsylvania
7 hereby enacts as follows:
8 Section 1. Sections 9545(b), 9546 and 9711(c) of Title 42 of
9 the Pennsylvania Consolidated Statutes are amended to read:
10 § 9545. Jurisdiction and proceedings.
11 * * *
12 (b) Time for filing petition.--
13 (1) Any petition under this subchapter, including a
14 second or subsequent petition, shall be filed within one year
15 of the date the judgment becomes final, unless the petition
16 alleges and the petitioner proves that:
17 (i) the failure to raise the claim previously was
18 the result of interference by government officials with
19 the presentation of the claim in violation of the
1 Constitution or laws of this Commonwealth or the
2 Constitution or laws of the United States;
3 (ii) the facts upon which the claim is predicated
4 were unknown to the petitioner and could not have been
5 ascertained by the exercise of due diligence; [or]
6 (iii) the right asserted is a constitutional right
7 that was recognized by the Supreme Court of the United
8 States or the Supreme Court of Pennsylvania after the
9 time period provided in this section and has been held by
10 that court to apply retroactively[.]; or
11 (iv) the petitioner is mentally retarded as defined
12 in section 9711.1(a) (relating to mental retardation of
13 defendant) and the time for raising the claim under this
14 subsection had already expired as of the effective date
15 of section 9711.1(a).
16 (2) Any petition invoking an exception provided in
17 paragraph (1) shall be filed within 60 days of the date the
18 claim could have been presented[.], except that a claim
19 invoking paragraph (1)(iv) shall be filed within one year of
20 the effective date of section 9711.1(a) or of the conclusion
21 of any appeal pending on the effective date from the judgment
22 of sentence or from the denial of a previous petition under
23 this chapter.
24 (3) For purposes of this subchapter, a judgment becomes
25 final at the conclusion of direct review, including
26 discretionary review in the Supreme Court of the United
27 States and the Supreme Court of Pennsylvania, or at the
28 expiration of time for seeking the review.
29 (4) For purposes of this subchapter, "government
30 officials" shall not include defense counsel, whether
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1 appointed or retained.
2 * * *
3 § 9546. Relief and order.
4 (a) General rule.--If the court rules in favor of the
5 petitioner, it shall order appropriate relief and issue
6 supplementary orders as to rearraignment, retrial, custody,
7 bail, discharge, correction of sentence or other matters that
8 are necessary and proper.
9 (b.1) Finding.--Upon a finding that evidence has been
10 presented that is sufficient to establish, by a preponderance of
11 the evidence, mental retardation as defined in section 9711.1(a)
12 (relating to mental retardation of defendant), the court shall
13 direct further proceedings in accordance with section
14 9711.1(c)(2).
15 (d) Review of order in death penalty cases.--An order under
16 this subchapter granting the petitioner final relief in a case
17 in which the death penalty has been imposed shall be directly
18 appealable by the Commonwealth to the Supreme Court pursuant to
19 its rules. An order under this subchapter denying a petitioner
20 final relief in a case in which the death penalty has been
21 imposed shall not be reviewable in the Superior Court but shall
22 be reviewable only by petition for allowance of appeal to the
23 Supreme Court.
24 § 9711. Sentencing procedure for murder of the first degree.
25 * * *
26 (c) Instructions to jury.--
27 (1) Before the jury retires to consider the sentencing
28 verdict, and if the defendant has provided notice in
29 compliance with section 9711.1(c)(1) (relating to mental
30 retardation of defendant) and has presented evidence in
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1 support of the section 9711.1 defense, the court shall
2 instruct the jury that it shall begin its deliberations by
3 considering whether the defendant is mentally retarded as
4 defined in section 9711.1(a). If the jury unanimously finds
5 by a preponderance of the evidence that the defendant is
6 mentally retarded, it shall impose a sentence of life
7 imprisonment. Otherwise, the jury shall proceed to
8 consideration of aggravating and mitigating circumstances as
9 provided in paragraphs (1) and (2). Failure to determine that
10 the defendant is mentally retarded shall not preclude the
11 jury from considering the evidence of the defendant's
12 diminished mental capacity as a mitigating circumstance. This
13 section shall not be deemed to require unanimity for
14 consideration of mitigating circumstances, nor shall this
15 section be deemed to supersede any mitigating circumstances
16 regarding diminished mental capacity currently enumerated in
17 subsection (e) on the following matters:
18 (i) The aggravating circumstances specified in
19 subsection (d) as to which there is some evidence.
