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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JONATHAN MONTE CORNISH,
Appellant No. 1562 MDA 2014
Appeal from the Judgment of Sentence August 21, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0001433-2013
BEFORE: BOWES, ALLEN, and LAZARUS, JJ.
MEMORANDUM BY BOWES, J.: FILED JUNE 29, 2015
Jonathan Monte Cornish appeals from the judgment of sentence of life
imprisonment without parole and a concurrent period of incarceration of
twenty to forty years imposed by the trial court after a jury found him guilty
of first-degree murder in the death of Jose Vasquez and attempted murder
based on his attack on the murder victim’s brother, William Vasquez. We
affirm.
Both victims in this case were drug addicts who frequently used
cocaine and heroin. Appellant also was a drug user and was temporarily
residing with Jose Vasquez, the deceased victim, at the time. On February
13, 2013, Harrisburg police received a call regarding a male attacking
another male with a hammer at 1527 Vernon Street, Harrisburg. When
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police arrived, they found William Vasquez armed with a knife. They
ultimately discovered the badly beaten Jose Vasquez, the murder victim, on
the second floor of the address. Jose Vasquez had suffered at least five
blows to his head with a hammer and his skull was caved in. He also had
defensive wounds on his left hand and left knee. Jose Vasquez was still alive
when police and emergency medical personnel arrived, but succumbed to his
injuries.
Appellant, in an attempt to prevent William Vasquez from entering his
brother’s second floor bedroom, attacked William with a hammer, striking
him in the cheek and chest. William fell down the steps but was able to
recover and retrieve a knife from the kitchen. William and Appellant
resumed fighting, and one of William’s friends intervened. William stabbed
Appellant, and he and his friend were able to disarm Appellant and subdue
him. William continued to attack Appellant, but relented and went upstairs.
At that time, he discovered his brother who was making gurgling sounds and
severely injured. William then tried to renew his own attack on Appellant,
but was stopped by his friend.
Police charged Appellant with criminal homicide for the killing of Jose
Vasquez and with the attempted murder of William Vasquez. A jury found
Appellant guilty of the aforementioned offenses. Thereafter, the court
imposed a life sentence for the murder and a twenty to forty year period of
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incarceration for attempted murder.1 This timely appeal ensued. The trial
court directed Appellant to file and serve a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Appellant complied, but the
trial court did not author a Rule 1925(a) decision. Appellant presents two
issues for our consideration.
I. Whether the trial court erred in denying Appellant’s
Batson challenge where the Commonwealth struck one-
hundred percent (100%) of potential jurors who shared
Appellant’s race?
II. Whether the trial court erred in denying Appellant’s motion
to exclude hospital photographs (Commonwealth’s Exhibits
10 & 11) of the victim’s head injuries?
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1
Attempted murder carries a maximum penalty of twenty years
incarceration unless the Commonwealth establishes that serious bodily injury
occurred. 18 Pa.C.S. 1102(c). Since the maximum penalty is increased by
this factor, it must be determined beyond a reasonable doubt by the jury.
See Commonwealth v. Johnson, 910 A.2d 60 (Pa.Super. 2006).
Appellant was charged in the criminal information with causing serious bodily
injury to William Vasquez. William Vasquez, however, testified that he did
not consider his injuries life threatening. N.T., 11/18-19/14, at 190.
Nonetheless, Appellant has not raised any issue regarding whether William
Vasquez suffered serious bodily injury or that the jury was not adequately
instructed to find this element. Although the former issue presents a legality
of sentence question, see id. at 67, n.7, which can be raised sua sponte,
since Appellant has not developed the position, we decline to address the
matter. See Commonwealth v. Briggs, 12 A.3d 291, 344 (Pa. 2011)
(declining to review Eighth Amendment and Article I, § 13 claims due to
inadequate briefing); see also Commonwealth v. Belak, 825 A.2d 1252,
1256 n.10 (Pa. 2003) (declining to address legality of sentence question
where issue was not included in petition for allowance of appeal or original
brief).
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Appellant’s brief at 4.
Appellant initially maintains that the Commonwealth violated Batson
v. Kentucky, 476 U.S. 79 (1986), when it struck the alleged sole black juror
on the voir dire panel without cause. In Batson, the United States Supreme
Court determined that a prosecutor’s challenge to a possible juror based
solely on his race, where the defendant is of the same race, violates the
federal equal protection clause. Commonwealth v. Hanible, 30 A.3d 426,
475 (Pa. 2011). The Batson Court developed a three-part test for courts to
consider in analyzing whether a peremptory challenge was racially
discriminatory. First, the defendant must make a prima facie showing that
there is an inference that the prosecutor struck a juror or jurors based on
race. Once that prima facie showing occurs, the prosecution then bears the
burden of providing a race neutral explanation for the exercise of the strike.
Finally, the trial court determines whether the defendant has met his burden
of establishing purposeful discrimination.
In order for a court to review a Batson challenge, our Supreme Court
has mandated that the defendant provide the race of all the venire persons
in the jury pool; the race of all the remaining jury pool members after
challenges for cause; the race of the jurors removed by the prosecution; and
the race of the jurors acceptable to the Commonwealth that were stricken by
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the defendant. Commonwealth v. Spence, 627 A.2d 1176, 1182-1183
(Pa. 1993).
