PRINTER'S NO. 268
No. 275 Session of 1995
INTRODUCED BY LEH, BIRMELIN, TRELLO, ARMSTRONG, DeLUCA, ROHRER,
FARGO, E. Z. TAYLOR, M. N. WRIGHT, PLATTS, LAWLESS, BROWN,
CIVERA, HUTCHINSON, EGOLF, READSHAW, SERAFINI AND MERRY,
JANUARY 25, 1995
REFERRED TO COMMITTEE ON JUDICIARY, JANUARY 25, 1995
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, providing for sentencing
3 for three convictions of crimes of violence.
4 The General Assembly of the Commonwealth of Pennsylvania
5 hereby enacts as follows:
6 Section 1. Title 42 of the Pennsylvania Consolidated
7 Statutes is amended by adding a section to read:
8 § 9711.1. Sentencing procedure for three convictions for crimes
9 of violence.
10 (a) Sentence for third conviction for crime of violence.--
11 Any person who is convicted in any court of this Commonwealth
12 for a crime of violence which was committed after prior
13 convictions for two or more crimes of violence shall be
14 sentenced to death or life imprisonment in accordance with this
15 section, notwithstanding any other provision of this title or
16 other statute to the contrary. The provision of this section
17 shall not be an element of the crime, and notice thereof to the
1 defendant shall not be required prior to conviction, but
2 reasonable notice of the Commonwealth's intention to proceed
3 under this section shall be provided after conviction and before
4 sentencing. The applicability of this section shall be
5 determined at sentencing.
6 (b) Crime of violence.--For purposes of this section, a
7 crime of violence shall mean:
8 (1) murder, except as otherwise provided for in section
9 9711 (relating to sentencing procedure for murder of the
10 first degree), or voluntary manslaughter or attempt to commit
11 any of these crimes or equivalent crime under the laws of
12 this Commonwealth in effect prior to the effective date of
13 Title 18 (relating to crimes and offenses) or an equivalent
14 crime in another jurisdiction; or
15 (2) rape, involuntary deviate sexual intercourse, arson
16 as defined in 18 Pa.C.S. § 3301(a) (relating to arson and
17 related offenses), kidnapping or robbery as defined in 18
18 Pa.C.S. § 3701(a)(1)(i), (ii) or (iii) (relating to robbery),
19 or attempt to commit any of these crimes, if the offender was
20 also convicted of aggravated assault in connection with a
21 conviction of any of the offenses specified in this paragraph
22 or equivalent crime under the laws of this Commonwealth in
23 effect prior to the effective date of Title 18 or an
24 equivalent crime in another jurisdiction.
25 (c) Prior convictions for two or more crimes of violence.--
26 An offender shall be deemed to have prior convictions for two or
27 more crimes of violence for purposes of this section if the
28 court determines that both of the following conditions hold:
29 (1) The offender was previously convicted of a crime of
30 violence in this Commonwealth or any other state or the
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1 District of Columbia or in any Federal court on at least two
2 separate occasions. The previous conviction or convictions
3 for a crime of violence need not be for the same crime as the
4 instant offense for this section to be applicable.
5 (2) At least one of the prior convictions was for an
6 offense which was committed after a previous conviction for a
7 crime of violence. A previous conviction shall include any
8 conviction, whether or not litigation is pending concerning
9 that conviction.
10 (d) Procedure for determining applicability of sentencing
11 procedure.--
12 (1) After a verdict for a crime of violence is recorded
13 and before the jury is discharged, the court shall conduct a
14 hearing to determine whether the offender has prior
15 convictions for two or more crimes of violence. If the court
16 determines that the offender has prior convictions for two or
17 more crimes of violence, it shall conduct a separate
18 sentencing hearing in which the jury shall determine whether
19 the defendant shall be sentenced to death or life
20 imprisonment.
