Commonwealth v. Moody , 476 Pa. 223 ( 1977 )

OPINION

EAGEN, Chief Justice.

In this appeal by the Commonwealth we are asked to determine the constitutionality of section 1311 of the Sentencing Code, 18 Pa. C.S.A. § 1311 (Supp. 1977-78), which establishes sentencing procedures and standards regulating jury determinations of whether or not the death penalty should be imposed as punishment for murder, and which a panel of the Court of Common Pleas of Philadelphia held to be unconstitutional. We shall affirm.

I

Appellee Theodore Moody was convicted by a jury of murder of the first degree and criminal conspiracy in the death on December 29, 1974, of one James Price, a fellow inmate at Holmesburg Prison in Philadelphia. Pursuant to section 1311(c) of the Sentencing Code,¹ a hearing was then held to permit the jury to receive additional testimony and arguments on the question of aggravating and mitigating circumstances. In order to establish aggravating circumstances, the Commonwealth called an assistant United States attorney from Washington, D. C., who testified that Moody had previously been convicted in the District of Columbia of seven counts of premeditated and deliberate first-degree murder and seven counts of first-degree felony-murder, and that he had been sentenced to a term of twenty years to life imprisonment on each count.² During cross-examination the witness testified that Moody’s appeals attacking these convictions were still pending. The Commonwealth also argued to the jury that the evidence adduced at trial indicated the killing of Price was “committed by means of torture,” another statutory aggravating circumstance.³ In an effort to establish statutory mitigating circumstances, the defense called Moody’s mother, who testified to her son’s age — twenty-one at the time of the killing — and her belief that he was not “quite mature” and that he was “easily led.”⁴ After further deliberations the jury returned with a finding that the killing of Price was accompanied by aggravating circumstances and no mitigating circumstances. Although this finding required the imposition of the death penalty,⁵ the court deferred formal sentencing pending the disposition of post-verdict motions.

Subsequently, a three-judge post-verdict motions court denied Moody’s motions in arrest of judgment and for a new trial, but a majority of that court concluded that to impose the death penalty on Moody would be unconstitutional on two grounds. First, the statutory mitigating circumstances were found “unconstitutionally vague because a reasonable jury would have to guess at the meaning of ‘age,’ ‘youth’ and ‘lack of maturity,’ ” with “arbitrary and capricious decisions ... an inevitable result.” Second, the court concluded that because at the time of Moody’s trial this Court had promulgated no procedural rules for imposition of the death penalty by trial courts in non-jury trials or guilty-plea proceedings,⁶ trial courts had no power to impose the death penalty in such contexts, and that therefore, pursuant to United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968), the imposition of the death penalty after a jury trial “placed a chilling and unconstitutional burden upon the exercise of the constitutional right to trial by jury.” One judge concurred solely on the Jackson ground. The court certified that its decision on the death penalty involved a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal might materially advance the ultimate determination of the matter, and it stayed all proceedings meanwhile; we allowed the appeal.⁷

In addition to arguing in support of the grounds advanced by the post-verdict motions court for holding imposition of the death penalty unconstitutional, Moody also urges, as he did below, that section 1311 unconstitutionally restricts the evidence the jury may consider in mitigation of the penalty. We agree. Accordingly, in affirming the order of the Court of Common Pleas, we do not reach the grounds which that court found decisive.⁸

II

In Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972), this Court recognized that the Supreme Court of the United States, by its decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), had in effect invalidated Pennsylvania’s prior death-penalty statute⁹ as violative of the Eighth and Fourteenth Amendments. Section 1311 was enacted in 1974¹⁰ by the Pennsylvania legislature in an effort to cure what were perceived to be the constitutional defects of the invalidated statute. See Commonwealth ex rel. Fitzpatrick v. Bullock, 471 Pa. 292, 370 A.2d 309 (1977).

