Opinion
Argued April 19, 1977.
Decided December 1, 1977.
Appeal from the Court of Common Pleas, Allegheny County, Criminal Division, No. CC760654, James F. Clarke, J.
Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellant.
Murovich, Reale Fossee, Pittsburgh, for appellee in 102.
Harry H. Stump, Pittsburgh, for appellee in both cases.
Before EAGEN, C. J., and O'BRIEN, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
Appellee, Ralph William White, was charged with murder for the killing of one Terry Ford. The instant appeal arises from an order dated January 10, 1977, of the Court of Common Pleas of Allegheny County, granting appellee's application for pre-trial relief and dismissing the death penalty from consideration in appellee's prosecution for murder. The trial court held that the death penalty provision of section 1311 of the Sentencing Code, 18 Pa.C.S.A. § 1311, was not applicable in this case. Upon request of the prosecution, appellant here, the trial court certified the appealability of its order pursuant to the Appellate Court Jurisdiction Act of 1971, 17 Pa.C.S.A. § 211.501(b) and Rule 1311 of the Pennsylvania Rules of Appellate Procedure. We granted the prosecution's petition for allowance of appeal.
Appellant contends that the trial court erred in holding that the death penalty provision of section 1311 was not applicable in this case. In Commonwealth v. Moody, ___ Pa. ___, 382 A.2d 442 (1977), we held the death penalty provision of section 1311 unconstitutional. The death penalty provision of section 1311 therefore cannot be applied in any case.
Order affirmed and the case remanded to the trial court for further proceedings consistent with Commonwealth v. Moody.
NIX, J., dissents for the reasons stated in his dissenting opinion in Commonwealth v. Moody, ___ Pa. ___, 382 A.2d 442 (1977).
ROBERTS, J., did not participate in the consideration or decision of this case.