. The applicable death penalty statute at that time was a section of the Crimes Code, 18 C.P.S.A. § 1102. The Code was enacted December 6, 1972, and became effective June 6, 1973. Section 1102 provided simply:

“A person who has been convicted of a murder of the first degree shall be sentenced to death or to a term of life imprisonment.”

Because of the lack of any procedural guidelines in the Code relative to the choice of penalty as between life imprisonment and death, the trial court conducted a bifurcated procedure similar to that which was required under the former statute, the Penal Code, Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701. The death penalty provisions of the Act of 1939 were held to be unconstitutional in the case of Commonwealth v. Bradley, 449 Pa. 19, 295 A.2d 842 (1972). See discussion infra. The trial court also took notice of the fact that a bifurcated proceeding was also required by the statutory scheme enacted to supplement § 1102 of the Crimes Code (see n. 8, infra), although that statute was not applicable to McKenna’s trial because of the statute’s effective date (see n. 13, infra).

. We hear this appeal pursuant to The Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, 17 P.S. § 211.202(1) which places jurisdiction in this Court for the appeal from appellant’s murder conviction. This Court has jurisdiction over the appeal from the related rape conviction by virtue of its transfer from the Superior Court to this Court.

. In appellant’s brief the following nine issues are raised: (1) the indictment was improper; (2) the trial court abused its discretion in *432denying appellant’s motion for a change of venue due to pre-trial publicity; (3) bail pending trial was improperly refused to defendant’s prejudice; (4) the trial court abused its discretion in denying a defense motion for a continuance because of the unavailability of a witness; (5) the trial court erred during the voir dire examination when it denied seven challenges for cause made by the defense to the qualifications of the jurors; (6) two prior crimes of similar character committed by the appellant were improperly admitted into evidence; (7) defendant was prejudiced by the failure of the prosecution to introduce evidence of a third prior crime although during the voir dire examination mention had been made of three prior crimes; (8) the trial court erred in its denial of appellant’s motion to suppress certain evidence; and (9) the special prosecutor was guilty of misconduct. We see no jurisprudential need to discuss any of these assertions of error in this opinion.

Additionally, we have an independent responsibility to review the evidence to determine whether the record is sufficient to support a finding of murder in the first degree. See the Act of February 15, 1870, P.L. 15, § 2, 19 P.S. § 1187 (1964). This we have done and are satisfied there is sufficient evidence to support the verdict.

. In this respect, the case at bar is similar to Gilmore v. State of Utah, 429 U.S. 1012, 97 S.Ct. 436, 50 L.Ed.2d 632 (1976). There the Supreme Court of the United States held that it was without jurisdiction to consider the constitutionality of the Utah death penalty statute because Gilmore had knowingly, intelligently and voluntarily waived his rights to appellate review.

The similarity to Gilmore is but superficial; that case is in no way controlling here. First, while states may not erect procedural bars to federal substantive rights, the Supreme Court of the United States has recognized the power of the states to consider a federal issue although it has been waived in the trial court. See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). Second, and more important, the Gilmore case was predicated upon the fact that Gilmore had waived all of his appellate rights and that there was thus no jurisdiction in the Supreme Court to consider *433the Utah death penalty. Here, in contrast, appellant has exercised his appellate rights and this Court is lawfully vested with jurisdiction of his appeal (see n. 2, supra ). The only question before us, therefore, is one of state appellate procedure, viz. what issues may be considered by this Court when a case is properly before it.

. In addition to the briefs filed by the parties, briefs as amici curiae have been filed by the NAACP Legal Defense and Education Fund, Inc., contesting the validity of the death statute; and by one Elizabeth Cartwright in support of reversal on the ground of the asserted trial errors.

. See William Penn Parking Garage, Inc. v. City of Pittsburgh, 464 Pa. 168, 346 A.2d 269 (1975); Pierro v. Herro, 434 Pa. 131, 252 A.2d 652 (1969); Commonwealth v. Smith, 409 Pa. 521, 187 A.2d 267 (1963).

