Appeal from order of Court of Common Pleas, Trial Division, of Philadelphia, Jan. T., 1970, Nos. 656 to 659, inclusive, 661 to 664, inclusive, and 667, in case of Commonwealth of Pennsylvania v. Alonzo Robinson.
Melvin Dildine, Assistant District Attorney, with him Milton M. Stein, Assistant District Attorney, James D. Crawford, Deputy District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
Joseph Michael Smith, with him F. Emmett Fitzpatrick, Jr., and Fitzpatrick & Smith, for appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Cercone, J. Montgomery and Spaulding, JJ., concur in the result.
[ 221 Pa. Super. Page 169]
The defendant Alonzo Robinson was found guilty by jury of aggravated robbery, assault with intent to murder, wantonly pointing a firearm, carrying concealed deadly weapons, and a violation of the Uniform Firearms Act. He then filed motions in arrest of judgment and for a new trial. The court below found no merit in the motion in arrest of judgment*fn1 but reluctantly granted defendant a new trial, despite what it described as "overwhelming evidence against defendant",*fn2 because it interpreted our decision in Commonwealth v. Bruno, 215 Pa. Superior Ct. 407, 258 A.2d 666 (1969), to mandate such action because of two references to photographs of the defendant.
The first reference appeared in the Assistant District Attorney's opening remarks to the jury. In describing the events leading to defendant's arrest, he stated, "Now Officer Burns recognizes the defendant. He's been carrying his picture around with him and knows that he is wanted in connection with this taproom robbery." The second reference was made by Officer Watts during the course of his cross-examination: "Q. Officer Watts, you said that the interview took place inside your home. At approximately what time? A. Approximately 11 o'clock I would imagine. Q. Are you sure it didn't take place inside the 35th District at 11 o'clock? A. That is correct. I was at the
[ 221 Pa. Super. Page 170]
District during the interview and at home when he brought photos. He brought the photos for me to look at, and I identified the defendant from the photos." It is defendant's contention that these two references to photographs were prejudicial because they allowed the jury to infer prior police contact and deprived him of a fair trial.
There are two matters for us to resolve in any case in which prejudice is claimed from trial references to photographs or the introduction of photographs: first, was error committed; and if so, did that error require reversal of the conviction.
In determining whether or not error was committed, the following factors must be considered: (1) was the evidence relevant to any issue in the case? (2) was it introduced in a proper manner without undue emphasis and without clear suggestion to the jury of the likelihood of prior police contact, for example without making known to the jury that the photos were "mug shots"? and (3) was the jury properly instructed under the facts of the case as to the purpose of such evidence and the inferences that could not be drawn therefrom, keeping in mind that in a given case, the proper exercise of discretion may not require the trial judge to instruct on photographs, at all, since drawing the jury's attention to them may raise prejudicial inferences in the minds of the jury?
If the evidence is relevant and is introduced without undue emphasis or clear suggestion of prior police contact and is accompanied by proper and adequate instructions to the jury, no error has been committed. The introduction of the photographs, or testimony or references relating to them, would not be under such circumstances violative of the rule which holds that proof ...