2010 Pennsylvania Code
Title 42 - JUDICIARY AND JUDICIAL PROCEDURE
Chapter 97 - Sentencing
9711 - Sentencing procedure for murder of the first degree.

                               SUBCHAPTER B
                           SENTENCING AUTHORITY

     Sec.
     9711.  Sentencing procedure for murder of the first degree.
     9712.  Sentences for offenses committed with firearms.
     9712.1. Sentences for certain drug offenses committed with
            firearms.
     9713.  Sentences for offenses committed on public
            transportation.
     9714.  Sentences for second and subsequent offenses.
     9715.  Life imprisonment for homicide.
     9716.  Two or more mandatory minimum sentences applicable.
     9717.  Sentences for offenses against elderly persons.
     9718.  Sentences for offenses against infant persons.
     9718.1. Sexual offender treatment.
     9718.2. Sentences for sex offenders.
     9718.3. Sentence for failure to comply with registration of
            sexual offenders.
     9719.  Sentences for offenses committed while impersonating a
            law enforcement officer.
     9719.1. Sentences for offenses committed against law enforcement
            officer.
     9720.  Sentencing for criminal mischief.
     9720.1. Restitution for identity theft.
     9720.2. Sentencing for trafficking of persons.
     § 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 life imprisonment.
            (2)  In the sentencing hearing, evidence concerning the
        victim and the impact that the death of the victim has had on
        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.
                (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
        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.
            (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,
        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:
            (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
     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,
     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.
        (j)  Issuance of warrant.--(Repealed).
        (k)  Terms of confinement.--(Repealed).
        (l)  Witnesses to execution.--(Repealed).
        (m)  Certification of superintendent.--(Repealed).
        (n)  Postmortem examination.--(Repealed).
        (o)  Costs of execution and examination.--(Repealed).
     (Mar. 26, 1974, P.L.213, No.46, eff. imd.; Dec. 30, 1974,
     P.L.1052, No.345, eff. 90 days; Sept. 13, 1978, P.L.756, No.141,
     eff. imd.; Oct. 5, 1980, P.L.693, No.142, eff. 60 days; July 7,
     1986, P.L.400, No.87, eff. 60 days; Dec. 21, 1988, P.L.1862,
     No.179, eff. imd.; Dec. 22, 1989, P.L.727, No.99, eff. imd.;
     Mar. 15, 1995, 1st Sp.Sess., P.L.966, No.4, eff. imd.; Oct. 11,
     1995, 1st Sp.Sess., P.L.1064, No.22, eff. 60 days; Nov. 17,
     1995, 1st Sp.Sess., P.L.1117, No.31, eff. 60 days; Apr. 25,
     1997, P.L.84, No.6, eff. 60 days; June 25, 1997, P.L.293, No.28,
     eff. imd.; June 18, 1998, P.L.622, No.80, eff. 60 days; Oct. 12,
     1999, P.L.420, No.38, eff. 60 days)

        1999 Amendment.  Act 38 amended subsec. (i).
        1998 Repeal.  Act 80 repealed subsecs. (j), (k), (l), (m),
     (n) and (o).
        1997 Amendments.  Act 6 added subsec. (d)(18) and Act 28
     amended subsec. (h).
        1995 Amendments.  Act 4, 1st Sp.Sess., amended subsecs. (d)
     and (i) and added subsecs. (j), (k), (l), (m), (n) and (o), Act
     22, 1st Sp.Sess., amended subsecs. (a)(2), (b) and (c)(2) and
     Act 31, 1st Sp.Sess., added subsec. (d)(17). Section 4 of Act 4,
     1st Sp.Sess., provided that Act 4 shall apply to cases in which
     the Governor has, as of the effective date of Act 4, not yet
     received the transcript of the record. Section 2 of Act 22, 1st
     Sp.Sess., provided that the amendment of subsecs. (a)(2), (b)
     and (c)(2) shall apply to sentences imposed for offenses which
     take place on or after the effective date of Act 22.
        1980 Amendment.  Act 142 amended subsecs. (d)(1) and (e)(5).
        1978 Amendment.  Act 141 added present section 9711 (as
     section 1311 of Title 18) and repealed former section 1311
     relating to the same subject matter.
        Cross References.  Section 9711 is referred to in sections
     722, 9543.1, 9577, 9738 of this title; section 1102 of Title 18
     (Crimes and Offenses;. section 4102 of Title 61 (Prisons and
     Parole).