Appellant argues that when he raised his Batson challenge, he noted
his race and the race of the juror struck. He contends that the prosecutor
struck the lone black juror on the panel. Appellant set forth below and on
appeal that there were only three additional jurors who were non-Caucasian,
two of whom identified as Hispanic, and one who identified herself as
“other.” According to Appellant, the Commonwealth’s race neutral reasons
for the strike involved two reasons that do not appear in the record and the
final reason was insufficient.
The Commonwealth, during voir dire, disputed that there was only one
black juror on the panel. The prosecutor also asserted that he knew that the
juror had been arrested in 2002 by Harrisburg police for retail theft. He
added that the investigating officer had informed him that the juror had
rolled her eyes during his voir dire. Lastly, the Commonwealth noted that
the juror had indicated that her boyfriend lived near the crime scene. On
appeal, the Commonwealth contends that Appellant did not establish a prima
facie claim of racial bias and again suggests that another black juror who
was not struck was on the voir dire panel. It adds that it provided race
neutral reasons for the strike.
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Assuming arguendo that Appellant adequately developed a prima facie
claim, we find that the prosecution offered sufficient race neutral reasons for
the strike. Specifically, the prosecutor indicated that an investigation
division of its office prepares a background on prospective jurors and that
report revealed the juror in question had a prior retail theft arrest. The
prosecutor also submitted that the juror had rolled her eyes during his
questioning. These reasons are sufficient cause to strike a juror. Appellant
is entitled to no relief.
Appellant’s second issue relates to the admission of post-mortem
pictures of the murder victim. The admission of photographs is considered
under an abuse of discretion standard. Commonwealth v. Mollett, 5 A.3d
291, 301 (Pa.Super. 2010). In deciding the admissibility of photographs of a
murder victim, the court utilizes a two-step paradigm. Initially, the court
determines if the photograph is inflammatory. Pictures that are not
inflammatory are admissible when relevant. In contrast, inflammatory
pictures are only admissible if they “are of such essential evidentiary value
that their need clearly outweighs the likelihood of inflaming the minds and
passions of the jurors.” Id. Critically, the Mollett Court, relying on
Commonwealth v. Tharp, 830 A.2d 519, 531 (Pa. 2003), noted that
homicide trials are by nature unpleasant and photographs of injuries
suffered by a victim are not inadmissible simply because they are disturbing.
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Appellant first asserts that the admission of photographs showing the
murder victim’s head injuries were inflammatory. He highlights that the
photographs showed “large gashes in the victim’s skull, brain matter, and
large amounts of blood.” Appellant’s brief at 14-15. Appellant continues,
arguing that the photographs had “little, if any, evidentiary value[.]” Id. at
15. In this regard, he posits that the expert testimony of the forensic
pathologist provided a detailed description of the victim’s injuries, “including
that blood and brain matter were discovered on the walls.” Id.
Appellant maintains that other photographs of the crime scene, in
combination with the expert testimony, were sufficient to establish
Appellant’s criminal intent. In support, Appellant relies on Commonwealth
v. Powell, 241 A.2d 119 (Pa. 1968). This Court in Mollett, supra, at 303,
discussed Powell as follows.
[I]n Powell, supra, our Supreme Court determined that post-
mortem color photographs of the victim who died as a result of
injuries sustained to her head were unnecessary to aid the jury
in understanding the forensic pathologist's medical testimony.
The Court opined, “the nature and extent of the injuries involved
had no bearing on a finding of first degree felony murder.”
Powell, supra at 121. Furthermore, the Court stated that the
court's instruction that the photographs were being introduced
for the purpose of aiding the pathologist's medical testimony and
not for inflammatory reasons did not remedy the introduction of
the photographs.
Powell involved a felony murder, which at that time was considered a
part of first-degree murder. The victim was killed during the course of a
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robbery. Accordingly, the court reasoned that to establish felony murder,
the amount of force used and the injuries sustained did not bear on whether
the defendant committed felony murder.
The Commonwealth counters herein that it was permitted to introduce
the pictures to establish the level of injury the victim sustained in order to
demonstrate specific intent. We hold that Appellant is entitled to no relief.
Preliminarily, we agree that the photographs are inflammatory. The
photographs in question do show the victim’s bludgeoned face with large
amounts of blood. However, the testimony of the expert witness in this
matter, regarding the significant damage to Jose Vasquez’s skull, was more
disturbing than the actual photographs. Unlike Powell, this case did require
the Commonwealth to show specific intent. While unpleasant, the
photographs’ evidentiary value exceeded the likelihood of inflaming the
jurors’ minds.
The photographs demonstrate the force required to cause the injuries
suffered and eradicate any doubt that the person who inflicted the blows did
not intend to cause death. The pictures showed the severity of the injuries
and visually depicted the significant blows to the head suffered by the
murder victim, evidence from which specific intent could be inferred. The
mere fact that the expert was able to testify regarding these injuries is not
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grounds to preclude photographic evidence. For the aforementioned
reasons, Appellant’s claim fails.
Judgment of sentence affirmed.
Judge Allen Joins the Memorandum.
Judge Lazarus files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/29/2015
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