Commonwealth v. Ogrod

CONCURRING OPINION

Justice NÍGRO.

I am constrained to join the result reached by the majority despite the fact that the jury failed to find the mitigating circumstance that Appellant had no significant history of prior criminal convictions under 42 Pa.C.S. § 9711(e)(1), even though the parties stipulated to the fact that Appellant had no criminal history. Of course, had Appellant properly raised an issue regarding the jury’s failure to find the existence of this mitigator, he would be entitled to relief under the law as it stands today. See Commonwealth v. Rizzuto, 566 Pa. 40, 777 A.2d 1069, 1089 (2001) (where a mitigating circumstance is presented to the jury by stipulation, the jury is required by law to find that mitigating factor). I recognize, however, that Appellant did not raise this issue here, and that the law was in a different state at the time of his trial. See Commonwealth v. Copenhefer, 526 Pa. 555, 587 A.2d 1353, 1360 (1991) (trial court not required to charge the jury that defendant’s lack of prior record constituted a mitigating circumstance as a matter of law).

Thus, because Appellant does not raise an issue regarding the jury’s failure to find his lack of criminal history as a mitigating circumstance, and because he would not be entitled to relief on any claim of ineffective assistance of counsel raised under the PCRA, see Commonwealth v. Carpenter, 555 Pa. 434, 725 A.2d 154, 166 (1999) (counsel cannot be deemed ineffective for failing to predict a change in the law), I am constrained to join the result reached by the majority.¹

1 . Appellant also argues that the trial court erred by not giving the jury a Simmons instruction. While I recognize that a majority of this Court has found that a defendant is only entitled to a Simmons instruction when the issue of his future dangerousness has been raised, I merely take this opportunity to reiterate my position that there should be a Simmons instruction in all capital cases, regardless of whether the issue of the defendant's future dangerousness has been raised. See, e.g., Commonwealth v. Clark, 551 Pa. 258, 710 A.2d 31 (1998) (Nigro, J., concurring); Commonwealth v. Robinson, 554 Pa. 293, 721 A.2d 344 (1998) (Nigro, J., concurring).