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COMMONWEALTH PENNSYLVANIA v. JOHN SULLIVAN (02/28/77)

SUPREME COURT OF PENNSYLVANIA


decided: February 28, 1977.

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN SULLIVAN, APPELLANT (TWO CASES). COMMONWEALTH OF PENNSYLVANIA, APPELLANT, V. JOHN SULLIVAN

COUNSEL

Marilyn J. Gelb, Philadelphia, for appellant at Nos. 121 and 122 and appellee at No. 127.

F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., James A. Shellenberger, Philadelphia, for appellant at No. 127 and appellees at Nos. 121 and 122.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Eagen, J., dissents in the appeal docketed at No. 127 and would reverse the order of the Court of Common Pleas granting the right to appeal nunc pro tunc. In appeals docketed at Nos. 121 and 122, he concurs in the results. Roberts, J., files a concurring and dissenting opinion in which Manderino, J., joins. Pomeroy, J., files a concurring and dissenting opinion, in which O'Brien, J., joins. Manderino, J., files a concurring and dissenting opinion, in which Roberts, J., joins.

Author: Nix

[ 472 Pa. Page 139]

OPINION

On the evening of June 17, 1966, John Gorey, an officer of Teamsters Union Local 107, and his friend, Rita Janda, were fatally shot at the local union's Philadelphia office building. In November of that year, on the basis of evidence presented at a Medical Examiner's inquest, John Sullivan, also an officer of the local, was charged with both murders.*fn1

Sullivan's jury trial began on June 7, 1967. On June 19, 1967, the jury found him guilty of two counts of murder in the first degree. The following day, the jury determined that Sullivan should be sentenced to serve two consecutive terms of life imprisonment.*fn2 Post-verdict motions were denied and judgments of sentence were entered.*fn3

Sullivan appealed to this Court and, because the Court was equally divided, the judgments of sentence were upheld. Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1970). This Court denied a petition for reargument and later denied a self-styled "Petition for Leave to File a Petition for Re-consideration of the Petition for Reargument."

In 1974, Sullivan filed a petition for relief pursuant to the Post Conviction Hearing Act*fn4 in the Court of Common

[ 472 Pa. Page 140]

Pleas of Philadelphia. In this petition he asserted that (1) his trial counsel had been ineffective; (2) his appellate counsel had been ineffective; (3) numerous prejudicial errors had been committed during his trial; (4) the evidence the Commonwealth adduced at trial was insufficient to support a conviction of murder in the first degree; and (5) after discovered evidence entitled him to a new trial. Sullivan requested that he be discharged, granted a new trial, or granted appropriate relief.

After a hearing, the court concluded that Sullivan had not received effective assistance of counsel on appeal. It therefore issued an order granting Sullivan leave to file a new appeal to this Court. The court denied Sullivan relief on his other claims finding that some were without merit and that others were available to him in his new direct appeal to this Court.*fn5

Three appeals resulted from the PCHA court's order. Appeal number 127 is the Commonwealth's appeal from the order granting appellant a new appeal; appeal number 121 is Sullivan's direct appeal; appeal number 122 is Sullivan's appeal from the PCHA court's denial of

[ 472 Pa. Page 141]

    relief on other grounds. We will consider first the Commonwealth's appeal.

I.

The Commonwealth argues that the PCHA court erred in granting Sullivan a new appeal because (1) the court was without authority to do so, and (2) the record fails to support the court's conclusion that Sullivan did not receive effective assistance of appellate counsel.

Initially, the Commonwealth argues that under the PCHA, "a trial-level court" cannot find that a petitioner's appellate counsel was ineffective and grant him leave to file a new appeal. Although the Commonwealth concedes that a claim of ineffective assistance of appellate counsel is cognizable under the PCHA, it maintains that "a rational system of judicial decision making demand[s] that [the court in which the direct appeal was initially filed] determine the effectiveness of representation by appellate counsel." Apparently, the Commonwealth would have a PCHA petitioner file his petition directly with the appellate court.

We cannot agree that such a procedure is desirable. Certainly the PCHA and our rules governing post-conviction proceedings, Pa.R.Crim.P. 1501-06, mandate that the hearing court initially decide a petitioner's claim.

Section 5 of the PCHA grants jurisdiction initially to the court that imposed the judgment of sentence:

"(a) Any person who desires to obtain relief under this act may initiate a post conviction proceeding by filing a petition . . . with the clerk of the court in which he was convicted and sentenced which said court is hereby granted jurisdiction to hear and determine same."

Post Conviction Hearing Act § 5(a), 19 P.S. § 1180-5(a) (Supp.1975). See Pa.R.Crim.P. 1502.

[ 472 Pa. Page 142]

Section 10 of the PCHA grants to the hearing court the power to initially fashion the appropriate relief. Post Conviction Hearing Act, § 10, 19 P.S. § 1180-10 (Supp.1975). Only when one of the parties is aggrieved by the order of the hearing court may the case be taken to an appellate court and then only by the traditional avenues of appeal. Post Conviction Hearing Act, § 11, 19 P.S. § 1180-11 (Supp.1975).

The Act thus makes no provision for the hearing of claims for PCHA relief in any court other than the court in which the judgment was originally entered. We decline the Commonwealth's invitation to ignore the statute and existing practice and adopt a drastically new procedure.

We believe that the statutory allocation of judicial responsibility in the determination of claims raised under the PCHA necessarily reflects the institutional capabilities of trial and appellate courts. When deciding a claim of ineffective appellate counsel, the hearing court must determine if the course chosen by counsel had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Frazier, 455 Pa. 162, 314 A.2d 16 (1974); Commonwealth v. Murray, 452 Pa. 282, 305 A.2d 33 (1973); Cf. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). Because this decision requires an examination of counsel's stewardship of the appeal in light of the available alternatives, it often will be necessary to call counsel whose assistance is challenged as ineffective so he may explain the decisions he made in the course of the appeal. Furthermore, both the petitioner and the Commonwealth may wish to call additional witnesses and present other evidence relevant to the petitioner's claim. Cf. Commonwealth v. Twiggs, 460 Pa. 105, 331 A.2d 440 (1974);*fn6

[ 472 Pa. Page 143]

    court does on a new record established in an evidentiary hearing -- a record not before the appellate court on direct appeal.

Moreover, the appellate court is not bound by the decision of the PCHA court. If the Commonwealth believes that the evidence is insufficient to support the court's findings of fact or its legal conclusion that counsel was ineffective, the Commonwealth may appeal to the appropriate appellate court as was done in the present case. Post Conviction Hearing Act, § 11, 19 P.S. § 1180-11 (Supp.1975).

In the instant case, Sullivan bases his claim of ineffective assistance of appellate counsel on two grounds: (1) the failure of counsel to file a brief in this Court and, (2) counsel's decision not to argue the case orally. The Commonwealth asserts that a brief, in fact, had been filed and that the decision to submit the case on briefs was reasonably made in Sullivan's best interests.

On the basis of the testimony adduced at the Post Conviction Hearing, the PCHA court reached the following conclusion:

"A careful consideration of all the testimony concerning defendant's appellate rights clearly indicates that oral argument was not waived by defendant and that there was considerable confusion between counsel concerning the appeal due to Judge DiBona's appointment to the bench and Mr. Peruto's heavy trial schedule.*fn9 In a matter involving a conviction for first degree murder, it is our opinion that defendant's right should have been fully protected and every possible argument

[ 472 Pa. Page 145]

    fully explored. We cannot say that this was done in this case.

"We are mindful of the fact that the Supreme Court divided evenly in its decision in this case. Oral argument might have persuaded a different decision. Furthermore, defendant was entitled to a carefully prepared brief by his counsel so that his argument could be fully presented and it does not appear that was done in this case. To this extent we find as a fact that there was ineffective assistance of counsel and that this requires granting defendant relief."

The findings of the PCHA court, which hears the evidence and passes on the credibility of the witnesses, should be given great deference. See Commonwealth v. Smith, 454 Pa. 256, 312 A.2d 396 (1973); Commonwealth v. Minnick, 432 Pa. 462, 247 A.2d 569 (1968). Consequently, this Court will not disturb its findings if they are supported in the PCHA record. See Commonwealth v. Hauser, 450 Pa. 388, 299 A.2d 218 (1973); Commonwealth v. Tabb, 433 Pa. 204, 249 A.2d 546 (1968); Commonwealth v. Minnick, supra. This is true even when the record could support a contrary holding. See Commonwealth v. Hauser, supra.

On this appeal, we find there is sufficient evidence in the record to support the factual findings of the PCHA court. Furthermore, counsel's filing of a highly unorthodox "brief" which failed to comply with our rules and which appears to be only a preliminary draft and his failure to argue the appeal orally support the PCHA court's legal conclusion that Sullivan was deprived of effective assistance of appellate counsel in his initial appeal.

