J-S28011-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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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