COMMONWEALTH v. LOPINSON

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 former Mr. Justice BARBIERI took no part in the decision of this case.

OPINION PER CURIAM, October 4, 1972:

In 1965, following a jury trial in the Philadelphia Court of Common Pleas, 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. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). The United States Supreme Court vacated the judgment of sentence and remanded to this Court for reconsideration in light of Witherspoon v. Illinois, 391 U.S. 510 (1968). This Court, in turn, remanded the case to the court below for a determination of the Witherspoon issue. The court below found no violation of the standards enunciated in Witherspoon and filed a report to the Supreme Court of Pennsylvania to that effect. Appellant filed exceptions to the report.

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 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).

The sentence of death is vacated and appellant is sentenced to life imprisonment.

The former Mr. Chief Justice BELL and the former Mr. Justice BARBIERI took no part in the decision of this case.