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Commonwealth v. Cousar

Supreme Court of Pennsylvania

February 22, 2017


          SUBMITTED: March 15, 2016

          Appeal from the Order dated November 26, 2014 in the Court of Common Pleas, Criminal Division, Philadelphia County at Nos. CP-51-CR-0508652-1999, CP-51-CR-0607431-1999 and CP-51-CR-1008141-1999.




         Bernard Cousar appeals from the order of the Philadelphia Court of Common Pleas denying, without a hearing, the guilt phase claims contained in his petition for relief from his death sentence under the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S. §§9541-9546. For the reasons set forth below, we remand to the PCRA court for an evidentiary hearing limited to two issues - whether counsel rendered ineffective assistance for failing to: 1) show the ballistics evidence purportedly tying appellant to a series of crimes and murders was inconsistent; and 2) impeach an eyewitness's in-court identification of appellant with the witness's inability to identify appellant at his preliminary hearing.

         I. Background

         We summarized the underlying facts in our opinion on direct appeal affirming appellant's sentence of death. Commonwealth v. Cousar, 928 A.2d 1025 (Pa. 2007). We explained appellant was charged with: 1) shooting and killing Luis Santos during a robbery on April 5, 1999; 2) shooting and killing William Townes during an argument on April 26, 1999; and 3) committing an armed home-invasion burglary and robbery with three conspirators on May 6, 1999. The charges were consolidated for a jury trial; the jury found appellant guilty of two counts of murder and related offenses and sentenced him to death.

         With respect to the Santos killing, we noted appellant was identified at trial by four witnesses, one of whom followed appellant after the shooting and saw him enter a rowhome on the 3900 block of Pierce Street. As to the killing of Townes, we noted a woman who sold drugs for Townes (Natisha Evans) testified at trial, over defense objection, that she was robbed at gunpoint of Townes's cash and drugs the night before the murder and identified appellant and one of his conspirators in the home invasion as the men who robbed her. Another witness (Debra Redden) testified she saw appellant shoot and kill Townes during a confrontation that occurred the following night. We dismissed appellant's claim the verdict was against the weight of the evidence based on his challenges to the credibility of the eyewitnesses' testimony. We noted the eyewitnesses were vigorously challenged during cross-examination. We additionally held the court did not err in precluding appellant's proffered evidence showing a number of potential eyewitnesses, who did not testify at trial, failed to identify appellant in a lineup.

         Regarding the home invasion, the developed facts indicated appellant was captured by police after fleeing the front door of the subject property, and two conspirators who fled through a rear window were apprehended next-door to the property.[1] Also, two handguns were seized in the alley behind the property. Frank Schoenberger, the victim of the invasion/robbery, discovered a handgun the intruders left behind in his basement. We noted the gun left behind was identified by "police firearms experts" as "the weapon used to kill Santos and Townes." Cousar, 928 A.2d at 1029. On that basis, this Court determined the court did not err in consolidating trial of the separate murders and the home invasion. We held the "crucial piece of evidence linking the two homicides was the use of the same gun[, ]" found at the scene of the home invasion, and the probative value of that evidence outweighed its potential for unfair prejudice. Id. at 1038. Justice Baldwin wrote a dissenting opinion, joined by Justice Baer, expressing the view that, while it "would not have been error to consolidate the Schoenberger burglary case with one of the murder cases … the two unrelated homicides should have been tried separately." Id. at 1045 (Baldwin, J., dissenting). In Justice Baldwin's view, "aside from the use of the same gun there was no [permissible] evidence in the Santos [murder] case that would have been relevant in the Townes murder case[.]" Id. at 1046.

         Appellant filed a timely petition for relief under the PCRA. An amended petition was filed by Billy Nolas, Esquire, of the Federal Community Defender Office, raising numerous claims of error and ineffectiveness of counsel.[2] The parties agreed appellant was entitled to a new penalty hearing; the court, per the Honorable M. Teresa Sarmina, dismissed the remaining (guilt phase) claims without a hearing, and this appeal ensued. Appellant raises nine claims of error which sound primarily in ineffectiveness of trial counsel. He raises one stand-alone claim of appellate counsel's ineffectiveness for alleged conflict of interest.

         The facts pertinent to the instant appeal are that three bullet fragments were taken from the body of Townes, one bullet was removed from the body of Santos, and three handguns were discovered at the scene of the home invasion. Three officers from the police Firearms Identification Unit (FIU), Officers Little, Joyce, and Finor examined the bullets and handguns at various times. All three officers entered their findings into FIU reports, which were generated as computerized print-outs.[3]

         The guns found in the alley behind Schoenberger's house were one black Bryco semi-automatic .380 caliber pistol, identified as P-1 on the FIU print-outs, and a silver Taurus Brasil .357 magnum revolver, identified as R-1 on the FIU print-outs. At trial, Schoenberger testified R-1 was his gun, taken from his home by the intruders.[4] The gun found in Schoenberger's basement was a black Astra .357 magnum revolver, identified as R-2 on the print-outs.

