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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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