THE GENERAL ASSEMBLY OF PENNSYLVANIA

SENATE BILL

INTRODUCED BY LEACH AND FERLO, FEBRUARY 7, 2011

REFERRED TO JUDICIARY, FEBRUARY 7, 2011  

AN ACT

Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and

Judicial Procedure) of the Pennsylvania Consolidated

Statutes, prohibiting use of the death penalty.

The General Assembly of the Commonwealth of Pennsylvania

hereby enacts as follows:

Section 1.  Sections 1102(a) and 3301(b) of Title 18 of the

Pennsylvania Consolidated Statutes are amended to read:

§ 1102.  Sentence for murder, murder of unborn child and murder

of law enforcement officer.

(a)  First degree.--

(1)  A person who has been convicted of a murder of the

first degree or of murder of a law enforcement officer of the

first degree shall be sentenced to [death or to] a term of

life imprisonment in accordance with 42 Pa.C.S. § 9711 

(relating to sentencing procedure for murder of the first

degree).

(2)  The sentence for a person who has been convicted of

first degree murder of an unborn child shall be the same as

the sentence for murder of the first degree[, except that the

death penalty shall not be imposed. This paragraph shall not

affect the determination of an aggravating circumstance under

42 Pa.C.S. § 9711(d)(17) for the killing of a pregnant

woman].

* * *

§ 3301.  Arson and related offenses.

* * *

(b)  Sentence.--A person convicted of violating the

provisions of subsection (a)(2), murder of the first degree or

second degree[,] shall be sentenced to [death or] life

imprisonment without right to parole[; a person convicted of

murder of the second degree, pursuant to subsection (a)(2),

shall be sentenced to life imprisonment without right to

parole]. Notwithstanding provisions to the contrary, no language

herein shall infringe upon the inherent powers of the Governor

to commute said sentence.

* * *

Section 2.  Section 9711 of Title 42 is amended to read:

§ 9711.  Sentencing procedure for murder of the first degree.

[(a)  Procedure in jury trials.--]

[(1)]  After a verdict of murder of the first degree is

recorded [and before the jury is discharged], the court shall

[conduct a separate sentencing hearing in which the jury

shall determine whether the defendant shall be sentenced to

death or] sentence the defendant to life imprisonment.

[(2)  In the sentencing hearing, evidence concerning the

victim and the impact that the death of the victim has had on

the family of the victim is admissible. Additionally,

evidence may be presented as to any other matter that the

court deems relevant and admissible on the question of the

sentence to be imposed. Evidence shall include matters

relating to any of the aggravating or mitigating

circumstances specified in subsections (d) and (e), and

information concerning the victim and the impact that the

death of the victim has had on the family of the victim.

Evidence of aggravating circumstances shall be limited to

those circumstances specified in subsection (d).

(3)  After the presentation of evidence, the court shall

permit counsel to present argument for or against the

sentence of death. The court shall then instruct the jury in

accordance with subsection (c).

(4)  Failure of the jury to unanimously agree upon a

sentence shall not impeach or in any way affect the guilty

verdict previously recorded.

(b)  Procedure in nonjury trials and guilty pleas.--If the

defendant has waived a jury trial or pleaded guilty, the

sentencing proceeding shall be conducted before a jury impaneled

for that purpose unless waived by the defendant with the consent

of the Commonwealth, in which case the trial judge shall hear

the evidence and determine the penalty in the same manner as

would a jury as provided in subsection (a).

(c)  Instructions to jury.--

(1)  Before the jury retires to consider the sentencing

verdict, the court shall instruct the jury on the following

matters:

(i)  The aggravating circumstances specified in

subsection (d) as to which there is some evidence.

(ii)  The mitigating circumstances specified in

subsection (e) as to which there is some evidence.

(iii)  Aggravating circumstances must be proved by

the Commonwealth beyond a reasonable doubt; mitigating

circumstances must be proved by the defendant by a

preponderance of the evidence.

(iv)  The verdict must be a sentence of death if the

jury unanimously finds at least one aggravating

circumstance specified in subsection (d) and no

mitigating circumstance or if the jury unanimously finds

one or more aggravating circumstances which outweigh any

mitigating circumstances. The verdict must be a sentence

of life imprisonment in all other cases.

(v)  The court may, in its discretion, discharge the

jury if it is of the opinion that further deliberation

will not result in a unanimous agreement as to the

sentence, in which case the court shall sentence the

defendant to life imprisonment.

(2)  The court shall instruct the jury that if it finds

at least one aggravating circumstance and at least one

mitigating circumstance, it shall consider, in weighing the

aggravating and mitigating circumstances, any evidence

presented about the victim and about the impact of the murder

on the victim's family. The court shall also instruct the

jury on any other matter that may be just and proper under

the circumstances.

(d)  Aggravating circumstances.--Aggravating circumstances

shall be limited to the following:

(1)  The victim was a firefighter, peace officer, public

servant concerned in official detention, as defined in 18

Pa.C.S. § 5121 (relating to escape), judge of any court in

the unified judicial system, the Attorney General of

Pennsylvania, a deputy attorney general, district attorney,

assistant district attorney, member of the General Assembly,

Governor, Lieutenant Governor, Auditor General, State

Treasurer, State law enforcement official, local law

enforcement official, Federal law enforcement official or

person employed to assist or assisting any law enforcement

official in the performance of his duties, who was killed in

the performance of his duties or as a result of his official

position.

(2)  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.

(3)  The victim was being held by the defendant for

ransom or reward, or as a shield or hostage.

(4)  The death of the victim occurred while defendant was

engaged in the hijacking of an aircraft.

(5)  The victim was a prosecution 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.

(6)  The defendant committed a killing while in the

perpetration of a felony.

(7)  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.

