CHAPTER 8. SPECIAL RULES FOR CASES IN WHICH DEATH SENTENCE IS AUTHORIZED
PART A. Guilt and Penalty Determination Procedures Rule
800. Applicability of Part A.
801. Qualifications for Defense Counsel in Capital Cases.
802. Notice of Aggravating Circumstances.
803. Guilty Plea Procedure.
804. Procedure When Jury Trial is Waived.
805. No Sealed Verdict.
806. Closing Arguments at Sentencing Hearing.
807. Sentencing Verdict Slip.
808. Form for Jury Sentencing Verdict Slip.
809. Form for Trial Judge Sentencing Verdict Slip.
810. Sentence.
811. Post-Sentence Motion.
PART B. Procedures for Seeking to Preclude Imposition of a Sentence of Death by Reason of the Defendant’s Mental Retardation
840. Scope.
841. Notice of Mental Retardation Precluding Imposition of Sentence of Death.
842. Examination of the Defendant by Mental Health Expert.
843. Optional Pretrial Hearing.
844. Sentencing Procedures in Cases in which the Defendant’s Mental Retardation is Asserted.
845. Form for Sentencing Verdict Slip in Cases in which the Defendant’s Mental Retardation is Asserted.
PART A. Guilt and Penalty Determination Procedures
Rule 800. Applicability of Part A.
Except as provided in Rule 801, the rules in Part A shall apply to the guilt and penalty determination phases of all cases in which the imposition of a sentence of death is authorized by law.
Comment The 1990 amendment to this rule made it clear that Part A of Chapter 8 applies to both the guilt determination and sentencing phases of cases in which the death penalty is authorized. The chapter was amended in 2013 by the addition of Part B providing special procedures for seeking to preclude imposition of a sentence of death by reason of the defendant’s mental retardation.
Except as provided in Part A, trial and retrial procedures in death penalty cases are governed by the Rules of Criminal Procedure generally.
For sentencing generally in death penalty cases, see the Sentencing Code, 42 Pa.C.S. § 9711.
The sentencing procedures in Part A and in the Sentencing Code also apply when the trial court orders a new sentencing proceeding, or when the Supreme Court vacates a sentence of death and remands a case for redetermination of sentence pursuant to 42 Pa.C.S. § 9711(h)(4).
When a jury is empaneled for the first time for sentencing, or for resentencing, the jury trial rules (Chapter 6) apply. See, for example, Rule 631 (Examination and Challenges of Trial Jurors).
Part A does not provide procedures for those cases in which the Supreme Court vacates a sentence of death and remands the case to the trial court for the imposition of a life imprisonment sentence. See 42 Pa.C.S. § 9711(h)(4).
For post-verdict procedures in cases in which a sentence of death is authorized by law, see Rule 811.
Official Note
Previous Rule 351 adopted September 22, 1976, effective November 1, 1976; rescinded April 2, 1978, effective immediately. Present Rule 351 adopted July 1, 1985, effective August 1, 1985; Comment revised February 1, 1989, effective July 1, 1989; amended October 29, 1990, effective January 1, 1991; renumbered Rule 800 and amended March 1, 2000, effective April 1, 2001; amended October 1, 2012, effective November 1, 2012; amended July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Report explaining the October 29, 1990 amendments published at 20 Pa.B. 5736 (November 17, 1990).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the October 1, 2012 amendments clarifying the application of the Chapter to Rule 801 published with the Court’s Order at 42 Pa.B. 6635 (October 20, 2012).
Final Report explaining the July 31, 2013 adoption of the new rules establishing the procedures for challenging the defendant’s competency to be executed published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 800 amended October 1, 2012, effective November 1, 2012, 42 Pa.B. 6635; amended July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715. Immediately preceding text appears at serial pages (364125) to (364126).
Rule 801. Qualifications for Defense Counsel in Capital Cases.
In all cases in which the attorney for the Commonwealth has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before an attorney may participate in any stage of the case either as retained or appointed counsel, the attorney must meet the educational and experiential criteria set forth in this rule.
(1) EXPERIENCE: Counsel shall
(a) be a member in good standing of the Bar of this Commonwealth;
(b) be an active trial practitioner with a minimum of 5 years criminal litigation experience; and
(c) have served as lead or co-counsel in a minimum of 8 significant cases that were given to the jury for deliberations. If representation is to be only in an appellate court, prior appellate or post-conviction representation in a minimum of 8 significant cases shall satisfy this requirement. A ‘‘significant case’’ for purposes of this rule is one that charges murder, manslaughter, vehicular homicide, or a felony for which the maximum penalty is 10 or more years.
(2) EDUCATION:
(a) During the 3-year period immediately preceding the appointment or entry of appearance, counsel shall have completed a minimum of 18 hours of training relevant to representation in capital cases, as approved by the Pennsylvania Continuing Legal Education Board.
(b) Training in capital cases shall include, but not be limited to, training in the following areas:
(i) relevant state, federal, and international law;
(ii) pleading and motion practice;
(iii) pretrial investigation, preparation, strategy, and theory regarding guilt and penalty phases;
(iv) jury selection;
(v) trial preparation and presentation;
(vi) presentation and rebuttal of relevant scientific, forensic, biological, and mental health evidence and experts;
(vii) ethical considerations particular to capital defense representation;
(viii) preservation of the record and issues for post-conviction review;
(ix) post-conviction litigation in state and federal courts;
(x) unique issues relating to those charged with capital offenses when under the age of 18; and
(xi) counsel’s relationship with the client and family.
(c) The Pennsylvania Continuing Legal Education Board shall maintain and make available a list of attorneys who satisfy the educational requirements set forth in this rule.
Comment The purpose of this rule is to provide minimum uniform statewide standards for the experience and education of appointed and retained counsel in capital cases, to thus ensure such counsel possess the ability, knowledge, and experience to provide representation in the most competent and professional manner possible. These requirements apply to counsel at all stages of a capital case, including pretrial, trial, post-conviction, and appellate.
