Commonwealth v. Cousar

Decision Date22 February 2017
Docket NumberNo. 704 CAP,704 CAP
Citation154 A.3d 287
Parties COMMONWEALTH of Pennsylvania, Appellee v. Bernard COUSAR, Appellant
CourtPennsylvania Supreme Court

Maura McNally, Esq., Federal Public Defender's Office, for Bernard Cousar, appellant.

Hugh J. Burns Jr., Esq., Philadelphia, Peter Carr, Esq., Robin Beth Godfrey, Esq., Philadelpia District Attorney's Office, Amy Zapp, Esq., PA Office of Attorney General, for Commonwealth of Pennsylvania, appellee.

SAYLOR, C.J., BAER, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

OPINION

JUSTICE DOUGHERTY

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 , 593 Pa. 204, 928 A.2d 1025 (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 line-up.

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:

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).

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:

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 (991974).

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?
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.

(Pause)

MR. SCOTT: Yes, your Honor
THE COURT: All right. Commonwealth.

N.T. 5/4/01 at...

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