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Commonwealth v. Ogrod12/30/2003
notice of appeal in June of 2000 and the parties submitted the case to this Court on April 9, 2002, Appellant appeals from his October 8, 1996 conviction and November 8, 1996 death sentence and is, therefore, entitled to proportionality review. Specifically, proportionality review was required because the trial court imposed the Judgment of Sentence on Appellant before the June 25, 1997 effective date of the repeal of proportionality review.
Consistent with decisions of the United States Supreme Court, prior decisions of this Court, and the sentencing statute, this Court will conduct an independent evaluation of all cases decided since the effective date of the sentencing procedures under consideration (September 13, 1978). This review will utilize all available judicial resources and will encompass all similar cases, taking into consideration both the circumstances of the crime and the character and record of the defendant in order to determine whether the sentence of death is excessive or disproportionate to the circumstances.
Commonwealth v. Travaglia, 467 A.2d 288, 303 (Pa.1983), cert. denied, 467 U.S. 1256 (1984) (citations and quotations omitted). We have also described our proportionality review as follows:
When we conduct our [proportionality] review, we examine not only the compiled data from the AOPC ["Administrative Office of Pennsylvania Courts"], but we also have at our disposal the verdict sheets and the review forms submitted by the President Judges. This allows us to conduct a thorough review of cases similar to the one in question and provides additional screening for any anomalies that may be present in the AOPC database. Harris, 703 A.2d at 451-452 (quoting Commonwealth v. Gribble, 703 A.2d 426, 441 (Pa. 1997), cert. denied, 525 U.S. 1005 (1998)). We have conducted a proportionality review in this case and have determined that the sentence of death was not disproportionate to the penalties imposed in similar cases.
Conclusion
The sentencing statute at the time of Appellant's trial directed that:
The Supreme Court shall affirm a 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); or (iii) the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the circumstances of the crime and the character and record of the defendant.
42 Pa.C.S. §9711(h)(3). Because the sentence of death was not the product of passion, prejudice or any other arbitrary factor, because there was sufficient evidence to support the aggravating circumstance, and because the sentence was not disproportionate, we affirm the judgment of sentence and the determinations of guilt. Pursuant to 42 Pa.C.S. § 9711(i), we direct the Prothonotary of the Supreme Court of Pennsylvania to transmit, within ninety days, the complete record of this case to the Governor of Pennsylvania.
Former Chief Justice Zappala did not participate in the decision of this case.
Mr. Justice Nigro files a concurring opinion.
Mr. Justice Saylor concurs in the result.
CONCURRING OPINION
MR. JUSTICE NIGRO
I am constrained to join the result reached by the majority despite the fact that the jury failed to find the mitigating circumstance that Appellant had no significant history of prior criminal convictions under 42 Pa.C.S. § 9711(e)(1), even though the parties stipulated to the fact that Appellant had no criminal history. Of course,
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