Although the decision to proceed on appeal without oral argument may be a tactical one that counsel is entitled to make, see Supreme Court Rule 32, like every

[ 472 Pa. Page 146]

    tactical decision, that option must be selected on some reasonable basis designed to effectuate the client's interests. See Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967). According to the findings of the PCHA court, the appeal was submitted on the "brief" not because counsel believed this would enhance the chances of success on appeal, but because of "considerable confusion." We are thus persuaded that, on this record, the fact that this case was submitted without oral argument for reasons unrelated to the interest of counsel's client fully supports the hearing court's finding of ineffective assistance of appellate counsel.*fn10

This Court has previously held that a decision of a court in a case where appellant was without the effective assistance of counsel is not binding upon appellant. See Commonwealth v. Cheeks, 429 Pa. 89, 96-97, 239 A.2d 793, 797 (1968). Therefore, where an appellant is denied the effective assistance of counsel on appeal, the proper remedy is to afford appellant a new appeal in which he may reassert the issues adversely affected by his initial counsel's ineffective stewardship of his appeal.

[ 472 Pa. Page 147]

McGrath ignored the suggestion and continued collecting the trash from the offices. The witness then took the refuse outside the building. When he returned, appellant was still seated at the window.

At this time, both Sullivan and McGrath observed John Gorey and Rita Janda arrive at the union hall in Gorey's car and enter the building. McGrath then began cleaning the conference room, located approximately 75 feet from Gorey's office. Shortly thereafter, Gorey appeared and had a brief conversation with McGrath. Immediately after Gorey left the conference room, appellant appeared in the doorway, through which Gorey had just passed, and again questioned McGrath about the cleaning and suggested he defer his activities until Sunday afternoon. During this brief conversation, Gregory Carchidi, another janitor, entered the conference room. No conversation ensued between Carchidi and Sullivan but Carchidi repeated appellant's urgings to leave the work until Sunday. Sullivan then left the room through the same door which Gorey had exited but Carchidi remained and seated himself behind the desk.

Within several minutes, the witness testified he heard sounds like firecrackers going off in rapid succession. McGrath started to question Carchidi about the disturbance but was abruptly instructed to "Get out of the building and don't say nothing" (sic). McGrath left the union hall and noticed four cars other than his own parked in the lot. These were recognized as belonging to DiPasquale, Gorey, Carchidi and appellant. McGrath drove off but returned to the premises within 15 minutes. Only Gorey's car remained in the lot. Upon re-entering the building, he found the offices closed, the conference room locked and the lights out.

The victims' bodies were discovered the following morning. Gorey had been shot four times and Janda six times, the shots being fired from close range. The ballistics studies established two separate guns were employed

[ 472 Pa. Page 149]

    in the homicides but the weapons were never recovered.

Additional testimony disclosed that the telephone lines had been arranged so that regular incoming calls would ring in the room in which appellant was seated. A second line with a different call number had been prearranged by Gorey to ring in his office so that he could receive an anticipated call from Joseph Vernick at 7:00 P.M. One Irene Glenn testified for the Commonwealth that she dialed the regular union phone number about 6:15 P.M. that evening and a man answered identifying himself as Gorey. A scrap paper found in the wastebasket alongside the desk where appellant had been seated prior to the victim's arrival contained Ms. Glenn's name and telephone number. It was uncontested that the handwriting was that of appellant. Moreover, one Joseph Vernick testified that he called Gorey's office at a specially arranged time but received no answer despite his repeated attempts between 7:15 and 8:15 P.M. This evidence, coupled with the medical examiner's testimony, indicated that the time of death could have been approximately 7:15 P.M. At the close of the case-in-chief, no evidence was presented by the defense.

In determining the sufficiency of the evidence the test is whether, accepting as true all of the evidence of the Commonwealth and all reasonable inferences arising therefrom, upon which, if believed, a finder of fact could properly have based its verdict, such evidence was sufficient in law to prove the elements of the crime in question beyond a reasonable doubt. Commonwealth v. Segers, 460 Pa. 149, 157, 331 A.2d 462, 466 (1975); Commonwealth v. Paquette, 451 Pa. 250, 301 A.2d 837 (1973); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Williams, 450 Pa. 327, 301 A.2d 867 (1973).

[ 472 Pa. Page 150]

This standard is equally applicable to cases where the evidence is circumstantial rather than direct so long as the combination of the evidence links the accused to the crime beyond a reasonable doubt. Commonwealth v. Farquharson, 467 Pa. 50, 354 A.2d 545 (1976); Commonwealth v. Cox, 466 Pa. 582, 353 A.2d 844 (1976). Moreover, it is not necessary that each piece of evidence be linked to the defendant beyond a reasonable doubt. It is only necessary that each piece of evidence include the defendant in the group who could be linked while excluding others, and that the combination of evidence link the defendant to the crime beyond a reasonable doubt (emphasis supplied). Commonwealth v. Petrisko, 442 Pa. 575, 580, 275 A.2d 46, 49 (1971). See also, Commonwealth v. Tinsley, 465 Pa. 329, 350 A.2d 791 (1976); Commonwealth v. McIntyre, 451 Pa. 42, 47, 301 A.2d 832, 834 (1973). Restated, the facts and circumstances need not be absolutely incompatible with defendant's innocence, but the question of any doubt is for the jury unless the evidence "be so weak and inconclusive that as a matter of law no probability of fact can be drawn from the combined circumstances". Commonwealth v. Libonati, 346 Pa. 504, 508, 31 A.2d 95, 97 (1943). See also, Commonwealth v. Rogozinski, 387 Pa. 399, 402, 128 A.2d 28, 30 (1956).

An analysis of the facts supports the jury's findings. Sullivan had remained at the window looking out onto the parking lot for more than 20 minutes after McGrath's arrival, indicating that he was awaiting the arrival of a particular individual. Sullivan did not leave that observation point until he had seen the victims arrive, strongly suggesting that it was in fact Gorey and Janda whose arrival he was awaiting. The evidence further justifies an inference that Sullivan attempted to conceal his identity and presence by answering the telephone as "Gorey." Moreover, he attempted to persuade McGrath to leave the premises by repeatedly suggesting

[ 472 Pa. Page 151]

    that the cleaning be left until Sunday. Such conduct is highly consistent with an attempt to avoid the possibility of any witnesses to the anticipated event.

This conclusion is buttressed by the actions of Carchidi, a co-defendant, who entered the conference room and without engaging in discussion with appellant, also instructed McGrath to defer his duties until Sunday. Almost immediately thereafter, appellant exited the conference room through the same doorway which Gorey had previously departed, and which led towards Gorey's office, the scene of the murders. Momentarily, the shots were heard and Carchidi told McGrath to ". . . get out of the building and don't say nothing" (sic). A reasonable inference can be drawn that the repetition and similarity of these statements to McGrath by appellant and Carchidi just prior to the shootings was indicative of their knowledge of the impending incident and further evidenced their attempts to remove any potential witnesses to the crime.

Additional evidence of guilt may also be inferred from appellant's statements to police. During questioning several days after the murders, Sullivan denied being present at the building during the time of the shootings. This contradicted McGrath's statement which placed Sullivan in direct proximity to the crime only moments before its occurrence. Moreover, McGrath stated that when he left the building Sullivan's car was still parked in the lot.

As stated by our Court in Commonwealth v. Sauders, 390 Pa. 379, 388-89, 134 A.2d 890, 895 (1957):

In Commonwealth v. Bolish, 381 Pa. [500] at page 524, 113 A.2d [464] at page 476, supra, the Court said: ". . . false or contradictory statements by the accused are admissible since the jury may infer therefrom that they were made with an intent to divert suspicion or to mislead the police or other authorities, or to establish an alibi or innocence, and hence are indicatory

[ 472 Pa. Page 152]

    of guilt: Commonwealth v. Lowry, 374 Pa. 594, 601, 98 A.2d 733 . . ." See to the same effect: Commonwealth v. Homeyer, 373 Pa. 150, 94 A.2d 743, supra; Commonwealth v. Spardute, 278 Pa. 37, 122 A. 161; Commonwealth v. Danarowicz, 294 Pa. 190, 144 A. 127; Commonwealth v. Hadok, 313 Pa. 110, 169 A. 111; Commonwealth v. Karmendi, 328 Pa. 321, 328, 195 A. 62; Commonwealth v. Jones, 341 Pa. 541, 19 A.2d 389; Commonwealth v. Lettrich, 346 Pa. 497, 31 A.2d 155; Cathcart v. Commonwealth, 37 Pa. 108, 113; McMeen v. Commonwealth, 114 Pa. 300, 306, 9 A. 878; Commonwealth v. Johnson, 162 Pa. 63, 29 A. 280; Commonwealth v. Jones, 297 Pa. 326, 146 A. 905.

Appellant claims that this evidence fails to preclude the possibility that a third party committed the crime since the building was unlocked and several other individuals were known to be about. The Commonwealth concedes that the evidence does not exclude participation by anyone else. In fact, the testimony showed that two guns were used in the murders. However, appellant was the only known person on the second floor whose whereabouts were unaccounted for during the shootings. Moreover, it is not required that the prosecution exclude all possibility of a third party committing the act.

