The opinion
J-S09026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOHN CORNISH :
:
Appellant : No. 1822 EDA 2021
Appeal from the PCRA Order Entered August 16, 2021,
in the Court of Common Pleas of Philadelphia County,
Criminal Division at No(s): CP-51-CR-0005385-2009.
BEFORE: LAZARUS, J., KUNSELMAN, J., and STEVENS, P.J.E.*
MEMORANDUM BY KUNSELMAN, J.: FILED MAY 26, 2022
John Cornish appeals from the order denying his first timely petition filed
pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§ 9541-
46. We affirm.
Cornish and his co-defendant, Malik Johnson, we involved in the
shooting death of the victim. Police uncovered several used gun cartridge
casings at the scene of the crime which a ballistics expert later identified as
having come from two different weapons, a 9mm or .38mm handgun and a
shotgun. No firearms, however, were recovered at the scene.
In Cornish’s direct appeal, we reproduced the trial court’s summary of
the Commonwealth’s evidence at trial:
____________________________________________
* Former Justice specially assigned to the Superior Court.
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Police Officer James Miller testified that shortly before 11
p.m. on October 5, 2008, he was called to the area of 2900
Thomson Street in Philadelphia. He saw a gold Mercury
Grand Marquis. The driver’s window appeared to be shot
out. A black male later identified as the [victim] was
slumped over and unresponsive. He appeared to have been
shot on the left side. The officer took the victim to
Hahnemann Hospital where he was pronounced dead.
The Medical Examiner, Dr. Sam Guilino[,] testified that the
victim died of a gunshot wound to his chest. The bullet
entered the left side of his chest, and went through the left
lung, the left subclavian artery and vein. The bullet then
penetrated into the neck, going through the trachea, the
carotid artery and the jugular vein. The bullet lodged in the
right side of the neck and was recovered.
Hakee[m] Savage testified that he was inside “Ms[.] P’s”
house near the shooting scene when he heard gunshots. He
further testified that after the gunfire stopped [Cornish and
Johnson] came running into the house. One had a shotgun
and one had a handgun. The witness testified that he could
not remember which defendant had which weapon. He
further testified that when they came in, one of the
defendants said, “Don’t go outside. Somebody just got
shot.” However, in a signed statement given to the police
approximately three (3) months after the shooting . . . the
witness gave a different version of events. In that
statement, the witness said that right after the shooting
both defendants came running into the house breathing
heavily. [Johnson] was the one armed with the shotgun.
[Cornish] said, “Don’t go outside. We just rocked
someone.” The witness understood the word “rocked” to
mean killed.
Karee[m] Savage was called and questioned about a
statement that [Cornish] made to him after the shooting
admitting to being one of the shooters. The witness denied
that [Cornish] made any statement to him. The witness did
acknowledge that he gave a signed statement to the police
detailing the substance of that conversation. However the
witness testified that he lied in his statement. In that
statement [S]avage detailed a conversation he had with
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[Cornish] after the shooting. [Cornish] admitted to doing
the killing with another person. [Cornish] stated that the
motive appeared to be one of mistaken identity, as the
decedent was driving a [car] that the intended target, a
person named “Mansy” was known to drive.
Darnell Corbitt testified that he was in the car with the
decedent at the time of the shooting. At trial the witness
testified that after stopping at a bar at 29th and Girard, he
heard gunshots from more than one gun and jumped out of
the car. At trial he denied having anymore information
about the shooting or the shooters. However, in a signed
statement given to Homicide Detective John McNamee
approximately three weeks after the shooting, the witness
also gave a different version of events. In that statement
the witness identified photographs of both defendants as the
shooters.
Dandrea Brown testified before this [c]ourt on November 4,
2010. Her testimony was preserved prior to trial, as she
was suffering from ovarian cancer. She lived in the house
at 2907 West Flora Street, which was used for the packaging
of drugs by [Cornish], [Johnson], the Savage brothers and
others. She was upstairs at the time of the shooting. She
came downstairs. A few seconds after the shooting,
[Cornish] and [Johnson] came running inside. [Johnson]
was holding a shotgun and [Cornish] had a handgun.