         The print-outs indicate on April 6, 1999, Officer Joyce examined the bullet recovered from Santos's body. On May 14, 1999, Officer Little examined the bullet fragments taken from Townes's body and determined two of the fragments (B-1 and B-2) were fired by a single firearm.[5] That same date, Officer Little compared B-1 and B-2 taken from Townes's body to the single bullet taken from the body of Santos. Officer Little concluded the bullets recovered from Townes's body and the bullet recovered from Santos's body were fired from the same as yet unidentified gun.

         The three guns recovered from the home invasion were examined by Officer Finor. On July 29, 1999, Officer Finor concluded two of the three bullet fragments taken from Townes's body and the bullet taken from Santos's body were all fired from R-2, the black Astra .357 magnum revolver recovered in the basement of Schoenberger's home. Specifically, the print-out information for "FIREARMS EXAMINER P/O FINOR" for "EXAM DATE 072999" indicates:


FIU Computerized Print-Out, case no. 991974, 7/29/99. (Officer Finor's report) (emphasis added).

         However, a separate print-out at FIU case no. 991854 by Officer Little, also generated on July 29, 1999, indicates the bullets recovered from the body of Townes were fired from R-1, the silver Taurus Brasil .357 magnum revolver recovered in the alley behind Schoenberger's house. Specifically, the print-out information for "FIREARMS EXAMINER P/O LITTLE" for "EXAM DATE 072999" indicates:


FIU Computerized Print-Out, case no. 991854, 7/29/99. (Officer Little's report) (emphasis added).

         Prior to trial, the Commonwealth filed a motion to consolidate based largely on the theory the ballistics evidence warranted joinder of the separate cases. Trial counsel opposed the motion, but did not assert discrepancies existed in the ballistics evidence. Counsel opposed consolidation on the basis the two homicide cases entailed distinct, unrelated motives, and the evidence respecting each was individually weak and inadmissible in the trial of the other. At the hearing on the motion, when counsel argued "I don't know how they associate that gun [found in Schoenberger's basement] with my client[, ]" the court replied, "I think the ballistics report is what does that." N.T. 10/22/99 at 7 (unpaginated original). The court, per the Honorable Anne E. Lazarus, granted the motion to consolidate.

         At trial, conducted before the Honorable James A. Lineberger, Officer Finor testified as an expert with respect to the firearms identification evidence. The Commonwealth produced the three FIU print-out reports for his review at the outset of his testimony, and the following exchange took place:

MR. SCOTT (defense counsel): Your Honor, may I just take a look at those, make sure I have exactly the same thing he [Officer Finor] has?
(Exhibits shown to defense counsel)
MR. SCOTT: Your Honor, I have ballistic report[s] by Officer Little and Officer Joyce. I don't seem to have a report by Officer Finor.
MS. FISK (assistant district attorney): [Officer Finor] has an extra copy of it. It has previously been provided. It has been provided as well.
THE COURT: Did you find it?
MR. SCOTT: I don't have it. I got those two.
MS. FISK: May I proceed your Honor?
THE COURT: I don't know. Are you ready now?
MR. SCOTT: If I could have a moment your Honor.
MR. SCOTT: Yes, your Honor
THE COURT: All right. Commonwealth.

N.T. 5/4/01 at 65-66.[6]

         Officer Finor testified "we have three different reports here" and the "initial examination of [the] projectiles was conducted by Police Officer Joyce and Police Officer Little … prior to my involvement." Id. at 82. Officer Finor identified Commonwealth exhibit 16 as the black Astra .357 magnum revolver recovered in the basement of Schoenberger's home. He testified he test-fired bullets from that gun and compared them to the bullet removed from the body of Santos. He concluded the Santos bullet was "fired from this particular revolver [R-2 Astra .357 magnum]" to the exclusion of any other gun. Id. at 80. He further testified he compared the three bullet fragments recovered from the body of Townes, and "the first two, B1 and B2, were both identified as being fired from this revolver [R-2, Astra .357 magnum]. And again, that would be to the exclusion of all other firearms." Id. at 83. Officer Finor also testified there were nine cartridges in the Bryco semi-automatic pistol (P-1) found in the alley behind Schoenberger's house. His print-out report, however, indicated there were thirteen cartridges in the pistol.

         On cross-examination, counsel posed no questions regarding Officer Little's report indicating the bullets recovered from Townes's body were fired from R-1, the silver Taurus Brasil .357 magnum revolver found in the alley behind Schoenberger's home. Counsel did not question Officer Finor regarding the number of cartridges in P-1. Counsel offered no re-cross-examination following questions by the court and re-direct-examination by the Commonwealth.

During closing argument to the jury, the Commonwealth stated:
Officer Finor looked at that gun and the bullets taken from William Townes'[s] body, he said, that's the gun that killed William Townes. And when he looked at that gun and the bullet taken from Mr. Santos'[s] body, he said, that's the gun that killed Mr. Santos, the same gun …. Want to talk about evidence beyond a reasonable doubt? It has been presented.