"If eyewitness testimony of the commission of a murder were necessary, or if the Commonwealth had to exclude the possibility of a third person committing the crime -- which would, in reality, require an eyewitness or the capture of defendant "red-handed" -- few murderers would ever be convicted, and society could not possibly be adequately protected. Moreover, even if a defendant was caught running away from the murder scene right after the murder, he would have to be acquitted under the "exclusion" theory because he could contend that he was running away in order to avoid suspicion or to escape from the unknown criminal's attempt

[ 472 Pa. Page 153]

    to murder him. In the Sauders case, in the Bolish case, in the Homeyer case, in the Wentzel case, [ Com. v. Wentzel, 360 Pa. 137, 61 A.2d 309], in the Danz case, [ Com. v. Danz, 211 Pa. 507, 60 A. 1070], in the Boden case, [ Com. v. Boden, 399 Pa. 298, 159 A.2d 894], in the Carey case, [ Com. v. Carey, 368 Pa. 157, 82 A.2d 240], and in Commonwealth v. LaRue, 381 Pa. 113, 112 A.2d 362, infra (to mention just a few) there were no eyewitnesses to the murder; the exact time of death was unknown; and any third party or unknown person could have committed the murder. Any refinements or distortion of the law such as defendant urges would not only require us to overrule a myriad decisions of this Court, but would make the protection of society in most cases realistically impossible."

Commonwealth v. Kravitz, 400 Pa. 198, 212-13, 161 A.2d 861, 868 (1960).

In Kravitz, supra, we concluded by determining that it is unnecessary for the Commonwealth to dispel all possibility of doubt provided the evidence, if believed, warrants a finding of guilt beyond a reasonable doubt. Here the Commonwealth concedes that the evidence did not foreclose the possibility of the participation of a third person to the shooting. In fact it was their theory that at least two persons had actually shot the victims. Nevertheless we are satisfied that the testimony offered to show that Sullivan was one of the participants was sufficient to sustain the verdict.

Finally, McGrath testified that he returned to the union hall some 15 minutes later and found only Gorey's car parked in the lot. Upon reentering the hall he discovered that all the offices which had previously been opened were closed, the door to the conference room locked and all lights put out. These circumstances are consistent with the inference that Sullivan and Carchidi had left shortly after McGrath's original departure. They obviously attempted to give the impression that the

[ 472 Pa. Page 154]

    crime was committed after the premises had been secured for the night and they had departed from the building.

While it is not contended by the Commonwealth that any of these facts standing alone would support a conviction, taken in concert with all reasonable inferences, they clearly justify the conclusion that appellant was linked to the crime beyond a reasonable doubt. See Commonwealth v. Petrisko, supra; Commonwealth v. Tinsley, supra ; and Commonwealth v. McIntyre, supra.

Appellant next argues that he was denied an opportunity to challenge the array of the grand jury because 1) he was without the assistance of counsel at the time the indictments were presented; 2) he did not receive notice that the cause was to be presented to the October grand jury; and 3) he could not challenge the jury already impanelled. Our review of the record convinces us that these arguments are without merit.

On November 3, 1966, an inquest was held by the Medical Examiner of the City of Philadelphia. At this time appellant was represented by the late John Patrick Walsh, Esquire. However, following this hearing appellant alleges that he no longer retained the services of Mr. Walsh and was without counsel thereafter until late December, 1966. In support of this position appellant has offered an affidavit supplied by Mr. Walsh prior to his death. Our reading of this affidavit indicates that Mr. Walsh continued his representation of appellant until new counsel was appointed or retained. Having determined appellant had representation during this period we now consider whether said counsel had adequate notice of the presentments and an opportunity to challenge the array of the jury.

At the close of the proceedings before the Examiner the following findings were stated:

"In reviewing the records of the Office of the Medical Examiner and the testimony, I find that Rita Janda

[ 472 Pa. Page 155]

    and John Gorey died as a result of gunshot wounds of the head, and that the manner of death is homicide, at this stage of the Inquest.

"I find at this stage that there is sufficient evidence to hold John J. Sullivan, Gregory Carchidi, and Anthony DiPasquale for action of Court, and I will continue this hearing until further notice, such time as additional evidence comes before me."

Appellant argues that this language was unclear and hence insufficient to notify him that the case would be presented to the grand jury. We believe that a proper interpretation of this language taken in context indicates that further hearings were for the investigation of the possible complicity of others but that a determination had been made to hold John Sullivan for action of court. Moreover, we note the affidavit of Mr. Walsh which stated that he understood that Sullivan was being held for action by the grand jury.

Appellant next suggests that the defense was denied notice as to which grand jury the cause would be presented thereby violating the rule enunciated by our Court in Commonwealth v. Collemacine, 429 Pa. 24, 239 A.2d 296 (1968). In Collemacine, supra, we held that "Failure to notify the accused or his counsel that his case will be presented to a grand jury other than that to which he was handed over violates fundamental notions of Due Process" (emphasis added). The basis of the Collemacine doctrine was to prevent the presentments from being made to a panel at an indefinite time in the future, without knowledge to the accused, thereby precluding the opportunity for the defense to challenge the array of the jury. In the instant matter, the presentments were made to the jury already impanelled and therefore did not offend the principle announced in Collemacine, supra. See also, Commonwealth v. Jones, 456 Pa. 270, 318 A.2d 711 (1974). Moreover, there is no indication that an experienced counsel of the calibre of Mr.

[ 472 Pa. Page 156]

Walsh was not aware that the matter had been handed over to jury then impanelled.

Additionally, we do not believe that the procedure employed denied this appellant an opportunity to challenge the array as provided by Pa.R.Crim.Pro. 203 which stated in pertinent part:

"Either the attorney for the Commonwealth or Defendant who has been held to answer may challenge the array of the jurors or an individual grand juror. A challenge to the array must be made only on the ground that the grand jury was not selected, drawn or summoned substantially in accordance with law. An individual grand juror may be challenged on the ground that he is not legally qualified or that a state of mind exists on his part which may prevent him from acting impartially. All challenges must be made before the jurors are sworn, unless opportunity did not exist prior thereto; in any event, a challenge must be made before the bill of indictment is submitted to the grand jury. . ." Rule 203, Rules of Criminal Procedure, 19 P.S., Appendix. Adopted June 30, 1964 and effective January 1, 1965. (Emphasis added).

Since this jury was impanelled prior to the time of the presentment, appellant would not have been precluded from making a challenge prior to the submission of the bills had he attempted to do so. This however was not done. Although a period of 11 days elapsed between the inquest and the presentment, no challenge was made to the array of the jury nor did the defense attempt to delay the indictment for the purpose of interposing an objection. Rather, no action was taken until two months after the indictments were returned when appellant's new counsel moved to quash the indictments that had been returned. In Commonwealth v. Dessus, 423 Pa. 177, 224 A.2d 188 (1966), we held that Rule 203 required that an accused must be given sufficient opportunity to challenge the array before the presentments are handed

[ 472 Pa. Page 157]

    over to the grand jury.*fn11 In the instant case ample opportunity existed for appellant to assert his challenge. His failure to comply with the clear mandate of the rule precludes relief once the indictments were submitted to the panel. Accordingly, the court properly denied the motion to quash.

Appellant next alleges error by the trial court for admitting into evidence color slides depicting the bodies of the victims. We disagree. Our law is well settled that the admission of this type of evidence is within the discretion of the trial court and absent an abuse of that discretion, there is no reversible error. Commonwealth v. Woods, 454 Pa. 250, 252, 311 A.2d 582, 583 (1973); Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962). Moreover, 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 evidentiary value that their need clearly outweighs their likelihood of inflaming the minds and passions of the jurors. Commonwealth v. Powell, 428 Pa. 275, 278-79, 241 A.2d 119, 121 (1968). However, such photographs will not be excluded merely because they are unpleasant or gruesome. Commonwealth v. Scaramuzzino, 455 Pa. 378, 381, 317 A.2d 225, 226 (1974); Commonwealth v. Snyder, 408 Pa. 253, 257, 182 A.2d 495, 496 (1962).

In the instant case, the Commonwealth's theory, substantiated by ballistic evidence was that the victims were killed by shots from two different weapons and that each person was hit by shots from both guns. Reconstructing the shooting through these slides the prosecution sought to prove that neither victim could have shot the other, that Gorey was the principal target and

[ 472 Pa. Page 158]

Janda was shot while she was attempting to hide beneath her desk to avoid the existence of a witness to the killing of Gorey. Thus, the evidence was offered to aid the jury in understanding the physical scene of the crime, the nature and extent of the wounds inflicted and the brutality of the murder to graphically demonstrate the existence of an intent to take life.

"'In the trial of criminal cases photographs of the victim and of the scenes of the crime are admissible to aid the jury in their understanding of the alleged crime, the kind of crime it was, exactly what caused the victim's death and what, if any connection defendant had with it . . .'" Commonwealth v. Petrakovich, 459 Pa. 511 at 522, 329 A.2d 844 at 849.

See also, Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969); Commonwealth v. Boden, 399 Pa. 298, 307-308, 159 A.2d 894, 899 (1960). Given the nature of the crimes, we believe the photographs helped to supplement the pathologist's complex and intricate testimony and had essential evidentiary value.

Appellant further contends that the slides were unnecessary because the defense was willing to stipulate to the evidence concerning the cause of death. This however is not a basis for excluding the evidence.

Finally, we hold that a defendant may not render evidence which is necessarily a part of the Commonwealth's case irrelevant and inadmissible merely by offering to stipulate. Specifically, photographs which would otherwise be of essential evidentiary value cannot be rendered inadmissible because of a stipulation (by one who does not admit to the crime) that the murderers had specific intent and premeditation. The Commonwealth, with its burden of establishing guilt beyond a reasonable doubt, may not be denied the right to prove every essential element of the crime by the most convincing evidence it is able to produce.

