Commonwealth v. Carson, S. (Concurring Opinion)
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[J-121-2004] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : Appellee : : : v. : : : SAMUEL CARSON, : : Appellant : : No. 400 CAP Appeal from the Order of the Court of Common Pleas of Philadelphia County entered on December 26, 2002 dismissing PCRA relief at Nos. 1841-48 May Term 1994 SUBMITTED: May 5, 2004 CONCURRING OPINION MR. CHIEF JUSTICE CAPPY DECIDED: December 27, 2006 I join the majority opinion save for footnote 35 on page 73. Respectfully, I disagree with the interpretation the majority forwards regarding future dangerousness as that concept has evolved in Pennsylvania. Although Simmons1 itself may have narrowly limited the instruction requirement to instances when future dangerousness arose as a standalone aggravator, I believe that any inquiry regarding Simmons must be informed by Pennsylvania law following Simmons. Accepting that the state of the law in Pennsylvania remained uncertain at the time of this court s plurality decision in Commonwealth v. Christy, any lack of clarity was rectified in its immediate aftermath. Following Christy, our case law spoke in terms of future 1 Simmons v. South Carolina, 512 U.S. 154 (1994) (plurality). dangerousness being placed at issue by either party, and did not place a restriction on the rule that it was limited to those circumstances when future dangerousness was raised as a stand-alone aggravator. See, e.g., Commonwealth v. King, 721 A.2d 763, 779 (Pa. 1998) (pointing out that a Simmons instruction was not required when the issue of future dangerousness was not before the jury. At no time during either phase of trial did the prosecutor argue or suggest that the death penalty should be imposed because Appellants could potentially hurt someone else ¦. ) (emphasis added); Commonwealth v. Chandler, 721 A.2d 1040, 1046 (Pa. 1998) (noting that a Simmons instruction was required [u]nder the current state of the law, where future dangerousness is at issue and a specific request is made by a capital defendant ) (emphasis added); Commonwealth v. Clark, 710 A.2d 31, 36 (Pa. 1998) (extending rule in Christy to include either counsel and noting that in Christy, this court acknowledged the applicability of Simmons to cases in Pennsylvania decided subsequent to Simmons, where the issue of the defendant's future dangerousness was raised ); Commonwealth v. Smith, 675 A.2d 1221, 1232 (Pa. 1996) (noting that [t]his court held in Christy that Simmons mandates that where future dangerousness is at issue and a specific request is made by the capital defendant, it is a denial of due process to refuse to tell a jury what the phrase life sentence means ); see also Commonwealth v. Trivigno, 750 A.2d 243 (Pa. 2000)(Opinion Announcing the Judgment of the Court) (concluding that it was error for prosecutor to argue future dangerousness as part of the criminal history aggravator). Accordingly, I tend to agree with Madame Justice Baldwin that defense counsel would be obliged to request a Simmons instruction whenever the prosecutor injected future dangerousness into the penalty phase after Christy. Nevertheless, I join the majority s analysis of this issue, since I agree that the statement at issue related to past conduct and did not implicate Appellant s future [J-121-2004] - 2 dangerousness. See Commonwealth v. Williams, 732 A.2d 1167, 1186 (Pa. 1999); Commonwealth v. Robinson, 721 A.2d 344, 355 (Pa. 1998).2 2 We have implied in the past that statements allegedly implicating future dangerousness must be read in context, and when read in context, I agree with the majority that the statement related to past conduct. See Commonwealth v. Fisher, 741 A.2d 1234, 1244 (Pa. 1999). [J-121-2004] - 3
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