Donald C. Marino, Philadelphia, for appellant.
F. Emmett Fitzpatrick, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Douglas B. Richardson, Asst. Dist. Atty., Mark Sendrow, Asst. Dist. Atty., Asst. Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ.
Gregory Carlos, also known as Carl Wesley Ray, appeals from the judgments of sentence imposed following his conviction by a jury of murder in the second degree and of aggravated robbery.*fn1
The evidence at trial established that on January 19, 1972, Carlos and two other males perpetrated an armed holdup of a bar in Philadelphia and that during the robbery Carlos fatally shot one of the patrons. While the sufficiency of the evidence to warrant the convictions is not challenged, it is urged that certain rulings by the trial court were erroneous and so prejudicial as to require a new trial.
The prime complaint is that one of the three eyewitnesses who testified at trial and identified Carlos in court as one of the felons was permitted, over objection, to also testify that after the occurrence he viewed photographs exhibited to him by a police detective and identified Carlos in one of the photographs.*fn2 It is argued
that the jury could have inferred from the police detective's possession and display of the photos that they were "mug shots" and Carlos had a prior criminal record, since the significance of "mug shots" is common knowledge.
It is well-settled that a testimonial reference to a photograph may constitute reversible error if a jury could reasonably infer therefrom prior criminal activity on the part of the accused. Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). However, it is also well-settled that every reference to a photograph does not necessarily require reversal. Commonwealth v. Allen, supra.
"[T]he controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. [As such] 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; . . ."
Id. at 181, 292 A.2d at 375. [Emphasis supplied.] Instantly, there was but a mere passing reference ...