The educational and experience requirements of the rule may not be waived by the trial or appellate court. A court may allow representation by an out-of-state attorney pro hac vice, if satisfied the attorney has equivalent experience and educational qualifications, and is a member in good standing of the Bar of the attorney’s home jurisdiction. See Pa.B.A.R. 301.
For purposes of the requirements of paragraph (1), experience in the role of either prosecutor or defense counsel should be considered.
An attorney may serve as ‘‘second chair’’ in a capital case without meeting the educational or experience requirements of this rule. ‘‘Second chair’’ attorneys may not have primary responsibility for the presentation of significant evidence or argument, but may present minor or perfunctory evidence or argument, if deemed appropriate in the discretion of the court. Service as a ‘‘second chair’’ in a homicide case will count as a trial for purposes of evaluating that attorney’s experience under paragraph (1)(c) of this rule.
Paragraph (1)(c) was amended in 2007 to clarify that (1) cases that are tried to a verdict or that end with a mistrial after the case is given to the jury for deliberations satisfy the requirements of the rule, and (2) all cases charging felonies for which the term of imprisonment is 10 or more years will count as ‘‘significant cases,’’ see, e.g., Crimes Code, 18 Pa.C.S. § 106(b), and 35 P. S. § 780-113(f)(1).
The CLE Board may approve entire courses focusing on capital litigation, or individual portions of other courses dealing with general areas relevant to capital cases (such as trial advocacy). It is expected that counsel will attend training programs encompassing the full range of issues confronting the capital litigator from the investigative and pretrial stages through appellate and post-conviction litigation in the state and federal courts.
Determination of experience will be accomplished by the appointing or admitting court, by colloquy or otherwise.
For the entry of appearance and withdrawal of counsel requirements generally, see Rule 120.
For the appointment of trial counsel, see Rule 122.
For the entry of appearance and appointment of counsel in post-conviction collateral proceedings, see Rule 904.
Official Note
Adopted June 4, 2004, effective November 1, 2004; amended April 13, 2007, effective immediately; amended October 1, 2012, effective November 1, 2012; amended December 10, 2013, effective February 10, 2014; amended January 11, 2016, effective April 1, 2016.
Committee Explanatory Reports:
Final Report explaining the April 13, 2007 changes to paragraph (1)(c) published with the Court’s Order at 37 Pa.B. 1961 (April 28, 2007).
Final Report explaining the October 1, 2012 changes to the first paragraph published with the Court’s Order at 42 Pa.B. 6635 (October 20, 2012).
Final Report explaining the December 10, 2013 change to the Comment published with the Court’s Order at 43 Pa.B. 7546 (December 28, 2013).
Final Report explaining the January 11, 2016 amendments correcting a reference to the prosecutor and clarifying the experiential requirements of the rule published with the Court’s Order at 46 Pa.B. 555 (January 30, 2016).
Source The provisions of this Rule 801 adopted June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. From June 4, 2004, until November 1, 2004, the educational requirements in Rule 801 shall be phased in as follows: (1) from the date of this Order until the November 1, 2004 effective date, the appointing or admitting court shall determine that the attorney has attended at least 6 hours of courses relevant to representation in capital cases, using the new Rule 801 educational criteria as a guide for relevance; (2) by November 1, 2004, to be eligible for appointment or to enter an appearance pursuant to new Rule 801, an attorney shall have completed a minimum of 6 hours of training relevant to representation in capital cases, as approved by the Continuing Legal Education Board, (3) by November 1, 2005, to be eligible for appointment or to enter an appearance pursuant to new Rule 801, an attorney shall have completed a mimimum of 12 hours of training relevant to representation in capital cases, as approved by the Continuing Legal Education Board; and (4) by May 1, 2006, to be eligible for appointment or to enter an appearance pursuant to new Rule 801, an attorney shall have completed a minimum of 18 hours of training relevant to representation in capital cases, as approved by the Continuing Legal Education Board; amended April 13, 2007, effective immediately, 37 Pa.B. 1960; amended October 1, 2012, effective November 1, 2012, 42 Pa.B. 6635; amended December 10, 2013, effective February 10, 2014, 43 Pa.B. 7545; amended January 11, 2016, effective April 1, 2016, 46 Pa.B. 554. Immediately preceding text appears at serial pages (368308) and (370053) to (370054).
Rule 802. Notice of Aggravating Circumstances.
The attorney for the Commonwealth shall file a Notice of Aggravating Circumstances that the Commonwealth intends to submit at the sentencing hearing and contemporaneously provide the defendant with a copy of such Notice of Aggravating Circumstances. Notice shall be filed at or before the time of arraignment, unless the attorney for the Commonwealth becomes aware of the existence of an aggravating circumstance after arraignment or the time for filing is extended by the court for cause shown.
Comment This rule provides for pretrial disclosure of those aggravating circumstances that the Commonwealth intends to prove at the sentencing hearing. See Sentencing Code, 42 Pa.C.S. § 9711(d). It is intended to give the defendant sufficient time and information to prepare for the sentencing hearing. Although the rule requires that notice generally be given no later than the time of arraignment, it authorizes prompt notice thereafter when a circumstance becomes known to the attorney for the Commonwealth at a later time. The language ‘‘for cause shown’’ contemplates, for example, a situation in which, at the time of arraignment, an ongoing investigation of an aggravating circumstance must be completed before the attorney for the Commonwealth can know whether the evidence is sufficient to warrant submitting the circumstance at the sentencing hearing.
The 1995 amendment requires the Commonwealth to file the Notice of Aggravating Circumstances.
For purposes of this rule, the notice requirement is satisfied if the copy of the notice to the defendant sets forth the existing aggravating circumstances substantially in the language of the statute. See 42 Pa.C.S. § 9711(d) The extent of disclosure of underlying evidence is governed by Rule 573.
See Rule 571 concerning arraignment procedures.