N.T. 5/8/01 at 61.

         II. Review standards

         We review a ruling by the PCRA court to determine whether it is supported by the record and is free of legal error. Commonwealth v. Blakeney, 108 A.3d 739, 748-49 (Pa. 2014), citing Commonwealth v. Spotz, 47 A.3d 63, 75 (Pa. 2012). Our standard of review of a PCRA court's legal conclusions is de novo. Id. at 749.

         To be entitled to PCRA relief, appellant must establish, by a preponderance of the evidence, his conviction or sentence resulted from one or more of the enumerated errors in 42 Pa.C.S. §9543(a)(2). These errors include a constitutional violation or ineffectiveness of counsel, which "so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Id. Additionally, appellant must show his claims have not been previously litigated or waived, and "the failure to litigate the issue prior to or during trial ... or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel." 42 Pa.C.S. §9543(a)(3), (a)(4). An issue is previously litigated if "the highest appellate court in which [appellant] could have had review as a matter of right has ruled on the merits of the issue." 42 Pa.C.S. §9544(a)(2). An issue is waived if appellant "could have raised it but failed to do so before trial, at trial, ... on appeal or in a prior state postconviction proceeding." 42 Pa.C.S. §9544(b).

         Most of appellant's issues are cognizable only as ineffective assistance of counsel claims. In analyzing such claims, we begin with the presumption counsel is effective. Commonwealth v. Robinson, 82 A.3d 998, 1005 (Pa. 2013). To prevail on an ineffectiveness claim, appellant must satisfy, by a preponderance of the evidence, the performance and prejudice standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). In Pennsylvania, we have applied Strickland by looking to three elements an appellant must establish: (1) the underlying claim has arguable merit; (2) no reasonable basis existed for counsel's actions or failure to act; and (3) appellant suffered prejudice as a result of counsel's error, with prejudice measured by whether there is a reasonable probability that the result of the proceeding would have been different. See Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

         Appellant, who is represented by federal counsel, is raising federal Sixth Amendment claims under Strickland. This Court has made clear the Pennsylvania standard for ineffectiveness is the same as Strickland, albeit we divide the performance element into two sub-components. See, e.g., Commonwealth v. Laird, 119 A.3d 972, 978 (Pa. 2015). A court is not required to analyze the elements of an ineffectiveness claim in any particular order of priority; if a claim fails under any necessary element of the Strickland test, the court may proceed to that element first. Robinson, 82 A.3d at 1005, citing Strickland, supra; Commonwealth v. Albrecht, 720 A.2d 693, 701 (Pa. 1998).

         III. Failure to conduct evidentiary hearing

         In a two-paragraph argument, appellant asserts the PCRA court erred in dismissing his guilt phase issues without a hearing, and maintains if this Court determines he is not entitled to relief "on the pleadings" an evidentiary hearing is warranted. Appellant's Brief at 16. Whatever the merit of this assertion, we will address the propriety of the court's dismissal of claims without a hearing as necessary when they arise in the context of the discrete claims presented. We preliminarily note the PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied "'there are no genuine issues concerning any material fact, the defendant is not entitled to post-conviction collateral relief, and no legitimate purpose would be served by further proceedings.'" Commonwealth v. Roney, 79 A.3d 595, 604 (Pa. 2013), quoting Commonwealth v. Paddy, 15 A.3d 431, 442 (Pa. 2011), quoting Pa.R.Crim.P. 909(B)(2). "To obtain reversal of a PCRA court's decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing." Roney, 79 A.3d at 604-05, quoting Commonwealth v. D'Amato, 856 A.2d 806, 820 (Pa. 2004). As explained in our introductory paragraph, we remand to the PCRA court for a hearing on trial counsel's performance respecting the inconsistent ballistics evidence and failure to impeach an eyewitness.

         IV. Inconsistent firearms reports

         Appellant argues alternative theories of relief concerning the inconsistent reports. His ineffectiveness claim alleges, "[i]f the Commonwealth's representation [it disclosed all the reports in pre-trial discovery] is accurate, then [trial counsel] was ineffective for failing to … utilize the contents of the reports before trial to oppose the consolidation of [a]ppellant's three separate cases for trial." Appellant's Brief at 25. Appellant's alternative issue asserts if the Commonwealth waited until trial to provide a copy of Officer Finor's report, it committed a Brady violation "by failing to disclose the complete FIU reports until after consolidation of [a]ppellant's separate offenses had been granted." Id. at 39. In sum, appellant asserts "whether [counsel's] failure can be attributed to ineffective assistance of counsel under Strickland, or to the Commonwealth's failure to provide discovery consistent with the requirements of due process, the result is the same: [a]ppellant was prejudiced to such a degree that confidence in the outcome of his trial is undermined." Id. at 44.

         A. ...

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