                             [J-78-2017] [MO: Dougherty, J.]
                      IN THE SUPREME COURT OF PENNSYLVANIA
                                   EASTERN DISTRICT


    COMMONWEALTH OF PENNSYLVANIA,                :   No. 730 CAP
                                                 :
                       Appellee                  :   Appeal from the Order dated July 22,
                                                 :   2016 in the Court of Common Pleas,
                                                 :   Philadelphia County, Criminal Division
               v.                                :   at No. CP-51-CR-0902431-1996.
                                                 :
                                                 :   SUBMITTED: September 29, 2017
    WILLIAM RIVERA,                              :
                                                 :
                       Appellant                 :


                                   CONCURRING OPINION


JUSTICE WECHT                                             DECIDED: December 28, 2018
        I join the Opinion of the learned Majority, save only for Part III, which concerns

William Rivera’s assertion of ineffectiveness for his counsel’s failure to request a jury

instruction pursuant to Simmons v. South Carolina, 512 U.S. 154 (1994).1 With respect

to Part III, I concur only in the result. I depart from the Majority insofar as I find arguable

merit in Rivera’s claim that counsel should have requested a Simmons instruction.

However, I would find that Rivera is unable to establish prejudice, and therefore is not

entitled to relief.   See generally Strickland v. Washington, 466 U.S. 668 (1984);

Commonwealth v. Pierce, 527 A.2d 973 (Pa. 1987).



1      Simmons was a plurality decision, with the lead opinion authored by Justice
Blackmun and joined by Justices Souter, Stevens, and Ginsburg. Justice O’Connor
authored the decisive opinion concurring in the result, which Chief Justice Rehnquist and
Justice Kennedy joined. The Simmons plurality’s holding has been reaffirmed in several
subsequent decisions of the Supreme Court of the United States. See Kelly v. South
Carolina, 534 U.S. 246 (2002); Shafer v. South Carolina, 532 U.S. 36 (2001).
       Simmons stands for the proposition that, where the only options in a capital

sentencing proceeding are death or imprisonment for life without the possibility of parole,

and where a prosecutor places the defendant’s “future dangerousness” at issue, the

defendant has a due process right to require that the sentencing jury be informed that he

would be ineligible for parole if sentenced to life in prison. Simmons, 512 U.S. at 156.

The core principle of Simmons is that the jurors should not be permitted to render a verdict

under the false impression that, should they decline to impose the death penalty, the

defendant someday may be released on parole. Under Simmons, a defendant’s right to

the instruction can be triggered where the prosecution raises “the specter of [the

defendant’s] future dangerousness generally,” or advances “generalized arguments

regarding the defendant’s future dangerousness.” Id. at 165, 171. This Court, however,

has held that a “trial court is not required to issue the instruction based upon references

to a defendant’s past violent acts alone.” Commonwealth v. King, 721 A.2d 763, 779 (Pa.

1998) (citing Commonwealth v. May, 710 A.2d 44, 47 (Pa. 1998)).

       In the instant case, the challenged portion of the Commonwealth’s closing

presentation occurred within the context of its argument in favor of the statutory

aggravating factor of a significant history of violent felony convictions. See 42 Pa.C.S.

§ 9711(d)(9). Comparing the instant murder to Rivera’s previous criminal conduct, the

prosecutor stated that, “the older he gets, the bolder he gets.” Majority Opinion at 23

(quoting Notes of Testimony, 2/5/1998, at 57). In my view, this statement suggested to

the jury (perhaps unwittingly) that Rivera’s character was such that, should he continue

to grow older—as in, by not being executed—he would continue to grow “bolder.”

Because this statement went beyond mere discussion of Rivera’s criminal history and

extended to his generalized or growing propensity for violence, it arguably implicated

Rivera’s tendency to endanger other individuals in the future. Therefore, I would conclude




                           [J-78-2017] [MO: Dougherty, J.] - 2
that Rivera’s underlying claim has arguable merit for purposes of his ineffectiveness

challenge.

         Nonetheless, I would find that, given the balance of the evidence presented, Rivera

failed to establish a reasonable probability that the result of the proceeding would have

been different had his counsel requested a Simmons instruction, and he therefore is

unable to demonstrate prejudice. See, e.g., Commonwealth v. VanDivner, 178 A.3d 108,

114 (Pa. 2018) (an ineffectiveness claimant must establish “prejudice as a result of

counsel’s error, with prejudice measured by whether there is a reasonable probability that

the result of the proceeding would have been different”). I would deny relief upon that

basis.

         That being said, I believe that a few words on Simmons generally are in order.

With regard to the circumstances necessitating the Simmons instruction, I believe that

our courts should apply a liberal construction to the concept of future dangerousness, and

should err on the side of accurately informing juries in capital cases of the true

consequences of their sentencing decision. A capital defendant’s ineligibility for parole is

“information so crucial to [the jury’s] sentencing determination, particularly when the

prosecution alluded to the defendant’s future dangerousness in its argument to the jury,”

that obscuring that information “cannot be reconciled with [the Supreme Court of the

United States’] well-established precedents interpreting the Due Process Clause.”

Simmons, 512 U.S. at 164.

         To this end, I note that numerous Justices of this Court have taken the position

that a Simmons charge should be provided to the jury in every capital case, either

because the process of sentencing a capital defendant inherently implicates that

defendant’s future dangerousness, or simply because there is no benefit to the jury being

ill-informed as to the consequences of its decision. See, e.g., Commonwealth v. Carson,




                             [J-78-2017] [MO: Dougherty, J.] - 3
913 A.2d 220, 287-88 (Pa. 2006) (Baldwin, J., concurring, joined by Baer, J.) (Simmons

instruction “should be mandated in every capital case” and there is “no reason to hide the

fact that life imprisonment . . . means life without parole”); Commonwealth v. Robinson,

721 A.2d 344, 356 (Pa. 1998) (Flaherty, C.J., dissenting) (“I would mandate a Simmons

instruction . . . in every death penalty case.”); id. (Zappala, J., concurring, joined by Nigro,

J.) (Simmons instruction “would be appropriate in all capital cases”); id. (Nigro, J.,

concurring) (a “standard Simmons instruction should be given in all capital cases”);

Commonwealth v. Clark, 710 A.2d 31, 43 (Pa. 1998) (Nigro, J., concurring, joined by

Flaherty, C.J.) (“I would suggest that the better practice and policy is to require trial courts

to give a Simmons instruction in all death penalty proceedings, regardless of whether

counsel raises the issue of a defendant’s potential future dangerousness during the

penalty phase.”). I find considerable appeal to this perspective, and I believe the law

could benefit from the Court’s consideration on a developed record of some future

challenge advocating for such an approach, particularly one sounding in the due process

protections of the Pennsylvania Constitution.

       In all other respects, I join the Majority’s well-reasoned Opinion.

       Justice Todd joins this concurring opinion.




                            [J-78-2017] [MO: Dougherty, J.] - 4
