dissenting.
After this appellant was found guilty of killing a fellow inmate while in prison for a previous murder, he was put to the penalty phase of his trial. The Commonwealth offered as aggravating circumstances a) that he was previously convicted of murder; b) that he was convicted, after pleading guilty, of shooting another person in the neck.
The majority notes, with an unblinking solemnity, “No other evidence of aggravating circumstances was introduced by the Commonwealth” (Majority op. p. 546). One might gather that a previous murder and a plea to another shooting were an unremarkable paucity of effort by the appellant. The majority has, however, other more engaging quiddities to entertain them. This appellant pled guilty on January 17, 1979 to the shooting, and was sentenced on March 27, 1979, after which he filed to withdraw his guilty *555plea. His petition was denied and he appealed to Superior Court. His appeal to withdraw his guilty plea was pending, unresolved, in August 1979 when he stood trial for the instant murder. The use of his conviction for aggravating purposes was therefore not improper because we have allowed the use of convictions even before a sentence was imposed, as an aggravating circumstance. Comm. v. Travaglia, 502 Pa. 474, 467 A.2d 288 (1983); Comm. v. Beasley, 505 Pa. 279, 479 A.2d 460 (1984); Comm. v. Morales, 508 Pa. 51, 494 A.2d 367 (1985).
The majority is properly quite clear upon the point: “We concluded that the fact that a conviction is not ‘final’ because it is at the stage of proceedings involving post-verdict motions or appellate review does not divest a conviction of its character as an aggravating circumstance.” (Majority op. p. 552).
Hence, the unresolved guilty plea was usable here by the Commonwealth as an aggravating circumstance.
So far we can all agree. There is, however, a caveat and not an improper one. To wit: “if any conviction used as an aggravating circumstance is ultimately overturned, this court is not without power to vacate the sentence of death in appropriate circumstances.” Comm. v. Morales, supra. The question of what are appropriate circumstances was deliberately left open. We did not say that all overturned convictions are eo ipso ground for reversing a death penalty, we simply said that we could and should under appropriate circumstances so act.
The very learned Judge Dowling characterized the instant case as one “extraordinary and almost incredible” and indeed it is. It is not because the appellant was allowed to withdraw his guilty plea of the aggravated assault, but because he was retried and reconvicted and that conviction now stares us in the face. It was, it was not and now it is; which is to say that all that was told the jury was in fact the case: he did as he pled, shot another in the neck. The majority, unwilling to accept the staggering fact that killing while under life sentence for murder is an aggravating *556circumstance to which more need not be added are now sending him back that a jury hear what a jury was already told. That is to say that all must be done again that was done before. This is not a case where a conviction was nullified and unusable as an aggravating circumstance, or where it stood alone. It pales beside the other killing by a killer, and seems to me an “appropriate circumstance” for us not to use our power to vacate a sentence. To do so under these circumstances, where nothing has changed from what was, in fact, told the first jury, is “extraordinary and incredible.” It is a stultifying sensitivity that can only be satisfied by a perfection we cannot obtain and yet do obvious justice to all concerned. I dissent.
LARSEN and PAPADAKOS, JJ., join in this dissenting opinion.