S0751B0822A03716 BIL:JMM 10/19/07 #90 A03716
AMENDMENTS TO SENATE BILL NO. 751
Sponsor: SENATOR PICCOLA
Printer's No. 822
1 Amend Sec. 1, page 1, lines 7 through 18; page 2, lines 1
2 through 27, by striking out all of said lines and inserting
3 Section 1. Section 9545(b)(1) and (2) of Title 42 of the
4 Pennsylvania Consolidated Statutes are amended to read:
5 Amend Sec. 1 (Sec. 9545), page 3, lines 18 through 27, by
6 striking out all of said lines and inserting
7 (iv) the petitioner is a person with mental
8 retardation as set forth in section 9711.1(a) (relating
9 to mental retardation of defendant) and the time for
10 raising the claim under this subsection has expired as of
11 the effective date of section 9711.1.
12 (2) Any petition invoking an exception provided in
13 paragraph (1) shall be filed within 60 days of the date the
14 claim could have been presented[.], except that a claim
15 invoking paragraph (1)(iv) shall be filed within one year of
16 the effective date of section 9711.1 or of the conclusion of
17 any appeal that is pending on the effective date of section
18 9711.1 either from the judgment of sentence or from the
19 denial of a previous petition filed under this chapter.
20 Amend Bill, page 3, lines 29 and 30; pages 4 through 8, lines
21 1 through 30; page 9, lines 1 and 2, by striking out all of said
22 lines on said pages and inserting
23 Section 2. Section 9546 of Title 42 is amended by adding a
24 subsection to read:
25 § 9546. Relief and order.
26 * * *
27 (e) Establishing a claim of mental retardation.--Upon a
28 finding that evidence has been presented that is sufficient to
29 establish, by a preponderance of the evidence, that the
30 petitioner is a person with mental retardation as defined in
31 section 9711.1(a) (relating to mental retardation of defendant),
32 the court shall direct further proceedings in accordance with
33 section 9711.1(c).
34 Section 3. Section 9711(c) of Title 42 is amended to read:
35 § 9711. Sentencing procedure for murder of the first degree.
1 * * *
2 (c) Instructions to jury.--
3 (1) Before the jury retires to consider the sentencing
4 verdict, [the] if the defendant has provided notice in
5 compliance with section 9711.1(c)(1) (relating to mental
6 retardation of defendant) and if the defendant has presented
7 evidence in support of a claim that the defendant is a person
8 with mental retardation pursuant to section 9711.1, the court
9 shall instruct the jury that it shall begin its deliberations
10 by considering whether the defendant has established, by a
11 preponderance of the evidence, that the defendant is a person
12 with mental retardation as defined in section 9711.1(a). If
13 the jury unanimously finds that the defendant has established
14 that the defendant is a person with mental retardation as
15 defined in section 9711.1(a), the court shall impose a
16 sentence of life imprisonment. The court may, in its
17 discretion, discharge the jury if it determines that further
18 deliberation will not result in a unanimous agreement as to
19 whether the defendant is a person with mental retardation as
20 defined in section 9711.1(a), in which case the court shall
21 impose a sentence of life imprisonment. However, if the jury
22 unanimously finds that the defendant has failed to establish
23 that the defendant is a person with mental retardation as
24 defined in section 9711.1(a), the court shall instruct the
25 jury that it shall proceed to consideration of aggravating
26 and mitigating circumstances as provided in this subsection.
27 The jury's determination that the defendant has failed to
28 establish that the defendant is a person with mental
29 retardation as defined in section 9711.1(a) shall not
30 preclude the jury from considering evidence of the
31 defendant's diminished mental capacity as a mitigating
32 circumstance as enumerated in subsection (e). The court shall
33 instruct the jury on the following matters:
34 (i) The aggravating circumstances specified in
35 subsection (d) as to which there is some evidence.
36 (ii) The mitigating circumstances specified in
37 subsection (e) as to which there is some evidence.
38 (iii) Aggravating circumstances must be proved by
39 the Commonwealth beyond a reasonable doubt; mitigating
40 circumstances must be proved by the defendant by a
41 preponderance of the evidence.
42 (iv) The verdict must be a sentence of death if the
43 jury unanimously finds at least one aggravating
44 circumstance specified in subsection (d) and no
45 mitigating circumstance or if the jury unanimously finds
46 one or more aggravating circumstances which outweigh any
47 mitigating circumstances. The verdict must be a sentence
48 of life imprisonment [in all other cases.] if the jury
49 reached another conclusion concerning aggravating and
50 mitigating circumstances.
51 (v) The court may, in its discretion, discharge the
52 jury if it is of the opinion that further deliberation of
53 aggravating and mitigating circumstances will not result
54 in a unanimous agreement as to the sentence, in which
55 case the court shall sentence the defendant to life
56 imprisonment.
