# Commonwealth v. Trivigno

> Supreme Court of Pennsylvania · March 24, 2000 · 561 Pa. 232

URL: https://www.frixlaw.com/law-library/cases/9696953

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Philip TRIVIGNO, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** March 24, 2000
- **Citations:** 561 Pa. 232; 750 A.2d 243; 2000 Pa. LEXIS 713
- **Precedential status:** Published
- **Opinion:** Concurring in part by Castille
- **Judges:** Flaherty, Zappala, Cappy, Castille, Nigro, Newman, Saylor
- **Cited by:** 61 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9696953

## How later opinions describe it (automated extraction)

- holding that even if standard suggested jury instruction were later to be found improper, counsel could be deemed ineffective in failing to anticipate the change in the law
- holding that "[a] remark by a prosecutor, otb~rwise improper, may be appropriate if it is in fair response to the argument and COIIl.II!.ent of defense counsel"
- holding that "[a] remark by a prosecutor, otherwise improper, may be appropriate if it is in fair response to the argument and comment of [an of.posing party]"
- describing a capital sentencing body's separate eligibility and selection determinations, the Eighth Amendment constraints attaching to the eligibility facet, and the constitutional validity of consideration of a wider range of circumstances in the selection process
- holding that counsel acts reasonably by not objecting to standard jury instruction, even if instruction is later found improper