[Johnson] told her to clean the guns and store them. She
complied.
Bullet holes were observed in the driver[’]s side car door.
Forensic evidence recovered from the crime scene outside
the car included six (6) fired cartridge casings, three (3)
bullet specimens and one (1) buckshot from a .12 gauge
shotgun. No fingerprints were recovered from the crime
scene, nor was a gun recovered. One additional projectile
and additional bullet fragments were recovered from inside
the car door.
Police Officer Stephen Ahmie, a ballistics expert[,] examined
all of the ballistics evidence. The ballistic[s] evidence
recovered from the car door consisted of two (2) types, 00
buckshot consistent with coming from a shotgun shell and a
bullet consistent with being from a [.38 caliber or 9-
millimeter weapon]. The bullet recovered from the
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victim[’]s neck also was consistent with a [.38 caliber or 9-
millimeter weapon]. The other ballistic[s] evidence
recovered at the crime scene consisted of seven (7) fired
cartridge casings and one (1) fired shotgun shell. The fired
cartridge casings all were [9-millimeter] and all were fired
from the same gun. The fired shotgun shell was [a] .12
gauge and was consistent with . . . the buckshot recovered.
Commonwealth v. Cornish, 117 A.3d 356 (Pa. Super. 2014), non-
precedential decision at 2-4 (citations omitted).
Following a four-day bench trial, the court convicted Cornish of third-
degree murder and related charges. On May 17, 2013, the trial court
sentenced him to an aggregate term of twenty-five to fifty years of
imprisonment. Cornish appealed to this Court. On November 24, 2014, we
affirmed his judgment of sentence. Cornish, supra. On May 13, 2015, our
Supreme Court denied Cornish’s petition for allowance of appeal.
Commonwealth v. Cornish, 117 A.3d 295 (Pa. 2015).
On April 12, 2016, Cornish filed a counseled PCRA petition. The
Commonwealth filed a motion to dismiss on September 1, 2017. Thereafter,
the PCRA court held several evidentiary hearings between May 24, 2019, and
March 19, 2021. The parties submitted post-hearing briefs. By order entered
August 16, 2021, the PCRA court denied Cornish’s petition. This appeal
followed. The PCRA court did not require Pa.R.A.P. 1925 compliance.
Cornish raises the following five issues:
A. Did the [PCRA] court err in not finding trial counsel
ineffective under the U.S. and Pennsylvania Constitutions
for failing to investigate witnesses Donald Caraco, Beth
Caraco and Captain Michael O’Donnell, whose testimony
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would have credibly established that Ms. Caraco – a
disinterested witness – saw the shooter alleged to be
[Cornish], and her description of that shooter was utterly
inconsistent with [Cornish’s] physical stature and his
clothing as described by [Dandrea Brown,] the
immunized and incentivized Commonwealth witness?
B. Did the [PCRA] court err in not finding trial counsel
ineffective under the U.S. and Pennsylvania Constitutions
for failing to investigate and call Police Officer [Steven]
Shippen, who would have established that two men – one
of whom matched an eyewitness’s description of the
shooter the Commonwealth alleged was [Cornish], but
who bore no resemblance to him – were seen driving
away from the crime scene moments after the shooting?
C. Did the [PCRA] court err in not finding trial counsel
ineffective under the U.S. and Pennsylvania Constitutions
for failing to present eyewitness Elizabeth Brown, who
would have testified that one of the two shooters in the
incident fled in a direction away from the residence of
Dandrea Brown, an immunized witness, who testified
that both shooters – one of whom she claimed was
[Cornish] – escaped into her home just seconds after the
shooting?
D. Did the [PCRA] court err in not finding trial counsel
ineffective under the U.S. and Pennsylvania Constitutions
for failing to call Antionne Russell, who would have
testified that: 1) he purchased the murder weapon, that
was used in this case, from Kareem Savage, a
Commonwealth witness who claimed that [Cornish]
confessed to his involvement to him; and that 2) the
weapon was silver in color, not black as Commonwealth
witness Dandrea Brown claimed?
