PRIOR PRINTER'S NO. 791 PRINTER'S NO. 4192
No. 698 Session of 2005
INTRODUCED BY O'BRIEN, BEBKO-JONES, BELFANTI, BLACKWELL, BUNT,
CALTAGIRONE, CREIGHTON, CURRY, J. EVANS, FABRIZIO, GANNON,
GINGRICH, GRUITZA, HERMAN, KILLION, KOTIK, LEDERER, MAITLAND,
R. MILLER, PISTELLA, PRESTON, REICHLEY, SCAVELLO, STABACK,
T. STEVENSON, SURRA, WALKO, WHEATLEY AND HARPER,
MARCH 1, 2005
AS AMENDED ON THIRD CONSIDERATION, HOUSE OF REPRESENTATIVES,
JUNE 12, 2006
AN ACT
1 Amending Title 42 (Judiciary and Judicial Procedure) of the
2 Pennsylvania Consolidated Statutes, further providing for
3 EXEMPTIONS FROM JURY DUTY, FOR jurisdiction and proceedings, <--
4 for relief and order and for sentencing procedure for murder
5 of the first degree; and providing for mental retardation of
6 defendant.
7 The General Assembly of the Commonwealth of Pennsylvania
8 hereby enacts as follows:
9 Section 1. Sections 9545(b), 9546 and 9711(c) of Title 42 of <--
10 the Pennsylvania Consolidated Statutes are amended to read:
11 SECTION 1. SECTION 4503(A) OF TITLE 42 OF THE PENNSYLVANIA <--
12 CONSOLIDATED STATUTES IS AMENDED BY ADDING A PARAGRAPH TO READ:
13 § 4503. EXEMPTIONS FROM JURY DUTY.
14 (A) GENERAL RULE.--NO PERSON SHALL BE EXEMPT OR EXCUSED FROM
15 JURY DUTY EXCEPT THE FOLLOWING:
16 * * *
17 (5) PERSONS 75 YEARS OF AGE OR OLDER WHO ELECT NOT TO
1 SERVE. 2 * * * 3 SECTION 2. SECTIONS 9545(B), 9546 AND 9711(C) OF TITLE 42 4 ARE AMENDED TO READ: 5 § 9545. Jurisdiction and proceedings. 6 * * * 7 (b) Time for filing petition.-- 8 (1) Any petition under this subchapter, including a 9 second or subsequent petition, shall be filed within one year 10 of the date the judgment becomes final, unless the petition 11 alleges and the petitioner proves that: 12 (i) the failure to raise the claim previously was 13 the result of interference by government officials with 14 the presentation of the claim in violation of the 15 Constitution or laws of this Commonwealth or the 16 Constitution or laws of the United States; 17 (ii) the facts upon which the claim is predicated 18 were unknown to the petitioner and could not have been 19 ascertained by the exercise of due diligence; [or] 20 (iii) the right asserted is a constitutional right 21 that was recognized by the Supreme Court of the United 22 States or the Supreme Court of Pennsylvania after the 23 time period provided in this section and has been held by 24 that court to apply retroactively[.]; or 25 (iv) the petitioner is a person with mental 26 retardation as set forth in section 9711.1(a) (relating 27 to mental retardation of defendant) and the time for 28 raising the claim under this subsection had already 29 expired as of the effective date of section 9711.1. 30 (2) Any petition invoking an exception provided in 20050H0698B4192 - 2 -
1 paragraph (1) shall be filed within 60 days of the date the
2 claim could have been presented[.], except that a claim
3 invoking paragraph (1)(iv) shall be filed within one year of
4 the effective date of section 9711.1 or of the conclusion of
5 any appeal that is pending on the effective date either from
6 the judgment of sentence or from the denial of a previous
7 petition filed under this chapter.
8 (3) For purposes of this subchapter, a judgment becomes
9 final at the conclusion of direct review, including
10 discretionary review in the Supreme Court of the United
11 States and the Supreme Court of Pennsylvania, or at the
12 expiration of time for seeking the review.
