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a function similar to the relaxed waiver rule. First, this Court performs a self-
imposed duty to review the sufficiency of the evidence underlying the first-degree
murder conviction in all capital direct appeals, regardless of whether the appellant
has raised the issue. The Court is also required to conduct a statutory review of the
death sentence itself to determine whether it was the product of passion, prejudice
or any other arbitrary factor, and to determine whether the evidence adduced at trial
was sufficient to support the aggravating circumstance(s) found by the jury. . . . In
addition to these special protections afforded capital appellants, the
Post Conviction Relief Act “exists for them, as for other criminal defendants, as a vehicle for a
full and fair, counseled proceeding through which they may challenge the stewardship of trial
counsel and pursue other appropriate collateral claims.”
But this explanation belies the reality of the Court’s current interpretation of its duty to
review the record under 42 Pa. C.S. § 9711(h)(3) and unpersuasively prioritizes a strict,
contemporaneous objection rule as a form over the substance of a life at stake. In the 1980s,
“passion, prejudice or any other arbitrary factor” under 42 Pa. C.S. § 9711(h)(3)(i) was “quite
broad and [went] beyond the normal constraints of an adversary system.”
At that time, the
Court understood this provision as an “explicit requirement that an automatic, searching and
independent review of all death sentences would be available in this Court on a mandatory
basis.”
It believed at that time that it was required to review the entire record for constitutional
error
and to sua sponte address all constitutional issues it perceived as present, even if they had
not been raised by the defendant
and even if the defendant brought no appeal at all.
However, following the legislative repeal of proportionality review and its own abrogation of the
relaxed waiver rule, the Court, also on its own, severely curtailed the scope of its independent
review of the record. In 2009, in Commonwealth v. VanDivner,
it wrote that section 9711(h)(3)
only authorized the Court “to identify and raise claims . . . in narrow circumstances where it
appears that the sentence of death is a ‘product of passion, prejudice or an arbitrary factor.’ Not all
claims of error, or even all claims of constitutional error,” it wrote, “implicate passion, prejudice,
or arbitrariness.”
Two years later, the Court ironically told the same litigant, whom it had
previously said was entitled to “an automatic, searching and independent review” of his death
Id. at 402-03 (citations omitted).
Commw. v. Holcomb, 498 A.2d 833, 837 n.6 (Pa. 1985).
Commw. v. Lesko, 501 A.2d 200, 204 (Pa. 1985).
E.g., Commw. v. Szuchon, 484 A.2d 1365, 1381-82 (Pa. 1984; see also Commw. v. Breakiron, 571 A.2d 1035,
1046 (Pa. 1990) (Nix, C.J., with Zappala, J., dissenting) (“It is understood we are to examine the total record for
constitutional compliance.”).
Commw. v. Zettlemoyer, 454 A.2d 937, 955 n.19 (Pa. 1982); Commw. v. Stoyko, 475 A.2d 714, 720-21 (Pa. 1984);
Commw. v. Beasley, 475 A.2d 730, 742 n.1 (Pa. 1984); see also Commw. v. Williams, 615 A.2d 716, 729-30 (Pa.
1992) (Nix, C.J., dissenting) (would have granted relief for ineffectiveness of counsel’s sentencing-stage closing
argument, not raised by the appellant).
Commw. v. Appel, 539 A.2d 780, 781, 784 (Pa. 1988) (the court “conducted an independent review of the entire
record in the present case and considered all possible bases for overturning the conviction or the sentence”); Commw.
v. Michael, 674 A.2d 1044, 1046-47 (Pa. 1997); Commw v. Graham, 661 A.2d 1367, 1369 (Pa. 1995); Commw. v.
Heidnik, 587 A.2d 687, 689 (Pa. 1991).
983 A.2d 1199 (Pa. 2009).
Id. at 1203.