                          [J-52-2016][M.O. – Dougherty, J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                EASTERN DISTRICT


COMMONWEALTH OF PENNSYLVANIA,                  :   No. 704 CAP
                                               :
                   Appellee                    :   Appeal from the Order dated 11/26/14
                                               :   in the Court of Common Pleas, Criminal
                                               :   Division, Philadelphia County at Nos.
             v.                                :   CP-51-CR-0508652-1999, CP-51-CR-
                                               :   0607431-1999 and CP-51-CR-1008141-
                                               :   1999
                                               :
BERNARD COUSAR,                                :
                                               :
                   Appellant                   :   SUBMITTED: March 15, 2016




                      CONCURRING AND DISSENTING OPINION


CHIEF JUSTICE SAYLOR                                     DECIDED: February 22, 2017


       I join Parts I, II, III, and VI(B) of the majority opinion, concur in the result as

concerns Parts IV, VI(A), VII, VIII, and IX, and respectfully dissent as to the balance, in

favor of a fuller evidentiary hearing.

       Preliminarily, I note that the allegations of the post-conviction petition include the

following:
              As shown throughout this Petition, [Appellant’s trial] counsel
              had done very little to prepare for trial. [The attorney]
              retained no experts and no investigator. He seemed not to
              understand, or even to be familiar with, significant discovery
              materials provided before trial to the prosecution. He failed
              to interview critical guilt phase witnesses. He failed to
              interview and present other witnesses, identifiable through
              reasonable investigation, who could have cast doubt on
              essential aspects of the Commonwealth’s case. He ignored
              and avoided Petitioner’s family, who, from the earliest days
              of [counsel’s] appointment, were eager to work with the
              defense and could have supplied a wealth of helpful
              evidence and investigative leads. He also failed to obtain
              and review available school and juvenile records which
              contained numerous mitigation “red flags,” even though the
              defense was on notice that the Commonwealth would be
              using Petitioner’s juvenile adjudication at the penalty phase
              to prove the existence of an aggravating circumstance.
              Indeed, [counsel] was so neglectful that he failed to visit
              Petitioner, who was held in county jail without bail, one
              single time before or during Petitioner’s trial. In short,
              [counsel] neglected his duty at every stage to investigate,
              prepare and present an adequate defense.
Petition for Habeas Corpus and Statutory Post-Conviction Relief in Commonwealth v.

Cousar, CP-51-0508652-1999, et al. (C.P. Phila.), at ¶11. Moreover, by agreement,

Petitioner has been awarded a new penalty hearing based upon his claim that counsel

failed to investigate, develop, and present mitigation evidence at his penalty hearing.

See Commonwealth v. Cousar, No. CP-51-0508652-1999, et al., slip op. at 2 (C.P.

Phila. Aug. 12, 2015).

       To my mind, the above allegations and circumstances raise substantial concern,

particularly as they are consistent with a pattern of deficient representation that we have

seen in capital litigation in Pennsylvania, see, e.g., Commonwealth v. King, 618 Pa.

405, 448-57, 57 A.3d 607, 633-38 (2012) (Saylor, J., concurring specially), and in light

of systemic issues. See, e.g., Commonwealth v. Roney, 622 Pa. 1, 90, 79 A.3d 595,

648 (2013) (Saylor, J., dissenting) (referencing a report of a special master who

determined that the compensation scheme for capital counsel in Philadelphia was

“grossly inadequate,” “completely inconsistent with how competent trial attorneys work,”

“punishes counsel for handling cases correctly,” and “unacceptably increases the risk of

ineffective assistance of counsel in individual cases”). In this landscape, my general

inclination remains that post-conviction courts should err on the side of affording the

opportunity for evidentiary hearings, rather than effectuating summary dismissals

                          [J-52-2016][M.O. - Dougherty, J.] - 2
premised on technical grounds. See, e.g., Hutchinson, 611 Pa. at 363, 25 A.3d at 325-

26 (“I believe that the appropriate way for this Court to address the intractable difficulties

which have arisen in the death-penalty arena is to consistently enforce the requirement

of an evidentiary hearing where material facts are in issue; to require appropriately

developed factual findings and legal conclusions of the PCRA courts; and to apply

consistent and fair review criteria on appeal.”).

