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COMMONWEALTH v. SCARAMUZZINO (03/25/74)

decided: March 25, 1974.

COMMONWEALTH
v.
SCARAMUZZINO, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Lebanon County, July T., 1972, No. 240, in case of Commonwealth of Pennsylvania v. Samuel Joseph Scaramuzzino.

COUNSEL

Robert W. Geigley and Keith L. Kilgore, with them Spitler, Rowe, Silberman & Kilgore, for appellant.

George E. Christianson, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Nix. Mr. Justice Pomeroy concurs in the result.

Author: Nix

[ 455 Pa. Page 380]

Appellant, Samuel Scaramuzzino, was tried by a jury and found guilty of the first degree murder of Mrs. Kathleen Gensler. Following the denial of post-trial motions a sentence of life imprisonment was imposed. This appeal followed.

During the course of the trial the Commonwealth was permitted to introduce, over defense counsel's timely objection, fourteen color slides in support of the pathologist's testimony as to the cause of death. Appellant contends that despite cautionary instructions*fn1 the trial judge abused his discretion in allowing these exhibits. We agree. In view of our disposition of this issue we need not consider the other points of error set forth in appellant's brief.

The slides in issue involved three photographs of the heart removed from the body of the deceased; five portrayed the wounded portions of the nude torso emphasizing, because of the color, the dried blood, including a side view of the torso with glass rods protruding from

[ 455 Pa. Page 381]

    the wounds to indicate the direction of the wounds; three photographs which were virtually identical to three previously shown but with the blood removed; one photograph of a wound at the back of the ear with the hair pulled away; one slide of a wrist wound; and one of a finger wound. The total viewing time was ten minutes and five seconds.

At the outset it should be noted that the practice of admitting photographs of the body of the deceased, unless they have essential evidentiary value, is condemned. Commonwealth v. Peyton, 360 Pa. 441, 450, 62 A.2d 37, 41 (1948). See also, Commonwealth v. Dankel, 450 Pa. 437, 441, 301 A.2d 365, 367 (1973). Our law is wellsettled that the admission of such evidence is a matter within the discretion of the trial judge and, absent an abuse of discretion, there is no reversible error. Commonwealth v. Woods, 454 Pa. 250, 252, 311 A.2d 582, 583 (1973) citing Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962).

"The proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases is whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors." Commonwealth v. Powell, 428 Pa. 275, 278-79, 241 A.2d 119, 121 (1968). Such photographs will not be excluded merely because they are horrid or gruesome, Commonwealth v. Snyder, 408 Pa. 253, 257, 182 A.2d 495, 496 (1962), but the more inflammatory the photograph the greater the need to establish the essential evidentiary value.

Never before have we been faced with the admission of so many slides, unquestionably repetitive, and viewed for so long a period of ...


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