57 (2) The court shall instruct the jury that if it finds
58 at least one aggravating circumstance and at least one
59 mitigating circumstance, it shall consider, in weighing the
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1 aggravating and mitigating circumstances, any evidence
2 presented about the victim and about the impact of the murder
3 on the victim's family. The court shall also instruct the
4 jury on any other matter that may be just and proper under
5 the circumstances.
6 * * *
7 Section 4. Title 42 is amended by adding a section to read:
8 § 9711.1. Mental retardation of defendant.
9 (a) Elements of proof.--A defendant is a person with mental
10 retardation if the defendant has a mental disability
11 characterized by significant limitations in intellectual
12 functioning and in adaptive behavior as expressed in conceptual,
13 social and practical adaptive skills, which the defendant must
14 prove by establishing all of the following elements by a
15 preponderance of the evidence:
16 (1) That the defendant's full-scale intelligence
17 quotient is two standard deviations below the mean as
18 determined by a standardized test generally accepted in the
19 profession and individually administered by a licensed
20 psychologist.
21 (2) That the defendant has significant limitations in
22 relevant adaptive behavior as measured by an examination of
23 the following factors as they existed before the defendant's
24 arrest for the capital offense:
25 (i) Whether those who knew the defendant best during
26 the developmental stage, such as the defendant's family,
27 friends, teachers, employers or authorities thought the
28 defendant was mentally retarded at that time, and, if so,
29 whether they acted in accordance with that determination.
30 (ii) Whether the defendant formulated plans and
31 carried them through or whether the defendant's conduct
32 was impulsive.
33 (iii) Whether the defendant's conduct demonstrated
34 leadership or whether the defendant's conduct
35 demonstrated that the defendant was led around by others.
36 (iv) Whether the defendant's conduct in response to
37 external stimuli was rational and appropriate, regardless
38 of whether it was socially acceptable.
39 (v) Whether the defendant responded coherently,
40 rationally and on point to oral or written questions or
41 whether the defendant's responses wander from subject to
42 subject.
43 (vi) Whether the defendant was able to hide facts or
44 lie effectively in the defendant's own or others'
45 interests.
46 (vii) Putting aside any heinousness or gruesomeness
47 surrounding the capital offense, whether the commission
48 of that offense required forethought, planning and
49 complex execution of purpose.
50 (viii) Whether the defendant appreciated the
51 criminality of the defendant's conduct.
52 (3) That the defendant's mental disability was present
53 before the defendant attained 18 years of age as
54 demonstrated by contemporaneous written records. However,
55 contemporaneous written records shall not be required
56 where the defendant establishes that the written records
57 are lost or missing or that the defendant was deprived of
58 schooling or other social services contacts in which the
59 contemporaneous records would be created.
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1 (b) Waiver of confidentiality.--A defendant who raises a
2 claim of mental retardation waives confidentiality and
3 privileges. The following apply:
4 (1) The defendant's medical, corrections, military and
5 scholastic records may be reviewed by the parties.
6 (2) The defendant's previous physicians, teachers and
7 mental health providers may be contacted by the parties and
8 current mental health examiners to learn of the defendant's
9 background relative to the claim of mental retardation.
10 (c) Applicability.--
11 (1) If a defendant who has not yet been sentenced to
12 death as of the effective date of this section wishes to
13 raise the issue of mental retardation, the defendant must
14 file pretrial notice of the intention. The issue shall then
15 be placed before the jury at the time of sentencing in
16 accordance with section 9711(c)(1) (relating to sentencing
17 procedure for murder of the first degree) unless both the
18 defendant and the Commonwealth agree to a pretrial
19 determination by the court. If the defendant does not file
20 notice, the court, either on its own motion or on the motion
21 of the Commonwealth, may direct the defendant to provide
22 reasons for the failure to file.
23 (2) If a defendant who has already been sentenced to
24 death as of the effective date of this section wishes to
25 raise the issue of mental retardation, and postsentence
26 motions are still pending, the defendant must amend the
27 motions to raise the claim that imposition of the death
28 penalty would have been barred under section 9711(c)(1) if it
29 had been in effect at the time of the sentencing hearing.
30 Upon a finding that evidence has been presented sufficient to
31 establish mental retardation as defined in subsection (a),
32 the court shall vacate the sentence of death, impanel a jury,
33 unless waived by the defendant and the Commonwealth, and
34 conduct an evidentiary hearing at which the issue of mental
35 retardation shall be determined by the trier of fact. The
36 hearing shall be conducted in accordance with section
37 9711(c)(1).
38 (3) If a defendant who has already been sentenced to
39 death as of the effective date of this section wishes to
40 raise a claim of mental retardation and direct appeal is
41 still pending, the defendant must, after disposition of the
42 appeal, raise the claim under Chapter 95 Subchapter B
43 (relating to post conviction relief) in a petition pursuant
44 to section 9545(b) (relating to jurisdiction and
45 proceedings).
46 Section 5. This act shall take effect in 60 days.
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