[ 472 Pa. Page 159]

    degree of concert or collusion between parties to an illegal transaction makes the act of one the act of all and the showing of the conspiratorial design does not necessarily involve participation in every detail as long as he was an active partner in the intent which was the crime's basic element. Commonwealth v. Strantz, 328 Pa. 33, 40-42, 195 A. 75 (1937); Commonwealth v. Rife, 454 Pa. 506, 510-11, 312 A.2d 406, 408 (1973). As previously noted, Carchidi was present in the building during the time of the incident. Although employed as a janitor he was not performing any duties related to his position and it could have been inferred that his purpose for being there was for reasons other than his normally assigned tasks. Further, he also attempted to convince McGrath to leave the premises and do the cleaning another day. After the sounds of the shootings he did not immediately depart the premises but remained in the conference room. This conduct was consistent with one who was privy to the events which had transpired. In our view there was sufficient circumstantial evidence from which a conspiracy with Sullivan could have been inferred, Commonwealth v. Eiland, 450 Pa. 566, 570, 301 A.2d 651, 652 (1973), and therefore the statement was properly admitted.

In view of our agreement with the trial court that the statement was properly admitted on the ground of a declaration by a co-conspirator we need not consider the other bases offered by the trial judge to justify its introduction into evidence.

Appellant next presents numerous claims that he was denied his right to effective assistance of trial counsel. Initially we recognize that a presumption exists that counsel is competent, Commonwealth v. Murray, supra, 452 Pa. at 286, 305 A.2d at 36; Commonwealth ex rel. Washington v. Maroney, supra; and a claim of ineffectiveness will not be successful unless it is sustained by the record or other credible evidence. In

[ 472 Pa. Page 161]

    passing upon the claim of ineffective assistance, the single question is whether counsel's choice of strategy had some reasonable basis designed to effectuate his client's interests. Commonwealth v. Hudson, 455 Pa. 117, 124, 314 A.2d 231, 235 (1974); Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 604, 235 A.2d at 352. Thus counsel is deemed constitutionally effective once we conclude that the particular course chosen was in the interest of the client and we will not substitute hindsight evaluation of the record to retrospectively determine whether counsel's decision was reasonable. Commonwealth v. Hill, 450 Pa. 477, 482, 301 A.2d 587, 590 (1973).

Appellant first claims that he was denied effective assistance of trial counsel because his attorneys also represented two co-defendants who were tried separately for the crime. To prove ineffectiveness on this ground, it is necessary to establish that 1) there was dual representation and 2) as a result, a conflict of interest developed. Commonwealth v. Breaker, 456 Pa. 341, 318 A.2d 354 (1974). Dual representation alone does not amount to a conflict of interest. Commonwealth v. Breaker, supra; Commonwealth v. Wilson, 429 Pa. 458, 240 A.2d 498 (1968); Commonwealth ex rel. Corbin v. Myers, 423 Pa. 243, 223 A.2d 738 (1966), cert. denied, 386 U.S. 1013, 87 S.Ct. 1361, 18 L.Ed.2d 445 (1967).

Upon review of the record from the PCHA proceedings, we find appellant has failed to prove the requisite elements of his claim. First, the testimony establishes that there was no dual representation in the true sense of the term, i. e., the same counsel actively represented co-defendants. Mr. Peruto testified that it was Mr. (now Judge) DiBona who served as chief counsel for appellant during trial and made all decisions relevant to Sullivan's defense while he, Peruto, was merely assisting. These functions were reversed at the trial of the co-defendants

[ 472 Pa. Page 162]

    where Mr. Peruto was chief counsel and Judge DiBona the assistant. Thus, Judge DiBona served only a minor role in the trial of the co-defendants while devoting his primary efforts to the Sullivan case. This conclusion is supported by Judge DiBona's statements that his stewardship was in no way affected by the consideration of the co-defendant's cases but was solely a product of what he considered to be the best course in his representation of Sullivan. We therefore hold that there is absolutely no evidence that a conflict existed.

Appellant next asserts the decision by defense counsel not to present any evidence or permit appellant to testify on his own behalf constituted ineffectiveness. The decision not to present a defense is a tactical one and will not be deemed ineffective stewardship if there is a reasonable basis for that position.

In the instant case, Judge DiBona believed that there was insufficient evidence upon which to convict Sullivan. He therefore refrained from calling any defense witness to avoid the possibility of exposing them to cross-examination through which the prosecution might have extracted those elements necessary to complete their proof. See Commonwealth v. Dancer, supra. In view of the close question of the sufficiency of the evidence on this record, we find that the course chosen by Judge DiBona could not be termed unreasonable.

Additionally, it is contended that at the commencement of trial and out of the presence of the jury, the prosecution delivered a memorandum to the trial court, the contents of which were not made known to the defense. Counsel argued that he was entitled to be apprised of the contents of the memo but that the court denied the request. The failure to press this objection at post trial motions is now assigned as a basis for this ineffective assistance claim. In reviewing this claim of ineffectiveness we must consider whether there was some

[ 472 Pa. Page 163]

    reasonable basis for not pursuing the objection. As stated in Commonwealth ex rel. Washington v. Maroney, supra, 427 Pa. at 605 n. 8, 235 A.2d at 353 n. 8 "a finding of ineffectiveness could never be made unless we concluded that the alternatives not chosen offered a potential for success substantially greater than the tactics actually utilized." The record indicates that the memorandum contained a request for a continuance to afford the Commonwealth an opportunity to test fire certain weapons to determine whether they were used in the perpetration of the homicides. The request was granted and the tests were made.

At trial, the ballistics expert testified that he had test fired certain guns during his investigation and found that these weapons were not used to commit the crimes herein involved. Thus, not only was the objection not addressed to the propriety of the trial court's ruling permitting the witness to examine the weapons, the actual results were not harmful to the defense.

The thrust of the objection was directed to a private communication between court and prosecution from which the defense was excluded. While we do not condone such a practice we do not find that any prejudice to appellant resulted in this case. For this reason it is clear that if counsel had pressed this objection on appeal it would not have justified the award of a new trial. Thus counsel cannot be found to be ineffective for failing to preserve an objection which had no probability of success. Commonwealth v. Rice, 456 Pa. 90, 318 A.2d 705 (1974).

Moreover, we cannot accept the contention that the failure of the Commonwealth to make available to the defense these reports in any way violated appellant's due process rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Brady, supra requires the prosecution to furnish the defense evidence on

[ 472 Pa. Page 164]

    demand which would tend to exculpate him or reduce the degree of penalty. As indicated above, the information was introduced during trial and the defense had the opportunity of using it in any manner it deemed appropriate.

It is also claimed that trial counsel's failure to preserve an objection to the trial court's denial of a request for additional alleged Brady material constituted ineffective assistance of counsel. Specifically Sullivan contends that the prosecution's chief witness, one Francis McGrath had made various contradictory statements to one Detective McGill during the course of an interview at police headquarters. It is appellant's position that he was prevented from learning of this information until after the close of the trial and therefore precluded from subpoenaing the detective as a defense witness. There is however, absolutely no factual basis for this assertion. On the contrary, the record establishes that defense counsel learned of the interview with McGill during his cross-examination of McGrath.

Q You went there on Sunday, rather, June 19th, is that right?

A That is right.

Q And that is the time you talked to Detective Duffy, is that right?

A Duffy.

Q Then you went back on June 21st, the Monday is that right, sir . . . I am sorry, the 20th?

A The 20th, that is right.

Q Who did you talk to then, by the way?

A I talked to Detective McGill, Detective Brooks. I talked to McGowen. I talked to Lt. Matthis. That is about all I can remember, who I talked to.

Despite the information elicited from this witness, defense counsel never attempted to subpoena McGill as a

[ 472 Pa. Page 165]

    witness nor did they request any notes that might have been taken by McGill of his conversation with McGrath. While Brady requires the prosecution to provide the defense upon request with material in its possession which would be beneficial to the defendant, the record here reflects that there was no request for such information. Hence, there was no Brady violation for trial counsel to preserve.

Nor do we believe that the failure to introduce these alleged inconsistent statements from the interview constituted ineffective stewardship. As stated in appellant's brief, the statements related only to the question of Carchidi's guilt or innocence. There is however, no assertion that these statements had any direct bearing upon the innocence of this appellant. Thus, the only purpose to be served by the introduction of the remarks would have been to impeach McGrath's credibility as a witness in the eyes of the jury. The extent to which defense counsel chooses to pursue a collateral issue is clearly a matter of judgment. Upon review of the record we are satisfied that the defense explored the issue as well as he deemed profitable. During the course of the trial, McGrath was skillfully cross-examined by experienced counsel concerning various inconsistent remarks made to the police, at the Medical Examiner's inquest and to other individuals. These variations were strenuously argued to the jury as an attack upon the witness' credibility. Having attempted to impeach the credibility of the witness, we are convinced that counsel's stewardship was not ineffective merely because he did not expose every arguable inconsistency in McGrath's testimony.