If the trial court orders a new sentencing hearing, or the Supreme Court remands a case for a redetermination of penalty pursuant to 42 Pa.C.S. § 9711(h)(4), the attorney for the Commonwealth may not introduce any new aggravating circumstance except when there has been an intervening conviction for an offense committed prior to the present conviction which would constitute an aggravating circumstance. The trial judge must set the time within which the attorney for the Commonwealth must notify the defendant of such an additional circumstance, and the time set for notice must allow the defendant adequate time to prepare for the new sentencing hearing. No additional notice is required for those aggravating circumstances previously offered and not struck down upon review.
Official Note
Previous Rule 352 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 353 February 1, 1989, effective July 1, 1989. Present Rule 352 adopted February 1, 1989, effective as to cases in which the arraignment is held on or after July 1, 1989; Comment revised October 29, 1990, effective January 1, 1991; amended January 10, 1995, effective February 1, 1995; renumbered Rule 801 and amended March 1, 2000, effective April 1, 2001; amended May 10, 2002, effective September 1, 2002; renumbered Rule 802 June 4, 2004, effective November 1, 2004.
Committee Explanatory Reports:
Report explaining the October 29, 1990 Comment revision published at 20 Pa.B. 5736 (November 17, 1990).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).
Final Report explaining the May 10, 2002 amendments published with the Court’s Order at 32 Pa.B. 2591 (May 25, 2002).
Source The provisions of this Rule 801 amended May 10, 2002, effective September 1, 2002, 32 Pa.B. 2582; amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceding text appears at serial pages (289114) to (289115).
Rule 803. Guilty Plea Procedure.
(A) When a defendant charged with murder enters a plea of guilty to a charge of murder generally, the degree of guilt shall be determined by a jury unless the attorney for the Commonwealth elects to have the judge, before whom the plea is entered, alone determine the degree of guilt.
(B) If the crime is determined to be murder of the first degree the sentencing proceeding shall be conducted as provided by law.
Comment For the procedure for the entry of guilty pleas, see Rule 590. For the sentencing procedure if the crime is determined to be murder of the first degree, see Sentencing Code, 42 Pa.C.S. § 9711(b).
The 2008 amendment to paragraph (A) recognizes the Commonwealth’s right to have a jury determine the degree of guilt following a plea of guilty to murder generally. See Article I, § 6 of the Pennsylvania Constitution that provides that ‘‘the Commonwealth shall have the same right to trial by jury as does the accused.’’ See also Commonwealth v. White, 589 Pa. 642, 910 A.2d 648 (2006).
Official Note
Original Rule 352 adopted September 22, 1976, effective November 1, 1976; amended May 26, 1977, effective July 1, 1977; rescinded April 2, 1978, effective immediately. Former Rule 352 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 353 February 1, 1989, effective July 1, 1989; renumbered Rule 802 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 803 June 4, 2004, effective November 1, 2004; amended September 18, 2008, effective November 1, 2008.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).
Final Report explaining the September 18, 2008 amendments to paragraph (A) concerning juries determining degree of guilt published with the Court’s Order at 38 Pa.B. 5431 (October 4, 2008).
Source The provisions of this Rule 803 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended September 18, 2008, effective November 1, 2008, 38 Pa.B. 5429. Immediately preceeding text appears at serial page (349161).
Rule 804. Procedure When Jury Trial is Waived.
(A) In all cases in which the defendant is charged with murder, the defendant and the attorney for the Commonwealth may waive a jury trial with approval by a judge of the court in which the case is pending In these cases, the trial judge shall alone hear the evidence, determine all questions of law and fact, and render a verdict that shall have the same force and effect as a verdict of a jury.
(B) If the crime is determined to be murder of the first degree the sentencing proceeding shall be conducted as provided by law.
Comment For the procedure for waiver of jury trial, see Rules 620 and 621. For the sentencing procedure if the crime is determined to be murder of the first degree, see Sentencing Code, 42 Pa.C.S. § 9711(b).
Official Note
Original Rule 353 adopted September 22, 1976, effective March 1, 1977, effective date extended to April 1, 1977; amended May 26, 1977, effective July 1, 1977; rescinded April 2, 1978, effective immediately. Former Rule 353 adopted July 1, 1985, effective August 1, 1985, renumbered Rule 354 February 1, 1989, effective July 1, 1989; renumbered Rule 803 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 804 June 4, 2004, effective November 1, 2004; amended September 18, 2008, effective November 1, 2008.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).
Final Report explaining the September 18, 2008 amendments to paragraph (A) concerning waiver of a jury trial published with the Court’s Order at 38 Pa.B. 5431 (October 4, 2008).
Source The provisions of this Rule 804 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended September 18, 2008, effective November 1, 2008, 38 Pa.B. 5429. Immediately preceeding text appears at serial pages (349161) to (349162).
Rule 805. No Sealed Verdict.
No sealed verdict shall be permitted under this chapter.
Official Note
Original Rule 354 adopted September 22, 1976, effective November 1, 1976; rescinded April 2, 1978, effective immediately. Former Rule 354 adopted July 1, 1985, effective August 1, 1985; renumbered Rule 355 February 1, 1989, effective July 1, 1989; renumbered Rule 804 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 805 June 4, 2004, effective November 1, 2004.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).
Source The provisions of this Rule 805 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial pages (289115) to (289116).
Rule 806. Closing Arguments at Sentencing Hearing.
After the presentation of evidence at the sentencing hearing, each party shall be entitled to present one closing argument for or against the sentence of death. The defendant’s argument shall be made last.
Comment See Sentencing Code, 42 Pa.C.S. § 9711(a)(3).
Official Note
Rule 356 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 805 and Comment revised March 1, 2000, effective April 1, 2001; renumbered Rule 806 June 4, 2004, effective November 1, 2004.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).
Source The provisions of this Rule 806 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial page (289116).
Rule 807. Sentencing Verdict Slip.
(A) JURY
(1) Except as provided in paragraph (2), in all cases in which the sentencing proceeding is conducted before a jury, the judge shall furnish the jury with a jury sentencing verdict slip in the form provided by Rule 808.