13 (4) For purposes of this subchapter, "government
14 officials" shall not include defense counsel, whether
15 appointed or retained.
16 * * *
17 § 9546. Relief and order.
18 (a) General rule.--If the court rules in favor of the
19 petitioner, it shall order appropriate relief and issue
20 supplementary orders as to rearraignment, retrial, custody,
21 bail, discharge, correction of sentence or other matters that
22 are necessary and proper.
23 (d) Review of order in death penalty cases.--An order under
24 this subchapter granting the petitioner final relief in a case
25 in which the death penalty has been imposed shall be directly
26 appealable by the Commonwealth to the Supreme Court pursuant to
27 its rules. An order under this subchapter denying a petitioner
28 final relief in a case in which the death penalty has been
29 imposed shall not be reviewable in the Superior Court but shall
30 be reviewable only by petition for allowance of appeal to the
20050H0698B4192 - 3 -
1 Supreme Court.
2 (e) Establishing a claim of mental retardation.--Upon a
3 finding that evidence has been presented that is sufficient to
4 establish, by a preponderance of the evidence, that the
5 petitioner is a person with mental retardation as defined in
6 section 9711.1(a) (relating to mental retardation of defendant),
7 the court shall direct further proceedings in accordance with
8 section 9711.1(c).
9 § 9711. Sentencing procedure for murder of the first degree.
10 * * *
11 (c) Instructions to jury.--
12 (1) Before the jury retires to consider the sentencing
13 verdict, if the defendant has provided notice in
14 compliance with section 9711.1(c)(1) (relating to mental
15 retardation of defendant) and if the defendant has
16 presented evidence in support of a claim that he is a
17 person with mental retardation pursuant to section
18 9711.1, the court shall instruct the jury that it shall
19 begin its deliberations by considering whether the
20 defendant has established, by a preponderance of the
21 evidence, that he is a person with mental retardation as
22 defined in section 9711.1(a). If the jury unanimously
23 finds that the defendant has established that he is a
24 person with mental retardation as defined in section
25 9711.1(a), the court shall impose a sentence of life
26 imprisonment. The court may, in its discretion, discharge
27 the jury if it determines that further deliberation will
28 not result in a unanimous agreement as to whether the
29 defendant is a person with mental retardation as defined
30 in section 9711.1(a), in which case the court shall
20050H0698B4192 - 4 -
1 impose a sentence of life imprisonment. However, if the 2 jury unanimously finds that the defendant has failed to 3 establish that he is a person with mental retardation as 4 defined in section 9711.1(a), the court shall instruct 5 the jury that it shall proceed to consideration of 6 aggravating and mitigating circumstances as provided in 7 this subsection. The jury's determination that the 8 defendant has failed to establish that he is a person 9 with mental retardation as defined in section 9711.1(a) 10 shall not preclude the jury from considering evidence of 11 the defendant's diminished mental capacity as a 12 mitigating circumstance as enumerated in subsection (e). 13 The court shall further instruct the jury on the 14 following matters: 15 (i) The aggravating circumstances specified in 16 subsection (d) as to which there is some evidence. 17 (ii) The mitigating circumstances specified in 18 subsection (e) as to which there is some evidence. 19 (iii) Aggravating circumstances must be proved by 20 the Commonwealth beyond a reasonable doubt; mitigating 21 circumstances must be proved by the defendant by a 22 preponderance of the evidence. 23 (iv) The verdict must be a sentence of death if the 24 jury unanimously finds at least one aggravating 25 circumstance specified in subsection (d) and no 26 mitigating circumstance or if the jury unanimously finds 27 one or more aggravating circumstances which outweigh any 28 mitigating circumstances. The verdict must be a sentence 29 of life imprisonment [in all other cases] if the jury 30 reached another conclusion concerning aggravating and 20050H0698B4192 - 5 -
