SUBMITTED: March 15, 2016
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
SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY,
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
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.
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
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. 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.
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. 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.
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
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. The gun found in
Schoenberger's basement was a black Astra .357 magnum
revolver, identified as R-2 on the print-outs.
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. 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.
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:
REMARKS: CROSS CHECK: BULLET SPECIMEN B-1 SUBMITTED ON PR
[property receipt] # 2180296 (FIU 991555) AND BULLET
SPECIMENS B-1 AND B-2 SUBMITTED ON PR#2192162 (FIU 991854)
WERE ALL FIRED FROM REVOLVER R-2 SUBMITTED ON PR#2198306 (FIU
991974). THERE ARE INSUFFICIENT MICROSCOPIC MARKINGS TO
PERMIT A POSITIVE IDENTIFICATION OF B-3 (FIU 991854) AGAINST
REVOLVER R-2 (FIU 991974).
FIU Computerized Print-Out, case no. 991974, 7/29/99.
(Officer Finor's report) (emphasis added).
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
REMARKS: ADDENDUM: AS REQUESTED B1 & B2 OF THIS REPORT
WAS [sic] COMPARED TO EVIDENCE SUBMITTED ON REPORT 991974
WITH THE FOLLOWING RESULTS: B1 & B2 WERE FIRED FROM R-1
FIU Computerized Print-Out, case no. 991854, 7/29/99.
(Officer Little's report) (emphasis added).
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.
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?
THE COURT: Yes.
(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.
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.
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.
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.
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).
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).
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).
Failure to conduct evidentiary hearing
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.
Inconsistent firearms reports
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.