Pa. Supreme Court remands capital PCRA case for failure to hold evidentiary hearing on disputed factual issues/ requirement for affidavit from trial counsel to be attached to amended PCRA petition explaining reason for course of action/ failure to cross-examine eyewitness on prior failure to identify the defendant

Commonwealth v Cousar,  ____ A.3d ____, No. 704 CAP (Pa. 2/22/2017)

Mr. Cousar was tried, convicted and sentenced to death for two homicides and a robbery that occurred on three separate days within one month.  Following affirmance of his convictions he filed for PCRA relief. The parties and the PCRA court agreed he was entitled to a new penalty hearing, but the court dismissed the guilt phase claims without a hearing. The Supreme Court reversed and remanded for a hearing on two of the several issues he raised concerning trial counsel’s ineffectiveness.

The first issue he prevailed on was his counsel’s failure to impeach a police firearms expert who testified the guns used in one of the homicides and the robbery were the same, which was the basis for the consolidation of the homicide charges with the robbery charge. A ballistics report from a police firearms expert stated the guns were not the same, but at trial, another firearms expert testified that they were. Counsel had some idea the issue would arise because of the consolidation motion, although he did not know, nor ever raise, the report contradicting the Commonwealth’s claim that the same gun was used in one of the homicides and the robbery. At trial, he did not cross-examine the police ballistics expert or in any other way raise the contradictory report. The Court considered whether the issue was waived for failure to submit an affidavit from counsel as to why he chose not to raise the contradictory report, stating:

Particularly when PCRA claims require examination of trial strategy, it is not enough to take a cold record, state alternative choices counsel could have made, and then declare an entitlement to relief. Id. Mere conclusory allegations, without some proffer as to what counsel would say in response to the allegations are insufficient to establish entitlement to relief. Id. Thus a supporting document from counsel stating his reasons for the course chosen is generally necessary to establish potential entitlement to a hearing. Id. See, e.g., Pa.R.Crim.P. 902(A)(12)(b) [[1]] (PCRA petition shall contain facts supporting each ground for relief; if supporting facts do not appear of record “affidavits, documents and other evidence showing such facts” to be identified).

The Court however accepted PCRA counsel’s explanation that he received an “affidavit” from opposing counsel that stated he would testify, but not what he would say. The effort to obtain one and the response he got were enough to excuse the omission. The Court found the failure to bring up the conflicting report to have arguable merit, and remanded for a hearing on the issue.

The other issue remanded for a hearing concerned counsel’s failure to cross-examine a Commonwealth witness’ identification of Mr. Cousar at trial with her failure to do so at the preliminary hearing. An otherwise vigorous cross-examination of her, absent some explanation by counsel should have included that prior failure. On remand, a  hearing is required on this issue too.

The Court dismissed several remaining issues Mr. Cousar raised.

Statement to police during plea negotiations was inadmissible, but admission was nevertheless harmless.

[[1]] [The rule reads:

(A)  A petition for post-conviction collateral relief shall bear the caption, number, and court term of the case or cases in which relief is requested and shall contain substantially the following information:

(12)  the facts supporting each such ground that:

(a)   appear in the record, and the place in the record where they appear; and

(b)   do not appear in the record, and an identification of any affidavits, documents, and other evidence showing such facts;]


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