21 (2) The court, prior to making a determination on the
22 applicability of the sentencing procedure prescribed by this
23 section, shall have a complete record of the previous
24 convictions of the offender, copies of which shall be
25 furnished to the offender. If the offender or the attorney
26 for the Commonwealth contests the accuracy of the record, the
27 court shall schedule a hearing and direct the offender and
28 the attorney for the Commonwealth to submit evidence
29 regarding the previous convictions of the offender. The court
30 shall then determine, by proof beyond a reasonable doubt,
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1 whether the verdict against the defendant in the instant
2 proceeding was for a crime of violence and whether the
3 defendant had prior convictions for two or more crimes of
4 violence and, if this section is applicable, the court shall
5 conduct a separate sentencing hearing in accordance with this
6 section. Should a previous conviction be vacated and an
7 acquittal or final discharge entered subsequent to imposition
8 or implementation of sentence under this section, the
9 offender shall have the right to petition the sentencing
10 court for reconsideration of sentence if this section would
11 not have been applicable except for the conviction which was
12 vacated.
13 (e) Sentencing procedure.--
14 (1) In the hearing on whether to sentence the defendant
15 to death or life imprisonment, evidence may be presented as
16 to any matter that the court deems relevant and admissible on
17 the question of the sentence to be imposed and shall include
18 matters relating to any of the aggravating or mitigating
19 circumstances specified in this section. Evidence of
20 aggravating circumstances shall be limited to those
21 circumstances specified in subsection (j).
22 (2) After the presentation of evidence, the court shall
23 permit counsel to present argument for or against the
24 sentence of death. The court shall then instruct the jury in
25 accordance with subsection (i).
26 (3) Failure of the jury to unanimously agree upon a
27 sentence shall not impeach or in any way affect the guilty
28 verdict previously recorded.
29 (f) Authority of court in sentencing.--There shall be no
30 authority in any court to impose on an offender to which this
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1 section is applicable any lesser sentence than provided for in
2 this section or to place such offender on probation or to
3 suspend sentence. Sentencing guidelines promulgated by the
4 Pennsylvania Commission on Sentencing shall not supersede the
5 mandatory sentences provided in this section.
6 (g) Appeal by Commonwealth.--If a sentencing court refuses
7 to apply this section where applicable, the Commonwealth shall
8 have the right to appellate review of the action of the
9 sentencing court. The appellate court shall vacate the sentence
10 and remand the case to the sentencing court for the imposition
11 of a sentence in accordance with this section if it finds that
12 the sentence was imposed in violation of this section.
13 (h) Procedure in nonjury trials and guilty pleas.--If the
14 defendant has waived a jury trial or pleaded guilty, the
15 sentencing proceeding shall be conducted before a jury impaneled
16 for that purpose unless waived by the defendant with the consent
17 of the Commonwealth, in which case the trial judge shall hear
18 the evidence and determine the penalty in the same manner as
19 would a jury.
20 (i) Instructions to jury.--
21 (1) Before the jury retires to consider the sentencing
22 verdict, the court shall instruct the jury on the following
23 matters:
24 (i) The aggravating circumstances specified in
25 subsection (j) as to which there is some evidence.
26 (ii) The mitigating circumstances specified in
27 subsection (k) as to which there is some evidence.
28 (iii) That aggravating circumstances must be proved
29 by the Commonwealth beyond a reasonable doubt; mitigating
30 circumstances must be proved by the defendant by a
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1 preponderance of the evidence.
2 (iv) That the verdict must be a sentence of death if
3 the jury unanimously finds at least one aggravating
4 circumstance specified in subsection (j) and no
5 mitigating circumstance or if the jury unanimously finds
6 one or more aggravating circumstances which outweigh any
7 mitigating circumstances. The verdict must be a sentence
8 of life imprisonment in all other cases.
9 (2) The court may, in its discretion, discharge the jury
10 if it is of the opinion that further deliberation will not
11 result in a unanimous agreement as to the sentence, in which
12 case the court shall sentence the defendant to life
13 imprisonment.
14 (3) The court shall instruct the jury on any other
15 matter that may be just and proper under the circumstances.
16 (j) Aggravating circumstances.--Aggravating circumstances
17 shall be limited to the crime of violence offense for which the
18 offender is being sentenced and shall be further limited to the
19 following in connection with such offense:
20 (1) The offender knowingly or intentionally caused
21 serious bodily injury to another during the commission of the
22 offense under circumstances manifesting extreme indifference
23 to the value of human life.
