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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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, J., ALLEN, J., and LAZARUS, J.
CONCURRING MEMORANDUM BY LAZARUS, J.: FILED JUNE 29, 2015
I concur, because like the majority, I believe that the judgment of
sentence should be affirmed. However, I disagree regarding the
admissibility of two color photographs, Commonwealth Exhibits 10 and 11,
which graphically depict the victim’s head wounds.
In my view, the majority is mistaken in concluding that the
Commonwealth was permitted to enter the inflammatory photographs into
evidence to show specific intent, an element of the first-degree murder
charge in the instant matter. The majority relies upon Commonwealth v.
Mollett, 5 A.3d 291 (Pa. Super. 2010), in which an inflammatory
photograph was deemed admissible to demonstrate the defendant’s intent in
shooting a police officer who died of the gunshot wound.
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In deciding Mollett, this Court specifically distinguished the case
before it from Commonwealth v. Powell, 241 A.2d 119 (Pa. 1968), which
held that color photographs of the victim who died as a result of head
injuries were unnecessary because specific intent had no bearing on
determining whether the defendant had committed felony murder. In
Mollett, however, specific intent was at issue; the defendant asserted that
the gun was fired accidentally as the result of a struggle with the officer,
while the Commonwealth presented a theory that the gun had been
discharged intentionally, execution style. The photograph in question was
deemed to be more probative than prejudicial because it demonstrated that
the bullet entered one side of the officer’s head and exited the other side, in
a downward trajectory. This was consistent with an execution-style shooting
and demonstrated a specific intent to shoot, and thereby kill, the officer.
See Mollett, 5 A.3d at 303-04.
Here, Cornish denied any involvement in causing Jose Vasquez’s
death. Thus, the instant matter does not parallel the circumstances present
in Mollett, as no competing explanation for the victim’s injuries, such as
self-defense, was presented in response to the Commonwealth’s theory.
However, the Commonwealth argued before the trial court that the
photographs in question demonstrate the magnitude of the injuries the
victim suffered and thus are admissible to show specific intent to kill. The
trial court permitted the photographs to be shown to the jury on this basis;
the majority agrees with this reasoning, stating that the “photographs
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demonstrate the force required to cause the injuries suffered and eradicated
any doubt that the person who inflicted the blows [intended] to cause
death.” Majority Memorandum, at 8.
While it may be true that the photographs in question would
“eradicate” any doubt regarding the intent behind the attack on Jose
Vasquez, where such inflammatory evidence is cumulative, rather than
essential, it should not be admitted. See Commonwealth v. LeGares, 709
A.2d 922, 925 (Pa. Super. 1998) (finding inflammatory slide was not
essential evidence, but rather merely cumulative of other properly admitted
evidence; trial court abused its discretion in admitting slide over defense
objection). Instantly, the photographs were cumulative, as expert testimony
provided a detailed explanation of the victim’s injuries, including a
description of brain matter on his shoulder and blood splatter on the walls of
his bedroom. Thus, the inflammatory photographs were not essential, and
the trial court abused its discretion in admitting them into evidence.
Moreover, the majority’s conclusion that “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,” Majority
Memorandum, at 8, does not make the inflammatory photographs
automatically admissible. Indeed, the reverse is true, since expert
testimony combined with admissible photographs of blood splatter provided
sufficient evidence of specific intent to kill in this matter.
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While it was clear error for the trial court to admit the inflammatory
photographs into evidence, the additional evidence presented by the
Commonwealth was of such great weight that the error was harmless. Cf.
LeGares, supra, at 927 (inadmissibility of slide combined with overall lack
of evidence required grant of new trial).
For the foregoing reasons, I disagree regarding the admissibility of
Commonwealth Exhibits 10 and 11, but concur in the majority’s result, since
admitting the photographs was harmless error.
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