Commonwealth v. Cox

¶1CONCURRING OPINION

¶211 join the majority’s decision in all respects. I write separately, however, to express my disagreement with the conclusion that the language of the instructions given to' the jury at the penalty hearing, which mirrors the language of Section 9711(c)(l)(iv) of the Pennsylvania Death Penalty Statute, 42 Pa.C.S. § 9711(c)(l)(iv), does not impermissibly infer a requirement that any mitigating circumstance must be found unanimously by the jury.1 To the contrary, in my view, the *145language employed by the trial judge specifically instructed the jury that mitigating circumstances must be found unanimously. As quoted by the majority, the relevant instructions provide:

Once again, you’re reminded that your verdicts must be unanimous. It cannot be reached by majority vote or by any percentage vote. It must be the verdict of each and every one of you.

Bear in mind, remember that your verdict must be a sentence of death if you unanimously find at least one aggravating circumstance and no mitigating circumstances, or if you unanimously find one or more aggravating circumstances which outweigh any mitigating circumstances that you have found.

In all other cases, your verdict must be a sentence of life imprisonment.

¶3Majority op. at 553.

¶4Despite my view in this regard, this Court has quite clearly held that an instruction which follows the language of the death penalty statute, such as the one given here, does not violate the mandate of Mills v. Maryland, 486 U.S. 367, 108 S.Ct. 1860, 100 L.Ed.2d 384 (1988) (holding that the sentence of death must be vacated where a substantial risk exists that. jury instructions could be understood as requiring unanimity as to mitigating circumstances). See Commonwealth v. Frey, 520 Pa. 338, 554 A.2d 27, 31 (1989), cert. denied, 494 U.S. 1038, 110 S.Ct. 1500, 108 L.Ed.2d 635 (1990) (holding that the language of the death penalty statute does not “state or infer a requirement that any given mitigating circumstance must be unanimously recognized before it can be weighed against aggravating circumstances in reaching a verdict.”); Commonwealth v. O’Shea, 523 Pa. 384, 567 A.2d 1023 (1989), cert. denied, 498 U.S. 881, 111 S.Ct. 225, 112 L.Ed.2d 180 (1990) (holding that an instruction that follows the language of the *146death penalty statute does not violate the mandate of Mills.); Commonwealth v. Stokes, 576 Pa. 299, 839 A.2d 226, 228 (2003) (verdict slip that followed the language of the death penalty statute was not misleading and did not infer requirement that any mitigating circumstances must be unanimous).

¶5Accordingly, based upon the principle of stare decisis, I join the majority opinion.