24 (2) If the offense was outrageously or wantonly vile,
25 horrible or inhuman in that it involved torture or depravity
26 of mind.
27 (3) The victim was a child 12 years of age or younger.
28 (k) Mitigating circumstances.--Mitigating circumstances
29 shall include the following:
30 (1) The defendant was under the influence of extreme
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1 mental or emotional disturbance.
2 (2) The capacity of the defendant to appreciate the
3 criminality of his conduct or to conform his conduct to the
4 requirements of law was substantially impaired.
5 (3) The age of the defendant at the time of the crime.
6 (4) The defendant acted under extreme duress, although
7 not such duress as to constitute a defense to prosecution
8 under 18 Pa.C.S. § 309 (relating to duress), or acted under
9 the substantial domination of another person.
10 (5) The victim was a participant in the defendant's
11 conduct or consented to the acts.
12 (6) The defendant's participation in the crime of
13 violence was relatively minor.
14 (7) Any other evidence of mitigation concerning the
15 character and record of the defendant and the circumstances
16 of his offense.
17 (l) Sentencing verdict by the jury.--
18 (1) After hearing all the evidence and receiving the
19 instruction from the court, the jury shall deliberate and
20 render a sentencing verdict. In rendering the verdict, if the
21 sentence is death, the jury shall set forth in such form as
22 designated by the court the findings upon which the sentence
23 is based.
24 (2) Based upon these findings, the jury shall set forth
25 in writing whether the sentence is death or life
26 imprisonment.
27 (m) Recording sentencing verdict.--Whenever the jury shall
28 agree upon a sentencing verdict, it shall be received and
29 recorded by the court. The court shall thereafter impose upon
30 the defendant the sentence fixed by the jury.
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1 (n) Review of death sentence.--
2 (1) A sentence of death shall be subject to automatic
3 review by the Supreme Court of Pennsylvania pursuant to its
4 rules.
5 (2) In addition to its authority to correct errors at
6 trial, the Supreme Court shall either affirm the sentence of
7 death or vacate the sentence of death and remand for further
8 proceedings as provided in paragraph (4).
9 (3) The Supreme Court shall affirm the sentence of death
10 unless it determines that:
11 (i) the sentence of death was the product of
12 passion, prejudice or any other arbitrary factor;
13 (ii) the evidence fails to support the finding of at
14 least one aggravating circumstance;
15 (iii) the sentence of death is excessive or
16 disproportionate to the penalty imposed in similar cases,
17 considering both the circumstances of the crime and the
18 character and record of the defendant; or
19 (iv) the applicability of this section is not
20 supported by the law or the evidence.
21 (4) If the Supreme Court determines that the death
22 penalty must be vacated because none of the aggravating
23 circumstances are supported by sufficient evidence or because
24 the sentence of death is disproportionate to the penalty
25 imposed in similar cases, then it shall remand for the
26 imposition of a life imprisonment sentence. If the Supreme
27 Court determines that this section is inapplicable, it shall
28 remand for sentencing in accordance with applicable law. If
29 the Supreme Court determines that the death penalty must be
30 vacated for any other reason, it shall remand for a new
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1 sentencing hearing pursuant to this section.
2 (o) Record of death sentence to Governor.--Where a sentence
3 of death is upheld by the Supreme Court, the prothonotary of the
4 Supreme Court shall transmit to the Governor a full and complete
5 record of the trial, sentencing hearing, imposition of sentence
6 and review by the Supreme Court.
7 Section 2. The sentences provided for in this act shall be
8 applicable to offenses committed after the effective date of
9 this act. Convictions occurring before the effective date of
10 this act shall be included in determining whether the offender
11 has prior convictions for two or more crimes of violence.
12 Section 3. If the death penalty provision of this act is
13 held invalid in its entirety, the remaining provisions or
14 applications of this act are void from the effective date of the
15 invalidity.
16 Section 4. This act shall take effect in 90 days.
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