       Regarding Part IV(A) of the majority opinion, I support the reasoning and

determination, subject to the following. Initially, I agree with the majority that, to the

extent that there is a specific requirement for some form of attestation from a capital

defendant’s trial attorney to support a post-conviction petition, that requirement should

not be strictly enforced.      I remain circumspect, however, about maintaining the

requirement for a specific attestation of counsel in the first instance, particularly since

trial counsel whose stewardship is in question effectively may be a hostile witness.

Accord Commonwealth v. Roney, 622 Pa. 1, 90 n.3, 79 A.3d 595, 648 n.3 (2013)

(Saylor, J., dissenting) (observing that “since counsel’s stewardship is generally under

attack by the petitioner on collateral review, counsel may not be cooperative, and, thus,

the petitioner may be relegated to adducing proof through what effectively amounts to

cross-examination”).1

1
  I also note that the majority refrains from framing the proffer obligation in terms of a
requirement to submit an “affidavit.” See Majority Opinion, slip op. at 14-15 (indicating
that “a supporting document” from counsel stating the reasons for the course chosen is
generally necessary to establish potential entitlement to a hearing”). To my mind, some
clarification is warranted in light of the following.

In 2005, writing from a responsive posture, a Justice made a point of highlighting the
distinction between affidavits and declarations, for purposes of post-conviction
evidentiary proffers, expressing disapproval of the use of the latter.            See
Commonwealth v. Brown, 582 Pa. 461, 510-14, 872 A.2d 1139, 1168-70 (2005)
(Castille, J., concurring). Such perspective has been integrated into various majority
(continued…)
                           [J-52-2016][M.O. - Dougherty, J.] - 3
       Regarding Part V, I agree with the majority that evidence of the uncharged

robbery was relevant to Appellant’s motive, see Majority Opinion, slip op. at 22, but I am

circumspect about continuing references to a res gestae exception to the prohibition

against other-bad-acts evidence. See id. Notably, recourse to res gestae has been

derided by legal commentators for a century, see, e.g., 1 JOHN H. W IGMORE, EVIDENCE IN

TRIALS AT COMMON LAW §218 (1904) (depicting the term as “useless and vicious,” while

urging that “legal discussion sedulously avoid this much-abused and wholly

unmanageable Latin phrase”), and has been abandoned by many courts. See, e.g.,

State v. Fetelee, 175 P.3d 709, 723-24 (Haw. 2008) (collecting cases).2                 While

acknowledging that I also have relied on the phrase in past opinions, I tend toward the

view that res gestae should now be regarded as an “ancient phrase [that] can be


(…continued)
expressions of the Court in subsequent years.               See, e.g., Commonwealth v.
Hutchinson, 611 Pa. 280, 343 n.19, 25 A.3d 277, 313 n.19 (2011). For my own part,
however, I continue to believe that enforcing a requirement for affidavits as such in this
context is unnecessarily formalistic and burdensome. See, e.g., id. at 362-63, 25 A.3d
at 325 (Saylor, J., dissenting) (“In light of the limited purposes for which such
documents are submitted -- which is not to prove a claim, but merely to demonstrate
that material facts are in issue and an evidentiary record should be developed -- I do not
see why the distinction between the different forms of submissions continues to be
highlighted in our opinions.”); see also Pa.R.Crim.P. 902(A)(12)(b) (discussing post-
conviction evidentiary proffers not only in terms of “affidavits,” but also, “documents, and
other evidence showing [the asserted] facts”).

I also believe that, to the extent that a specific requirement for affidavits existed or exists
in the abstract, there has been and is tremendous inconsistency in how such
requirement is being observed, since many decisions do not appear to reflect
enforcement.