. Act of June 24, 1939, P.L. 872, § 701, as amended, 18 P.S. § 4701. That statute provided in relevant part;

“Whoever is convicted of the crime of murder of the first degree is guilty of a felony and shall be sentenced to suffer death in the manner provided by law, or to undergo imprisonment for life, at the discretion of the jury trying the case, which shall, in the manner hereinafter provided, fix the penalty. In the trial of an indictment for murder, the court shall inform the jury that if they *434find the defendant guilty of murder in the first degree, it will be their further duty to fix the penalty therefor, after hearing such additional evidence as may be submitted upon that question. Whenever the jury shall agree upon a verdict of murder of the first degree, they shall immediately return and render the same, which shall be recorded, and shall not thereafter be subject to reconsideration by the jury, or any member thereof. After such verdict is recorded and before the jury is permitted to separate, the court shall proceed to receive such additional evidence not previously received in the trial as may be relevant and admissible upon the question of the penalty to be imposed upon the defendant, and shall permit such argument by counsel, and deliver such charge thereon as may be just and proper in the circumstances. The jury shall then retire and consider the penalty to be imposed and render such verdict respecting it as they shall agree upon. A failure of the jury to agree upon the penalty to be imposed, shall not be held to impeach or in any way affect the validity of the verdict already recorded, and whenever the court shall be of opinion that further deliberation by the jury will not result in an agreement upon the penalty to be imposed, it may, in its discretion, discharge the jury from further consideration thereof, in which event if no retrial of the indictment is directed, the court shall sentence the defendant to life imprisonment upon the verdict theretofore rendered by the jury, and recorded as aforesaid. The court shall impose the sentence so fixed as in other cases. In cases of pleas of guilty, the court where it determines the crime to be murder of the first degree, shall, at its discretion, impose sentence of death or imprisonment for life. Where a sentence of death is imposed, the clerk of the court, wherein conviction takes place, shall, within ten (10) days after such sentence of death, transmit a full and complete record of the trial and conviction to the Governor.”

. The Furman decision evoked a wide legislative reaction throughout the United States, with some thirty-five states adopting new death penalty statutes. The remedial legislation invariably took one of two forms. The first type provided for mandatory sentences of death for specified crimes (this type of statute was later found unconstitutional in Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976)). The second general form of statute provided for specific aggravating and mitigating circumstances which would direct the jury to a less arbitrary and capricious imposition of the death penalty (a statute of this sort was approved in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) and a number of companion cases handed down the same day). The new Pennsylvania provision here before us could not arguably fall into either category; it was simply an abbreviated form of the unconstitutional Act of 1939 which it replaced, and more procedurally defective because of the abbreviation.

On March 26, 1974, the Crimes Code was amended to provide for sentencing in conjunction with Section 1311 of a newly enacted Sentencing Code, 18 C.P.S.A. § 1301, et seq. Under the scheme there provided, a death sentence could not be imposed until an independent examination was conducted by the factfinder to determine the presence or absence of specific aggravating and mitigating circumstances. See the Act of December 6, 1972, P.L. 1482, No. 334, § 1311 added March 26, 1974, P.L. 213, No. 46, § 3 effective immediately. *436We have, in the case of Commonwealth v. Moody, Pa., 382 A.2d 442 (1977), struck down this scheme as an impermissible limitation on the mitigating circumstances which a jury might consider. Nevertheless in view of the fact that no direct challenge to the validity of the Act of 1972 had been made prior to the amendments of 1974, it is evident that the General Assembly appreciated the need for further legislative refinement of the 1972 death penalty provision in order that it might withstand a Furman analysis.

. Prior to the Clair decision we had earlier abolished the doctrine of basic and fundamental error with respect to appeals in civil cases. See Dilliplaine v. Lehigh Valley Trust Co., 457 Pa. 255, 322 A.2d 114 (1974).

. There have been instances where this Court has seen fit to address the legality of a sentence despite a failure of the appellant to preserve the issue below. See Commonwealth v. Riggins, 474 Pa. 507, 378 A.2d 1229 (1977); Commonwealth v. Bethea, 474 Pa. 571, 379 A.2d 102 (1977). See also Commonwealth v. Lane, 236 Pa.Super. 462, 345 A.2d 233 (1975).