(2) In cases in which the jury is to determine if imposition of a sentence of death is precluded due to the defendant’s mental retardation, the judge shall furnish the jury with the sentencing verdict slip in the form required by Rule 845. If the jury subsequently does not find unanimously that the defendant is mentally retarded, the judge then shall furnish the jury with a jury sentencing verdict slip in the form provided by Rule 808.
(3) Before the jury retires to deliberate, the judge shall meet with counsel and determine those aggravating and mitigating circumstances of which there is some evidence. The judge shall then set forth those circumstances on the sentencing verdict slip using the language provided by law.
(4) The trial judge shall make the completed sentencing verdict slip part of the record.
(B) TRIAL JUDGE
(1) In all cases in which the defendant has waived a sentencing proceeding before a jury and the trial judge determines the penalty, including those in which the defendant seeks to have the imposition of a sentence of death precluded by reason of mental retardation, the trial judge shall complete a sentencing verdict slip in the form provided by Rule 809.
(2) The trial judge shall make the completed sentencing verdict slip part of the record.
Comment The purpose of this rule is to provide statewide, uniform jury and trial judge sentencing verdict slips in death penalty cases. The jury sentencing verdict slip is not intended to replace those jury instructions required by law. See Sentencing Code, 42 Pa.C.S. § 9711(c). For the sentencing procedure under paragraph (B), see Sentencing Code, 42 Pa.C.S. § 9711(b).
Official Note
Rule 357 adopted February 1, 1989, effective July 1, 1989; renumbered Rule 806 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 807 June 4, 2004, effective November 1, 2004; amended July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the July 31, 2013 amendments regarding cases in which the defendant has introduced evidence of mental retardation published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 807 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715. Immediately preceeding text appears at serial pages (363267) and (304133).
Rule 808. Form for Jury Sentencing Verdict Slip.
IN THE COURT OF COMMON PLEAS
OF
COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF
PENNSYLVANIA: vs. : NO. : FIRST DEGREE MURDER
SENTENCING VERDICT SLIP
I. GENERAL INSTRUCTIONS
A. READ THROUGH THE ENTIRE VERDICT SLIP BEFORE BEGINNING DELIBERATIONS.
B. AGGRAVATING AND MITIGATING CIRCUMSTANCES PRESENTED TO THE JURY.
1. The following aggravating circumstance(s) (is) (are) submitted to the jury and must be proved by the Commonwealth beyond a reasonable doubt:
(1)
(2)
(3)
(4)
2. The following mitigating circumstance(s) (is) (are) submitted to the jury and must be proved by the defendant by a preponderance of the evidence:
(1)
(2)
(3)
(4) Any other evidence of mitigation concerning the character and record of the defendant and the circumstances of the defendant’s offense.
C. DO NOT COMPLETE THIS SENTENCING VERDICT SLIP UNTIL YOUR DELIBERATIONS ARE CONCLUDED. THIS SENTENCING VERDICT SLIP IS ONLY TO BE USED TO RECORD YOUR SENTENCING VERDICT AND THE FINDINGS UPON WHICH IT IS BASED.
D. IF, AFTER SUFFICIENT DELIBERATION, YOU CANNOT UNANIMOUSLY REACH A SENTENCING VERDICT, DO NOT COMPLETE OR SIGN THIS SLIP, BUT RETURN IT TO THE JUDGE. THE JUDGE WILL DETERMINE IF FURTHER DELIBERATIONS ARE REQUIRED; IF THEY ARE NOT, THE JUDGE WILL SENTENCE THE DEFENDANT TO LIFE IMPRISONMENT.
II. SENTENCING VERDICT AND FINDINGS
If you have reached a unanimous verdict, complete this part of the form.
In Section A, indicate whether the sentencing verdict is death or life imprisonment. If the sentence is death, indicate the basis for that verdict by completing Section B. If the sentence is life imprisonment, indicate the basis for that verdict by completing Section C.
A. We, the jury, unanimously sentence the defendant to (check one):
Death
Life ImprisonmentB. The findings on which the sentence of death is based are (check one):
1. At least one aggravating circumstance and no mitigating circumstance.The aggravating circumstance(s) unanimously found (is) (are):
2. One or more aggravating circumstances which outweigh(s) any mitigating circumstance(s).The aggravating circumstance(s) unanimously found (is) (are):
The mitigating circumstance(s) found by one or more of us (is) (are):
C. The findings on which the sentence of life imprisonment is based are (check one):
1. No aggravating circumstance exists.
2. The mitigating circumstance(s) (is) (are) not outweighed by the aggravating circumstance(s).The mitigating circumstance(s) found by one or more of us (is) (are):
The aggravating circumstance(s) unanimously found (is) (are):
DATE
JURY FOREPERSON
Comment The general instructions contained in Part I of the verdict slip are not intended to replace the jury instructions required by law. See Sentencing Code, 42 Pa.C.S. § 9711(c)(1) and (2).
The judge should caution the jury that the verdict slip is to be used to record the sentencing verdict and findings, and that the slip should be completed only after their deliberations are concluded.
In Part I, General Instructions, the judge should set forth those aggravating and mitigating circumstances of which there is some evidence. The list should include the mitigating circumstance ‘‘concerning the character and record of the defendant and the circumstances of his offense.’’ 42 Pa.C.S. § 9711(e)(8). See Commonwealth v. Moody, 382 A.2d 442 (Pa. 1977), cert. den. 438 U. S. 914 (1978), and Lockett v. Ohio, 438 U. S. 586 (1978).
The list of aggravating and mitigating circumstances completed by the judge in Part I, and by the jury foreperson in Part II, should use the language provided by law for each circumstance. See Sentencing Code, 42 Pa.C.S. § 9711(d) and (e). The judge’s instructions on the weighing of aggravating and mitigating circumstances must comply with Mills v. Maryland, 108 S.Ct. 1860 (1988).
See Rule 845 for the jury verdict slip form to be used when the jury is to determine if imposition of the death penalty is precluded due to the defendant’s mental retardation.
