Opinion
October 4, 1972.
Criminal Law — Sentence — First degree murder — Death Sentence — Conviction not invalidated but sentence changed to life imprisonment.
In this Post Conviction Hearing Act proceeding, in which petitioner contended that the jury which convicted him of first-degree murder and sentenced him to death was selected in violation of the principles announced in Witherspoon v. Illinois, 391 U.S. 510, it was Held that, since the statute under which petitioner was sentenced to death is violative of the Eighth and Fourteenth Amendments of the United States Constitution, it was unnecessary to consider petitioner's claim of noncompliance with the Witherspoon standard; the conviction was not invalidated, but the sentence of death was vacated and petitioner was sentenced to life imprisonment.
The former Mr. Chief Justice BELL and the late Mr. Justice COHEN took no part in the decision of this case.
Submitted May 26, 1969. Before BELL, C. J., JONES, COHEN, EAGEN, O'BRIEN, ROBERTS and POMEROY, JJ.
Appeal, No. 188, March T., 1969, from order of Court of Common Pleas, Criminal Division, of Allegheny County, Feb. T., 1962, No. 106, in case of Commonwealth v. Bernard Ross. Sentence of death vacated and defendant sentenced to life imprisonment; reargument refused November 29, 1972.
Petition under Post Conviction Hearing Act.
Order entered dismissing petition, opinion by LEWIS, J. Defendant appealed.
Thomas A. Harper, for appellant.
Carol Mary Los and Charles B. Watkins, Assistant District Attorneys, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
In 1962, following a jury trial in the Court of Oyer and Terminer of Allegheny County, the appellant was convicted of first-degree murder. The jury fixed the penalty at death. The conviction and sentence were affirmed by this Court, Commonwealth v. Ross, 413 Pa. 35, 195 A.2d 81 (1963). Following denial of several "habeas corpus" petitions not germane to this proceeding, by both the Federal Courts and this Court, appellant filed the present petition in 1969, pursuant to the Post Conviction Hearing Act, contending that the jury which convicted and sentenced him to death was selected in violation of the principles announced in Witherspoon v. Illinois, 391 U.S. 510 (1968). Following an evidenitary hearing, appellant's petition was denied. This appeal followed.
Inasmuch as the United States Supreme Court, in Furman v. Georgia, 408 U.S. 238 (1972), has ruled that the imposition of the death penalty under statutes such as the one in which the death penalty was imposed upon appellant is violative of the Eighth and Fourteenth Amendments, it is unnecessary for us to consider appellant's claim of noncompliance with the Witherspoon standard. The United States Supreme Court, in Moore v. Illinois, 408 U.S. 786, 800 (1972), quoting from Witherspoon, stated: "Nor finally, does today's holding render invalid the conviction, as opposed to the sentence, in this or any other case. The sentence of death, however, may not now be imposed." See Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972).
Act of June 24, 1939, P. L. 872, § 701, as amended, 18 Pa.C.S.A. § 4701.
The sentence of death is vacated and appellant is sentenced to life imprisonment.
The former Mr. Chief Justice BELL and the late Mr. Justice COHEN took no part in the decision of this case.