. Our decision to make a particular limited exception to the general rule requiring that an issue first be considered in the court of common pleas is not without precedent. In Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976) the Court declined to follow Clair and Piper where the Double Jeopardy Clause was violated by sen-*439tenting. Again, in Commonwealth v. Bartolomucci, 468 Pa. 338, 362 A.2d 234 (1976), we noted the danger of violating the Double Jeopardy Clause if we were to refuse an appellant a right to challenge a trial court’s sua sponte ruling of a mistrial simply because the defendant had failed to object to the impropriety of the ruling. See also Commonwealth v. Sparrow, 471 Pa. 490, 370 A.2d 712, 718 n. 7 (1977). If the interests sought to be protected in avoiding excessive or illegal sentences under the Double Jeopardy Clause are deemed sufficient to justify bypassing Clair and Piper, then a fortiori, the public interest in assuring that the death sentence is imposed only in a constitutionally permitted manner presents a yet more compelling justification.

. See R. Leflar, Appellate Judicial Opinions (1974) at p. 130:

“ ‘[T]he area of sua sponte consideration is not limited to jurisdictional matters. Other questions are raised and considered by courts on their own motion. Occasionally an appellate court will consider a matter sua sponte because of the demands of justice. This is a reflection of one of the purposes of appellate review — -justice for the parties. Such a decision to probe into the case apparently reflects a number of different factors. Among those considered are whether great additional work is involved and whether the matter to be considered sua sponte is clear and overwhelming in its impact. When the matter involves more than just the individuals, and involves a reñection on the courts and the judicial system, there is more willingness to consider it sua sponte.’ ” (Emphasis added.) (Quoting A. Vestal, Sua Sponte Consideration in Appellate Review, 27 Ford.L.Rev. 447, 508-12 (1959)).

. See the Act of 1974, March 26, P.L. 213, No. 46, § 3, effective immediately, amended 1974, December 30, P.L. 1052, No. 345, § 1, effective in 90 days. The provisions of this Act are not applicable to *440the McKenna trial because the homicide occurred in the year 1973, long prior to the effective date of the Sentencing Code. In Pennsylvania there is a presumption that statutes are not to have retroactive effect. See the Act of 1972, December 6, P.L. 1339, No. 290, § 3, 1 Pa.C.S.A. § 1926. But compare Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977).

Also apparent in our legislative scheme is a realization that a finding of murder of the first degree, because of the severe consequences attendant upon a conviction for that type of criminal homicide, requires extraordinary scrutiny by this Court. Thus, the Act of 1870, February 15, P.L. 15, § 2, 19 P.S. § 1187 directs this Court to make its own independent review of the record in any case where the verdict is guilty of murder in the first degree in order to determine that sufficient evidence exists to support the conviction.

. Indeed, the idea that parties litigant cannot waive rights in which the state has an interest is not novel. See Commonwealth ex rel. Firestone v. Burke, 175 Pa.Super. 128, 103 A.2d 476 (1954); People v. Stanworth, 71 Cal.2d 820, 80 Cal.Rptr. 49, 457 P.2d 889 (1969); 21 Am.Jur.2d, Criminal Law, § 219, p. 259 and cases cited therein. In United States v. Atkinson, 297 U.S. 157, 56 S.Ct. 391, 80 L.Ed. 555 (1935), the Supreme Court of the United States stated:

“In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, on their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity or public reputation of judicial proceedings.” 297 U.S. at 160, 56 S.Ct. at 392.

. It is true, of course, that in a technical sense the constitutionality of the death sentence provision of the Act of 1972 has not heretofore been tested. We cannot, however, avoid taking notice that § 1102, supra, n. 1, was in effect a reenactment, without any change of substance, of the legislation which the cases cited in the text, see pp. 433-435, supra, have previously held to be unconstitutional. Neither the parties nor the amici argue to the contrary.