## Opinion text

CASTILLE, Justice,
concurring and dissenting.
While I agree that appellant’s claims of error regarding the guilt phase of this capital case do not entitle him to relief, I must respectfully dissent from the Court’s decision to vacate appellant’s death sentence and remand the matter for a new sentencing hearing. In my view, no Simmons instruction was requested, or even warranted in this case. Furthermore, even if such an instruction were warranted, I cannot agree that trial judges should be required to provide juries with statistics regarding the percentage of life sentences which have been commuted within the last several years.
When the issue of future dangerousness is expressly implicated and the defendant specifically requests a Simmons instruction, due process requires that the sentencing jury be instructed on what the term “life sentence” means in Pennsylvania. Commonwealth v. Chandler, 554 Pa. 401, 415 , 721 A.2d 1040, 1046 (1998); see also Simmons v. South Carolina, 512 U.S. 154 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994). Quoting a single sentence from the prosecutor’s summation, the majority finds that the prosecutor argued appellant’s future dangerousness. Specifically, the majority concludes that the prosecutor’s remarks in effect asked the jury to consider appellant’s future dangerousness as an “aggravating factor.” After finding that the prosecutor’s argument was not per se error, the majority concludes that the trial judge erred in “refusing” to issue a Simmons instruction. Based upon my careful review of the record, I can find no such error.
Although appellant did not have two prior felony convictions, thus precluding the Commonwealth from pursuing as an aggravating circumstance a significant history of felony convictions involving the use or threat of violence to the person, see 42 Pa.C.S. § 9711(d)(9), he did have prior convictions. *261 Notwithstanding this record, which was introduced by stipulation at the penalty phase, appellant proffered as a mitigating circumstance that he had no significant history of prior criminal convictions. See 42 Pa.C.S. § 9711(e)(1).
When the disputed comments in the penalty phase are properly viewed in context, it is apparent that the prosecutor, far from arguing future dangerousness as an aggravating factor, plainly was addressing only the question of whether the jury should find the mitigating circumstance of no significant history of prior criminal convictions. The prosecutor began his discussion of the aggravating and mitigating circumstances by discussing the one aggravating circumstance he had alleged, ie., that appellant knowingly created a grave risk of death to another person other than the victim. See 42 Pa.C.S. § 9711(d)(7). After arguing the basis for finding that circumstance, the prosecutor noted that the jury would have to “weigh that to see whether or not it outweighs these mitigating factors,” the first of which was the alleged absence of a significant history of prior criminal convictions. N.T. 10/1/96 at 42-43. The prosecutor argued that it was for the jury to decide what could be deemed “significant,” and then discussed appellant’s prior convictions for criminal trespass and simple assault. Appellant registered his only objection to the closing at this point, essentially complaining that the prior record stipulation had identified appellant’s prior crimes only by name, while the prosecutor was attempting to argue the specific facts, which had not been presented to the jury. After a short sidebar discussion, the prosecutor agreed not to argue the specifics of the prior convictions. N.T. 10/1/96 at 43-45.
The prosecutor then made the remark that the majority finds was an invitation to the jury to consider appellant’s future dangerousness as an aggravating factor. But, viewed in context, the remark was not a comment on future dangerousness. The prosecutor was still addressing whether or not appellant’s stipulated history of prior criminal convictions was “significant” or not. The prosecutor emphasized that this was a matter for the jury to decide, then suggested that the jury could conclude that they comprised a “significant history” *262 because the convictions were a “weather vane looking into the future” — the future, in this context, being where appellant was now, i.e., “breaking in, assault and now this.” N.T. 10/1/96 at 45. The remark was not at all a comment on future dangerousness, i.e., it was not a request for the jury to return a verdict of death to prevent appellant from hurting someone else. Compare Commonwealth v. Chandler, supra, 721 A.2d at 1046 (prosecutor’s asking jury to use its penalty verdict to “stop [defendant] from ever hurting another woman again, to stop him from ever killing another woman again” injected issue of future dangerousness) with Commonwealth v. King, 554 Pa. 331 , 721 A.2d 763, 779 (1998) (no comment on future dangerousness where prosecutor never argued or suggested that death penalty should be imposed because defendant could otherwise potentially hurt someone else).
Notably, appellant did not object to the remark that concerns the majority. Instead, the trial court sua sponte called for a sidebar and admonished the prosecutor not to argue what constituted a “significant” history for purposes of the proffered mitigator. N.T. 10/1/96 at 45-46. At the sidebar, appellant argued that the prosecutor should not be able to argue that he had a significant history of prior convictions because the Commonwealth had not alleged, as an aggravating circumstance, that he had a significant history of violent felony convictions. This was a rather dubious proposition since the multiple violent felony aggravating circumstance and the insignificant criminal history mitigating circumstance are decidedly different matters. Appellant also asserted that the Commonwealth’s argument that he had a significant history of criminal convictions, after it had not pursued the aggravating circumstance, was the equivalent of arguing future dangerousness. N.T. 10/1/96 at 45 — 47. This was another rather dubious proposition in light of our holding in Commonwealth v. May, 551 Pa. 286 , 710 A.2d 44 (1998). 1 Significantly, appellant did *263 not argue that the “weather vane,” “looking into the future,” and “where he’s going” language suggested future dangerousness. Rather, the objection appeared to be that any comment disputing the applicability of the mitigating circumstance amounted to a future dangerousness argument.
After the trial court ruled that it would not allow the prosecutor to continue arguing that appellant had a significant history of convictions, appellant requested a cautionary charge. He did not request a Simmons instruction, ie., he never asked the court to instruct the jury that a life sentence in Pennsylvania means life without the possibility of parole. Indeed, he did not articulate what kind of instruction he thought was necessary. N.T. 10/1/96 at 47-48.
