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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


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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