Appellant next presents several arguments pertaining to trial counsel's alleged ineffectiveness for failing to raise timely objections to the court's charge to the jury. Initially, Sullivan contends it was error for the court to express his opinion as to the degree of guilt involved in the crime. We disagree. As previously noted,

[ 472 Pa. Page 166]

    the test for determining effectiveness of counsel is based upon the reasonableness of his representation at time of trial. Commonwealth v. Hill, supra, 450 Pa. at 482, 301 A.2d at 590. At the time of Sullivan's trial, the law permitted the trial judge to express his opinion in the case.*fn12

". . . it is always the privilege and sometimes the duty of a trial judge to express his own opinion, including his opinion of the weight and effect of the evidence or its points of strength and weakness or even the guilt or innocence of the defendant and the verdict which, in his judgment, the jury should render." Commonwealth v. Ott, 417 Pa. 269, 272-73, 207 A.2d 874, 876 (1965) quoting Commonwealth v. Chambers, 367 Pa. 159, 164, 79 A.2d 201, 204 (1951).

See also Commonwealth v. Wilmer, 434 Pa. 397, 254 A.2d 24 (1969).

Moreover, this opinion or comment was required to be fairly or temperately stated, clearly leaving the jury free to reach its independent conclusion. Commonwealth v. Raymond, 412 Pa. 194, 208, 194 A.2d 150, 157 (1963);

[ 472 Pa. Page 167]

In the appeal at No. 127, the Order of the Court granting leave to file a direct appeal to this Court is affirmed.

In appeals at Nos. 121 and 122, Judgments of sentence affirmed.

ROBERTS, Justice, concurring and dissenting.

I agree with the majority that the Post Conviction Hearing Court properly granted appellant, John Sullivan, a new direct appeal. I join in part I of the majority opinion.

I cannot agree, however, with the majority's conclusion that the evidence presented at trial was sufficient to sustain a conviction of murder of the first degree. I would reverse the convictions and order appellant discharged.

I must also dissent from the majority's decision that the trial court committed no error when it admitted into evidence thirty-nine color slides of the victims. These slides were inflammatory, and of no evidentiary value. Their presentation to the jury deprived appellant of a fair trial.

[ 472 Pa. Page 169]

I.

The Evidence was Insufficient to Support Appellant's Conviction.

The evidence presented at trial, viewed in the light most favorable to the Commonwealth, was as follows: The bodies of John Gorey and Rita Janda were discovered on June 18, 1966, in Gorey's office in the Headquarters of Teamsters Union Local 107. Both had been shot several times. The Commonwealth established that two weapons had been used in the homicides, that the wounds inflicted were the cause of death, and that the time of death was sometime in the early evening of June 17, 1966.

The Commonwealth's most important witness was Francis J. McGrath, a janitor at the local and a member of the union. McGrath arrived at the local's office building at about 6:00 p. m. While outside the building, McGrath saw Sullivan looking out a window of an office Sullivan usually did not use. McGrath entered the building and began cleaning. In the course of his chores, he entered the office in which Sullivan was seated. Sullivan asked McGrath why he was working on Friday, McGrath's day off, and told him to defer his cleaning duties until after a union meeting scheduled for that Sunday so that the building would be clean for the opening of business on Monday. McGrath ignored the advice and continued his activities.

About 6:15 p. m., McGrath re-entered the office in which Sullivan was seated to empty some trash cans, and he and Sullivan observed Gorey and Janda arrive at the building.

McGrath began cleaning the local's conference room. Gorey entered the room, exchanged a few words with the janitor and left. A few minutes later Sullivan entered the conference room using the same door through which

[ 472 Pa. Page 170]

Gorey had exited. Sullivan again suggested that McGrath postpone his duties until Sunday. Meanwhile, Gregory Carchidi, another janitor entered the room but exchanged no greeting with Sullivan. Carchidi also suggested that McGrath wait until Sunday to complete his chores. Shortly thereafter, Sullivan left the conference room by the same door Gorey had used. McGrath stated on cross-examination that he was unable to see whether after Sullivan left the office he proceeded down the hall toward Gorey's office or had gone in a different direction.

After Carchidi again mentioned McGrath's cleaning, McGrath heard what sounded to him like a package of firecrackers going off sequentially. McGrath asked Carchidi, "What was that?" Carchidi replied, "Get out of the building and don't say nothing."

McGrath promptly left the building, stopping only to note that Sullivan's, Carchidi's, Anthony DiPasquale's and Gorey's cars were parked near the building, and to talk with a group of men standing outside the building. He returned about 15 minutes later and found that the offices had all been locked, the lights turned off and the building deserted. He removed any evidence indicating that he had been in the building and left.

The Commonwealth also called Irene Glenn. Glenn testified that at about 6:15 p. m., June 17, 1966, she telephoned the union to discuss the local's efforts to organize the company at which she was employed. She testified that the man who spoke to her identified himself as Gorey. The prosecutor played a tape recording of Gorey's voice for her but she was unable to identify the recorded voice as the one she had heard on the telephone. She did not testify that Sullivan's voice was the one she heard on the telephone. The Commonwealth introduced into evidence a piece of paper found in a waste paper basket upon which Glenn's name and phone number were written in Sullivan's handwriting.

[ 472 Pa. Page 171]

Further evidence was introduced which showed that during the investigation, Sullivan denied that he was in the building at the time of the murder.

The defense demurred to the Commonwealth's evidence and offered no evidence on its own.

"The test of the sufficiency of the evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom upon which if believed the jury could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime for which he has been convicted."

Commonwealth v. McFadden, 448 Pa. 277, 281, 292 A.2d 324, 326 (1972); see e. g., Commonwealth v. Murray, 460 Pa. 605, 608, 334 A.2d 255, 257 (1975).

Here, the Commonwealth relies totally on circumstantial evidence. Of course, circumstantial evidence in itself may be sufficient to establish both the commission of a crime and the accused's participation if the inferences arising from the evidence establish these facts beyond a reasonable doubt. Commonwealth v. Cox, 460 Pa. 566, 333 A.2d 917 (1975); Commonwealth v. Alston, 461 Pa. 664, 337 A.2d 597 (1975). However, a conviction based on suspicion and conjecture cannot stand. Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1968); Commonwealth v. Clinton, 391 Pa. 212, 218-19, 137 A.2d 463, 466 (1958).

The Commonwealth argues that from the evidence adduced at trial the jury could infer that Sullivan was in the building at the time of the killing, that he sat by the window watching for Gorey and Janda to arrive, and that there were only two other people, Carchidi and McGrath in the building at the time of the killing.

Furthermore, the Commonwealth urges that the evidence that Sullivan left the building shortly after the shooting and that he denied to the police that he was present in the building show that he tried to conceal his

[ 472 Pa. Page 172]

    knowledge of the crime and this supports an inference of guilt.

I cannot agree with the majority that the evidence and the inferences the Commonwealth seeks to draw from it are sufficient to establish beyond a reasonable doubt that Sullivan was guilty of murder.*fn1 To convict, the jury would have to believe that after leaving the conference room, Sullivan followed Gorey into his office and then took part in the murders.*fn2 The police department laboratory technicians were unable to uncover any of the scientific evidence that is often used to prove circumstantially that the accused committed the crime. The murder weapons were never discovered and thus there was no evidence indicating that they had ever been in Sullivan's possession. No fingerprints, shreds of clothing, or other physical evidence were found in the room where the murder occurred which could support an inference that Sullivan had been in the room when the murders were committed. Finally, nothing found on Sullivan's person or effects afford an inference that he was present. Compare Commonwealth v. Dawson, 464 Pa. 254, 346 A.2d 545 (1975) (Eagen, J.);*fn3 Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960).

[ 472 Pa. Page 173]

Furthermore, many of the inferences the Commonwealth urges that the jury could have drawn are either based on no evidence at all, or are so conjectural that they cannot support a conviction.

The Commonwealth places great weight on the fact that besides Gorey and Janda, McGrath saw only Carchidi and Sullivan in the building prior to the shooting. However, the record reveals that at the time of the murder the doors to the building were unlocked, that at a time shortly after the shooting several persons were standing outside the building, and that persons could enter the building without being seen by McGrath. There is no evidence that McGrath looked in every office in the building while he was cleaning, and it thus is entirely possible that there were others in the building when McGrath entered. In these circumstances mere presence in the office building is insufficient to support an inference of guilt. Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1968).

Moreover, flight from the scene of a crime is not enough to prove complicity. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972). Flight is just as consistent with fear as with guilt, id., and appellant's "flight" consisted of no more than leaving the building, as did others. Indeed, in this case, the very witness upon whom the Commonwealth most heavily relies fled from the scene of the crime and thereafter made careful efforts to cover up the fact that he had been in the building at the time of the shooting.

Furthermore, the inference that because Sullivan was seated at the window overlooking the parking lot, he was waiting for Gorey and Janda is nothing more than speculation.

[ 472 Pa. Page 174]

I have reviewed the entire 1,300 page record of Sullivan's trial and am completely satisfied that the evidence of Sullivan's participation in the crime is either nonexistent or so weak and inconclusive that as a matter of law the inferences of fact necessary to establish guilt beyond reasonable doubt could not be reasonably drawn. In this case, the pyramiding of inferences, many of which were of dubious probability in the first place, made impermissible a finding by the jury that, beyond a reasonable doubt, Sullivan committed the crimes charged. The evidence was insufficient to establish guilt beyond a reasonable doubt.

The judgments of sentence should be reversed and appellant should be discharged.

II.

The Color Slides of the Victims should not have been Admitted into Evidence.

Appellant's conviction should be reversed because there is insufficient evidence to support his convictions, and it therefore is unnecessary to address the other issues decided by the majority. However, in view of the majority's holding that the color slides of the victims were properly admitted and shown to the jury, I must express my dissent on that issue.

