F. Emmett Fitzpatrick, Jr., Joseph Michael Smith, Philadelphia, for appellant.
Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., David Richman, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Pomeroy, J., concur in the result.
Appellant, James Taylor, a/k/a Alonzo Robinson was adjudged guilty by a jury of aggravated robbery, assault with intent to kill, wantonly pointing a firearm, carrying concealed deadly weapons, and a violation of the Uniform Firearms Act. Post-trial motions in arrest of judgment and for a new trial were filed and on the basis of two references during trial to "photographs" of appellant, the trial court granted appellant's motion for a new trial. The Superior Court reversed the grant of a new trial, holding that the error (testimony referring to photographs of appellant) was harmless. Commonwealth v. Robinson, 221 Pa. Super. 167, 288 A.2d 921 (1972). This Court denied allocatur on June 5, 1972. Appellant, on remand, was then sentenced on July 7, 1972, to a four to ten year term of imprisonment. The Superior Court affirmed (obviously on the basis of its prior decision) in an opinionless per curiam order. Commonwealth v. Taylor, 223 Pa. Super. 726, 296 A.2d 60 (1972). We granted allocatur.
The principal issue involved in the instant appeal is whether references by the prosecution (in its opening address) and a victim (on cross-examination) to police photographs was sufficiently prejudicial to warrant the grant of a new trial.*fn1 Specifically, appellant argues that he is entitled to a new trial on the basis of Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 377 (1972).
During trial, there were two specific photographic references. In his opening address to the jury, the Assistant District Attorney stated:
"Now it just so happened that Mr. Watts had seen the defendant on other occasions and Watts also happened
to be an off-duty police officer and he knew his name. So he supplied the police with the name of the defendant.
Anyway, at this point the police had been supplied with the name of the defendant. They know who they are looking for. Now Officer Burns recognizes the defendant, he's been carrying his picture around with him and knows that he's wanted ...