Appeal from judgment of Court of Oyer and Terminer of Dauphin County, June T., 1966, No. 22, in case of Commonwealth of Pennsylvania v. Donald Edward Allen.
Richard C. Angino, with him Macey E. Klein, and Hurwitz, Klein, Benjamin & Brown, for appellant.
Carl G. Wass, Assistant District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Hannum, JJ. Opinion by Spaulding, J. Wright, P. J., and Watkins, J., would affirm on the opinion of Judge Bowman for the court below.
[ 212 Pa. Super. Page 315]
This is an appeal by Donald Edward Allen, appellant, from his conviction by a jury in the Court of Oyer and Terminer of Dauphin County of the crime of aggravated robbery.
On February 26, 1966, two armed men entered and robbed the Acme Food Market on South Cameron Street in Harrisburg. The felons were in the store for approximately 10 to 12 minutes, during which time three employes observed them for various intervals. A witness outside the store identified the motor vehicle allegedly driven by one of the gunmen and an investigation revealed that the car belonged to one August Shartner. Appellant was listed as a suspect because of his association with Shartner. A prior penitentiary photograph of appellant was shown to the several employes of the store, who were later requested to pick the suspect from a lineup at a police station and identify him at the preliminary hearing. These same employes
[ 212 Pa. Super. Page 316]
were present at the arraignment of appellant and subsequently identified him at trial.
In the course of appellant's trial the district attorney called as a witness one of the employes present during the commission of the crime, who, after identifying appellant in court, testified that he had identified him previously from "mug shots." Appellant's counsel immediately objected and moved for withdrawal of a juror. His objection was sustained but the request for the withdrawal of a juror was denied, although the trial judge cautioned the jury that they could infer nothing from the reference to "mug shots" since "[t]he police have access of [sic] photographs from many sources."
Other errors allegedly were committed by the Commonwealth in the cross-examination of defense witnesses, but we find none of these have sufficiently prejudiced appellant to warrant a new trial. We do find, however, that the reference to "mug shots" was not "harmless" error as averred by the Commonwealth but so harmful that a new trial must be awarded.
As we stated in Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A.2d 171 (1967): "It is almost too axiomatic to repeat the well-established common law rule that, in a criminal prosecution, proof which shows or tends to show that the accused is guilty of the commission of other crimes and offenses at other times is incompetent and inadmissible for the purpose of showing the commission of the particular crime charged." (at 173) In that case, the objectionable circumstance was the actual introduction into evidence of the mug shots, or, as they were there designated, "rogues gallery" photographs. The Commonwealth ...