Official Note
Rule 358A adopted February 1, 1989, effective July 1, 1989; renumbered Rule 807 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 808 June 4, 2004, effective November 1, 2004; Comment revised July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the July 31, 2013 Comment revision cross-referencing Rule 845 published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 808 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715. Immediately preceeding text appears at serial pages (304133) to (304136).
Rule 809. Form for Trial Judge Sentencing Verdict Slip.
IN THE COURT OF COMMON PLEAS
OF
COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF
PENNSYLVANIA: vs. : NO.
: FIRST DEGREE MURDER
SENTENCING VERDICT SLIPA. I,
J., sentence the defendant to:
Death
Life Imprisonment
B. The findings on which the sentence of death is based are:
1. At least one aggravating circumstance and no mitigating circumstance.The aggravating circumstance(s) (is) (are):
.
2. One or more aggravating circumstances which outweigh(s) any mitigating circumstance(s).
The aggravating circumstance(s) (is) (are):
.
The mitigating circumstance(s) (is) (are):
.
C. The findings on which the sentence of life imprisonment is based are:
A sentence of death is precluded because the defendant is mentally retarded.OR
1. No aggravating circumstance exists.
2. The mitigating circumstance(s) (is) (are) not outweighed by the aggravating circumstance(s).The mitigating circumstance(s) (is) (are):
The aggravating circumstance(s) (is) (are):
DATE
, J.
Comment In listing aggravating and/or mitigating circumstances in Sections B or C, the trial judge should use the language provided by law for each circumstance. See Sentencing Code, 42 Pa.C.S. § 9711(d) and (e).
Official Note
Rule 358B adopted February 1, 1989, effective July 1, 1989; renumbered Rule 808 and Comment revised March 1, 2000, effective April 1, 2001; renumbered Rule 809 June 4, 2004, effective November 1, 2004; amended July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1478 (March 18, 2000).
Final Report explaining the July 31, 2013 amendment regarding findings of mental retardation published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 809 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105; amended July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715. Immediately preceeding text appears at serial pages (304136) to (304137).
Rule 810. Sentence.
In all cases in which a verdict of guilty of murder of the first degree has been returned, once a sentence has been determined, the court may immediately impose that sentence.
Comment Although this rule authorizes the immediate imposition of sentence, there may be circumstances in an individual case when the judge would want to delay imposition of sentence. The case should then proceed under the time limits in Rule 704(A).
When sentence is imposed immediately pursuant to this rule, the judge must still comply with the applicable requirements of Rule 704(C).
Once sentence has been imposed, the time for filing the post-sentence motion begins to run. See Rules 811 and 720.
Official Note
Previous rule, originally numbered Rule 355, adopted September 22, 1976, effective November 1, 1976; rescinded April 2, 1978, effective immediately. Former Rule 355 adopted July 1, 1985, effective August 1, 1985; amended and renumbered Rule 359 December 31, 1987, effective immediately; Comment revised October 29, 1990, effective January 1, 1991; rescinded March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994, and replaced by present Rules 810, 704, and 720. Present Rule 359 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 809 and Comment revised March 1, 2000, effective April 1, 2001; renumbered Rule 810 and Comment revised June 4, 2004, effective November 1, 2004.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).
Source The provisions of this Rule 810 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial page (264367).
Rule 811. Post-Sentence Motion.
In all cases in which a sentence has been imposed, the case shall proceed pursuant to Rule 720, except that, in cases in which a death sentence has been determined and imposed, the post-sentence motion shall be decided promptly, but shall not be denied by operation of law.
Comment This rule, Rule 810, Rule 704, and Rule 720 replace previous Rule 359.
When a sentence of death has been imposed, the sentence may be challenged initially at the trial level as part of the general post-sentence motion.
Under Rule 720, the post-sentence motion must be decided within 120 days of filing or is deemed denied by operation of law. It is intended that, as to those cases in which a life sentence has been imposed, this and all other Rule 720 time limits for disposition of the post-sentence motion apply. In cases in which a sentence of death has been imposed, however, the post-sentence motion may not be denied by operation of law if the judge fails to decide the motion within the 120-day limit. The judge must rule on the motion as promptly as the interests of justice allow.
Official Note
Rule 360 adopted March 22, 1993, effective as to cases in which the determination of guilt occurs on or after January 1, 1994; renumbered Rule 810 and amended March 1, 2000, effective April 1, 2001; renumbered Rule 811 and Comment revised June 4, 2004, effective November 1, 2004.
Committee Explanatory Reports:
Final Report explaining the provisions of the new rule published with the Court’s Order at 23 Pa.B. 1699 (April 10, 1993).
Final Report explaining the March 1, 2000 reorganization and renumbering of the rules published with the Court’s Order at 30 Pa.B. 1477 (March 18, 2000).
Source The provisions of this Rule 811 amended June 4, 2004, effective November 1, 2004, 34 Pa.B. 3105. Immediately preceeding text appears at serial page (264368).
PART B. Procedures for Seeking to Preclude Impostion of a Sentence of Death by Reason of the Defendant’s Mental Retardation
Rule 840. Scope.
The rules in Part B provide the procedure for determining if imposition of the death penalty is precluded due to the defendant’s mental retardation.
Comment These rules are intended to apply only to cases arising within the context of the United States Supreme Court decision in Atkins v. Virginia, 536 U.S. 304 (2002), that held that the execution of a mentally retarded criminal is cruel and unusual punishment prohibited by the Eighth Amendment. Pursuant to Atkins, the Pennsylvania Supreme Court held in Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011), that a convicted defendant found mentally retarded is ineligible for the death penalty.
Official Note
New Rule 840 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 840 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.
Rule 841. Notice of Mental Retardation Precluding Imposition of Sentence of Death.
(A) Notice of Mental Retardation Precluding Imposition of a Sentence of Death
A defendant who intends to offer evidence of mental retardation that would preclude the imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the evidence and certification of service on the attorney for the Commonwealth.
(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.
(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation and the names and addresses of witnesses, expert or otherwise, whom the defendant intends to call to establish mental retardation.