Thirty-nine color slides were admitted at trial over defense objection. I have viewed these slides. Their inflammatory content is accurately described in the Concurring and Dissenting Opinion of Mr. Justice Manderino, which I join, although it is difficult to fully comprehend their prejudicial impact without actually seeing them. When this case was first before this Court, Mr. Justice Pomeroy described the slides as "repulsive, showing not only close-ups of the contorted bodies of the two deceased persons lying in pools of blood, but also close-ups of the bullet holes in the heads and other portions of

[ 472 Pa. Page 175]

    the anatomies of the victims." Commonwealth v. Sullivan, 446 Pa. 419, 435, 286 A.2d 898, 904 (1971). (Opinion in Support of Affirmance) (Opinion of Pomeroy, J., joined by Jones and O'Brien, JJ.). Each of the slides was shown to the jury for approximately thirty seconds.

The proper test for determining the admissibility of this type of photographic evidence "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) (emphasis added); accord, Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974).*fn4 Applying this test, it is clear that the gruesome nature of these photographs created a "substantial likelihood of inflaming the minds and passions of the jurors." Since these pictures were of no evidentiary value, and certainly did not have "essential evidentiary value," they should not have been admitted.

The majority asserts that this photographic evidence was admissible to prove that the two victims were killed with an intent to kill. But the Commonwealth had ballistic evidence showing that each of the victims had been shot by each of two firearms. Janda was shot six times, Gorey three times, all at close range. I cannot believe that a jury needs photographic evidence, in addition to

[ 472 Pa. Page 176]

    the Commonwealth's uncontradicted ballistic evidence, to be convinced that a person shot six times at close range was shot with an intent to kill.*fn5

The majority also asserts that the slides helped to supplement the pathologist's testimony. Appellant did not question the nature and cause of death, however, and when the pathologist was asked whether there was anything questionable about "his findings" which the photographs might clarify, he replied "I would say no."

Thus, on this record the color slides had no evidentiary value. They were not needed to clarify the pathologist's testimony, and were of no value in proving intent to kill. Other uncontradicted evidence available to the Commonwealth, and offered at trial, was more than adequate to prove the cause of death, and that the killings were made with an intent to kill. Given the availability of these alternative sources of evidence, the pictures did not have "essential evidentiary value."

Moreover, appellant offered to stipulate that the killing was in the nature of an execution, and that whoever committed the killing was guilty of murder of the first degree. In light of this stipulation, the pictures could not possibly have any evidentiary value.

The majority asserts that appellant's offer to stipulate cannot deprive the Commonwealth of its right to prove its case by the most convincing evidence available.*fn6 I

[ 472 Pa. Page 177]

    fail to see how these pictures, offered as circumstantial evidence that the killing was murder of the first degree, are more convincing than a stipulation to the legal conclusion they were offered to prove. If they are more "convincing," it is only because their inflammatory nature might lead a jury to convict appellant, even though the prosecution had not proved beyond a reasonable doubt that appellant was the one responsible for these gruesome killings.

Application of the standard governing admissibility of photographs requires careful examination of the purposes for which they are offered, and the alternatives available to the Commonwealth. Photographs are not automatically admissible whenever the Commonwealth asserts they might help prove a specific intent to kill, or that they might help to clarify the pathologist's testimony. Unless the probity of the particular pictures offered is carefully considered, and the alternative sources of proof are given proper consideration, these assertions become legal fictions by which the standard set out in Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968), is circumvented.

The admission into evidence of the thirty-nine color slides of the victims, in the absence of any need to have the jury see this evidence, deprived appellant of a fair trial. Appellant's conviction should be reversed, and a new trial ordered, on this ground.

Accordingly, while I agree with the majority that the order granting appellant a new direct appeal should be affirmed, I must dissent from the majority's decision to affirm the conviction.

[ 472 Pa. Page 178]

POMEROY, Justice, concurring and dissenting.

By entertaining the present appeal at No. 121 the Court, in my judgment, turns Pennsylvania appellate jurisprudence in criminal cases on its head, and seriously compromises the integrity of the appellate process. The salutary procedures of post-conviction relief have been misapplied so as to wipe out, by the well-meaning but misguided order of a common pleas judge, a decision of and opinions previously filed by this Court. More specifically, this Court has been told by the common pleas court -- which the majority now says had the right so to do -- that the legal counsel who represented the defendant in his earlier appeal to this Court was ineffective in that representation, and that therefore the trial court is granting the defendant the right to file a new direct appeal, nunc pro tunc, from the judgments of sentence. This unprecedented procedure produces, moreover, the bizarre spectacle of the defendant being granted by the trial court something he had previously been twice denied by this Court, viz., a reargument of his direct appeal. Thus by the stroke of the pen of a court of inferior jurisdiction is prior appellate action in the same case rendered nugatory.

As Mr. Justice ROBERTS has well said in a similar context, "It is evident that the orderly administration of justice requires that a criminal controversy, like any other litigation, [must] some day come to an end." Commonwealth v. Slavik, 449 Pa. 424, 432, 297 A.2d 920, 924 (1972). See also Commonwealth v. Beecham, 450 Pa. 197, 299 A.2d 651 (1973). By refusing to declare that this litigation came to an end at least as long ago as 1973, the Court ignores its own wise teaching. It is for this reason, more fully explicated below, that I must dissent from part I of the Court's opinion. If, however, I

[ 472 Pa. Page 179]

    were to allow the direct appeal from the judgment of sentence, I would affirm, as the Court does. I also agree that appeal from the post-conviction court's order is without merit.

1. Procedural Background

A somewhat more detailed recital of the relevant history of the case is necessary to an understanding of the jurisprudential issue. After John Sullivan had been convicted by a jury in 1967 of two counts of murder in the first degree for the deaths by shooting of John Gorey and Rita Janda, post-trial motions were filed and denied by a court en banc.*fn1a A direct appeal to this Court was then taken. With two exceptions, the various points asserted as reasons for a new trial in the trial court were reasserted on appeal,*fn2a and the lack of sufficient evidence to convict was reasserted as ground for arresting the judgment. These several contentions were considered by this Court and dealt with in detail in the opinion in support of the order affirming the judgments of sentence. See Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1969).*fn3a

[ 472 Pa. Page 180]

Appellant, through new counsel (who continues to represent him), then filed a petition for reargument.*fn4a This petition identified some eight respects in which the Court (i. e., the opinion in support of affirmance) had allegedly misunderstood the evidence or misapplied the law. In a concluding paragraph it was suggested that the evidence of the Commonwealth "is not as a matter of law sufficient to sustain a verdict of guilty of murder in the first degree." These reasons advanced for reargument were premised on two introductory averments in the petition: (1) that the judgments were affirmed by an evenly divided Court; and (2) that the docket "does not reflect the filing of a brief nor the argument of his cases by prior counsel on appellant's behalf." After due consideration, the motion was denied by this Court.

Almost a year later there was presented on appellant's behalf a pleading entitled "Petition for Leave to File Petition for Reconsideration of Petition for Reargument." In this petition it was asserted again that "no brief was ever filed in support of appellant's appeal" and that no oral argument was made, prior counsel having made admissions to this effect. The division of the court with respect to affirming the judgments was again noted, and the contention was advanced, citing Neil v. Biggers, 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401 (1972), which had just been decided, that this division was a denial of appellant's right of appeal as guaranteed by the Constitution of Pennsylvania, and, when coupled with the failure to file a brief or make argument, amounted to a denial of due process of law. This petition was answered by the Commonwealth and after consideration was denied by this Court March 6, 1973.*fn5a

[ 472 Pa. Page 181]

Having failed in two attempts in this Court for relief based on the fact that the Court had been evenly divided in its decision and the charge that no briefs or argument had been made in this Court, appellant then filed a petition with the court of common pleas seeking relief under the Post Conviction Hearing Act.*fn6a The petition again set forth the failure of counsel to file a brief or to make oral argument on appeal and the fact that the decision of this Court was by a vote of three to three, and repeated the charge that defendant's right of appeal had thus been denied him. Numerous other alleged errors of former counsel at trial, together with errors of the trial court, were also set forth as grounds for relief.*fn7

After the taking of extensive testimony,*fn8 the learned hearing judge, noting that this Court had divided evenly,

[ 472 Pa. Page 182]

    concluded that "[o]ral argument might have persuaded a different decision." The hearing judge further observed that the "defendant was entitled to a carefully prepared brief by his counsel so that his argument could be fully presented" and found that "it does not appear that that was done."*fn9 The hearing court then found as a fact that in these respects there was ineffective assistance of counsel, and thereupon entered its order whereby defendant was "granted leave, nunc pro tunc, to refile an appeal to the Supreme Court of Pennsylvania and to file briefs and present oral argument thereon."*fn10

[ 472 Pa. Page 1832]

. Scope of the Post Conviction Hearing Act

The basic error of the court below and of this Court, as I see it, lies in a misconception of the scope and proper function of the Post-Conviction Hearing Act. That Act was designed to allow a defendant to assert after trial and conviction the existence of some egregious fault or flaw in the prior proceedings which denied him the benefits of a fair trial and thus deprived him of due process of law or equal protection of the laws or both. PCHA procedure was intended to take the place in Pennsylvania of petitions for writs of habeas corpus, coram nobis and the like, following conviction. Act of January 25, 1966, P.L. (1965) 1580, §§ 2, 3, 19 P.S. §§ 1180-2, 3.

