# Commonwealth v. Chmiel > Supreme Court of Pennsylvania · December 29, 2005 · 585 Pa. 547 URL: https://www.frixlaw.com/law-library/cases/9753033 ## Case - **Full name:** COMMONWEALTH of Pennsylvania, Appellee v. David CHMIEL, Appellant - **Court:** Supreme Court of Pennsylvania - **Decided:** December 29, 2005 - **Citations:** 585 Pa. 547; 889 A.2d 501; 2005 Pa. LEXIS 3115 - **Precedential status:** Published - **Opinion:** Concurring in part by Saylor - **Judges:** Cappy, C.J., Castille, Nigro, Newman, Saylor, Eakin, Baer - **Cited by:** 405 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/9753033 ## How later opinions describe it (automated extraction) - holding that to prevail on a claim of trial counsel’s ineffectiveness for failure to call a witness, a defendant must prove: (1) the witness existed; (2) the witness was available; (3) trial counsel was informed of the existence of the witness or should have known of the witne… - recognizing that Pa.R.E. 608(b) precludes the admission of specific instances of misconduct to attack a witness’ character for truthfulness; while Pa.R.E. 609(a) requires an actual conviction of a crime involving dishonesty or false statement in order for a witness’s credibili… - concluding that “it is well established that certain out-of-court statements offered to explain the course of police conduct are admissible because they are offered not for the truth of the matters asserted but rather to show the information upon which police acted” (citations… - holding, "[t]rial counsel's failure to call a [potential witness] does not constitute ineffective assistance without some showing that the [potential] witness'[s] testimony - 15 - J-S28010-22 would have been beneficial or helpful in establishing the asserted defense" - stating that “[t]rial counsel’s failure to call a particular witness does not constitute ineffective assistance without some showing that the absent witness’[s] testimony would have been beneficial or helpful in establishing the asserted defense.” ## Opinion text Justice SAYLOR, concurring and dissenting. I join Parts I and II of the majority opinion, concur in the result with regard to Parts III and IV, and dissent as to penalty. I respectfully disagree with the majority’s analysis, in Part V(A) of its opinion, concerning the range of evidence and argumentation that will implicate a capital defendant’s future *628 dangerousness for purposes of determining the requirement of an instruction concerning the meaning of a life sentence under Simmons v. South Carolina, 512 U.S. 154 , 114 S.Ct. 2187 , 129 L.Ed.2d 133 (1994). In Kelly v. South Carolina, 534 U.S. 246 , 122 S.Ct. 726 , 151 L.Ed.2d 670 (2002), the United States Supreme Court set forth the following, straightforward test to determine whether or not future dangerousness is implicated for such purposes: 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. Id. at 254 , 122 S.Ct. at 732 . Rather than acknowledging and applying this test, the majority undertakes to distinguish Kelly on the facts, and proceeds to rely on prior decisions of this Court that are plainly inconsistent with Kelly. Compare Majority Opinion, 585 Pa. at 609-12, 889 A.2d at 538-39 (cataloguing Pennsylvania precedent reflecting the proposition that “evidence regarding a defendant’s past violent convictions or conduct does not implicate the issue of his or her future dangerousness”), with Kelly, 534 U.S. at 253 , 122 S.Ct. at 731 (“A jury hearing evidence of defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behaviorf.]”). 1 I am unable to accede to this sort of an approach to a decision of the United States Supreme Court on a federal constitutional issue. *629 In my view, the brutal circumstances involved in the Lunarios’ killings alone arguably meet the United States Supreme Court’s prevailing test for implication of future dangerousness as articulated in Kelly . 2 The tendency of this evidence, which was incorporated into the penalty phase of trial, to show Appellant’s continuing dangerousness was enhanced by the Commonwealth’s presentation of the factual underpinnings of a violent rape in aggravation at the penalty hearing, and the prosecuting deputy attorney general’s commentary concerning death as a “solution” to Appellant’s status as a killer “beyond the realm,” as well as his repeated references to Appellant’s “thirst[] after the bliss of the knife” and blood lust. The majority’s attempt to direct the focus of this evidence and commentary solely to their backward-looking implications seems to me to be ineffectual in light of Kelly’s explicit guidance. See Kelly, 534 U.S. at 253-54 , 122 S.Ct. at 731-32 (“A jury’s hearing evidence of defendant’s demonstrated propensity for violence reasonably will conclude that he presents a risk of violent behavior ... [; the relevance of evidence to the point of future dangerousness] does not disappear merely because it might support other inferences or be described in other terms.”). For these reasons, I believe that a new penalty hearing is due under prevailing United States Supreme Court authority. . The majority also appears to conflate the test for prosecutorial misconduct with the standard governing whether a Simmons request is required upon a capital defendant's request. See Majority Opinion, 585 Pa. at 607-09, 609-12, 889 A.2d at 537, 538-39. However, whether or not a Simmons instruction is required to satisfy constitutional due process requirements has little to do with whether or not a prosecutor's commentary or the evidence was proper or improper, or within or outside the range of zealous advocacy or oratorical flair. Rather, the instruction is required on the defendant's request where the proper or improper evidence or argumentation implicates future dangerousness. See Kelly, 534 U.S. at 254 , 122 S.Ct. at 732 . . Notably, in response to a dissenting opinion asserting that under the Kelly standard the evidence in a substantial proportion, if not all, capital cases will show a defendant likely to be dangerous in the future, the Kelly majority responded, that this "may well be,” see Kelly, 534 U.S. at 254 n. 4, 122 S.Ct. at 732 n. 4, albeit that it declined to respond definitively. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9753033. Public record. Not legal advice.