Com. v. Cousar, 395 CAP.

Citation928 A.2d 1025
Decision Date21 August 2007
Docket NumberNo. 395 CAP.,395 CAP.
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Bernard COUSAR, Appellant.
CourtUnited States State Supreme Court of Pennsylvania

BEFORE: CAPPY, C.J., CASTILLE, NEWMAN, SAYLOR, EAKIN, BAER, BALDWIN, JJ.

OPINION

Justice SAYLOR.

This is a capital direct appeal from judgments of sentence imposed by the Philadelphia Court of Common Pleas on May 11, 2001, and January 4, 2002.

On April 5, 1999, Appellant shot and killed Luis Santos on a street corner at point-blank range, and stole a gold chain necklace from around Santos's neck. Three weeks later, on April 26, 1999, Appellant was seen arguing with William Townes as Appellant stood on a street corner and Townes sat in his vehicle. Appellant drew a gun and shot Townes three times at close range, killing him. Thereafter, on May 6, 1999, Appellant, together with three compatriots, forcibly entered Frank Schoenberger's home, robbed and beat him at gunpoint, and fled when the police arrived. An officer apprehended Appellant as he was running from the scene. The following day, Schoenberger discovered that the intruders had left a handgun inside his home. Police firearms experts identified the gun as the weapon used to kill Santos and Townes. All three incidents took place within several blocks of Appellant's place of residence in the Hunting Park section of Philadelphia.

Appellant was charged by three separate bills of information with, inter alia, two counts of criminal homicide (as to Santos and Townes) and two counts of robbery (as to Santos and Schoenberger). The Commonwealth pursued trial of all of the offenses on a consolidated basis, which the trial court permitted over Appellant's objection. Appellant proceeded to trial before a jury, which took place from May 2-11, 2001.

In its case concerning the Santos killing, the Commonwealth presented the testimony of four eyewitnesses to the shooting, which occurred at approximately ten o'clock a.m. on a clear, sunny day. As these witnesses described the events, Santos pulled up and parked his car along the street to use an outdoor payphone, leaving his two-year-old son in the automobile nearby. As Santos returned to his vehicle, Appellant approached him and began speaking with him. From the gestures of the two individuals, it appeared that Appellant was demanding the thick gold chain Santos was wearing around his neck, but Santos was refusing to comply. As Santos turned toward his car, Appellant shot him once in the back, and then grabbed and pocketed the gold chain as Santos fell. Appellant then calmly walked away from the scene, leaving Santos mortally wounded on the pavement. According to the medical examiner, the single bullet pierced Santos's spinal cord, lungs, and aorta, causing his death.

All of the eyewitnesses to the shooting positively identified Appellant in court as the shooter, and each also stated that the black, "puffy" down jacket that the police retrieved from Appellant at the time of his arrest matched the coat that the individual who shot Santos was wearing. Additionally, one of these witnesses, Ms. Diaz, testified that she recognized Appellant at the time of the shooting because she knew him and his family from the neighborhood. Several weeks after the incident, she positively identified Appellant as the shooter from a police photographic array. Another eyewitness, Ms. Carrasquillo, also selected Appellant from a photographic array a few weeks after the incident. She, too, testified that she recognized Appellant at the time of the shooting because she had previously seen him in the neighborhood. Ms. Khabir, on the other hand, failed to select Appellant from a police lineup conducted on June 16, 1999, but she did make a positive identification in court the following day at the preliminary hearing, a fact that was relayed to the jury.1 Finally, the fourth eyewitness, Mr. Abdu, saw the shooting from approximately twelve feet away as he was in his car stopped at a traffic light. He then reported the matter to the police over his cell phone as he followed the shooter in his car while the latter walked away from the scene. Mr. Abdu continued his pursuit until the shooter entered a row house on the 3900 block of North Percy Street. Although he could not tell exactly which row house the assailant went into, the location he provided to the police was the approximate site of Appellant's known place of residence. Mr. Abdu, who testified that he got a good look at the shooter's face at close range, also stated that he had positively identified Appellant from a police photographic array and at the preliminary hearing.