E. Did the [PCRA] court err in denying [Cornish’s] claim that
the cumulative impact of trial counsel’s ineffectiveness
prejudiced him?
Cornish’s Brief at 4-5 (footnotes omitted)
This Court’s standard of review for an order dismissing a PCRA petition
is to ascertain whether the order “is supported by the evidence of record and
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is free of legal error. The PCRA court’s findings will not be disturbed unless
there is no support for the findings in the certified record.” Commonwealth
v. Barndt, 74 A.3d 185, 191-92 (Pa. Super. 2013) (citations omitted). This
Court “must defer to the credibility determinations made by the [PCRA] court
that observed a witness’s demeanor first hand.” Commonwealth v. Todd,
820 A.2d, 707, 712 (Pa. Super. 2003). Such deference is especially
appropriate “where, as here, the PCRA court judge also served as the trial
court judge.” Martin, 5 A.3d 177, 197 (Pa. 2010).
Cornish’s issues challenge the effectiveness of trial counsel. To obtain
relief under the PCRA premised on a claim that counsel was ineffective, a
petitioner must establish by a preponderance of the evidence that counsel’s
ineffectiveness so undermined the truth determining process that no reliable
adjudication of guilt or innocence could have taken place. Commonwealth
v. Johnson, 966 A.2d 523, 532 (Pa. 2009). “Generally, counsel’s
performance is presumed to be constitutionally adequate, and counsel will
only be deemed ineffective upon a sufficient showing by the petitioner.” Id.
This requires the petitioner to demonstrate that: (1) the underlying claim is
of arguable merit; (2) counsel had no reasonable strategic basis for his or her
action or inaction; and (3) the petitioner was prejudiced by counsel's act or
omission. Id. at 533. A failure to satisfy any prong of the test for
ineffectiveness will require rejection of the claim. Martin, 5 A.3d at 183.
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To establish that trial counsel was ineffective for failing to investigate
and/or call a witness at trial, a PCRA petitioner must demonstrate that:
(1) the witness existed; (2) the witness was available; (3)
trial counsel was informed of the existence of the witness or
should have known of the witness’s existence; (4) the witness
was prepared to cooperate and would have testified on
appellant’s behalf; and (5) the absence of the testimony
prejudiced appellant.
Commonwealth v. Hall, 867 A.2d 619, 629 (Pa. Super. 2005) (citation
omitted).
Here, the PCRA court placed Cornish’s ineffectiveness claims in context:
Cornish’s petition argues [trial counsel] was remiss in
failing to interview and bring to trial witnesses who claimed
to have seen an alternative shooter on the scene, namely a
[heavyset] man in a red sweatshirt. The testimony at the
hearing[s] may be summarized as follows:
Officer O’Donnell says that when he came to the scene
of the crime, Beth Caraco told him that she saw a heavyset
male in a sweatshirt on the southwest corner of 29th and
Stiles Street and that the male was shooting a gun. Donald
Caraco did not see the shooting but reported his [then]
fiancé’s contemporaneous observations.
Officer Shippen was at or on his way to the hospital with
the shooting victim when flash information came over the
police radio stating that a heavyset male wearing a red shirt
was in the vicinity of the shooting. He was known to
[Officer] Shippen and the police as Larry McCray. McCray
was the passenger in a Grand Marquis and was wearing a
red hoodie. The driver was not identified.
[Elizabeth] Brown said that from her second story
window she saw two men at the corner of 29th and Stiles
Streets shooting. After the shooting she saw them run down
the street. One of them was wearing a dark hoodie.
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When questioned by police, Russell identified a photo of
Kareem Savage as representing someone who sold him a
gun.
PCRA Court Opinion, 10/7/21, at 4-5 (formatting altered).
The PCRA court then denied Cornish’s petition for post-conviction relief
because she credited trial counsel’s testimony as presenting a reasonable trial
strategy. Alternatively, the court concluded that Cornish did not present
credible testimony that would establish prejudice:1
Having reviewed the trial record, heard testimony at
Cornish’s hearing[s] and having been the presiding judge
over the waiver trial in this matter, [the court] concludes
that Cornish has not met his burden. [Trial counsel]
described his approach: while he reviews witness
statements in the district attorney’s file, he generally does
not interview those declarants. In his experience, witnesses
who make prior statements often change or alter those
statements in court, thereby requiring him to challenge
them at trial, to the detriment of his client’s interests.