One of the situations frequently recurring in PCHA proceedings is the inability of the Commonwealth to prove that a defendant-petitioner has been advised of his right to file post-trial motions, Commonwealth v. Norman, 456 Pa. 252, 318 A.2d 351 (1974), of his right to appeal the judgments of sentence against him, Commonwealth v. Mumford, 430 Pa. 451, 243 A.2d 440 (1968), and of his right, if indigent, to the services of legal counsel on appeal without cost to himself, Commonwealth v. Sprangle, 442 Pa. 271, 275 A.2d 114 (1971); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963). In such cases the post-conviction court recognizes the right of the defendant to an appeal, and to that end allows the filing and arguing of post-trial motions with the same effect as though this had been done in a timely fashion ("nunc pro tunc").*fn11

That, of course, was not the situation here, as Sullivan concedes. Appellant's brief at Nos. 121 and 122, pp. 9-10. Nor did the lower court grant the right to file post-trial motions nunc pro tunc, for such motions had long since been filed and denied. It purported to grant, instead,

[ 472 Pa. Page 184]

    a nunc pro tunc appeal, apparently accepting defendant's contention that his purported appeal of 1969 was not an appeal after all because counsel's brief had not been "carefully prepared" and oral argument had been waived.*fn12 Whether legal services of counsel for a criminal appellant in this Court have been so slip-shod, so careless, so faulty as to add up to ineffectiveness is and must be for this Court, and no other court, to determine.*fn13 John Sullivan was correct in seeking relief in this Court on the theory of ineffective counsel, first in his reargument petition and then more explicitly in the petition for reconsideration.*fn14 This Court having denied

[ 472 Pa. Page 185]

    relief, the court of common pleas should not have undertaken to hear the case at all insofar as the competence of appellate counsel was concerned. Its action in so doing, while undoubtedly taken with the best of intention, was clearly ultra vires under the circumstances.*fn15

3. The claim of ineffectiveness of appellate counsel

The claim that prior counsel's failure to file a brief and to make oral argument entitles the defendant to a renewed presentation of his case to this Court was considered and rejected by this Court in 1973; it must surely now be considered res judicata.*fn16 Because, however, the Court considers the matter anew and now reverses itself

[ 472 Pa. Page 186]

    by affirming the post-conviction hearing court's order, I address the question briefly on the merits.

(A) As previously indicated, a brief was filed on appellant's behalf. This is a fact of which we have personal, direct knowledge. We also know, from having studiously scrutinized the brief at the time of the prior appeal, that it was a good, lawyer like brief. It consisted of 37 typewritten pages, the first five and one-half being devoted to a detailed recitation of the facts, the balance to legal argument. The headings of the argument portion of the brief are substantially as follows:

(1) Denial of preliminary hearing was error.

(2) Exclusion of jurors who had scruples against capital punishment was error.

(3) Error was committed in admitting into evidence the statements of an alleged co-conspirator.

(4) The evidence was insufficient, as a matter of law, to sustain the convictions.

(5) Error was committed in allowing color slides of the bodies of the victims to be introduced into evidence.

(6) The lower court erred in refusing to quash the indictment.

These are precisely the topics which were dealt with, with some rearrangement, in the opinion in support of affirmance. See Commonwealth v. Sullivan, 446 Pa. 419 286 A.2d 898 (1969). Indeed, these are the same arguments that are dealt with in the new brief now before us on Sullivan's behalf in his direct appeal at No. 121 except that the first two points of the original brief have been dropped.*fn17 The primary substantive difference between

[ 472 Pa. Page 187]

    appellant's original brief and the current one is that the latter includes citations to cases decided since 1970.

The court characterizes the brief of prior counsel as "highly unorthodox" because it failed to comply with our rules. (Opinion of the Court, ante 472 Pa. at 145, 371 A.2d at 476). It is true that the brief had no proper backer, one segment was triple-spaced and it lacked a statement of jurisdiction and of questions involved or a summary of argument.*fn18 It is one thing to say that this was careless disregard of our rules relative to the formalities of constructing a brief; it is quite another thing to conclude, as does the majority, that this type of unorthodoxy equates with constitutional inadequacy. We are, unfortunately, treated to non-conforming briefs at session after session, but this does not mean that the content may not be sound, solid and effective advocacy. In my personal judgment, the brief here in issue was just that. The majority, however, like the court below, fails to examine the content of the brief and thus ignores substance while exalting form when it now holds the brief to be legally ineffective.*fn19

[ 472 Pa. Page 188]

(B) The other basis on which the PCHA hearing judge and this Court find ineffectiveness by prior counsel is the waiver of oral argument. I agree that it would have been preferable for counsel to make such an argument. While opinions of judges differ as to the value of such arguments, my own view is that, more often than not, they are helpful to the appellate court.*fn20 But to say as much is not to suggest that absence of oral argument is apt to make a difference in the outcome of a case -- especially a case that, due to a heavy backlog of cases awaiting disposition, cannot be decided for some time to come.*fn21 That there was nothing unusual in Sullivan's counsel having waived argument is shown by the fact that in the calendar year 1975, nineteen appeals from convictions of murder in the first degree were submitted to this Court on briefs; in the calendar year 1976, at least twenty-six such appeals were submitted on briefs. Moreover, in no appeals from orders rendered in PCHA proceedings do we permit oral argument except by special order of court, notwithstanding that all such cases appealed as of right to this Court involve felonious homicides. Pa.R.A.P. 2311(b), formerly Supreme Court Rule 71.

[ 472 Pa. Page 189]

As to the reason oral argument was waived, Mr. Sullivan testified that Mr. Peruto, his counsel, thought the case should not be argued for political reasons and to avoid a presentation to this Court, in the presence of the families of the victims, of the unpleasant details of the assassination-type killings here involved. In a case where the evidence was circumstantial and a paramount issue was sufficiency, it is understandable that counsel could conclude, in his client's best interest, that the less said about the factual details, the better.*fn22 In any event, waiver of oral argument cannot be said as a matter of law to have rendered counsel constitutionally ineffective.*fn23

To recapitulate, at No. 127, I would reverse the order of the court of common pleas granting Sullivan leave, nunc pro tunc, to refile a direct appeal to this Court as of November Term, 1966. Since, however, the majority of the Court affirms that order and considers the case anew on its merits at No. 121, I deem it appropriate to indicate my agreement with its conclusion that the judgment of sentence should be affirmed. The appeal of Sullivan from the post-conviction proceeding order at No. 122 is properly before the Court, and I concur in the affirmance of that order.

[ 472 Pa. Page 190]

MANDERINO, Justice, concurring and dissenting.

I join in the concurring and dissenting opinion of Mr. Justice Roberts, and would reverse the judgment of sentence and order appellant discharged because I believe the evidence was insufficient to prove beyond a reasonable doubt that appellant was one of the perpetrators of the homicides. In addition, I wish to express my amazement and dismay at the majority's approval of the use at trial of the color slide photographs depicting the bodies of the victims in the instant case. I have viewed these photographs. If these photographs do not warrant a reversal and remand for new trial, no retrial will ever be granted because of the admission of inflammatory photographs. Every prior case of this Court granting a new trial because of the admission of inflammatory photographs is sub silentio overruled by the majority's holding that the photographs admitted in this case do not warrant reversal. These photographs are more gruesome than any other color slides or photographs which I have seen in any previous appeal before this Court. They can accurately be described as a "horror show." Such a show must have affected the jury greatly. Very few persons exposed to full color slide photographs of blood smeared bodies, with bullet riddled faces, lying in literal pools of blood, could dispassionately decide whether the prosecution had sustained its burden of proving beyond a reasonable doubt that the perpetrator of such crimes was, in fact, the same man accused of committing them. Because of the serious disagreement among the members of this Court as to the sufficiency of the evidence in this case, we should be particularly careful to avoid condoning something which may have unfairly tipped the scales of justice against the appellant at trial.

Over defense objection the prosecution offered into evidence thirty-nine color slides taken by the medical examiner

[ 472 Pa. Page 191]

    at the scene of the crime. These slides were shown to the jury for a total time of eighteen minutes and twenty-seven seconds. On the average, therefore, each slide was projected for almost thirty seconds. The group of thirty-nine slides can be divided roughly into four categories. The first category, consists of eight slides depicting the outside of the building in which the victims' bodies were found, a window with a bullet hole, the layout of the parking lot outside the building, the victim Janda's purse, a brown paper lunch bag sitting on the window sill, and some severed telephone lines. The second group of photographs contains various shots indicating the relative position in which the victims' bodies were found. This group includes overall views of the room, scenes showing the relative locations of the desk, various chairs and other office equipment, and the bodies. The third group consists of eight close-up photographs of the head and body of the victim, Gorey. The last group consists of fifteen close-up photographs showing the victim, Janda's head and body in various positions. It is these latter two groups which are particularly objectionable here.

