PRINTER'S NO. 2420
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No.
1909
Session of
2023
INTRODUCED BY WARNER, CABELL, R. MACKENZIE, BERNSTINE,
M. MACKENZIE, DAVANZO AND HEFFLEY, DECEMBER 12, 2023
REFERRED TO COMMITTEE ON JUDICIARY, DECEMBER 12, 2023
AN ACT
Amending Titles 18 (Crimes and Offenses) and 42 (Judiciary and
Judicial Procedure) of the Pennsylvania Consolidated
Statutes, in sexual offenses, further providing for the
offense of rape and for the offense of involuntary deviate
sexual intercourse; and, in sentencing, providing for
sentencing procedure for rape of a child and involuntary
deviate sexual intercourse with a child and further providing
for sentences for offenses against infant persons.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Sections 3121(e) and 3123(d) of Title 18 of the
Pennsylvania Consolidated Statutes are amended to read:
§ 3121. Rape.
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[(e) Sentences.--Notwithstanding the provisions of section
1103 (relating to sentence of imprisonment for felony), a person
convicted of an offense under:
(1) Subsection (c) shall be sentenced to a term of
imprisonment which shall be fixed by the court at not more
than 40 years.
(2) Subsection (d) shall be sentenced up to a maximum
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term of life imprisonment.]
§ 3123. Involuntary deviate sexual intercourse.
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[(d) Sentences.--Notwithstanding the provisions of section
1103 (relating to sentence of imprisonment for felony), a person
convicted of an offense under:
(1) Subsection (b) shall be sentenced to a term of
imprisonment which shall be fixed by the court at not more
than 40 years.
(2) Subsection (c) shall be sentenced up to a maximum
term of life imprisonment.]
* * *
Section 2. Title 42 is amended by adding a section to read:
§ 9711.2. Sentencing procedure for rape of a child and
involuntary deviate sexual intercourse with a child.
(a) Procedure in jury trials.--
(1) After a verdict of an offense under 18 Pa.C.S. §
3121(c) (relating to rape) or 3123(b) (relating to
involuntary deviate sexual intercourse) is recorded and
before the jury is discharged, the court shall conduct a
separate sentencing hearing in which the jury shall determine
whether the defendant shall be sentenced to death or life
imprisonment.
(2) In the sentencing hearing, evidence concerning the
victim and the impact that the crime has had on the victim
and the family of the victim is admissible. Additionally,
evidence may be presented as to any other matter that the
court deems relevant and admissible on the question of the
sentence to be imposed. Evidence shall include matters
relating to any of the aggravating or mitigating
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circumstances specified in subsections (d) and (e) and
information concerning the victim and the impact that the
crime has had on the victim and the victim's family. Evidence
of aggravating circumstances shall be limited to those
circumstances specified in subsection (c).
(3) After the presentation of evidence, the court shall
permit counsel to present argument for or against the
sentence of death. The court shall then instruct the jury in
accordance with subsection (c).
(4) Failure of the jury to unanimously agree upon a
sentence shall not impeach or in any way affect the guilty
verdict previously recorded.
(b) Procedure in nonjury trials and guilty pleas.--If the
defendant has waived a jury trial or pleaded guilty, the
sentencing proceeding shall be conducted before a jury impaneled
for that purpose unless waived by the defendant with the consent
of the Commonwealth, in which case the trial judge shall hear
the evidence and determine the penalty in the same manner as
would a jury as provided in subsection (a).
(c) Instructions to jury.--
(1) Before the jury retires to consider the sentencing
verdict, the court shall instruct the jury on the following
matters:
(i) The aggravating circumstances specified in
subsection (d) as to which there is evidence.
(ii) The mitigating circumstances specified in
subsection (e) as to which there is evidence.
(iii) Aggravating circumstances must be proved by
the Commonwealth beyond a reasonable doubt and mitigating
circumstances must be proved by the defendant by a
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preponderance of the evidence.
(iv) The verdict must be a sentence of death if the
jury unanimously finds at least one aggravating
circumstance specified in subsection (d) and no
mitigating circumstance or if the jury unanimously finds
one or more aggravating circumstances which outweigh any
mitigating circumstances. The verdict must be a sentence
of life imprisonment in all other cases.
(2) The court shall instruct the jury that if it finds
at least one aggravating circumstance and at least one
mitigating circumstance, the jury shall consider, in weighing
the aggravating and mitigating circumstances, any evidence
presented about the victim and about the impact of the crime
on the victim and the victim's family. The court shall also
instruct the jury on any other matter that may be just and
proper under the circumstances.
(d) Aggravating circumstances.--Aggravating circumstances
shall be limited to the following:
(1) The defendant was previously convicted of an offense
specified in section 9799.14 (relating to sexual offenses and
tier system) or an equivalent crime under the laws of this
Commonwealth in effect at the time of the commission of that
offense or an equivalent crime in another jurisdiction.
(2) The defendant was previously convicted of a crime of
violence as defined in section 9714(g) (relating to sentences
for second and subsequent offenses).
(3) The defendant was designated as a sexually violent
predator as defined in section 9799.12 (relating to
definitions) or 9799.53 (relating to definitions).
(4) The defendant was required to register as a sex
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offender under Chapter 97 (relating to sentencing).
(5) The defendant created a great risk of death to one
or more persons such that participation in the offense
constituted reckless indifference or disregard for human
life.