(8)  The offense was committed by means of torture.

(9)  The defendant has a significant history of felony

convictions involving the use or threat of violence to the

person.

(10)  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.

(11)  The defendant has been convicted of another murder

committed in any jurisdiction and committed either before or

at the time of the offense at issue.

(12)  The defendant has been convicted of voluntary

manslaughter, as defined in 18 Pa.C.S. § 2503 (relating to

voluntary manslaughter), or a substantially equivalent crime

in any other jurisdiction, committed either before or at the

time of the offense at issue.

(13)  The defendant committed the killing or was an

accomplice in the killing, as defined in 18 Pa.C.S. § 306(c) 

(relating to liability for conduct of another; complicity),

while in the perpetration of a felony under the provisions of

the act of April 14, 1972 (P.L.233, No.64), known as The

Controlled Substance, Drug, Device and Cosmetic Act, and

punishable under the provisions of 18 Pa.C.S. § 7508 

(relating to drug trafficking sentencing and penalties).

(14)  At the time of the killing, the victim was or had

been involved, associated or in competition with the

defendant in the sale, manufacture, distribution or delivery

of any controlled substance or counterfeit controlled

substance in violation of The Controlled Substance, Drug,

Device and Cosmetic Act or similar law of any other state,

the District of Columbia or the United States, and the

defendant committed the killing or was an accomplice to the

killing as defined in 18 Pa.C.S. § 306(c), and the killing

resulted from or was related to that association, involvement

or competition to promote the defendant's activities in

selling, manufacturing, distributing or delivering controlled

substances or counterfeit controlled substances.

(15)  At the time of the killing, the victim was or had

been a nongovernmental informant or had otherwise provided

any investigative, law enforcement or police agency with

information concerning criminal activity and the defendant

committed the killing or was an accomplice to the killing as

defined in 18 Pa.C.S. § 306(c), and the killing was in

retaliation for the victim's activities as a nongovernmental

informant or in providing information concerning criminal

activity to an investigative, law enforcement or police

agency.

(16)  The victim was a child under 12 years of age.

(17)  At the time of the killing, the victim was in her

third trimester of pregnancy or the defendant had knowledge

of the victim's pregnancy.

(18)  At the time of the killing the defendant was

subject to a court order restricting in any way the

defendant's behavior toward the victim pursuant to 23 Pa.C.S.

Ch. 61 (relating to protection from abuse) or any other order

of a court of common pleas or of the minor judiciary designed

in whole or in part to protect the victim from the defendant.

(e)  Mitigating circumstances.--Mitigating circumstances

shall include the following:

(1)  The defendant has no significant history of prior

criminal convictions.

(2)  The defendant was under the influence of extreme

mental or emotional disturbance.

(3)  The capacity of the defendant to appreciate the

criminality of his conduct or to conform his conduct to the

requirements of law was substantially impaired.

(4)  The age of the defendant at the time of the crime.

(5)  The defendant acted under extreme duress, although

not such duress as to constitute a defense to prosecution

under 18 Pa.C.S. § 309 (relating to duress), or acted under

the substantial domination of another person.

(6)  The victim was a participant in the defendant's

homicidal conduct or consented to the homicidal acts.

(7)  The defendant's participation in the homicidal act

was relatively minor.

(8)  Any other evidence of mitigation concerning the

character and record of the defendant and the circumstances

of his offense.

(f)  Sentencing verdict by the jury.--

(1)  After hearing all the evidence and receiving the

instructions from the court, the jury shall deliberate and

render a sentencing verdict. In rendering the verdict, if the

sentence is death, the jury shall set forth in such form as

designated by the court the findings upon which the sentence

is based.

(2)  Based upon these findings, the jury shall set forth

in writing whether the sentence is death or life

imprisonment.

(g)  Recording sentencing verdict.--Whenever the jury shall

agree upon a sentencing verdict, it shall be received and

recorded by the court. The court shall thereafter impose upon

the defendant the sentence fixed by the jury.

(h)  Review of death sentence.--

(1)  A sentence of death shall be subject to automatic

review by the Supreme Court of Pennsylvania pursuant to its

rules.

(2)  In addition to its authority to correct errors at

trial, the Supreme Court shall either affirm the sentence of

death or vacate the sentence of death and remand for further

proceedings as provided in paragraph (4).

(3)  The Supreme Court shall affirm the sentence of death

unless it determines that:

(i)  the sentence of death was the product of

passion, prejudice or any other arbitrary factor; or

(ii)  the evidence fails to support the finding of at

least one aggravating circumstance specified in

subsection (d).

(4)  If the Supreme Court determines that the death

penalty must be vacated because none of the aggravating

circumstances are supported by sufficient evidence, then it

shall remand for the imposition of a life imprisonment

sentence. If the Supreme Court determines that the death

penalty must be vacated for any other reason, it shall remand

for a new sentencing hearing pursuant to subsections (a)

through (g).

(i)  Record of death sentence to Governor.--Where a sentence

of death is upheld by the Supreme Court, the prothonotary of the

Supreme Court shall transmit to the Governor a full and complete

record of the trial, sentencing hearing, imposition of sentence,

opinion and order by the Supreme Court within 30 days of one of

the following, whichever occurs first:

(1)  the expiration of the time period for filing a

petition for writ of certiorari or extension thereof where

neither has been filed;

(2)  the denial of a petition for writ of certiorari; or

(3)  the disposition of the appeal by the United States

Supreme Court, if that court grants the petition for writ of

certiorari.

Notice of this transmission shall contemporaneously be provided

to the Secretary of Corrections.]

Section 3.  This act shall apply to defendants and

individuals who have not been sentenced as of the effective date

of this act.

Section 4.  This act shall take effect in 60 days.