Similarly, he guards against witness testimony that, as in
this case, is inconsistent with incontrovertible facts.
Under the circumstances of this case, [trial counsel’s
strategy] was prudent. Cornish[’s] witnesses contradicted
the uncontroverted physical evidence. Moreover, at times
the witnesses contradicted each other. For example, [Beth
Caraco’s] statement that there was one shooter and that the
victim fell to the ground conflicted with the forensic evidence
that there were two shooters and that [the victim] was shot
____________________________________________
1 Although not addressed by the PCRA court, we note that Cornish presented
little evidence that the named witnesses were available and willing to testify
at trial. For example, he summarily argues Beth Caraco was available to
testify at trial because she testified at the PCRA hearing. See Cornish’s Brief
at 30. Our reading of her testimony, however, indicates that the
Commonwealth had asked her to testify at Cornish’s trial and she responded,
“absolutely not.” N.T., 5/24/19, at 73.
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and died in his car. Similarly, although the Commonwealth
witnesses, Officers Miller and Shippen, testified that they
saw heavyset McCray in a Grand Marquis in the area, they
differed about whether McCray was a driver or a passenger.
[Trial counsel’s] strategy was to show that the trial
witnesses who identified Cornish as one of the two shooters
were lying and intended to frame him. Cornish’s witnesses
offered only unreliable evidence of an “alternative shooter”
that, in the face of the other substantial evidence against
Cornish, was not consistent with this strategy. Whether
another strategy would have been better than [trial
counsel’s] is not a question before [the] court. What is
required is to determine whether under the circumstances
of the case the strategy he chose was reasonable. [The]
court finds that it was.
As to the third prong of Cornish’s burden, the thin
testimony of these witnesses would not have produced a
different outcome. [Trial counsel] vigorously and prudently
challenged [the] credibility of the eyewitnesses. The
contradictory and hesitant statements of Cornish’s proposed
witnesses could not have produced a different result and,
instead, may have diminished the strength of the defense.
PCRA Court Opinion, 10/7/21, at 6-7 (citations and footnote omitted).
Our review of the record supports the PCRA court’s conclusions, and
Cornish has provided no basis to overturn the court’s credibility
determinations. Todd, supra; Martin, supra. In this case, the PCRA court
was the fact finder at Cornish’s trial. As the court explained:
Cornish suggested in his brief that his witnesses, as honest
citizens, are more credible than the trial witnesses who were
embroiled in drug deals. Judges, juries, and attorneys are
schooled in the importance of making credibility
determinations on the basis of testimony only. In this, a
waiver trial, there is no basis for the proposition that this
judge, as trier of fact, was unable to do so.
PCRA Court Opinion, 10/7/21, at 7 n.3.
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Moreover, while Cornish takes issue with trial counsel’s “standard
practice” not to interview eyewitnesses, Cornish’s Brief at 37-39, the only
issue in this case was whether counsel’s failure to call the witnesses identified
in his brief prejudiced him. As summarized, above, the PCRA court found no
prejudice; contrary to Cornish’s claim, the court did not approve “trial
counsel’s blanket policy ‘not interview declarants[.]” Id. at 42.
Finally, Cornish suggests that any contradictions in the testimony
presented by his PCRA witnesses were “inconsequential,” and that there is no
record support for the PCRA court’s describing the witnesses as “hesitant.”
Id. at 43-44. Once again, we note that we defer to the PCRA court’s
credibility determinations, and the weight accorded the witnesses’ testimony.
Todd, supra; Martin, supra.
In sum, our review of the record provides ample evidence to support
the PCRA court’s conclusion that the testimony from the witnesses at the PCRA
hearing would not have resulted in a different outcome. Thus, Cornish failed
to meet his burden of establishing trial counsel’s ineffectiveness. We therefore
affirm the PCRA court’s order denying him post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/26/2022
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