Section 1311 retains the split-verdict provisions of the previous statute; that is, if the jury finds the defendant guilty of murder of the first-degree, it then proceeds to hear additional evidence and arguments and to render a separate verdict with regard to the penalty. The new statute, however, in an effort to avoid the untrammeled discretion and lack of standards for determining the penalty condemned in Furman,¹¹ both limits the death penalty to murders of the first degree which the jury finds to be accompanied by at least one of nine specified aggravating circumstances and by none of three specified mitigating circumstances and requires that it be imposed when such a finding is made. The statute also provides that aggravating circumstances must be proved beyond a reasonable doubt and mitigating circumstances by a preponderance of the evidence and further provides for automatic review by this Court of all death sentences. See 18 Pa. C.S.A. § 1311(g). The result clearly is to reduce substantially the scope of discretion in jury determinations of the penalty for murder of the first degree.

Ill

Last year the United States Supreme Court addressed itself for the first time to the constitutionality of death-penalty statutes enacted subsequent to Furman. In a series of five decisions announced on the same day, that Court found the new statutes of Georgia, Texas, and Florida constitutional and invalidated statutes from North Carolina and Louisiana.¹² None of the statutes there involved corresponds precisely with the Pennsylvania statute here at issue, but we must look to these decisions, as well as to subsequent pronouncements by the Supreme Court, for guidance in determining the constitutionality of section 1311. Our task is complicated by the fact that no clear majority view with regard to ascertaining the constitutionality of a capital-punishment statute has emerged from these decisions. Justices Brennan and Marshall would have invalidated all five of the statutes at issue in the 1976 cases because of their consistently-expressed view that the death penalty in all circumstances constitutes cruel and unusual punishment. Chief Justice Burger and Justices White, Blackmun, and Rehnquist would have found all five constitutional. The decisions of the Court were thus controlled by a “plurality” consisting of Justices Stewart, Powell, and Stevens which in each case constituted part of the decisional majority with one of these justices writing the opinion announcing the judgment of the Court. The conclusion which emerges from these decisions is that the death penalty as a punishment for murder is not, at least at present, inevitably cruel and unusual punishment in violation of the Eighth Amendment,¹³ but that a statute authorizing capital punishment for even a narrowly-limited category of murder violates the Eighth Amendment if it does not sufficiently permit the sentencing authority in determining the sentence to take into account the particular circumstances of the crime and the individual history and character of the criminal. See Harry Roberts v. Louisiana, 431 U.S. 633, 97 S.Ct. 1993, 52 L.Ed.2d 637 (1977).

The Supreme Court plurality in effect appears to have discerned an element of due process in the Eighth Amendment which is applicable to sentencing in capital cases.¹⁴ Thus, in the words of Mr. Justice Stewart:

“This Court has previously recognized that ‘[f]or the determination of sentences, justice generally requires consideration of more than the particular acts by which the crime was committed and that there be taken into account the circumstances of the offense together with the character and propensities of the offender.’ Pennsylvania v. Ashe, 302 U.S. 51, 55, 58 S.Ct. 59, 61, 82 L.Ed. 43 (1937). Consideration of both the offender and the offense in order to arrive at a just and appropriate sentence has been viewed as a progressive and humanizing development. See Williams v. New York, 337 U.S. 241, 247-249, 69 S.Ct. 1079, 1083-1084, 93 L.Ed. 1337 (1949); Furman v. Georgia, 408 U.S. 238, at 402-403, 92 S.Ct. 2726, at 2810-2811 (Burger, C. J., dissenting). While the prevailing practice of individualizing sentencing determinations generally reflects simply enlightened policy rather than a constitutional imperative, we believe that in capital cases the fundamental respect for humanity underlying the Eighth Amendment, see Trop v. Dulles, 356 U.S. 86, at 100, 78 S.Ct. 590, at 597, 2 L.Ed.2d 630 (plurality opinion), requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death.

“This conclusion rests squarely on the predicate that the penalty of death is qualitatively different from a sentence of imprisonment, however long. Death, in its finality, differs more from life imprisonment than a 100-year prison term differs from one of only a year or two. Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punishment in a specific case.” [Footnote omitted.]