Of the eight photographs of Gorey, five are photographs of the body depicting it from the waist area to the top of the head, in the position it was found lying on the floor. These five photographs show the victim lying on his back on the floor with his head up against the wall, with eyes closed, chin on shoulder, left hand on chest. Plainly visible is a bullet hole in the middle of the forehead just above the eyebrows; a bullet wound in the corner of the left eye; blood coursing from the bullet wound of the forehead; blood coursing from the bullet wound of the eye; blood, dried and caked in layers coursing from the nose; blood flowing from the right ear; the entire collar and part of the shoulder of the shirt stained and splattered with blood; blood flowing from a bullet wound in the abdominal area just to the left of the navel;

[ 472 Pa. Page 192]

    and a bullet wound just to the left and above the navel. In another of the photographs in this group, the body has been rolled over to expose the back, stained purple from the settling of blood, with blood-soaked shirt lifted to reveal a bullet wound to the back. The remaining two photographs of the victim, Gorey, depict almost identical close-up shots of the victim's face; both reveal in horrid detail the bullet wound to the center of the forehead and the bullet wound to the left eye. In both shots fully one-half of the victim's face and neck is completely covered with blood. In fact, these photographs reveal the blood flowing from the victim's nose to be dried thick upon his cheek.

The fifteen photographs depicting the victim, Janda, can also be divided into three groups: one depicting an overview of the body of the victim as it lay on the floor; one group depicting the body from the area of the waist to the top of the head in various positions on the floor; and one group depicting close-ups of various portions of the victim's anatomy. There is only one photograph in the first group. It depicts the victim lying on her left side on the floor (the desk under which she was found having apparently been removed for purposes of the photograph) in a pool of blood extending from near the top of her head down to her waist. The group of photographs depicting the victim's torso consists of seven photographs. Three of these are almost identical. They show the victim lying on her left side with her face on the floor, surrounded by dried, caked, blood. These photographs also reveal three bullet wounds to the right side of the head: one in the hair above and to the rear of the right ear; one just in front of the right ear at about the point where the jaw bone connects to the skull; and one to the right temple, just to the rear and above the right eye. Thick, dark red, dried blood extends from all three wounds across the face.

[ 472 Pa. Page 193]

Another photograph reveals the victim's upper back and right shoulder with her blouse pulled up to reveal a bullet hole in the upper right arm and a back almost completely covered with blood; this picture also reveals a mass of blood on the rear of the victim's head just above her right ear. The last three photographs in this group show the victim in various positions lying on her back in a pool of blood, with the head, chest, and arms completely covered with blood; her left eye is swollen and blackened, blood courses from her nose and mouth, the left side of her head is red with blood, as if painted with a brush, her arms are completely covered with blood, and blood flows in a river over the floor around the body. Two of these photographs are almost identical views of the victim's face and chest area showing her to be completely covered with blood from near the top of her head to her waist. In fact, her blouse is saturated with blood over the entire area of her chest. In one of these photographs the victim's shirt has been opened to reveal her brassiere, saturated with blood, and a bullet wound to the lower abdomen several inches below and to the right of her navel. In this photograph, the victim's upper lip is drawn slightly upward, revealing her teeth in a grotesque "snarl."

The last group of photographs of the victim, Janda, consists of seven close-up photographs of various parts of her anatomy. The first depicts the front of her blood-stained blouse. The second depicts a portion of her nude torso from just above the right breast to approximately four inches below the navel, revealing at least two bullet holes in the area just above and just below the navel. The third is a close-up of the victim's face, neck and upper chest revealing a bullet hole to the right temple, a bullet hole in the left corner of the right eye, blood flowing from the right ear, and blood staining the hair bright red. The next photograph is a close-up of the victim's right shoulder taken from the rear, revealing

[ 472 Pa. Page 194]

    a bullet hole to the upper right arm and also shows the victim's chin, mouth, right breast, and right arm stained with blood. The next is a close-up view of the right side of the victim's face, with the face and neck occupying almost the entire frame. It reveals the bullet wound to the right temple, with the blood that once flowed from it across the forehead now dried and caked. It also reveals the bullet wound to the left corner of the right eye, a mass of dried, caked blood in the hair just in front of the right ear, and blood staining the entire area of her cheek, forehead, and neck. The next is an identical close-up of appellant's face taken from the right, this time with some of the blood removed to more clearly reveal the bullet hole in the left corner of the right eye, the bullet hole in the right temple, the dried and caked blood in front of the right ear, and blood staining the victim's blonde hair red at the top of her forehead. The last of this group of photographs shows the left side of the victim's face, the left side of her neck and her right breast, indicating the blackened, swollen, left eye, blood flowing from the nose, and blood flowing from the left ear. In this photograph a section of hair has been shaved to expose a bullet hole in the skull above and to the rear of the left ear. It also shows the victim's ash blonde hair stained bright red by the blood.

In Commonwealth v. Scaramuzzino, 455 Pa. 378, 317 A.2d 225 (1974), we noted that the practice of admitting photographs of the body of the decedent is to be condemned unless those photographs have essential evidentiary value. Although the admission of such photographic evidence has been held to be a matter within the discretion of the trial judge, the test remains one of ascertaining 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, 241 A.2d 119 (1968). Furthermore, ". . . the

[ 472 Pa. Page 195]

    more inflammatory the photograph the greater the need to establish the essential evidentiary value." (Emphasis added.) Commonwealth v. Scaramuzzino, 455 Pa. at 381, 317 A.2d at 226.

In Scaramuzzino, we reversed and remanded for a new trial because fourteen color slides were introduced over defense counsel's objection. The ostensible purpose for their introduction was to support and clarify the pathologist's testimony as to the cause of death.

"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 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 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."

Id. at 380-81, 317 A.2d at 226.

Commenting upon this slide show we said in Scaramuzzino,

"[n]ever before have we been faced with the admission of so many slides, unquestionably repetitive, and viewed for so long a period of time. (Footnote omitted.)"

Id. at 381, 317 A.2d at 226.

[ 472 Pa. Page 196]

In refusing to accept the prosecution's contention that the photographs in Scaramuzzino were necessary "to aid the pathologist in explaining to the jury the wounds which were suffered by the decedent . . . and injuries which resulted in her death", we distinguished Commonwealth Page 196} v. Collins, 440 Pa. 368, 269 A.2d 882 (1970), stating that Collins,

". . . involved only a single slide which was 'as noninflammatory as possible because all excess blood had been removed from the decedent's face before the photograph was taken, so this is not a case where some less inflammatory version of the slide could have been utilized.'"

455 Pa. 382, 317 A.2d 227.

The prosecution in Scaramuzzino, on the other hand, had made no effort to limit the slides to those reasonably necessary to aid the pathologist's testimony, or to those in which excess blood had been removed. We therefore concluded that

"there was certainly no need for three pictures of the heart removed from the body; nor was there any evidentiary purpose whatsoever in introducing slides of the nude torso, arm, and back with excess blood plainly visible where these same slides, but without blood, were available and were indeed introduced." (Emphasis in original.)

Id. at 383, 317 A.2d at 227.

The majority opinion here attempts to supply the "essential evidentiary value" required by Powell, supra, and Scaramuzzino, supra, by stating that the slides were "offered to aid the jury in understanding the physical scene of the crime, the nature and extent of the wounds inflicted and the brutality of the murder to graphically demonstrate the existence of an intent to take life." (Maj. opinion at pages 481, 482). In concluding that the photographs at issue here were admissible for these purposes the majority overlooks our conclusion in Scaramuzzino that such slides ". . . should not be resorted to where the witness can clearly convey the facts to the jury without their use." 455 Pa. at 383, 317 A.2d at 227.

In Scaramuzzino we condemned introduction of the photographs because they showed various parts of the

[ 472 Pa. Page 197]

    victim's body with its heart having been removed by the pathologist. We felt that such photographs were highly inflammatory. In the instant case we have almost three times as many photographs shown to the jury for almost twice as long a period of time, depicting the bodies of the victims, revealing in horrible detail how they were mutilated by the perpetrator of the homicide. The inflammatory effect of the photographs in the instant case was significantly greater, it seems to me, than was condemned in Scaramuzzino.

In Scaramuzzino we concluded that the photographs had no evidentiary value because the facts which they were introduced to convey to the jury -- the nature and direction of the wounds, -- could as readily have been conveyed to the jury by less prejudicial means. The same is true in the instant case. Those photographs depicting the physical scene of the crime, while some of them were gruesome to the extent that they depicted the blood flowing across the floor, and were objectionable for that reason, could have been taken after the blood had been cleaned. Those photographs which were introduced to show the jury the nature and extent of the wounds were completely unnecessary because the pathologist's testimony provided the jury with that information. Furthermore, if the prosecution felt it desirable, schematic drawings of the victim's bodies, showing the relative position of the various bullet wounds could also have been provided for the jury's benefit. The same is true of their ostensible evidentiary value to show that the perpetrator possessed the intent to kill necessary to convict of murder in the first degree. Testimony by the pathologist as to the number and nature of the wounds was more than adequate to prove this element of the crime. As in Scaramuzzino,

"These slides were simply cumulative to the pathologist's testimony as to the cause, position, number, and severity of the wounds."

455 Pa. at 383, 317 A.2d at 227.

[ 472 Pa. Page 198]

In short, the photographs provided no information that could not have been amply supplied by other sources. The one thing that their introduction accomplished, however, was to assure that no jury would return a verdict of not guilty. For these reasons it was an abuse of discretion to allow them to be shown to the jury.

I would therefore reverse the judgment of sentence.


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