Comm. v. Moore, M., Aplt. (Concurring Opinion)

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[J-179-2006] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT COMMONWEALTH OF PENNSYLVANIA, : : Appellee : : : v. : : : MIKAL MOORE, : : Appellant : No. 396 CAP Appeal from Judgment of Sentence entered July 9, 1999 at No. 9807-0114 1/4 & 0807-0114 4/4 in the Court of Common Pleas, Criminal Division of Philadelphia County. (Post-Sentence Motions denied on July 18, 2002.) ARGUED: April 11, 2005 RE-SUBMITTED: November 21, 2006 CONCURRING OPINION MADAME JUSTICE BALDWIN DECIDED: December 28, 2007 I join the majority opinion in full. I write separately, however, to reiterate the position that I detailed in Commonwealth v. Carson, 590 Pa. 501, 615, 913 A2d 220, 287 (2006) (Baldwin, J. concurring), that an instruction pursuant to Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994) (plurality) should be given in every capital case. However, as this is not the prevailing view, I am compelled to agree with the majority that the Simmons issue was waived. Mr. Justice Fitzgerald joins this concurring opinion.

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