The court then issued a cautionary instruction, telling the jurors that their recollection of the testimony controlled on the issue of appellant’s prior convictions and their judgment determined its importance to their decision as to the penalty. Although the cautionary instruction did not contain a Simmons charge, appellant made no objection. 2 N.T. 10/1/96 at 48-49. In addition, appellant never requested a Simmons instruction before the court charged the jury in the penalty phase, nor did he object to the absence of a Simmons charge prior to the jury’s deliberation.
The “refusal” to charge referred to by the majority arose only when the jury returned from deliberations with a question. Specifically, the jury asked: “Could you please define exactly what life without parole means? Is it in prison forever *264 or is there still a chance for parole?” N.T. 10/1/96 at 81. Only at that point did appellant ask that the jury be informed that a life sentence includes no possibility of parole. Notably, appellant did not assert that the jury should be informed that a life sentence includes no possibility of parole because the Commonwealth had argued future dangerousness and, thus, the two-year-old Simmons case required it. Instead, he argued the distinct point that, because the jury’s question was so “fact specific,” it should be answered. N.T. 10/1/96 at 78.
In short, the prosecution did not argue future dangerousness and, even if it did, appellant never requested, nor was he “refused,” a Simmons instruction. Appellant never argued to the trial court that the prosecutor argued future dangerousness and, therefore, he was entitled to a Simmons charge. The majority has vacated a valid sentence of death premised upon an argument unsupported in the record and never raised at the penalty hearing. Because I can discern no error in the trial court’s rulings at the penalty phase, I would affirm the sentence of death.
Perhaps more troubling to me than the majority’s Simmons analysis is its directive that, in cases where a Simmons charge is appropriate, the trial court should not only inform the jury of the defendant’s ineligibility for parole and the prospect of commutation, but also “should relay any available statistical information relating to the percentage of life sentences that have been commuted within the last several years.” Quoting with approval the concurring opinion by -Chief Justice Flaherty in Commonwealth v. Martin, 554 Pa. 331 , 721 A.2d 763, 785 (1998), the majority states that, “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.” I believe that the Court significantly errs by requiring consideration of statistics concerning recent commutations. Once we start down that path, the next logical step is to examine what happened to those whose life sentences were commuted. Thus, the Commonwealth should be able to request that the jury be informed about Reginald McFadden, a convicted murderer and model prisoner who, upon commuta *265 tion and release, went on to kill again, or any other horror story involving a commuted killer. The defense would then counter with the number of commuted killers who, at least to date, had proven to be productive members of society. None of this extraneous information, it seems to me, is an appropriate consideration for a capital jury. The pertinent information is that, in Pennsylvania today, life means life without the prospect of parole, but the possibility of commutation exists.
Furthermore, the majority’s requirement of evidence of recent commutation statistics immediately calls to mind Mark Twain’s aphorism, which he attributed to Benjamin Disraeli, that “there are three kinds of lies: lies, damned lies and statistics.” Mark Twain, Autobiography of Mark Twain 286 (Charles Neider ed., Harper Perennial 1990). What puts Twain’s “lie” to the statistics required by the majority is that evidence of the percentage of recent commutations has little relevance in determining the “statistical possibility” of commutation for any particular life-sentenced defendant. Commutation decisions are necessarily fact-driven. The fact that a certain percentage of other defendants, from widely differing backgrounds, charged with a wide variety of offenses, have, or have not, had their sentences commuted says little about the prospects for any other defendant. Furthermore, past commutation percentages are hardly the only, or even the most important, predictor of future commutation prospects. No commutation scheme, or history, is impervious to change. Times change, state legislatures change, and governors change. It is impossible to forecast in any way approaching reliability the commutation prospects of a life-sentenced prisoner fifty years from now, or forty years from now, or even next year. At a minimum, under the majority’s scheme, the jury should also have to be informed of this political reality. 3
*266 In my view, the majority’s holding opens a veritable Pandora’s Box, inviting consideration of irrelevant and unreliable information that would cloud, rather than clarify, the very serious decision the jury must make in the penalty phase. It would be a misguided legislative scheme, and is even worse jurisprudence. Hence, I dissent.
. In May , this Court held that the Commonwealth's pursuit of the multiple violent felony aggravating circumstances did not implicate future dangerousness, because "[t]he aggravating circumstances of appellant's prior record for violent felonies addressed only appellant’s past conduct, not his future dangerousness.” May, 551 Pa. at 291 , 710 *263 A.2d at 47 . Similarly, a discussion of he applicability of the insignificant criminal history mitigating circumstance focuses on past conduct and does not implicate future dangerousness.
. Although appellant made no further objection, the trial court interrupted the prosecutor again and sua sponte issued a further cautionary charge that, in effect, ordered the jury to find the presence of the insignificant criminal history mitigating circumstance, instructing the jury that: "[s]ignificant history means that you have two or more violent crimes prior to the incident, and that is what significant history means.” N.T. 10/1/96 at 49. This instruction, which assumes that the violent felony aggravating circumstance mirrored the insignificant criminal history mitigating circumstance, was clearly erroneous and benefited appellant.
. In this regard, I note that the governor of Illinois recently announced a moratorium on the death penalty in that state, pending the report of a committee appointed to investigate the flaws in Illinois’s capital punishment system. Under the majority’s full disclosure scheme, this prospect should also be disclosed to the jury, as should the prospect that a death sentence may be overturned on further review by this Court or the federal courts.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9696953. Public record. Not legal advice.