Woodson v. North Carolina, supra, 428 U.S. at 304-5, 96 S.Ct. at 2991-92. Moreover, as stated by Mr. Justice Stevens:

“ . . .a sentencing system that allowed the jury to consider only aggravating circumstances would almost certainly fall short of providing the individualized sentencing determination that we today have held in Woodson v. North Carolina, post, 428 U.S. 280, pp. 303-305, 96 S.Ct. 2978, pp. 2991-2992, 48 L.Ed.2d 944, to be required by the Eighth and Fourteenth Amendments. For such a system would approach the mandatory laws that we today hold unconstitutional in Woodson and Roberts v. Louisiana, post. A jury must be allowed to consider on the basis of all relevant evidence not only why a death sentence should be imposed, but also why it should not be imposed.” [Footnote omitted.] [Emphasis added.]

Jurek v. Texas, supra, 428 U.S. at 271, 96 S.Ct. at 2956.

We must determine, therefore, whether section 1311 permits the jury to consider sufficiently “the character and record of the individual offender” and, in particular, whether it permits the jury to consider “on the basis of all relevant evidence” why a death sentence should not be imposed. Plainly, unlike the mandatory North Carolina and Louisiana statutes struck down by the Supreme Court, the Pennsylvania statute does permit the jury in determining punishment to go beyond the crime itself and consider some mitigating circumstances. For this reason, the Commonwealth would have us uphold section 1311 as essentially similar to the Georgia, Florida, and Texas statutes the Court found constitutional. Clearly in bifurcating the guilt and penalty phases of the trial, in limiting the death penalty to murders of the first degree attended by specific aggravating circumstances, and in providing for automatic appellate review of all death sentences, the legislature has adopted procedures for the protection of defendants in capital cases which have been specifically approved and endorsed by the Supreme Court. See Gregg v. Georgia, supra; Proffitt v. Florida, supra. In our view, however, the constitutional defect of section 1311 is that, unlike the statutes approved by the Supreme Court, it so narrowly limits the circumstances which the jury may consider mitigating that it precludes the jury from a constitutionally adequate consideration of the character and record of the defendant.

Section 1311(d) limits the circumstances which the jury is to consider mitigating to “the following mitigating circumstances” and lists three:

“(2) Mitigating circumstances:

(i) The age, lack of maturity, or youth of the defendant at the time of the killing.

(ii) The victim was a participant in or consented to the defendant’s conduct as set forth in section 1311(d) of this title or was a participant in or consented to the killing.

(iii) The defendant was under duress although not such duress as to constitute a defense to prosecution under section 309 of this title (relating to duress).”

Of the three listed, only subsection (d)(2)(i) can be said to focus the jury’s attention upon the character and record of the defendant as opposed to the circumstances of the crime, and that only to the limited extent of determining his age, lack of maturity, or youth at the time of the killing. Although a prior conviction for an offense punishable by life imprisonment is an aggravating circumstance, the absence of a prior criminal record or even positive achievements or good works cannot be considered as mitigating. Whatever the offender’s potential for rehabilitation, his life is to be terminated without consideration of it unless his status or situation at the time of the killing can be found to be a mitigating circumstance.¹⁵

In contrast, the statute approved in Gregg v. Georgia, supra, while limiting the sentencing authority’s power to impose the death penalty for murder to situations in which it finds beyond a reasonable doubt at least one statutory aggravating circumstance, does not even mention specific mitigating circumstances other than the absence of prior convictions; in directing the sentencing authority to weigh aggravating and mitigating factors, it thus gives defendant and sentencing authority wide latitude as to the type of mitigating evidence he may present and it may consider, and a recommendation of mercy by the jury is binding upon the trial court without any finding of a specific mitigating circumstance. With regard to jury determinations of the penalty, the Supreme Court plurality emphasized that “accurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die” if the jury is to fulfill its role in capital cases of maintaining “ ‘a link between contemporary values and the penal system.’ ” Id., 428 U.S. at 190, 96 S.Ct. at 2933, quoting Witherspoon v. Illinois, 391 U.S. 510, 519 n. 15, 88 S.Ct. 1770, 1775 n. 15, 20 L.Ed.2d 776 (1968). Further, the plurality in Gregg expressly indicated that, so long as the defendant is not prejudiced thereby, it is preferable not to impose restrictions on the evidence and arguments presented to the jury at the penalty hearing; it also indicated that the possibility of a jury affording mercy to a particular defendant did not render the procedure unconstitutionally arbitrary.