As to the matter of the killing of William Townes, a woman who sold drugs for Townes testified that, the night before the murder (that is, the night of April 25, 1999), she was robbed at gunpoint of drugs and cash belonging to Townes. Immediately after the robbery, she gave Townes a description of the individual who had robbed her, and Townes appeared to know who this was. In court, she identified Appellant as the robber, and additionally stated that he was acting in concert with another individual who was identified as Shiem Gary. This account of the April 25th incident was corroborated by another person who also saw the robbery occur and was friendly with Townes. A third witness, Ms. Redden, stated that she saw the killing of Townes the evening of April 26, 1999, as she was walking home from a store. She indicated that she was near where Townes and Appellant were arguing as Townes sat in the driver's seat of his car and Appellant stood on the street next to the vehicle; she stated that another individual was with Appellant but was not participating actively in the argument. According to Ms. Redden, Townes began to pull away, but then stopped his car at Appellant's request. Appellant then fired several shots at Townes from close range, which resulted in the car suddenly lurching forward at high speed, hitting a number of parked cars and then flipping onto its side. She stated that, immediately after the shooting, Appellant and his companion walked past her as she sat on a porch, and Appellant stated, "That's what the f___ he get." Ms. Redden identified Appellant as the shooter from a police photographic array several weeks later, and identified him in court as well. Additionally, a young woman testified that, at the time of the incident, she was sitting in the front passenger seat of Townes's car when a black male who was arguing with Townes repeatedly shot Townes at close enough range to give her gunpowder burns on her legs and face.

Townes was pronounced dead at the scene. The medical examiner stated that two of the three bullets recovered from his body pierced his lungs and aorta, causing his death.

Finally, the Commonwealth proffered evidence concerning Appellant's apprehension after he fled the scene of the Schoenberger home invasion, and the discovery of the Santos/Townes murder weapon by Mr. Schoenberger in his basement the following day. This evidence tended to show that one of Appellant's accomplices in the Schoenberger incident was Shiem Gary, the individual who had assisted Appellant in his April 25th street robbery of one of Townes's employees. Mr. Schoenberger identified Appellant in court as the leader of the group of armed intruders, and stated that he had also identified Appellant as such at the preliminary hearing one week after the crime. Additionally, at the time the police arrived on the scene of the robbery, Appellant was wearing a coat matching the description given by witnesses to the Santos killing of the "puffy" jacket that the shooter in that matter had been wearing.2 When the police apprehended him, they recovered from one of his pants pockets a pager that had been taken from Mr. Schoenberger's house. The police also apprehended from Appellant's co-conspirators other items of value — including cash and a gun and holster — that were stolen from the Schoenberger home during the incident.

During the Commonwealth's case, the trial court permitted it, over Appellant's objection, to adduce evidence that Appellant bore on his neck a tattoo with the letters "M.O.B." There was additional evidence, which was not challenged, that Shiem Gary had a tattoo — also with the letters "M.O.B." — on his forearm.

In his defense, Appellant called Detective William Wynn, the lineup supervisor for the Philadelphia police, who testified concerning the lineup procedure, as well as Ms. Khabir's failure to identify Appellant at a lineup on June 16, 1999 (see supra note 1 and associated text). Over Appellant's objection, the trial court excluded testimony from Detective Wynn regarding any other purported eyewitness to the murders who may have participated in the police lineup.3 Appellant's mother also testified for the defense, stating that she had left Appellant at home at approximately 8:30 a.m. on the day of the Santos murder, and that when she returned later that day, he was still at home. Because she could not recall what time she returned, however, the defense conceded that her testimony did not provide an alibi but, instead, went to the weight of the identification evidence. Similarly, Appellant's sister testified that she called Appellant's residence at approximately 9:00 on the morning of the Santos shooting, and spoke to Appellant briefly. Again, however, this was insufficient to constitute an alibi, as the killing occurred at least an hour later a short distance from Appellant's house.

The jury reached verdicts on May 9, 2001, finding Appellant guilty of two counts each of first-degree murder, robbery, and possession of an instrument of crime, as well as one count each of burglary, aggravated assault, and criminal conspiracy. In the penalty phase of the trial, as...

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