PRINTER'S NO. 1158
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
848
Session of
2019
INTRODUCED BY LEACH, SEPTEMBER 5, 2019
REFERRED TO JUDICIARY, SEPTEMBER 5, 2019
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)(1) 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) Except as provided under section 1102.1 (relating to
sentence of persons under the age of 18 for murder, murder of
an unborn child and murder of a law enforcement officer), 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
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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.--
(1) 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
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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.
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(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
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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.
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(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,
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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:
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(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
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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,
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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 section.
Section 4. This act shall take effect in 60 days.
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