Com. v. McKenna

• Decision Date: 03 March 1978
• Citation: 383 A.2d 174,476 Pa. 428
• Parties: COMMONWEALTH of Pennsylvania v. Gerard Paul McKENNA, Appellant (two cases).
• Court: Pennsylvania Supreme Court

Page 174

383 A.2d 174

476 Pa. 428

COMMONWEALTH of Pennsylvania v. Gerard Paul McKENNA, Appellant (two cases).

Supreme Court of Pennsylvania.

Argued April 19, 1977.

Decided Jan. 26, 1978.

Reargument Denied March 3, 1978.

Thomas A. Walrath, Wellsboro, Leonard J. Frawley, Public Defender, Towanda, William A. Hebe, Wellsboro, for appellant.

W. Marshall Dawsey, Bradford County Dist. Atty., Towanda, Arthur R. Shuman, Jr., Philadelphia, for appellee.

NAACP Legal Defense Fund, Inc., Norris E. Gelman, Philadelphia, for amicus curiae.

Before EAGEN, C. J., and O'BRIEN, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

POMEROY, Justice.

Appellant, Gerard Paul McKenna, was convicted on December 9, 1974 by a jury of murder of the first degree, and rape. A sentencing proceeding was then conducted ¹ and after being charged on the penalty, the jury fixed the penalty at death. Timely post-trial motions were filed and in due course denied. On October 16, 1975 appellant was sentenced to imprisonment for a term of 10-20 years on the rape charge and to death on the murder conviction. This appeal followed. ²

McKenna alleges some nine trial errors, any one of which, he argues, requires the grant of a new trial. Having carefully reviewed the record, we find merit in none of these claims of error and affirm the convictions of murder and rape. ³ It remains to determine whether the sentence of death was lawfully imposed with respect to the murder conviction. We hold not.

Following the return of the jury's verdict that the death penalty should be imposed, appellant filed a motion in arrest of judgment, a motion for a new trial and a motion to remand sentence to life imprisonment. Some four months later, however, and before decision by the trial court, appellant withdrew his motion to reduce the sentence to life imprisonment; he continued to press his other motions. Thus there is not before us any challenge by appellant to the constitutionality of the statute under which he has been sentenced to death. ⁴ That question has been presented only by the amicus curiae, ⁵ whose standing to do so is open to question. ⁶ We cannot, however, be blind to the fact that for the reasons set forth hereafter the statutory provision under which sentence was imposed, see n.1, supra, is void on its face. We must therefore ask ourselves whether we can allow this appellant to be executed under such a statute. We have concluded that the sentence cannot stand and must be vacated, appellant's professed desire to the contrary notwithstanding.

I.

In 1972, the Supreme Court of the United States in the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), ruled that in order to be valid a death penalty statute cannot leave unbridled discretion in the sentencing body to determine whether or not a sentence of death should be imposed in a particular case. In Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), this Court, in light of the Furman decision, struck down the Pennsylvania statute then in effect ⁷ as violative of the Eighth and Fourteenth Amendments of the Constitution of the United States. The Bradley decision was virtually foreordained by the Supreme Court of the United States when, on the same day that it announced its decision in Furman, the Court vacated sentences under § 701 of the Act of 1939, supra. See Phelan v. Brierly, 408 U.S. 939, 92 S.Ct. 2875, 33 L.Ed.2d 762 (1972); Scoleri v. Pennsylvania, 408 U.S. 934, 92 S.Ct. 2852, 33 L.Ed.2d 747 (1972). Thereafter, at least six decisions of this Court have made it abundantly clear that a statute which gave such discretion to the jurors as was bestowed by the Act of 1939, supra, could not pass constitutional muster. See Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975) (plurality opinion); Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975); Commonwealth v. Scoggins, 451 Pa. 472, 304 A.2d 102 (1973); Commonwealth v. Ross, 449 Pa. 103, 296 A.2d 629 (1972); Commonwealth v. Lopinson, 449 Pa. 33, 296 A.2d 524 (1972); Commonwealth v. Sharpe, 449 Pa. 35, 296 A.2d 519 (1972).

Apparently in response to the void in Pennsylvania law regarding the imposition of a death penalty left in the wake of Bradley, the General Assembly included § 1102 in the New Crimes Code (see n.1, supra ). That section, stark in its brevity, was distinguished by a complete lack of direction as to the circumstances that would warrant imposition of the death penalty. In contrast to the elaborate mechanism of the Act of 1939, supra, n.7, the new legislation provided only that "(a) person who has been convicted of murder of the first degree shall be sentenced to death or to a term of life imprisonment." It is manifest that in no way could § 1102 have been designed to cure the constitutional infirmities of the Act of 1939. It would seem, instead, that § 1102 had no purpose other than to provide some legislative authority for the imposition of a death sentence until the General Assembly could formulate an adequate response to the implications of the Furman decision. ⁸ But because § 1102 leaves totally unbridled discretion in the finders of fact to determine whether execution or life imprisonment is the proper penalty, it was clearly within the interdiction of our Bradley decision and the other Pennsylvania progeny of Furman cited above.

