Appeal from judgment of Court of Oyer and Terminer and General Jail Delivery of Allegheny County, Jan. T., 1967, No. 5, in case of Commonwealth of Pennsylvania v. Anthony Bruno.
Stephen A. Zappala, with him Zappala & Zappala, for appellant.
Carol Mary Los, Assistant District Attorney, with her Charles B. Watkins, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Hoffman, J. Wright, P. J., and Jacobs, J., would affirm on the opinion of Graff, P. J.
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This case presents a fact situation identical in all material respects to that present in Commonwealth v. Allen, 212 Pa. Superior Ct. 314, 242 A.2d 901 (1968).
Appellant was tried for aggravated assault and battery and assault with intent to ravish. At trial, the prosecutrix testified, over defense objection, that several days after she was attacked she had identified appellant as her assailant. This identification resulted from her viewing seven or eight photographs of different persons which the police displayed to her in her home.
Subsequently, the Commonwealth called a police detective who also testified that he and his partner had visited the prosecutrix in her home and displayed seven photographs to her for identification purposes. He was followed to the stand by the prosecutrix's father who
[ 215 Pa. Super. Page 409]
also testified that the police had shown his daughter several photographs for identification purposes.
In this appeal, appellant maintains that he was prejudiced by the jury being informed, over his objection, that the initial identification of him was from photographs presented to the prosecutrix by the police. Specifically, he urges that this testimony served to inform the jury that he had a criminal record.
The lower court itself recognized the validity of that argument, but held that Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A.2d 171 (1967), did not render such testimony inadmissible. The court stated: "The photographs themselves were excluded for the reason that we concluded that the jury might believe that the one of the defendant had been taken when he was in police custody. However, we believe that it was entirely relevant to prove the fact of identification from a photograph because it was important for the jury to know why this defendant had been charged with a crime."
This argument, however, was explicitly rejected in Commonwealth v. Allen, supra, which relied on Trowery. In Allen, the Commonwealth also attempted to justify a witness' reference to mug shots. The Commonwealth argued that since the defendant intended to rely upon an alibi, it was necessary to use "'every means at its disposal in an effort to establish with the utmost certainty the identity of the defendant.'" Commonwealth v. Allen, supra at 319. The identification of the defendant in Allen from the mug shots, it was argued, was added proof that the identifying witness was certain of his ...