Appeal from judgment of sentence of Court of Common Pleas of Delaware County, March T., 1972, Nos. 1024 to 1031, inclusive, in case of Commonwealth of Pennsylvania v. Winfield Jones.
R. Barclay Surrick, Assistant Public Defender, with him Kenneth P. Barrow, Public Defender, for appellant.
Anna Iwachiw Vadino, Assistant District Attorney, with her Ralph B. D'Iorio, Assistant District Attorney, and Stephen J. McEwen, Jr., District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Cercone, Price, Van der Voort, and Spaeth, JJ. (Hoffman, J., absent). Opinion by Jacobs, J. Hoffman, J., did not participate in the consideration or decision of this case.
[ 233 Pa. Super. Page 55]
Appellant challenges the admission into evidence of references made by two Commonwealth witnesses to books of photographs containing appellant's picture which were shown to the complainant by the police. Although we find that the references may have permitted the jury to infer that appellant had a prior criminal record, any resulting prejudice to appellant was cured and made harmless by evidence presented by the defense and the court's instructions to the jury.
On the morning of October 18, 1971, Leonard Rogers was attacked by two black males and shot in the lower chest and abdomen a total of five times. Appellant was subsequently arrested and charged with aggravated robbery, burglary and other associated crimes. At trial before a visiting judge and jury, Mr. Rogers positively identified appellant as the person who shot him. Mr. Rogers then testified that he had been hospitalized for a month subsequent to the shooting. On direct examination, the prosecuting attorney questioned Mr. Rogers as to whether the police asked him "to look through photographs in the hospital?" Immediately, defense counsel objected but the trial judge allowed the testimony. Mr. Rogers resumed his testimony and stated that he was unable to view the photographs at the hospital because he was too sick. However, according to Mr. Rogers, after he left the hospital, the police visited him at his home and brought with them two books of photographs. After looking at the photographs for 25-30 minutes, Mr. Rogers recognized appellant's photograph and mentioned this to the police. Mr. Rogers further testified that he viewed more photographs presented by the police on a second and third occasion and each time recognized appellant's picture.
Detective Perkins, who conducted the police investigation of the crime, also took the witness stand. He testified that he visited Mr. Rogers at his home on several
[ 233 Pa. Super. Page 56]
occasions and that each time Mr. Rogers was shown the books, he recognized appellant's picture and stated that he was the one who shot him. Further testimony revealed that Detective Perkins had no indication of the identity of any suspects to the shooting until Mr. Rogers picked out appellant's photograph.
Appellant took the stand in his own behalf and testified that he was at the Delaware County Courthouse at the time the crime in question was committed. He added that a friend, William Easton, had gone there with him and that he saw several persons at the courthouse, including the district attorney, who was supposed to present a criminal case against appellant, and the public defender, who was to represent him in that case. At the close of the case for the defense a stipulation between counsel was placed on the record that appellant had prior to this trial been convicted of a felony. Counsel further stated that the stipulation was only for the purpose of impeachment of appellant's credibility. After receiving its instructions in which the trial judge cautioned the jury that they "must not consider this evidence, that is, of prior conviction of a felony in any other way than in the determination of the credibility of the defendant as a witness," the jury retired. It later returned finding appellant guilty as charged. Motions for new trial and arrest of judgment were filed and denied, and appellant was sentenced to concurrent sentences of 1 1/2 to 3 years imprisonment on aggravated robbery and burglary. This appeal followed.
In our consideration of this case we will first discuss whether error resulted when reference was made to the recognition of appellant's picture in the books of photographs presented by the police. Then we will discuss whether the error, if any, was cured and made harmless by the testimony ...