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COMMONWEALTH v. ALLEN (06/28/72)

decided: June 28, 1972.

COMMONWEALTH
v.
ALLEN, APPELLANT



Appeal from order of Superior Court, March T., 1971, No. 2, affirming the judgment of sentence of Court of Common Pleas of Dauphin County, June T., 1966, No. 22, in case of Commonwealth of Pennsylvania v. Donald Edward Allen.

COUNSEL

David N. Savitt, with him John Patrick Walsh, and Walsh & Savitt, for appellant.

Marion E. MacIntyre, Deputy District Attorney, with him LeRoy S. Zimmerman, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Roberts took no part in the consideration or decision of this case.

Author: Nix

[ 448 Pa. Page 179]

In March of 1966, appellant, Donald Edward Allen, was arrested and charged with aggravated robbery. Following his conviction by a jury, Allen appealed to the Superior Court which reversed the judgment and remanded the case for a new trial. Commonwealth v. Allen, 212 Pa. Superior Ct. 314, 242 A.2d 901 (1968). Appellant was subsequently retried and on March 24, 1969, the jury returned a verdict of guilty to the charge of aggravated robbery. Appellant then filed a motion for a new trial which was dismissed, and the Superior Court affirmed the judgment of sentence, per curiam. Commonwealth v. Allen, 220 Pa. Superior Ct. 44, 281 A.2d 706 (1971) (Spaulding and Hoffman, JJ., dissenting). We granted allocatur.

On this appeal appellant's primary contention is that reversible error was committed when, over timely objection, the trial court permitted several of the Commonwealth's witnesses to make references to the fact that the police had shown photographs of the appellant to the alleged eyewitnesses. Specifically, it is argued that this testimony allowed the jury to infer that the appellant had a prior criminal record. Appellant also alleges error in the trial court's denial of his motions for the production and examination of the police reports which contained the results of interviews with the Commonwealth's witnesses who testified at trial. Since we find the references to the photographs sufficiently prejudicial to warrant a new trial, we will deal exclusively with that issue.

With respect to prejudice resulting from the introduction of photographs of a defendant, the law has long been that before a new trial is to be granted an examination of the record and the particular circumstances of the case must reveal that the jury was prejudiced against the defendant because of the photographic

[ 448 Pa. Page 180]

    reference. See Commonwealth v. Luccitti, 295 Pa. 190, 145 A. 85 (1928). Recently, however, due to certain decisions of the Superior Court, a controversy has arisen over this long-standing rule.*fn1 On four occasions the Superior Court apparently expanded the established Pennsylvania law and reversed convictions because of references to police photographs. The law as it has developed from these decisions can be interpreted to suggest that any reference to a photograph of defendant in police possession requires the granting of a new trial. See Commonwealth v. Bruno, 215 Pa. Superior Ct. 407, 258 A.2d 666 (1969); Commonwealth v. Jamison, 215 Pa. Superior Ct. 379, 258 A.2d 529 (1969); Commonwealth v. Allen, 212 Pa. Superior Ct. 314, 242 A.2d 901 (1968); Commonwealth v. Trowery, 211 Pa. Superior Ct. 171, 235 A.2d 171 (1967).

In particular, Commonwealth v. Bruno, supra, the last decision in this line of reversals, specifically held that in view of the victim's positive in-court identification of the defendant, not weakened by cross-examination, the reference to photographic identification was irrelevant, and because of the possible prejudice arising from the reference, a new trial was required. 215 Pa. Superior Ct. at 410-11, 258 A.2d at 668. Even though this holding seems to imply that as a matter of law mere reference to a police photograph will disable the jury from presuming the defendant's innocence, the Superior Court has since rejected the contention that prejudice automatically follows after reference to a police photograph and concluded that the entire record must be studied in order to determine whether, in light of all the evidence, prejudice against the defendant did

[ 448 Pa. Page 181]

    in fact exist. Commonwealth v. Taylor, 219 Pa. Superior Ct. ...


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