(B) Notice of Expert Evidence of Mental Retardation
A defendant who intends to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death shall file with the clerk of courts not later than 90 days after arraignment, or within such other time as allowed by the court upon cause shown, a notice of the intention to offer the expert evidence and a certification of service on the attorney for the Commonwealth.
(1) The notice and certification shall be signed by the attorney for the defendant or the defendant if unrepresented.
(2) The notice shall contain specific available information as to the nature and extent of the alleged mental retardation, and the names and addresses of the expert witness(es) whose evidence the defendant intends to introduce.
(C) Reciprocal Notice of Witnesses
Within 30 days after receipt of the defendant’s notice of mental retardation that would preclude the imposition of a sentence of death or notice of expert evidence of mental retardation or within such other time as allowed by the court upon cause shown, the attorney for the Commonwealth shall file and serve upon the defendant’s attorney, or the defendant if unrepresented, written notice of the names and addresses of all witnesses the attorney for the Commonwealth intends to call to disprove or discredit the defendant’s claim of mental retardation.
(D) If prior to or during trial a party learns of an additional witness or additional information which, if known, should have been included in the notice furnished under paragraphs (A), (B), or (C), the party shall promptly notify the other party’s attorney, or if unrepresented, the other party, of the existence and identity of such additional witness.
(E) After docketing the notice, the clerk of courts immediately shall transmit the notice to the trial judge.
Comment This rule sets forth the notice procedures when a defendant intends to assert his or her mental retardation to preclude imposition of the death penalty pursuant to Atkins v. Virginia, 536 U.S. 304 (2002) and Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011). Notices filed in accordance with this rule fall within the definition of ‘‘motion’’ in Rule 575 and must comply with the provisions of Rules 575 and 576.
The requirement in paragraph (B) for a separate notice of intention to introduce expert evidence is intended to alert the Commonwealth that there will be expert evidence. See Rule 842 regarding the requirement that any expert who has examined the defendant must prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.
Paragraph (E) emphasizes the requirement that the trial judge be informed of the filing of the notice at the earliest time to ensure the prompt collection of all materials relevant to the issue of the defendant’s mental retardation.
Nothing in this rule precludes the trial judge from raising the issue of the defendant’s mental retardation sua sponte.
Official Note
New Rule 841 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 841 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.
Rule 842. Examination of the Defendant by Mental Health Expert.
(A) EXAMINATION OF DEFENDANT
(1) BY AGREEMENT
(a) The defendant, the defendant’s counsel, and the attorney for the Commonwealth may agree to an examination of the defendant by the mental health expert(s) designated in the agreement for the purpose of determining mental retardation that would preclude imposition of a sentence of death.
(b) The agreement shall be in writing and signed by the defendant, the defendant’s counsel, and the attorney for the Commonwealth, or made orally on the record.
(c) Unless otherwise agreed, the mental health expert(s) promptly shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.
(2) BY COURT ORDER
(a) If the defendant has provided notice of mental retardation that would preclude the imposition of a sentence of death or notice of intention to introduce expert evidence relating to mental retardation that would preclude imposition of a sentence of death, upon motion of the attorney for the Commonwealth, the court shall order that the defendant submit to an examination by one or more mental health experts specified in the motion by the Commonwealth for the purpose of determining the condition of mental retardation put in issue by the defendant.
(b) When the court orders an examination pursuant to this paragraph, the court on the record shall advise the defendant in person and in the presence of the defendant’s counsel:
(i) of the purpose of the examination and the contents of the court’s order;
(ii) that the information obtained from the examination may be used at trial; and
(iii) the potential consequences of the defendant’s refusal to cooperate with the Commonwealth’s mental health expert(s).
(c) The court’s order shall:
(i) specify who may be present at the examination; and
(ii) specify the time within which the mental health expert(s) must submit the written report of the examination.
(d) Upon completion of the examination of the defendant, the mental health expert(s), within the time specified by the court as provided in paragraph (A)(2)(c)(ii), shall prepare a written report stating the subject matter, the substance of the facts relied upon, and a summary of the expert’s opinions and the grounds for each opinion.
(B) DISCLOSURE OF REPORTS BETWEEN PARTIES
(1) The mental health experts’ reports shall be confidential, and not of public record.
(2) Any mental health expert whom either party intends to call to testify concerning the defendant’s condition of mental retardation must prepare a written report. No mental health expert may be called to testify concerning the defendant’s condition of mental retardation until the expert’s report has been disclosed as provided herein.
(3) The court shall set a reasonable time after the Commonwealth’s expert’s examination for the disclosure of the reports of the parties’ mental health experts.
(C) PROTECTIVE ORDERS
Upon a sufficient showing, the court may at any time order that the disclosure of a report or reports be restricted or deferred for a specified time, or make such other order as is appropriate. Upon motion of any party, the court may permit the showing to be made in camera.
(D) SANCTIONS FOR NON-COMPLIANCE
At any time during the course of the proceedings, if the court determines there has been a failure to comply with this rule, upon motion or sua sponte, the court may order compliance, may grant a continuance, or may grant other appropriate relief. Upon motion, any hearing to determine if there has been a failure to comply may be held in camera and the record sealed until after disposition of the case.
Comment This rule establishes the procedures for the examination of the defendant by a mental health expert(s) retained by the prosecution pursuant to an agreement by the parties, see paragraph (A)(1), or a court order, see paragraph (A)(2), in cases in which the defendant’s mental retardation has been raised to preclude the imposition of a sentence of death.
‘‘Mental health expert,’’ as used in this rule, includes a psychiatrist, a licensed psychologist, a physician, or any other expert in the field of mental health who will be of substantial value in the determination of the issues raised by the defendant concerning his or her mental retardation.
Examination of Defendant
Paragraph (A)(1) is intended to encourage the defendant, the defendant’s counsel, and the attorney for the Commonwealth to agree to an examination of the defendant by the Commonwealth’s mental health expert(s).
