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COMMONWEALTH v. HARDING (09/19/73)

decided: September 19, 1973.

COMMONWEALTH
v.
HARDING, APPELLANT



Appeals from judgments of sentence of Court of Common Pleas, Trial Division, of Philadelphia, June T., 1971, Nos. 943, 944, 946 and 947, in case of Commonwealth of Pennsylvania v. Warren Harding.

COUNSEL

Henry T. McCrary, Jr., and Ronald J. Brockington, for appellant.

Maxine J. Stotland and Milton M. Stein, Assistant District Attorneys, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Spaeth, J. Hoffman, J. concurs in the result.

Author: Spaeth

[ 225 Pa. Super. Page 85]

Appellant, Warren Harding, was tried by a jury on March 27, 1972, and was found guilty on two counts of burglary and two counts of aggravated robbery. On June 28, 1972, post trial motions were denied and sentences were imposed.

The only issue argued to this Court is whether references by several Commonwealth witnesses to police photographs and color slides, used in identifying appellant, require the award of a new trial under Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972), which held, id. at 182, 292 A.2d at 375, that "[o]nce it is determined that a jury could reasonably conclude from the photographic reference prior criminal activity on the part of the defendant prejudicial error has been committed."

The evidence in the present case was that one Rosalie McNeill had been robbed twice, once on October 30, 1970, and again on April 12, 1971; hence the two burglary counts and two robbery counts.

On the night of the October 30 robbery the police showed Mrs. McNeill "one hundred and fifty -- two hundred photographs". She did not pick out any of these as a photograph of the robber. When asked whether appellant's photograph was included among the photographs shown Mrs. McNeill, the investigating detective replied, "I don't know for sure; I don't think so." The next evening the detective showed Mrs. McNeill and one Thomas Fife, a witness to the robbery, about two hundred colored slides. This occurred at the "Identifications Unit" in the Police Administration Building. Mrs. McNeill and Mr. Fife identified one of these slides -- a picture of appellant -- as depicting the robber.

[ 225 Pa. Super. Page 86]

The same detective interviewed Mrs. McNeill on the night of the April 12 robbery. When she told him "that the same guy that robbed her in October just robbed her tonight," he ordered a photograph of the slide that she had identified in October, and "[o]n the next evening, I went to her home and placed this photo among eleven other photographs of males of similar physical appearance. I placed them on a table for her and I placed a ruler along the bottom portion of the photographs, which would cover up the names of all these people in the photographs". Mrs. McNeill picked out the photograph of the slide depicting appellant. Shortly afterwards -- the record is not clear just when -- the detective "order[ed] more recent photos . . . and I went through the same procedure": "I took ten other photographs of males of the same physical characteristics, age, complexion. I again went over to her house, and again placed a ruler and the more recent photographs among these others. I placed a ruler across the bottom to hide the names. . . ." Mrs. McNeill "identified the newer photo of the same male [appellant]."

It is evident that from this testimony the jury "could reasonably conclude", Commonwealth v. Allen, supra, at 182, 292 A.2d at 375, that appellant had a criminal record.

The Commonwealth argues that nevertheless a new trial should not be awarded because "it was appellant, not the Commonwealth, who elicited the information from which the jury might infer that the accused had engaged in prior criminal activity." (Commonwealth's Brief at 6.) This argument is not supported by the record. The ...


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