The Florida statute approved in Proffitt v. Florida, supra, lists seven mitigating circumstances, significantly including “[t]he defendant has no significant history of prior criminal activity,” which are to be weighed against eight statutory aggravating circumstances. In addition, however, the plurality noted that the Florida statute does not limit the mitigating factors which may be considered by the sentencing authority to the statutory mitigating circumstances. Id., 428 U.S. at 250 n. 8, 96 S.Ct. at 2965 n. 8. Further, since the jury’s penalty verdict in Florida is only advisory, the judge in sentencing the defendant may also make use of a presentence investigation report, which may also present mitigating factors relevant to the offender’s character and record. Id., 428 U.S. at 252 n. 9, 96 S.Ct. at 2966 n. 9. See also Gardner v. Florida, supra. Thus, in Florida also there appears to be essentially no limitation on the mitigating factors which the defendant may have the sentencing authority consider.

The Commonwealth argues that section 1311 is actually more favorable to offenders in that it mandates a life sentence if the jury finds a mitigating circumstance, while the Georgia and Florida statutes allow the imposition of the death penalty if the aggravating circumstances outweigh the mitigating circumstances. This distinction, however, is helpful only if the defendant is able to establish one of the narrow mitigating circumstances mentioned in section 1311(d). Gregg and Proffitt suggest, rather, that the sentencing authority must be given the opportunity to weigh and consider in mitigation whatever evidence might be relevant to passing an informed judgment upon the defendant.¹⁶

This view is fortified by an examination of Jurek v. Texas, supra. The Texas statute there approved limits capital-murder to five situations, which the plurality concluded were comparable to the aggravating circumstances specified by Georgia and Florida. After a defendant is convicted of capital-murder in Texas, a sentencing proceeding follows during which the jury is required to answer three questions based upon the evidence it has heard. For the death penalty to be imposed, the state must prove beyond a reasonable doubt that the answer to each question is yes. One of these questions, which in effect raise the issue of mitigating circumstances, focuses upon the character and record of the defendant. The jury is thereby asked to determine “whether there is a probability that the defendant would commit criminal acts of violence that would constitute a continuing threat to society.” In finding the Texas statute constitutional, the plurality strongly emphasized that the Texas Court of Criminal Appeals interpreted this question to permit the defendant to present to the jury whatever mitigating evidence he can adduce:

“Thus, Texas law essentially requires that one of five aggravating circumstances be found before a defendant can be found guilty of capital-murder, and that in considering whether to impose a death sentence the jury may be asked to consider whatever evidence of mitigating circumstances the defense can bring before it. ■ ******

“What is essential is that the jury have before it all possible relevant information about the individual defendant whose fate it must determine.”

Id., 428 U.S. at 273, 276, 96 S.Ct. at 2957-58.

We thus conclude that what is now constitutionally required with regard to the scope of the evidence in mitigation which may be considered by the jury is essentially similar to what had long been Pennsylvania law in capital cases.¹⁷ As Mr. Justice (later Chief Justice) Benjamin R. Jones put it in Commonwealth v. Green, 396 Pa. 137, 148, 151 A.2d 241, 247 (1959):

“The imposition of the death penalty by a judicial tribunal should be made only when it is the sole penalty justified both by the criminal act and the criminal himself and then only after a full and exhaustive inquiry into both the criminal act and the criminal himself. Time and again in referring to the duty of juries in fixing the penalty between death and life imprisonment we have insisted that the jury exercise its discretion only after it has considered all the evidence, culpatory and exculpatory, incriminating and extenuating, including what manner of man the criminal is and has been.” [Citations omitted.] [Emphasis in original.]

