Appeal from order of Superior Court, April T., 1972, No. 327, affirming judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Jan. T., 1972, No. 108, in case of Commonwealth of Pennsylvania v. John Langford Turner.
Stephen P. Swem, Assistant Public Defender, with him John J. Dean, Assistant Public Defender, and George H. Ross, Public Defender, for appellant.
Robert L. Campbell, Assistant District Attorney, with him Robert L. Eberhardt, Assistant District Attorney, and Robert W. Duggan, District Attorney, for Commonwealth, appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Eagen. Mr. Justice Pomeroy concurs in the result. Mr. Chief Justice Jones took no part in the consideration or decision of this case.
The appellant, John Langford Turner, was convicted by a jury of armed robbery and receiving stolen goods. A motion for a new trial was denied, and Turner was sentenced to a term of three to ten years imprisonment on the robbery conviction. On appeal, the Superior Court, being equally divided, affirmed the judgment of sentence. We granted allocatur and now reverse.
The sole issue before this Court is whether the testimony of a police officer, wherein he described a photographic identification of Turner, constituted reversible error. Specifically, Turner asserts this testimony, in effect, informed the jury he had a prior criminal record.
The record discloses the following facts. Detective Burke, one of the investigating officers, testified as to how the police identified Turner as the man who committed the armed robbery. Over objection, he stated on direct examination: "Q. And what was your purpose in speaking to Miss Brown [the victim]? A. Well, I went to Miss Brown and I showed her photographs on that date."
"Q. Now, Detective Burke, before you showed any pictures to Miss Brown, did you obtain from her a description of her assailant? A. Yes, we did. Q. Do you recall or do you have noted somewhere in your report the description that was afforded to you by Miss Brown around 9:45 p.m. the night of the robbery? A. Yes. Miss Brown gave a description to Detective Foley and he had the description written down on a piece of paper while he was interviewing the victim, Miss Brown, and she gave a description of a colored male, twenty-five, five foot eight or nine, one hundred sixty-five pounds, medium brown skin, Afro haircut, pock-marked face, khaki Barracuda type jacket and dark pants. Q. Based on that description, which was given to you, did you
later conduct a photo identification procedure? A. Yes, I did. Q. And in this photo identification procedure, how many photographs were involved? A. There was nineteen photographs shown. Q. Now, how did you select the photographs which were grouped into the nineteen shown to Miss Brown? A. I took eighteen photographs in the Robbery Section, we have files of medium, tall and short robbery suspects and robbery defendants, and when I got the description of this person, I went to the file marked 'Mediums' and selected eighteen photographs from the file cabinet."*fn1
In Pennsylvania, the law is clear that if a testimonial reference to a photograph indicates to the jury the accused has been involved in prior criminal activity, reversible error is committed. This rule is based on the principle that evidence of distinct crimes may not be introduced against a defendant who is being tried for another crime, except under certain limited circumstances, not relevant here. See Commonwealth v. Groce, 452 Pa. 15, 303 A.2d 917 (1973); Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972).
In Allen, this Court stated: "We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference; so too, where it appears on the face of the record that there is an explanation of the police possession of the photograph unrelated to any ...