Commonwealth v. Cousar, B., Aplt.
Commonwealth v. Cousar, B., Aplt. - No. 704 CAP
| Pa. | Feb 22, 2017Background
- Bernard Cousar filed a post-conviction petition asserting pervasive ineffective assistance of trial counsel: little preparation, no investigator or experts, failure to interview witnesses or family, failure to obtain school/juvenile records, and no jail visits prior to trial.
- The trial-level court granted a new penalty-phase hearing based on counsel’s failure to investigate and present mitigation evidence.
- Chief Justice Saylor concurs in parts of the majority opinion but dissents in part, urging a fuller evidentiary hearing on several claims of deficient stewardship.
- Saylor emphasizes systemic problems in capital defense in Philadelphia (inadequate compensation and resources) and prefers post-conviction courts to err toward granting evidentiary development where material facts are at issue.
- Saylor critiques formalistic requirements for counsel attestation/affidavits and advocates flexibility in proffers; he also urges pre-dismissal notice and opportunity to correct inadequate proffers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Requirement of counsel attestation/proffer for hearing | Attestation from trial counsel should not be strictly enforced; proffers suffice to show material facts in issue | Court/majority requires a supporting statement from counsel to justify evidentiary development | Saylor: relax strict affidavit formalism; allow flexible proffers and avoid rigid enforcement |
| Relevance/admission of uncharged-robbery (other-bad-acts / res gestae) | Uncharged robbery is admissible to prove motive; res gestae supports admission | Concern about overbroad use of res gestae doctrine | Saylor: agrees relevance but urges abandoning or narrowing res gestae; treat cautiously |
| Failure to present/prepare witnesses and limiting-instruction claim | Trial counsel unreasonably failed to present eyewitnesses who did not ID defendant and failed to request limiting instruction | Commonwealth/PCRA court: inadequate particularized proffer of what witnesses would say; claim amenable to summary rejection | Saylor: would allow evidentiary development on counsel’s failure to request limiting instruction; accepts majority rejection on some witness-omission claims where no proffer exists |
| Jury charge on burden of proof | Jury should be instructed to consider all evidence in deciding reasonable doubt | Trial counsel’s failure to request clearer instruction could be deficient | Saylor: instructions, read as a whole, were sufficient; but counsel stewardship in failing to seek explicit instruction is concerning |
Key Cases Cited
- Commonwealth v. King, 57 A.3d 607 (Pa. 2012) (discussion of patterns of deficient capital representation)
- Commonwealth v. Roney, 79 A.3d 595 (Pa. 2013) (concerns about systemic compensation problems for capital counsel)
- Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011) (advocacy for evidentiary hearings where material facts are in dispute)
- Martin v. Ohio, 480 U.S. 228 (U.S. 1987) (instructional adequacy regarding consideration of all evidence in assessing reasonable doubt)
- Commonwealth v. Brown, 872 A.2d 1139 (Pa. 2005) (debate over affidavits vs. declarations in post-conviction proffers)
- Commonwealth v. Murphy, 499 A.2d 1080 (Pa. Super. 1985) (Superior Court view that res gestae should be limited/abandoned)