Thus, in our view, in order to protect a defendant from cruel and unusual punishment in a capital case, it is now necessary both that the aggravating circumstances that will justify the imposition of the death penalty be clearly defined for the sentencing authority, and that the sentencing authority be allowed to consider whatever mitigating evidence relevant to his character and record the defendant can present.

IV

The Commonwealth argues that section 1311 may be liberally interpreted to permit the defendant to introduce a broad range of mitigating evidence at the penalty hearing. Section 1311(c) provides that “the court shall proceed to receive such additional evidence not previously received from the trial as may be relevant and admissible upon the question of aggravating and mitigating circumstances,” but section 1311(d) expressly limits mitigating circumstances to “the following.”¹⁸ Even if this language can be construed as permitting the defendant to present a broad range of mitigating evidence bearing upon his character and record, therefore, clearly the jury, absent consent or duress, can only consider such evidence, or any other relevant evidence presented at trial, to the extent it shows the defendant’s age, youth, or lack of maturity at the time of the killing.¹⁹ We thus conclude that, even if it is liberally interpreted, section 1311, unlike the Texas statute approved in Jurek, does not permit the sentencing authority in making its ultimate decision to focus sufficiently upon the entire character and record of the offender.²⁰

In addition, the Commonwealth argues that, even if section 1311 does not permit sufficient consideration of the character and record of the offender, Moody lacks standing to complain since he offered no evidence of mitigating circumstances other than that of his asserted youth and lack of maturity. The record reveals, however, that Moody’s counsel prior to the penalty hearing did object to the insufficient consideration of mitigating circumstances permitted by section 1311. Furthermore, this Court has previously indicated that a person sentenced to death under a statute unconstitutional on its face has standing to complain regardless of the actual proceedings in his case. See Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975); Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975). We thus conclude that Moody does have standing to attack the constitutional deficiencies of section 1311.

Finally, the Commonwealth notes that the plurality of the United States Supreme Court has expressly reserved the question of whether a prisoner already serving a life sentence may be subject to a mandatory death penalty. See Harry Roberts v. Louisiana, supra. The Commonwealth therefore contends that, since Moody was serving seven consecutive life sentences at the time of Price’s killing, he may constitutionally be sentenced to death regardless of any general constitutional defects in section 1311 relating to mitigating circumstances. The question, however, of a mandatory death sentence for a murderer already serving a life sentence is not properly before us, since section 1311 does not make death mandatory in such circumstances.²¹

Accordingly, for the reasons stated above, the order of the trial court is affirmed.

ROBERTS, J., took no part in the consideration or decision of this case. NIX, J., filed a dissenting opinion.

1 . “Procedure at sentencing hearing. — After such verdict is recorded and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received from the trial as may be relevant and admissible upon the question of aggravating and mitigating circumstances and shall permit such argument by counsel, and deliver such charge thereon as may be just and proper in the circumstances. Aggravating circumstances must be proved beyond a . reasonable doubt. Mitigating circumstances must be proved by a preponderance of the evidence. The jury shall then retire and consider the aggravating and mitigating circumstances and render such verdict respecting them as they shall agree upon. A failure of the jury to agree upon the aggravating and mitigating circumstances shall not be held to impeach or in any way affect the validity of the verdict already recorded, and whenever the court shall be of the opinion that further deliberation by the jury will not result in an agreement upon the aggravating and mitigating circumstances, it may, in its discretion, discharge the jury from further consideration thereof, in which event if no retrial is directed, the court shall sentence the defendant to life imprisonment upon the verdict theretofore rendered by the jury and recorded as aforesaid and the jury shall be so informed prior to their deliberations. The court shall impose the sentence so fixed as in the other cases.”