. Our brother Nix, in concurrence, justifies the Court’s reaching and disposing of the death penalty issue in this case on the theory that we should not acquiesce in the “obvious excess of sentencing power” of the trial court merely “because [that excess] is the wish of the offender.” Nix, J., Concurring Opinion, infra, at 442. The court of common pleas, however, was clearly acting within the legislative grant of authority as it then existed. The question which we must confront is whether the then existing grant of power was constitutionally permissible. The only possible manner in which the Court, in the context of the present case, might resolve such a question is to ignore the deliberate waiver and sua sponte to reach and decide the matter.

. 1972, Dec. 6, P.L. 1520, No. 334, § 1, 18 Pa.C.S.A. § 1102 (Eff. June 6, 1973). The full text of this section appears in fn. 1 of the majority’s opinion.

. The reasoning of the majority as to this facet of the appeal echoes the views expressed by this writer in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977) (Nix, J., Dissenting Opinion at 240, 382 A.2d at 450).

. In Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974), this Court abrogated prior practice in criminal cases of permitting consideration of questions not properly raised if the issue was “basic and fundamental.”

. Although a State has the power to impose a sentence of death, Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), that power can only be effectively exercised if the constitutional standards for the imposition of that sanction are met. Gregg v. Georgia, supra; Jurek v. Texas, 428 U.S. 262, 96 S.Ct. 2950, 49 L.Ed.2d 929 (1976); Proffitt v. Florida, 428 U.S. 242, 96 S.Ct. 2960, 49 L.Ed.2d 913 (1976); Woodson v. North Carolina, 428 U.S. 280, 96 S.Ct. 2978, 49 L.Ed.2d 944 (1976); Roberts v. Louisiana, 428 U.S. 325, 96 S.Ct. 3001, 49 L,Ed.2d 974 (1976). Since the instant statute obviously did not comply with the requisite constitutional standards, it was ineffective in conferring upon our courts the authority to impose the death penalty under it.

. I am of the view that my insistence upon a precise formulation of the issue presented is more than a quibble but rather is imperative to a proper resolution of the question. While I concede that a similar issue might have arisen in a waiver context, I do not believe that fact alone justifies obliterating the distinction between waiver and sua sponte review. Where there is an absence of sentencing power, see note 4, supra, this Court’s supervisory power requires that it provide a remedy, even if sua sponte consideration is necessary to effectuate that relief. However, where a tribunal possesses the sentencing authority and is alleged to have misused or abused that authority, then I believe that the normal rules of appellate procedure should obtain and sua sponte review is unwarranted. In any event, the question raised is not whether waiver rules should be relaxed but rather whether this Court charged with its constitutional supervisory authority should sua sponte respond regardless of the wishes of the parties or their diligence in preserving the issue.

. I agree with the majority that our obligation is not removed by appellant’s desire to have us ignore this issue. In this regard we are not concerned with the defendant’s welfare, but rather the operation of our system.

. I do not believe this Court’s decision in Commonwealth v. Piper, 458 Pa. 307, 328 A.2d 845 (1974) is in conflict with the views expressed here. In Piper we declined to consider a claim that the sentence denied the accused equal protection of the law since a male offender would have received a minimum sentence and she did not. The basis for not reviewing the claim was her failure to pursue the claim either in the trial court or the Superior Court. The distinguishing feature of Piper is that the validity of the maximum sentence was unquestioned. It is axiomatic in this jurisdiction that the maximum sentence is the legal sentence which determines the length of the State’s control over the offender. Commonwealth v. Butler, 458 Pa. 289, 328 A.2d 851 (1974); Commonwealth v. Daniel, 430 Pa. 642, 243 A.2d 400 (1968). Thus the claim in Piper did not amount to an assertion that a court had exceeded its statutory sentencing power or that the legislature was constitutionally proscribed from promulgating such a sanction, but rather the attack was directed to the disparity in the treatment of male and female offenders. We have since had occasion to note that because the minimum merely serves to trigger parole considerations, the female offender benefited from the disparity. Commonwealth v. Butler, supra, 458 Pa. at 295-96, 328 A.2d at 855.