concurring and dissenting.
While I agree with the majority that appellant received a fair trial and that his convictions should be affirmed, I dissent to its disposition of his judgment of sentence of death.
Prior to his sentencing proceeding (but after he was convicted at the guilt phase), at least some of the jurors did, *82indeed, hear extraneous, improper and prejudicial information concerning supposed “murder charges” in other states. Thus, I agree with the majority that “Because the death penalty may have been the product of this extra-evidentiary information, we cannot uphold the judgment of sentence.” At 76. However, I do not agree that simply because we cannot uphold the judgment of sentence of death, then we must necessarily vacate that sentence and remand for imposition of a life sentence.
It is true that the Sentencing Code states that, in addition to our authority to correct trial errors, we “shall either affirm the sentence of death or vacate the sentence of death and remand for the imposition of a life imprisonment sentence.” 42 Pa.C.S.A. § 9711(h)(2). This provision does seem to support the majority’s conclusion that we do not have the authority to vacate the sentence of death and remand for a new sentencing hearing. Section 9711(h)(2) does not stand alone, however.
Section 9711(h)(3) instructs this Court to affirm the sentence of death unless we determine that:
(i) the sentence of death was the product of passion, prejudice or any other arbitrary factor;
(ii) the evidence fails to support the finding of an 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.
The majority has not determined, in the instant case, that the evidence did not support an aggravating circumstance, that the sentence is excessive or disproportionate, or that the “sentence of death was the product of passion, prejudice or any other arbitrary factor”. As we have seen, appellant’s sentence of death may well have been influenced by prejudicial and arbitrary factors — rumors of “other murders.” However, there was overwhelming evidence of an execution-style murder of the victim and sufficient evidence to prove beyond a reasonable doubt that appellant was paid *83by another person to execute the “contract.” It is not apparent, therefore, whether the “sentence of death was the product of passion, prejudice or any other arbitrary factor,” or was the product of the Commonwealth’s evidence.
Accordingly, while we cannot affirm a sentence of death that may have been influenced by prejudicial and arbitrary factors, neither can we simply vacate the sentence and impose a sentence of life imprisonment where, as here, the sentence of death could have been the product of the law and the evidence, as many of the jurors believed it to be. As Chief Justice Nix stated in dissent in Commonwealth v. Christy, 511 Pa. 490, 515 A.2d 832 (1986), although “section 9711(h)(2) could be interpreted to foreclose the alternative of remanding for a new sentencing hearing, I do not believe that such a result is necessarily mandated.” Slip op. at 2, n. I. See also Commonwealth v. Stoyko, 504 Pa. 455, 476-484, 475 A.2d 714, 725-730 (1984), cert. denied 469 U.S. 963, 105 S.Ct. 361, 83 L.Ed.2d 297 (1984) (Nix, C.J., would have remanded for appointment of new counsel to argue objections relating to imposition of death penalty; Hutchinson, J. , would have remanded for appointment of new counsel and a hearing on ineffective assistance of trial counsel at the penalty phase of trial).
Thus, this case presents us with a situation which is not specifically addressed by the Sentencing Code, one where we can neither affirm nor vacate and impose a sentence of life imprisonment. Because it presents a situation not covered by the Sentencing Code, I would resort to our statutory authority under the Judicial Code to “affirm, modify, vacate, set aside or reverse any order” brought before us for review and to “remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances. ” 42 Pa.C.S.A. § 706. Where, as here, the record of the sentencing proceeding discloses the existence of arbitrary and prejudicial factors that may have influenced the sentence of death, but where this Court is unable *84to determine that such factors produced the sentence of death because there was sufficient evidence to prove an aggravating circumstance beyond a reasonable doubt, we should vacate the sentence of death and remand the case to the court of common pleas to conduct a new sentencing proceeding.1
. As this position has not been adopted by a majority of the members of this Court, I urge the legislature to act to fill the gap in the Sentencing Code so that similarly situated defendants (i.e., those whose sentencing proceeding was possibly tainted by some passion, prejudice or other arbitrary factor, but whose sentence of death was fully supported by the record and by an aggravating circumstance) will be able to receive the appropriate sentence designated by a jury in a proper sentencing proceeding.