When the defendant, the defendant’s attorney, and the attorney for the Commonwealth agree that the defendant will be examined under this rule, at a minimum, the agreement should specify the time, place, and conditions of the examination, who may be present during the examination, and the time within which the parties will disclose the reports of their experts.
It is intended that the examining mental health expert(s), whether appointed pursuant to the agreement of the parties or order of court, have substantial discretion in how to conduct an examination. The conduct of the examination, however, must conform to generally recognized and accepted practices in that profession. Therefore, the examination of the defendant may consist of such interviewing, clinical evaluation, and psychological testing as the examining mental health expert(s) considers appropriate, within the limits of non-experimental, generally accepted medical, psychiatric, or psychological practices.
Nothing in this rule is intended to limit the number of examining experts the defense may use, nor is it to be construed as a limitation on any party with regard to the number of other expert or lay witnesses they may call to testify concerning the defendant’s mental retardation.
The court is required in paragraph (A)(2)(b) to inform the defendant, in person on the record, about the request for a compelled examination. See Rule 119 (Use of Two-Way Simultaneous Audio-Visual Communication in Criminal Proceedings). The court is to explain that the examination is being conducted at the request of the attorney for the Commonwealth and that the purpose of the examination is to obtain information about the defendant’s mental condition specifically with regard to mental retardation. In addition, the court should explain the procedures for the examination that are included in the court’s order as set forth in paragraph (A)(2)(b), and explain the potential consequences of the defendant’s failure to cooperate with the examination.
Paragraph (A)(2)(d) requires that the examining mental health expert(s) promptly prepare a written report and sets forth the minimum contents of that report. It is intended that the scope of the mental health expert’s report be limited in the court’s order to matters related to the defendant’s mental retardation.
Disclosure of Reports
After the examination of the defendant by the Commonwealth’s mental health expert(s) is completed and the mental health expert’s report has been prepared, the defendant and the Commonwealth are required in paragraph (B) to disclose the reports that are made by any experts either party intends to call to testify concerning the defendant’s mental retardation. The reports must be in writing, and should comply with the content requirements in paragraph (A)(2)(d). An expert witness, whether or not the expert witness has examined the defendant, cannot testify until the report is disclosed as provided in paragraph (B)(2) and (3). There may be situations in which the court would have to call a short recess to permit the expert to complete a written report and to give the parties an opportunity to review the report, such as when a mental health expert(s) is observing the defendant during the trial and will be called to testify on these observations.
When the parties agree to the examination, the time for the disclosure of the reports should be set by the agreement of the parties. The agreement should permit adequate time to review the reports and prepare for the proceeding. If the parties cannot agree, in cases proceeding pursuant to court order under paragraph (A)(2), the court should set the time for the disclosure of reports, which should afford the parties adequate time to review the reports and prepare for the proceeding.
Establishing a reasonable time frame and providing for the reciprocal disclosure are intended to further promote the fair handling of these cases. In no case should the disclosure occur until after the defendant has been examined by the Commonwealth’s mental health expert(s) and the mental health expert(s) has prepared and submitted a written report.
There may be cases in which, although proceeding pursuant to a court order, the parties, with the court’s approval, agree to an earlier time for disclosure consistent with the purposes of this rule. This rule would not preclude such an agreement.
The procedures in paragraph (C) are similar to the existing procedures for protective orders in Rule 573(F).
Because the question of whether the imposition of a sentence of death is precluded due to the defendant’s mental retardation ordinarily is a question reserved for sentencing, use of information obtained from the examination of a defendant by a Commonwealth’s expert is not to be disclosed or used until after the defendant has been found guilty. This may require that the Commonwealth’s examination should be sealed until the penalty phase of the defendant’s trial takes place. See Commonwealth v. Sartin, 561 Pa. 522, 751 A.2d 1140 (2000). However, where the parties have agreed to a pretrial determination of the issue pursuant to Rule 843, earlier disclosure may be required.
See the Pennsylvania Rules of Evidence concerning the admissibility of the experts’ reports and information from any examinations of the defendant by an expert.
Sanctions
The sanctions authorized by paragraph (D) may be imposed on any person who has failed to comply with any of the provisions of this rule, including the attorney for the Commonwealth, the defendant, the defendant’s counsel, or an expert.
When the defendant has refused to cooperate in the examination by the Commonwealth’s mental health expert(s), before imposing a sanction, the court should consider whether the defendant’s failure to cooperate (1) was intentional, (2) was the result of the defendant’s mental condition, and (3) will have an adverse and unfair impact on the Commonwealth’s ability to respond to the defendant’s claim. The court also should consider whether ordering the defendant to resubmit to the examination would result in the defendant’s cooperation.
Official Note
New Rule 842 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 842 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.
Rule 843. Optional Pretrial Hearing.
(A) If the parties agree, the issue of the defendant’s mental retardation precluding imposition of a sentence of death shall be determined by the judge after a pretrial evidentiary hearing.
(B) The defendant shall appear in person with counsel at the hearing.
(C) The defendant shall have the burden of going forward with the evidence.
(D) No later than the beginning of the evidentiary hearing, the judge shall advise the defendant that, by agreeing to have the issue of his or her mental retardation decided pretrial, the defendant, if found not mentally retarded and later convicted, will not be permitted to seek a preclusion of the imposition of a sentence of death due to mental retardation with a jury. In these cases, however, the defendant may introduce relevant evidence concerning his or her mental state at the guilt phase and the penalty phase, including evidence in support of statutory mitigation.
(E) The attorney for the Commonwealth and the defendant’s attorney may introduce evidence and cross-examine any witness, including the examining mental health experts. The judge may call and interrogate witnesses as provided by law.
(F) Within 30 days of the completion of the evidentiary hearing, the judge shall enter an order finding either that the defendant is mentally retarded and therefore is precluded from receiving a sentence of death or that the defendant is not mentally retarded.