20 (ii) The mitigating circumstances specified in
21 subsection (e) as to which there is some evidence.
22 (iii) Aggravating circumstances must be proved by
23 the Commonwealth beyond a reasonable doubt; mitigating
24 circumstances must be proved by the defendant by a
25 preponderance of the evidence.
26 (iv) The verdict must be a sentence of death if the
27 jury unanimously finds at least one aggravating
28 circumstance specified in subsection (d) and no
29 mitigating circumstance or if the jury unanimously finds
30 one or more aggravating circumstances which outweigh any
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1 mitigating circumstances. The verdict must be a sentence
2 of life imprisonment [in all other cases.] if the jury
3 reaches another conclusion concerning aggravating and
4 mitigating circumstances.
5 (v) The court may, in its discretion, discharge the
6 jury if it is of the opinion that further deliberation of
7 aggravating and mitigating circumstances will not result
8 in a unanimous agreement as to the sentence, in which
9 case the court shall sentence the defendant to life
10 imprisonment.
11 (2) The court shall instruct the jury that if it finds
12 at least one aggravating circumstance and at least one
13 mitigating circumstance, it shall consider, in weighing the
14 aggravating and mitigating circumstances, any evidence
15 presented about the victim and about the impact of the murder
16 on the victim's family. The court shall also instruct the
17 jury on any other matter that may be just and proper under
18 the circumstances.
19 * * *
20 Section 2. Title 42 is amended by adding a section to read:
21 § 9711.1. Mental retardation of defendant.
22 (a) Elements for proof.--A defendant is mentally retarded
23 for purposes of capital sentencing if the defendant establishes
24 all of the following elements by a preponderance of evidence:
25 (1) That the defendant's full-scale intelligence
26 quotient is 70 or lower on a standardized, individually
27 administered test for which raw data has been provided and
28 which accounts for all potential margin of error.
29 (2) That the defendant has significant impairment in
30 adaptive behavior in the areas of social responsibility and
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1 personal independence.
2 (3) That the defendant's impairments are primarily
3 attributable to a diagnosis of mental retardation present
4 before the defendant attained 18 years of age and revealed by
5 contemporaneous written records from early childhood, unless
6 the defendant was deprived of schooling or other social
7 service contacts in which such contemporaneous records would
8 have been created.
9 (b) Waiver of confidentiality.--A defendant who raises an
10 issue of mental retardation waives confidentiality and
11 privileges so that the defendant's medical, corrections,
12 military and scholastic records may be reviewed by the parties
13 and the defendant's previous physicians, teachers and mental
14 health providers may be contacted by current mental health
15 examiners to learn of the defendant's background relative to the
16 claim of mental retardation.
17 (c) Applicability.--
18 (1) If a defendant who has not yet been sentenced to
19 death as of the effective date of this section wishes to
20 raise the issue of mental retardation, the defendant must
21 file pretrial notice of such intention. The issue shall then
22 be placed before the jury at the time of sentencing in
23 accordance with section 9711(c)(1) (relating to sentencing
24 procedure for murder of the first degree). Where the
25 defendant does not file such notice, the court, either on its
26 own motion or on the motion of the Commonwealth, may direct
27 the defendant to provide reasons for the failure to file.
28 (2) If a defendant who has already been sentenced to
29 death as of the effective date of this section wishes to
30 raise the issue of mental retardation, and postsentence
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1 motions are still pending, the defendant may amend the
2 motions to raise the claim that imposition of the death
3 penalty would have been barred under section 9711(c)(1) if it
4 had been in effect at the time of the sentencing hearing.
5 Upon a finding that evidence has been presented sufficient to
6 establish mental retardation as provided under subsection
7 (a), the court shall vacate the sentence of death, impanel a
8 jury unless waived by the defendant and the Commonwealth, and
9 conduct an evidentiary hearing at which the issue of the
10 mental retardation shall be determined. Such hearing shall be
11 conducted in accordance with section 9711(c)(1).
12 (3) If a defendant who has already been sentenced to
13 death as of the effective date of this section wishes to
14 raise the issue of mental retardation and direct appeal is
15 still pending, the defendant may, after disposition of the
16 appeal, raise the issue in a Post Conviction Relief Act
17 petition pursuant to section 9545(b) (relating to
18 jurisdiction and proceedings).
19 Section 3. This act shall take effect in 60 days.
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