Commonwealth v. Cousar, B., Aplt.
2017 Pa. LEXIS 406
Pa.2017Background
- Bernard Cousar was convicted of two murders (Santos, Townes) and an armed home-invasion; jury sentenced him to death. Trial joined the three incidents largely on ballistics linking recovered guns to the murders.
- Three FIU reports existed: Officer Joyce, Officer Little, and Officer Finor. Little’s and Finor’s July 29, 1999 print-outs appeared to conflict about which recovered revolver (R‑1 or R‑2) fired bullets found in Townes’s body.
- At trial, Officer Finor testified that the Astra .357 (R‑2) fired the bullets that killed both Santos and Townes; defense counsel did not impeach him with Officer Little’s contradictory report or fully develop the ballistics discrepancy pre‑trial when opposing consolidation.
- Debra Redden, sole eyewitness to the Townes killing, identified Cousar at trial but failed to positively identify him at the preliminary hearing; defense counsel did not impeach her at trial with that prior failure to identify.
- Cousar filed a PCRA petition raising multiple ineffective‑assistance and related claims; the PCRA court granted a new penalty hearing but dismissed guilt‑phase claims without an evidentiary hearing. The Pennsylvania Supreme Court remanded limited issues for an evidentiary hearing.
Issues
| Issue | Plaintiff's Argument (Cousar) | Defendant's Argument (Commonwealth / PCRA court) | Held |
|---|---|---|---|
| Whether counsel was ineffective for failing to use conflicting FIU reports to oppose pretrial consolidation and to impeach ballistics testimony | Counsel had the discrepant reports pretrial and should have used them to (1) defeat consolidation and (2) impeach Officer Finor; failing to do so was unreasonable and prejudicial | Commonwealth: Little’s entry may be a typographical error; no proffer from trial counsel about strategy; other evidence tied Cousar to the scenes so no prejudice | Remanded for evidentiary hearing on whether counsel had no reasonable basis and whether Cousar was prejudiced by failure to exploit the ballistics discrepancy |
| Whether late disclosure (Brady) of Finor’s report warranted relief | If Finor’s report was withheld until trial, suppression of impeachment evidence undermined confidence in outcome | Commonwealth/PCRA: No proof of suppression; Finor’s report was disclosed when Finor testified; claimant did not timely raise Brady or show due diligence | Brady claim waived; no hearing granted on Brady theory |
| Whether counsel was ineffective for failing to impeach Redden with her failure to identify at the preliminary hearing | Redden was the only eyewitness to Townes’s killing; impeachment with prior failure to identify was critical and counsel’s omission prejudiced guilt finding | Commonwealth/PCRA: Counsel thoroughly cross‑examined Redden on drug use and equivocal photo ID; any additional impeachment would be cumulative; jury cautions (Kloiber) cured risk | Remanded for evidentiary hearing on whether counsel’s failure to impeach Redden lacked a reasonable basis and caused prejudice |
| Whether counsel was ineffective for failing to suppress or challenge photo‑array and lineup identifications and for failing to use non‑identification live lineup witnesses | Photo arrays were suggestive (e.g., bare‑shouldered photos); counsel should have moved to suppress or called non‑identifying lineup witnesses to show suggestiveness | Commonwealth/PCRA: Arrays were not unduly suggestive; identifications had independent bases; trial counsel did object and cross‑examine vigorously; calling non‑identifying witnesses risked in‑court IDs | Claim lacks arguable merit or proffer; PCRA court correctly dismissed without hearing |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (ineffective assistance two‑prong standard)
- Commonwealth v. Pierce, 515 Pa. 153 (Pennsylvania articulation of Strickland requirements)
- Kyles v. Whitley, 514 U.S. 419 (Brady materiality standard; undermining confidence in outcome)
- United States v. Bagley, 473 U.S. 667 (reasonable probability test for suppressed impeachment evidence)
- Commonwealth v. Colavita, 606 Pa. 1 (993 A.2d 874) (preference for evidentiary hearings on counsel strategy)
- Commonwealth v. Roney, 622 Pa. 1 (79 A.3d 595) (standards for dismissing PCRA petitions without hearing)
- Commonwealth v. Lark, 518 Pa. 290 (543 A.2d 491) (res gestae/other‑acts admissibility)