Comment In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), the parties may agree to a pretrial determination of the defendant’s ineligibility for the death penalty to be made by the trial judge. The defendant has the burden of proof by a preponderance of the evidence to prove mental retardation. See Commonwealth v. Sanchez, 614 Pa. at 65, 36 A.3d at 62-63. If the trial judge finds the defendant is eligible for the death penalty, the defendant may still introduce relevant evidence concerning his or her mental state during the guilt and penalty phases of trial, including evidence in support of statutory mitigation.
Official Note
New Rule 843 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 843 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.
Rule 844. Sentencing Procedures in Cases in which the Defendant’s Mental Retardation is Asserted.
(A) Unless the issue is decided pretrial pursuant to Rule 843, in a case in which the defendant has asserted that imposition of a sentence of death is precluded by reason of his or her mental retardation, after a return of a verdict of guilty of murder in the first degree, a sentencing hearing shall be held in which all sentencing evidence shall be presented, including, but not limited to, evidence of the defendant’s mental retardation and evidence of aggravating and mitigating circumstances.
(B) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A) and the sentencing hearing is conducted before the jury, the following procedures shall apply:
(1) After presentation of the evidence, the judge shall determine if sufficient evidence exists for the jury to decide whether the imposition of a sentence of death should be precluded by reason of mental retardation.
(a) If the judge determines sufficient evidence exists for the jury to consider the issue of the defendant’s mental retardation, the case will proceed according to the procedures in paragraphs (B)(2)—(6).
(b) If the judge determines that there is not sufficient evidence for the jury to consider the issue of the defendant’s mental retardation, the case will proceed as any other capital case.
(2) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant’s alleged mental retardation and arguments for or against a sentence of death. The defendant’s argument shall be made last.
(3) Upon completion of argument, the judge shall instruct the jury solely upon the issue of the defendant’s mental retardation and shall submit a special issue to the jury as to whether the defendant is mentally retarded.
(4) The question of the defendant’s mental retardation shall be considered and answered by the jury prior to the consideration of any other sentencing issue and the determination of sentence.
(5) If the jury determines the defendant to be mentally retarded, the judge shall sentence the defendant to life imprisonment.
(6) If the jury does not find the defendant mentally retarded, the judge shall instruct the jury on the mitigating and aggravating circumstances and the jury shall deliberate on whether or not to impose the death penalty.
(C) In cases in which the defendant has asserted his or her mental retardation as provided in paragraph (A), and the defendant waives a sentencing proceeding before a jury and the trial judge determines the penalty, the following procedures shall apply:
(1) After the presentation of evidence, each party shall be entitled to present one closing argument addressing all sentencing issues, including the defendant’s alleged mental retardation and arguments for or against a sentence of death. The defendant’s argument shall be made last.
(2) The trial judge shall consider and answer the question of the defendant’s mental retardation prior to the consideration of any other sentencing issue and the determination of sentence.
(3) If the trial judge determines the defendant to be mentally retarded, the trial judge shall sentence the defendant to life imprisonment.
(4) If the trial judge does not find the defendant to be mentally retarded, the trial judge will evaluate the mitigating and aggravating circumstances and determine whether or not to impose a sentence of death.
Comment In Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (Pa. 2011), the Pennsylvania Supreme Court held that, pursuant to Atkins v. Virginia, 536 U.S. 304 (2002), a determination that a defendant is precluded from receiving the death penalty by reason of mental retardation is to be made as the first issue in sentencing. This rule provides the procedures for that determination whether made by a jury or a judge when the issue has not been decided pretrial pursuant to Rule 843.
Paragraph (B) addresses sentencing proceedings before a jury. The rule contemplates that a single capital sentencing hearing will be held in such cases but the jury’s deliberations will be conducted sequentially with the defendant’s mental retardation decided first. If the jury finds the defendant not mentally retarded, the judge will instruct the jury on the issues related to the imposition of a sentence of death, including the mitigating and aggravating circumstances, after which the jury will deliberate on the sentence.
Paragraph (C) addresses sentencing proceedings before a judge. See Rule 809 for the form of the trial judge sentencing verdict slip when the defendant has waived a jury for the sentencing proceeding.
Except as otherwise provided in Part B of this Chapter, sentencing shall proceed as provided in Chapter 7.
Official Note
New Rule 844 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 844 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.
Rule 845. Form for Sentencing Verdict Slip in Cases in which the Defendant’s Mental Retardation is Asserted.
IN THE COURT OF COMMON PLEAS
OF
COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA : vs. : NO.
:
FIRST DEGREE MURDER
SENTENCING VERDICT SLIP
FINDINGS REGARDING MENTAL RETARDATION INSTRUCTIONS:
Indicate whether you unanimously agree that the defendant has proven that he or she is mentally retarded.
Upon completion of deliberations on the question of the defendant’s mental retardation, return to the courtroom for further instructions from the judge.
FINDINGS:
We, the jury, unanimously find that the defendant has proven by a preponderance of the evidence that the defendant is mentally retarded.
We, the jury, unanimously find that the defendant has not proven by a preponderance of the evidence that the defendant is mentally retarded.
We, the jury, cannot agree unanimously that the defendant is mentally retarded.
DATE
JURY FOREPERSON
Comment The verdict slip form was created in 2013 to provide for those cases in which the question of a defendant’s mental retardation that would preclude imposition of the death penalty is determined by the jury. See Atkins v. Virginia, 536 U.S. 304 (2002) and Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24 (2011). See also Rule 844. For optional procedures for a pretrial determination of the defendant’s mental retardation, see Rule 843.
The judge should caution the jury that the verdict slip is to be used to record the findings as to mental retardation and that the slip should be completed only after their deliberations are concluded.
Official Note
New Rule 845 adopted July 31, 2013, effective October 1, 2013.
Committee Explanatory Reports:
Final Report explaining the July 31, 2013 adoption of the new rule providing the jury verdict slip form in cases involving a determination of mental retardation precluding imposition of the death penalty published with the Court’s Order at 43 Pa.B. 4722 (August 17, 2013).
Source The provisions of this Rule 845 adopted July 31, 2013, effective October 1, 2013, 43 Pa.B. 4715.
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