1 mitigating circumstances. 2 (v) The court may, in its discretion, discharge the 3 jury if it is of the opinion that further deliberation of 4 aggravating and mitigating circumstances will not result 5 in a unanimous agreement as to the sentence, in which 6 case the court shall sentence the defendant to life 7 imprisonment. 8 (2) The court shall instruct the jury that if it finds 9 at least one aggravating circumstance and at least one 10 mitigating circumstance, it shall consider, in weighing the 11 aggravating and mitigating circumstances, any evidence 12 presented about the victim and about the impact of the murder 13 on the victim's family. The court shall also instruct the 14 jury on any other matter that may be just and proper under 15 the circumstances. 16 * * * 17 Section 2 3. Title 42 is amended by adding a section to <-- 18 read: 19 § 9711.1. Mental retardation of defendant. 20 (a) Elements of proof.--A defendant is a person with mental 21 retardation if he has a mental disability characterized by 22 significant limitations in intellectual functioning and in 23 adaptive behavior as expressed in conceptual, social and 24 practical adaptive skills, which the defendant must prove by 25 establishing all of the following elements by a preponderance of 26 the evidence: 27 (1) That his full-scale intelligence quotient is two 28 standard deviations below the mean as determined by a 29 standardized test generally accepted in the profession and 30 individually administered by a licensed psychologist. 20050H0698B4192 - 6 -
1 (2) That he has significant limitations, as determined 2 by a standardized test generally accepted in the profession 3 and individually administered by a licensed psychologist, in 4 adaptive behavior as manifested by performance that is at 5 least two standard deviations below the mean of: 6 (i) conceptual, social or practical adaptive 7 behavior; or 8 (ii) an overall score on a standardized measure of 9 conceptual, social and practical skills. 10 (3) That his mental disability was present before the 11 age of 18 as demonstrated by contemporaneous written records. 12 However, contemporaneous written records shall not be 13 required where the defendant establishes that such written 14 records are lost or missing or that the defendant was 15 deprived of schooling or other social services contacts in 16 which such contemporaneous records would be created. 17 (b) Waiver of confidentiality.--A defendant who raises a 18 claim of mental retardation waives confidentiality and 19 privileges. The following apply: 20 (1) The defendant's medical, corrections, military and 21 scholastic records may be reviewed by the parties. 22 (2) The defendant's previous physicians, teachers and 23 mental health providers may be contacted by the parties and 24 current mental health examiners to learn of the defendant's 25 background relative to the claim of mental retardation. 26 (c) Applicability.-- 27 (1) If a defendant who has not yet been sentenced to 28 death as of the effective date of this section wishes to 29 raise the issue of mental retardation, the defendant must 30 file pretrial notice of such intention. The issue shall then 20050H0698B4192 - 7 -
1 be placed before the jury at the time of sentencing in 2 accordance with section 9711(c)(1) (relating to sentencing 3 procedure for murder of the first degree) unless both the 4 defendant and the Commonwealth agree to a pretrial 5 determination by the court. If the defendant does not file 6 notice, the court, either on its own motion or on the motion 7 of the Commonwealth, may direct the defendant to provide 8 reasons for the failure to file. 9 (2) If a defendant who has already been sentenced to 10 death as of the effective date of this section wishes to 11 raise the issue of mental retardation, and postsentence 12 motions are still pending, the defendant must amend the 13 motions to raise the claim that imposition of the death 14 penalty would have been barred under section 9711(c)(1) if it 15 had been in effect at the time of the sentencing hearing. 16 Upon a finding that evidence has been presented sufficient to 17 establish mental retardation as defined in subsection (a), 18 the court shall vacate the sentence of death, impanel a jury, 19 unless waived by the defendant and the Commonwealth, and 20 conduct an evidentiary hearing at which the issue of mental 21 retardation shall be determined by the trier of fact. The 22 hearing shall be conducted in accordance with section 23 9711(c)(1). 24 (3) If a defendant who has already been sentenced to 25 death as of the effective date of this section wishes to 26 raise a claim of mental retardation and direct appeal is 27 still pending, the defendant must, after disposition of the 28 appeal, raise the claim under Subchapter B (relating to post 29 conviction relief) in a petition pursuant to section 9545(b) 30 (relating to jurisdiction and proceedings). 20050H0698B4192 - 8 -
1 Section 3 4. This act shall take effect in 60 days. <--
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