2
 Indeed, the Superior Court previously expressed the view that res gestae should be
abandoned as it applies (as I believe that it is being applied by the majority here) to
conduct that is not part of the same transaction as the charged conduct. See
Commonwealth v. Murphy, 346 Pa. Super. 438, 444, 499 A.2d 1080, 1083 (1985).


                           [J-52-2016][M.O. - Dougherty, J.] - 4
jettisoned, with due acknowledgement that it served an era in the evolution of evidence

law.” Id. at 723 (quoting 2 JOHN W. STRONG, MCCORMICK           ON   EVIDENCE §268 (4th ed.

1992)).

       Furthermore, I would require that Appellant be afforded an opportunity for

evidentiary development, at least with respect to the claim of deficient stewardship on

trial counsel’s part for failing to request a limiting instruction. On this issue, as with the

claim pertaining to the ballistics evidence, Appellant’s failure to supply a particularized

evidentiary proffer may relate to the lack of a developed proffer from trial counsel.

       Concerning Part VII, from a broad perspective, I am circumspect about whether

trial counsel could have a reasonable explanation why he would not have solicited

interviews from eyewitnesses who did not identify his client at a line up. See Brief for

Appellant at 80 (asserting that trial counsel’s “decision to forego presenting the

testimony of eyewitnesses who did not identify Appellant at the line-up was

unreasonable because it was made with no advance preparation”). Nevertheless, in the

absence of any post-conviction proffer concerning what those witnesses might have

said, I accede to the position of the majority and the PCRA court that this particular

claim was amenable to summary rejection.3

       With respect to Part VIII and the jury charge concerning the overarching burden

of proof, I believe that a trial court should instruct jurors that they are to consider all of

the evidence in determining whether the Commonwealth has established the case for

guilt beyond a reasonable doubt. Accord Martin v. Ohio, 480 U.S. 228, 234, 107 S. Ct.

3
  I believe, however, that dismissal of a claim based upon the inadequacy of a proffer
should occur only after adequate pre-dismissal notice of such deficiency and an
opportunity to correct it. See generally Commonwealth v. Simpson, 620 Pa. 60, 115, 66
A.3d 253, 286 (2013) (Saylor, J., dissenting) (discussing inconsistencies in the PCRA
courts’ provision of the required pre-dismissal notice of the reasons supporting
dismissal).


                           [J-52-2016][M.O. - Dougherty, J.] - 5
1098, 1102 (1987) (reviewing trial court instructions to determine whether they were

adequate to convey that “all of the evidence . . must be considered in deciding whether

there was a reasonable doubt about the State’s proof of the elements of the crime”).

Furthermore, I would have concerns about the stewardship of a defense attorney failing

to ask a court to do so. Here, however, although the trial court’s instructions are not

entirely clear in this regard, read as a whole, they would seem to have sufficiently

covered the relevant direction.    See, e.g., N.T., May 8, 2001, at 85 (reflecting the

instruction that the jurors were to determine “not which side produced the most

evidence, but instead, which evidence you believe”); id. at 123 (reflecting the charge

that the jurors “should take each item of evidence as presented with c[a]reful

consideration”).

      As to Part IX, I have difficulty with the majority’s treatment of Appellant’s conflict-

of-interest claim as an after-discovered evidence challenge. See Majority Opinion, slip

op. at 35. This claim concerns post-trial representation and appears to have been

raised at the earliest subsequent opportunity at which Appellant was represented by an

attorney who was not purportedly conflicted. I agree, however, that a sufficient proffer

regarding prejudice is lacking. See id.

      Finally, with respect to the fact-bound matters associated with Part X, and

consistent with my thoughts expressed from the outset, I would err on the side of

allowing for evidentiary development and associated credibility determinations.



      Justice Donohue joins this concurring and dissenting opinion.




                          [J-52-2016][M.O. - Dougherty, J.] - 6