2 . Section 1311(d)(1)(ix) lists the following statutory aggravating circumstance:

“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.”

Moody’s previous murder convictions had been based upon the deaths of seven persons in the highly publicized Hanafi Muslim killings of January 16, 1973. His confinement in Holmesburg Prison at the time of the instant murder was unrelated to these convictions. During the instant trial, however, the Commonwealtli presented evidence that the victim, Price, had given a statement to the police and grand jury testimony implicating Moody in the District of Columbia killings, and that Moody had been aware that Price had implicated him.

3 . 18 Pa. C.S.A. § 1311(d)(1)(viii).

4 . Section 1311(d)(2)(i) lists as mitigating “[t]he age, lack of maturity, or youth of the defendant at the time of the killing.”

5 . “Aggravating and mitigating circumstances. — If a murder of the first degree is accompanied by at least one of the following aggravating circumstances and none of the following mitigating circumstances, the person convicted shall be sentenced to death. If a murder of the first degree is not accompanied by any of the following aggravating circumstances or is accompanied by at least one of the following mitigating circumstances the person convicted shall be sentenced to life imprisonment . . . .” 18 Pa. C.S.A. § 1311(d).

6 . “Guilty pleas and non-jury trials. — In cases of pleas of guilty, or trial by court, the court shall impose sentence in accordance with Rules of Criminal Procedure as promulgated by the Supreme Court of Pennsylvania.” 18 Pa. C.S.A. § 1311(e).

7 . See Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, No. 223, Art. V, § 501(b); 17 P.S. § 211.501(b) (Supp. 1977-78). The only issues involved in the present appeal are those relating to the constitutionality of the death penalty. The Attorney General of Pennsylvania has intervened and filed a brief in support of the Commonwealth’s position; the American Civil Liberties Union, greater Philadelphia branch, and the American Civil Liberties Foundation of Pennsylvania have filed an Amicus Curiae brief in support of Moody.

8 . Moody also contends that imposition of the death penalty is a per se violation of Art. I, § 13, of the Pennsylvania Constitution, which proscribes the infliction of “cruel punishments.” This contention was not advanced below and is asserted on appeal in response to the appellant Commonwealth’s argument that the death penalty does not per se violate the Pennsylvania Constitution. In view of our disposition of this appeal, we do not reach this issue.

9 . Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701. At the time it decided Furman, the Supreme Court in fact vacated two death sentences imposed pursuant to this statute. Phelan v. Brierley, 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). See Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975).

10 . Act of December 6, 1972, P.L. 1482, No. 334, § 1311, added March 26, 1974, P.L. 213, No. 46, § 3, imd. effective. On December 30, 1974, the section was reenacted without change and made part of the new Sentencing Code. Section 1102 of the Crimes Code, enacted on December 6, 1972, and effective on June 6, 1973, had merely provided that “[a] person who has been convicted of a murder of the first degree shall be sentenced to death or to a term of life imprisonment” without establishing any procedures or standards to be utilized in determining the appropriate sentence. 18 Pa. C.S.A. § 1102. On March 26, 1974, section 1102 was amended to conform with the new section 1311. 18 Pa. C.S.A. § 1102 (Supp. 1977-78).

11 . Because the per curiam decision in Furman merely held that the statutes there at issue were unconstitutional, with the five justices who concurred in the result each writing a separate opinion and not joining in any of the others, the full meaning and scope of that decision were difficult to discern. Of the approximately 35 states that enacted new death-penalty legislation in response to Furman, over half adopted mandatory death penalties for specified crimes, while the rest adopted statutes providing for various forms of limited discretion. Rockwell v. Superior Court, 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101, 1118 (1976) (Concurring Opinion, Clark, J.).

12 . Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976); Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Stanislaus Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L.Ed.2d 974 (1976).

13 . In Coker v. Georgia, 433 U.S. 584, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977), a majority of the Court concluded that death in all circumstances is cruel and unusual punishment for the crime of rape.

