Commonwealth v. Rivera, W., Aplt. ( 2018 )

[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