Monday, July 14, 2008

XII. Motion on Definition of Life Imprisonment-Simmons Instruction

71. Denied

72. Denied. The Commonwealth has not been provided any of the "social science" data. The Commonwealth is aware that one of the Defendant's experts, Melissa Lang does have anecdotal evidence to support some of her opinions of which this may be one. However, despite a Commonwealth reciprocal discovery request, no such expert opinion has been provided or the unidentified social science data the Defendant alludes to.

73. Denied. The Commonwealth denies that Cuadra's future dangerousness will imminently become an issue. The Commonwealth denies that by virtue of his "age and appearance", Defendant-Cuadra is interjecting future dangerousness in the case. This leap of logic fa]]s short. In any event, Defendant appears to claim that he is injecting his future dangerousness into any penalty phase and therefore is entitled to a "Simmons" instruction.

74. Denied. In Commonwealth. v. Carson, 913 A.2d 220 (Pa., 2006), the court noted, "In Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994)(plurality), a plurality of the United States Supreme Court would have held that, if a prosecutor argues a capital defendant's future dangerousness at a sentencing trial, the defendant may request and should be granted a jury instruction that a penalty of life in prison will render the defendant ineligible for parole. ld at 170, 114S.Ct. at 2197. This Court has held that a Simmons instruction is mandated only if two events occur: (1) the prosecutor must place the defendant's future dangerousness in issue; and (2) the defendant must have requested that the trial court issue the instruction Commonwealth v. Dougherty, 580 Pa. 183,860 A.2d 31, 37 (2004), cert. denied, U.S., 126 S.Ct. 63, 163 L.Ed.2d 89 (2005); Commonwealth v. Jones, 571 Pa. 112, 811 A.2d 994, 1004 (2002) (citing Commonwealth v. Spotz, 563 Pa. 269, 759 A.2d 1280, 1291 (2000), cert. denied, 534 U.S. 1104, 122 S.Ct. 902, 151 L.Ed.2d 871 (2002)). The failure to issue a Simmons charge is no basis for relief where these circumstances are not met. Jones, 811 A.2d at 1004.34 In Commonwealth. v. Spotz, 896 A.2d 1191 (Pa., 2006), the court wrote, "However, as the PCRA court concluded, Spotz was not entitled· to a Simmons instruction in this case because the prosecution did not inject concerns over Spotz's future dangerousness into the proceedings. (Opinion of the PCRA Court at 60). This Court has consistently recognized that "instructions detailing the character of a life sentence are not required where future dangerousness is not expressly implicated. The trial court is not required to issue the instruction based upon references to a defendant's past violent acts alone." Commonwealth v. King, 554 Pa. 331, 721 A.2d 763, 779 (1998) (citing Commonwealth v. May, 551 Pa. 286, 710 A.2d 44, 47 (1998) (holding that evidence regarding a defendant's past violent convictions or conduct does not implicate the issue of his or her future dangerousness)).

Here, the specific references that Spotz points to all relate to his past conduct and not his future dangerousness. As Justice Saylor notes in his Concurring and Dissenting opinion, the United States Supreme Court in Kelly v. South Carolina, 534 U.S. 246, 122 S.Ct. 726, 151 L.Ed.2d 670 (2002), revisited the issue concerning the sufficiency of the evidence required to entitle a defendant to a Simmons instruction. In Kelly, the Supreme Court suggested a more relaxed standard for assessing when a defendant is entitled to a Simmons charge. Id. at 253-54, 122 S.Ct. 726 ("Evidence of future dangerousness under Simmons is evidence with a tendency to prove dangerousness in the future; its relevance to that point does not disappear merely because it might support other inferences or be described in other terms. "). Although Kelly was decided several years after the sentencing of Spotz, Justice Saylor asserts that it supports Spotz's claim that trial counsel was ineffective for failing to request a Simmons instruction. According to Justice Saylor, Kelly "merely clarified" existing law and is therefore applicable retroactively to the cases of appellants, like Spotz, who were sentenced before it,was decided.

75. Denied.

76. Denied.

77. Denied.

WHEREFORE, the Commonwealth requests this Honorable Court to deny this Motion and/or require the Defendant to produce the social science data and statistical data he premises this argument on.