14 . See Comment, Resurrection of Capital Punishment — The 1976 Death Penalty Cases, 81 Dickinson Law Rev. 543, 564-66 (1977). In McGautha v. California, 402 U.S. 183, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), a majority of the Supreme Court had held that the absence of sentencing standards or bifurcated proceedings in capital cases did not violate due process. But see Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), in which at least five justices concluded that the failure of a trial judge to make available to the defendant and his counsel a confidential sentencing report which the judge utilized in determining that the death penalty should be imposed violated due process.

15 . We assume, as did the trial court, without deciding that “age” in the statute means “old age” because of its juxtaposition with “youth.”

16 . The Commonwealth also points out that the sentencing scheme of section 1311 derives from the'Model Penal Code, which was quoted with approval by the Gregg plurality, and urges that the mitigating circumstances in section 1311 are essentially the same as those found in the Model Code. The Commonwealth, however, overlooks the fact that the Model Code not only specifies a broader range of mitigating circumstances, but it also permits the jury to consider additional evidence in mitigation as well as that relevant to the specified mitigating circumstances. It forbids imposition of the death penalty unless the jury finds a specified aggravating circumstance and “that there are no substantial mitigating factors.” Model Penal Code, § 201.6 (Tentative Draft No. 9, 1959).

17 . In non-capital cases, compare Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977); Commonwealth v. Martin, 466 Pa. 118, 351 A.2d 650 (1976).

18 . In contrast, the Act of 1939 as amended provided that “the court shall proceed to receive such additional evidence not previously received in the trial as may be relevant and admissible upon the question of the penalty to be imposed upon the defendant.” [Emphasis added.] 18 P.S. § 4701.

19 . Contrary to implications in the dissenting opinion of Mr. Justice Nix, we do not assume that evidence of an offender’s previous history and background would be irrelevant to determining his maturity or lack thereof at the time of the killing. The problem is that, in making its ultimate determination of whether or not mitigating circumstances exist, the jury is restricted by the statute to his status or situation at the time of the killing. We cannot presume that the jury will nullify its instructions and disregard the law as to the circumstances it may find mitigating. Of course, if the penalty determination were to depend upon “a particular jury’s willingness to act lawlessly,” the arbitrariness and lack of standards in sentencing condemned in Furman would remain. Woodson v. North Carolina, supra, 428 U.S. at 303, 96 S.Ct. at 2991.

20 . A comparable situation was presented to the Court of Appeals of Maryland when it found that state’s death-penalty statute invalid:

“It is true, of course, that [the statute] permits elements of mitigation to be presented to the jury, i. e., proof of the defendant’s age and of the motive for the act in the context of resolving the question of the proximate cause of the victim’s death. We are unable to conclude, however, that the presentation of these two elements requires the sentencing authority to focus on the specific circumstances of the crime and the particular characteristics of the offender to the extent constitutionally required by the controlling Supreme Court decisions. That Blackwell was afforded an opportunity to present, and did present, broad circumstances of mitigation to the jury hardly suffices as the measure of the statute’s constitutionality; the jury was neither required nor permitted by the statute to weigh or objectively focus on Blackwell’s character and record before returning its verdict and causing the death sentence to be imposed upon him.”

Blackwell v. State, 278 Md. 466, 473, 365 A.2d 545, 549 (1976). See also Rockwell v. Superior Court, 18 Cal.3d 420, 134 Cal.Rptr. 650, 556 P.2d 1101 (1976). But see State v. Bell, 48 Ohio St.2d 270, 358 N.E.2d 556 (1976), cert. granted 433 U.S. 907, 97 S.Ct. 2971, 53 L.Ed.2d 1091 (1977); State v. Richmond, 114 Ariz. 186, 560 P.2d 41 (1976), cert. denied 433 U.S. 915, 97 S.Ct. 2988, 53 L.Ed.2d 1101 (1977) .

21 . We note also that Moody was not serving a Pennsylvania life sentence at the time of Price’s killing, and that at the time of his conviction instantly his sentences in the District of Columbia were still on appeal.