Commonwealth v. Clark

*284 NIGRO, Justice,

concurring.

While I join Justice Cappy’s majority opinion, I write separately to clarify my position on two of the issues that this appeal raises.

In terms of Appellant’s argument concerning the trial court’s instruction responding to the jury’s inquiry as to the meaning of “life imprisonment,” I agree with Justice Cappy’s disposition of the issue since it is consistent with precedent. As Justice Cappy’s opinion states, Simmons holds that a defendant is entitled to a jury instruction defining “life imprisonment” only when the issue of a defendant’s future dangerousness has been raised during the penalty phase of the trial. Simmons v. South Carolina, 512 U.S. 154 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994); Commonwealth v. Christy, 540 Pa. 192 , 656 A.2d 877 (1995) (acknowledging applicability of Simmons to cases in Pennsylvania decided subsequent to Simmons). However, 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.

Under this practice, a jury considering the death penalty would automatically be informed, before deliberations began, of what life imprisonment actually means in Pennsylvania at the time of the instruction. In my opinion, a standard Simmons instruction would, in the first instance, serve to clarify that issue for the jury. 1 For example, since commutation is, at this time, a possibility in Pennsylvania for those serving life sentences, and therefore proper for the jury’s consideration, trial judges giving a Simmons instruction could be equipped with statistical information relating to the percentage of life sentences which had been commuted within the last several years. 2 Not only would the jury be aided by knowing those *285 percentages during their penalty deliberations, but the defendant should be entitled to have the jury aware of what statistical possibility exists that a life sentence imposed on him would result in commutation. Moreover, I can see no prejudice that the Commonwealth would suffer if every defendant facing a sentence of death received a Simmons jury instruction explaining, as thoroughly as possible, what “life imprisonment” means in Pennsylvania.

Secondly, I also agree with Justice Cappy that Appellant’s Batson claim must fail. Here, Appellant asserts that the prosecutor improperly used his preemptory challenges in a discriminatory manner to strike black and women jurors during voir dire. Significantly, however, the final composition of Appellant’s jury included five black women, three black men, two white women and two white men. In his majority opinion, Justice Cappy states that the empaneling of a jury which is balanced by race and gender is entitled to some weight in reviewing a Batson claim. I would suggest, instead, that a racially and gender balanced jury, while not negating a Batson claim in and of itself, should be afforded substantial, rather than only some, weight when a court is presented with a Batson claim.

Here, the ultimate composition of the jury in Appellant’s case consisted of eight black persons (and four white persons) and seven women (and five men). Given this break-down, it could only logically be argued that any racial and gender disparity in Appellant’s jury actually resulted from there being more women than men, and more blacks than whites. Yet, Appellant claims that the prosecutor engaged in a pattern of purposeful discrimination against women and blacks during jury selection. To me, simple common sense dictates that we give the empaneling of a racially and gender balanced jury, and certainly one consisting of a majority of members of the racial or gender group alleged to have been purposefully *286 excluded, substantial weight when determining whether an appellant’s Batson claim has merit.

FLAHERTY, C.J., joins in this concurring opinion.

. The fact that juries are interested in the actual meaning of "life imprisonment" in Pennsylvania is reflected by the fact that in this case, with no prior guiding instructions from the court, the jury inquired as to the meaning of "life imprisonment” during penalty phase deliberations.

. For example, here, the trial judge stated in his response to the jury inquiry: "... What percentage of life imprisonment sentences result in *285 commutation of sentence and parole, I can’t give you. I don’t have accurate statistics which I can take judicial notice on. That possibility exists.”