(6) The defendant knowingly used a firearm to threaten,
intimidate, assault or injure a person in committing the
offense or in furtherance of the offense.
(7) The offense was committed for a pecuniary gain.
(8) The offense was especially heinous, atrocious or
cruel.
(9) The victim of the offense was particularly
vulnerable due to age or disability, or because the defendant
stood in a position of familial or custodial authority over
the victim.
(10) At the time of the offense, the defendant was
subject to a court order restricting in any way the
defendant's behavior toward the victim or the sibling, parent
or guardian of the victim in accordance with 23 Pa.C.S. Ch.
61 (relating to protection from abuse) or any other order of
a court of common pleas or of the minor judiciary designed in
whole or in part to protect the victim or the sibling, parent
or guardian of the victim from the defendant.
(11) The victim of the offense sustained serious bodily
injury.
(e) Mitigating circumstances.--Mitigating circumstances
shall include the following:
(1) The defendant has no significant history of prior
criminal convictions.
(2) The defendant was under the influence of extreme
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mental or emotional disturbance.
(3) The capacity of the defendant to appreciate the
criminality of the defendant's conduct or to conform the
defendant's conduct to the requirements of the law was
substantially impaired.
(4) The age of the defendant at the time of the crime.
(5) The defendant acted under extreme duress, although
not such duress as to constitute a defense to prosecution
under 18 Pa.C.S. § 309 (relating to duress), or acted under
the substantial domination of another person.
(6) The defendant was an accomplice in the offense or
the defendant's participation in the offense was relatively
minor.
(7) Any other evidence of mitigation concerning the
character and record of the defendant and the circumstances
of his or her offense.
(f) Victim impact evidence.--Once the prosecution has
provided evidence of the existence of two or more aggravating
factors as described in subsection (d), the prosecution may
introduce, and subsequently argue, to the jury evidence of the
offense's impact on the victim. The victim impact evidence shall
be designed to demonstrate the victim's uniqueness as an
individual human being and the physical, emotional and
psychological harm to the victim. Characterizations and opinions
about the crime, the defendant and the appropriate sentence
shall not be permitted as part of victim impact evidence.
(g) Sentencing verdict by jury.--
(1) After hearing all of the evidence and receiving the
instructions from the court, the jury shall deliberate and
render a sentencing verdict. In rendering the verdict, if the
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sentence is death, the jury shall specify in such form as
designated by the court the findings upon which the sentence
is based.
(2) Based upon these findings, the jury shall specify in
writing whether the sentence is death or life imprisonment.
(h) Recording sentencing verdict.--When the jury agrees upon
a sentencing verdict, the verdict shall be received and recorded
by the court. The court shall thereafter impose upon the
defendant the sentence fixed by the jury.
(i) Review of death sentence.--
(1) A sentence of death shall be subject to automatic
review by the Pennsylvania Supreme Court pursuant to its
rules.
(2) In addition to the Pennsylvania Supreme Court's
authority to correct errors at trial, the Pennsylvania
Supreme Court shall either affirm the sentence of death or
vacate the sentence of death and remand for further
proceedings as provided in paragraph (4).
(3) The Pennsylvania Supreme Court shall affirm the
sentence of death unless it determines that:
(i) the sentence of death was the product of
passion, prejudice or any other arbitrary factors; or
(ii) the evidence fails to support the finding of at
least one aggravating circumstance specified in
subsection (d).
(4) If the Pennsylvania Supreme Court determines that
the death penalty must be vacated because none of the
aggravating circumstances are supported by sufficient
evidence, the defendant shall be remanded for the imposition
of a life imprisonment sentence. If the Pennsylvania Supreme
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Court determines that the death penalty must be vacated for
any other reason, the Pennsylvania Supreme Court shall remand
the defendant for a new sentencing hearing in accordance with
subsections (a), (b), (c), (d), (e), (f) and (g).
(j) Record of death sentence to Governor.--
(1) If a sentence of death is upheld by the Pennsylvania
Supreme Court, the prothonotary of the Pennsylvania Supreme
Court shall transmit to the Governor a full and complete
record of the trial, sentencing hearing, imposition of
sentence, opinion and order by the Pennsylvania Supreme Court
within 30 days of one of the following, whichever occurs
first:
(i) the expiration of the time period for filing a
petition for writ of certiorari or extension thereof
where neither has been filed;
(ii) the denial of a petition for writ of
certiorari; or
(iii) the disposition of the appeal by the United
States Supreme Court, if that court grants the petition
for writ of certiorari.
(2) Notice of the transmission under paragraph (1) shall
contemporaneously be provided to the Secretary of
Corrections.
(k) Applicability.--This section shall apply to an offense
committed on or after the effective date of this subsection.
Section 3. Section 9718(a)(3) of Title 42 is amended to
read:
§ 9718. Sentences for offenses against infant persons.
(a) Mandatory sentence.--
* * *
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(3) A person convicted of the following offenses shall
be sentenced to a mandatory term of imprisonment as follows:
[18 Pa.C.S. § 3121(c) and (d) - not less than ten years.]
18 Pa.C.S. § 3125(a)(7) - not less than five years.
18 Pa.C.S. § 3125(b) - not less than ten years.
* * *
Section 4. This act shall take effect in 60 days.
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