The only argument presented by the Commonwealth in support of the validity of the Act of 1972 is that it was not, in the instant case, applied in an arbitrary or discriminatory manner. We have previously considered and rejected a similar argument in Commonwealth v. Dobrolenski, supra, and in Commonwealth v. Martin, supra, which followed Dobrolenski. In Dobrolenski, we stated:

"The Commonwealth's principal contention is that the application of the death penalty in Pennsylvania has not been arbitrary, capricious, or discriminatory. It argues that this history saves the statute in effect at the time of these murders from the ban of Furman v Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972).

"We have repeatedly held that Furman precludes imposition of the death penalty under the statute in question. Commonwealth v. Scoggins, 451 Pa. 472, 481, 304 A.2d 102, 108 (1973); Commonwealth v. Ross, 449 Pa. 103, 105, 296 A.2d 629, 630 (1972); Commonwealth v. Lopinson, 449 Pa. 33, 34, 296 A.2d 524, 525 (1972); Commonwealth v. Sharpe, 449 Pa. 35, 44, 296 A.2d 519, 524 (1972); Commonwealth v. Bradley, 449 Pa. 19, 23-24, 295 A.2d 842, 845 (1972); cf. Commonwealth v. Senk, 449 Pa. 626, 296 A.2d 526 (1972). The Commonwealth recognizes this but offers an evidentiary record, not present in those cases, purporting to show that there has been no discrimination in the imposition of the death penalty on the basis of race, wealth, or nature of the proceeding leading to conviction (jury trials vs. pleas of guilty). However, as we recognized in the above cases, Furman holds that 'the imposition of the death penalty under statutes, such as here involved, is violative of the Eighth and Fourteenth Amendments'. Commonwealth v. Scoggins, supra, 451 Pa. at 481, 304 A.2d at 108 (emphasis added). Had we viewed evidence of the actual application of the statute as necessary for determination of its constitutionality, we would have directed evidentiary hearings in those cases. As we understand Furman, the constitutional prohibition extends at least to all death sentences imposed pursuant to statutes which give the sentencing authority unfettered discretion in imposition of the death penalty. Because this statute gives such discretion, the constitution forbids the execution of any death sentences imposed under its authority." 460 Pa. at 642-43, 334 A.2d at 274 (footnotes omitted).

Accordingly, we must and do hold that the death penalty section of the Crimes Code, as enacted in 1972, see n.1, supra, is unconstitutional and that the sentence of death imposed upon Gerard McKenna under the statute cannot stand.

II.

Although we have already concluded that the Act of 1972 is invalid on its face, we must nevertheless address the procedural peculiarity of the present case, namely, that Gerard Paul McKenna has expressly refused to challenge the validity of that statute, or to allow his lawyer to do so.

It is of course elementary that issues not preserved for appellate review or, even if preserved at the trial level, not raised by a party to an appeal, will not be considered by an appellate court. See Commonwealth v. Williams, 432 Pa. 557, 248 A.2d 301 (1968); Zeman v. Borough of Canonsburg, 423 Pa. 450, 223 A.2d 728 (1966); Commonwealth v. Stowers, 363 Pa. 435, 70 A.2d 226 (1950); Nicola v. American Stores Inc., 351 Pa. 404, 41 A.2d 662 (1945). For many years we recognized an exception to that rule, and allowed an appellant to raise an issue on appeal even though not preserved if the overlooked issue was "basic and fundamental." See, e. g., Commonwealth v. Jennings, 442 Pa. 18, 274 A.2d 767 (1971); In Re Noonday Club of Delaware County, Inc., 433 Pa. 458, 252 A.2d 568 (1968); Commonwealth v. O'Brien, 312 Pa. 543, 168 A. 244 (1933); White v. Moore, 288 Pa. 411, 136 A. 218 (1927). In the case of Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974) however, that exception to the normal rule as it had been applied in criminal cases was abrogated. ⁹ And in Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974) the Court held that a failure to object to the validity of a sentence at the time of sentencing foreclosed appellate review of that issue, even though the issue sought to be raised was the constitutionality of the sentencing statute. Thus, where an issue of sentencing is not raised by the defendant until the appeal stage, the appellate court should not consider the issue. ¹⁰ Implicit in this concept is another cardinal rule of appellate jurisprudence in this state, viz., an appellate court is not to raise sua sponte issues which it perceives in the record where, as...