John J. Dean, Stephen P. Swem, Nancy N. Nowlis, Pittsburgh, for appellant.
John J. Hickton, Dist. Atty., John M. Tighe, First Asst. Dist. Atty., Robert L. Eberhardt, Lawrence N. Claus, Asst. Dist. Attys., Pittsburgh, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. Roberts, J., filed a dissenting opinion in which Manderino, J., joins.
This is an appeal by Albert M. Irwin from the sentence of life imprisonment imposed upon him following his conviction by a jury in Allegheny County of murder in the first degree.
The sufficiency of the evidence to warrant the jury's verdict is not challenged,*fn1 but it is said two errors in the trial process mandate a new trial. Our discussion will be limited to one of these alleged errors since the other was not properly preserved in the trial court for appellate review.*fn2
The one assignment of error properly before us concerns the admission into the trial evidence, over objection, of six black and white photographs depicting the dead victim as he lay in the city morgue.*fn3 The photographs, which were admitted for the purpose of aiding the jury in fixing the cause of death, were sent out with the jury for consideration during its deliberations.
The trial testimony relevant to a proper evaluation of this assignment of error may be briefly summarized as follows:
Responding to a complaint, police officers went to an apartment on Spring Garden Street in Pittsburgh, where they found Milford E. Thompson dead from causes obviously other than natural. His head and body bore evidence of bruises and injuries apparently caused by blows inflicted by someone else. A canvass of individuals living in the neighborhood provided leads which led the police to the appellant Irwin who, when questioned, confessed participation in an assault on Thompson. In part, Irwin stated that on the afternoon of the day involved, he became intoxicated after sharing a bottle of wine with a friend, named "Jim", who told him he knew a guy who had two hundred dollars in his pocket and was drunk. Under the guidance of "Jim", the two then proceeded to an apartment on Spring Garden Street where they found a man [Thompson] in an inebriated condition. Irwin and his companion demanded the man's money and when he failed to comply, Irwin "smacked him across the face with an open hand". Irwin then kicked him in the ribs and "Jim" kicked him in the head. After searching the
victim's pockets for money, Irwin and "Jim" dropped a sack of plaster on his unconscious body and left the scene. About an hour later Irwin returned to the ...