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decided: February 28, 1977.



Richard R. Lunenfeld, Philadelphia, for appellant.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion. Manderino, J., concurs in the result.

Author: Eagen

[ 471 Pa. Page 259]


In a non-jury trial, Clarence Cornish was convicted of criminal conspiracy, robbery, and murder of the second degree. Concurrent sentences of life imprisonment, eight to sixteen years imprisonment, and five to ten years imprisonment were imposed. Post-verdict motions were denied and these appeals followed.*fn1 The appeals were later submitted to this Court without oral argument.

On March 17, 1976, we filed a per curiam opinion affirming the judgments of sentence.*fn2 Cornish then petitioned

[ 471 Pa. Page 260]

    for oral argument claiming that the issues we said had not been presented to the trial court via post-verdict motions were, in fact, orally presented to the post-verdict motion court, and thus preserved for review under Commonwealth v. Bailey, supra. In Bailey, we held that issues not included in the written post-verdict motions would still be considered preserved for review if they were presented orally to the post-verdict motion court and entertained by that court prior to the announcement of our decision in Commonwealth v. Blair, supra. The Commonwealth, despite having previously asserted the issues were not preserved for review, filed an answer to Cornish's petition for oral argument stating it had no objection to the petition. Since the record was devoid of any indication that the issues had, in fact, been orally presented to the post-verdict motion court and since the opinion of the court disposing of the post-verdict motions indicated only the sufficiency of the evidence and legality of the life imprisonment sentence were raised in post-verdict motions, we entered an order remanding the record to the court of original jurisdiction to determine in an evidentiary hearing or other proceeding whether the issues disposed of by this Court as not preserved for review were, in fact, presented orally to the post-verdict motion court. That court filed a memorandum opinion which indicates that the issues were orally presented. Accordingly, we shall now consider the merits of those issues, without the need of oral argument.

Cornish maintains that the statutory death penalty provision in 18 Pa.C.S.A. § 1102(a) is unconstitutional

[ 471 Pa. Page 261]

    and that, as a result, the life imprisonment sentence imposed on him pursuant to 18 Pa.C.S.A. § 1102(b) is illegal. Our previous order adequately disposed of this argument. See n. 1, supra.*fn3 Furthermore, to the extent Cornish's argument can be understood as challenging the legality of 18 Pa.C.S.A. § 1102(b) without reference to 18 Pa.C.S.A. § 1102(a) because it disallows judicial discretion in sentencing by providing for a mandatory sentence of life imprisonment in all cases of murder of the second degree, the contention is devoid of merit.*fn4

At trial two eyewitnesses identified Cornish as one of those who participated in the crimes. Cornish urges admission of this testimony was error because no pre-trial line-up identification proceeding occurred. In effect, Cornish would have us rule that an eyewitness should not be permitted to identify the accused at trial unless such identification has been made prior to trial in a line-up proceeding. The absence of such pretrial identification may go to the weight to be given the in-court identification testimony but does not render it inadmissible.

Cornish also maintains the eyewitness in-court identification testimony was tainted and erroneously admitted because he was brought into the court by the sheriff in handcuffs in the presence of these witnesses before they testified. We find nothing in the record to support any such facts. Neither do we find anything in

[ 471 Pa. Page 262]

    the record to indicate the eyewitness testimony was objected to at trial for this reason. Cf. Commonwealth v. Clair, 458 Pa. 418, 326 A.2d 272 (1974).

Next Cornish complains the trial court erred in permitting the testimony of the victim's wife. This is the background:

On the day before trial, the Commonwealth sought a stipulation as to the testimony of the wife of the victim of the murder, Mary McDermott, because at that time the district attorney believed the victim's wife would be unavailable to testify because she was emotionally upset. The stipulation was agreed to by counsel and Cornish. In essence, the stipulation stated Mary McDermott, if called, would testify that she identified her husband's body subsequent to the time of the crimes.

On the day of trial, but prior to the introduction of any evidence, the following occurred in open court:

Defense counsel: "The second motion, Your Honor, relates to a Commonwealth witness that the Commonwealth informed me this morning they intend to call, namely, the wife of the decedent. If Your Honor recalls, yesterday, after the defense stipulated to her testimony to the extent that she is the wife of the decedent, and she identified the decedent as her husband -- to cover this I would request an Offer of Proof, and argue if she is not going to testify to other than facts we ...

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