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decided: January 26, 1978.



Paul R. Gettleman, Welsh S. White, Leonard I. Sharon, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Charles W. Johns, Asst. Dist. Attys., Pittsburgh, for appellee.

Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Pomeroy, J., filed a concurring opinion. Nix, J., concurs in the result.

Author: Roberts

[ 476 Pa. Page 395]


On July 3, 1974, Patrick Wallace, a Pittsburgh police officer, was shot and killed. Appellant, Stanton Story, was later arrested and charged with the murder. After a jury trial, he was found guilty of murder of the first degree. Post-verdict motions were denied and a sentence of death was imposed.*fn1

In this appeal,*fn2 appellant contends he was denied a fair trial because the trial court permitted the Commonwealth to introduce irrelevant and prejudicial evidence concerning the victim's family life and professional reputation. We agree,*fn3 reverse judgment of sentence and grant appellant a new trial.*fn4

[ 476 Pa. Page 396]



At trial, the Commonwealth called Marilyn Wallace, the victim's widow, as its second witness. After appellant sought an offer of proof, the Commonwealth stated that it was calling Marilyn Wallace for the purpose of (1) introducing photographs of the victim and his daughter which Marilyn Wallace had taken when the family was on vacation; (2) describing the victim's family status; (3) relating that Marilyn Wallace had last seen her husband alive on the morning that he was killed; and (4) presenting other events of a personal nature. Appellant objected to the proposed testimony on the ground that it was irrelevant and highly prejudicial. The trial court overruled the objection and permitted Marilyn Wallace to testify.

Marilyn Wallace testified that she married the victim on January 22, 1966, and that they had a six year old daughter named Jennifer Ann, who attended school at the home for crippled children. She further testified that she was employed by the county police. Only after her husband's death did she begin working. She stated that her husband had been employed as a police officer for five years, that he was in the armed forces reserves and was attending college at the time of his death. Marilyn Wallace also testified that she last saw her husband alive on the morning that he was

[ 476 Pa. Page 397]

    killed*fn5 and that she was notified of his death at about noon. She then identified two photographs of the victim with their daughter which she had taken when the family was on vacation in Canada. The photographs were admitted into evidence over objection and shown to the jury.

Appellant argues that Marilyn Wallace's testimony and the two photographs of the victim with his daughter were irrelevant and prejudicial. Appellant asserts that the evidence that the victim left a widow and a handicapped daughter, and that his widow was forced to work after her husband's death, created sympathy for the victim and his family and inflamed the jury.*fn6

[ 476 Pa. Page 398]

In Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976), Mr. Justice Nix, writing for a majority of this Court, articulated the threshold inquiry in determining whether evidence is properly admitted into evidence.

"Any analysis of the admissibility of a particular type of evidence must start with a threshold inquiry as to its relevance and probative value. Commonwealth v. Jones, 459 Pa. 62, 66, 327 A.2d 10, 13 (1974); Commonwealth v. McCusker, 448 Pa. 382, 388, 292 A.2d 286, 289 (1972). We have cited with approval the test for relevance propounded by two leading evidentiary authorities, Wigmore and McCormick. Commonwealth v. Jones, supra; Commonwealth v. Lippert, 454 Pa. 381, 384, 311 A.2d 586, 587 (1973); Commonwealth v. McCusker, supra. Wigmore defines relevance in terms of two axioms, 'None but facts having rational probative value are admissible,' and 'All facts having rational probative value are admissible, unless some specific rule forbids.' 1 Wigmore, Evidence, § 9-10 at 289-95 (3rd Ed. 1940). McCormick suggests the following for determining relevance, '. . . [d]oes the evidence offered render the desired inference more probable than it would be without the evidence? . . . Relevant evidence then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible.' McCormick, Evidence § 185 at 437-38 (2nd Ed. 1972)."

Id. 468 Pa. at 218, 360 A.2d at 918.

[ 476 Pa. Page 399]

Here, Mrs. Wallace's testimony concerning her husband's family status and personal life, and her description of the photographs of her husband with his child have no "rational probative value" to the issue whether appellant feloniously killed Patrick Wallace. Rather, this evidence injected extraneous considerations into the case and prejudiced appellant by creating sympathy for the victim and his family.

In its offer of proof, the Commonwealth stated that it thought that the jury was "entitled to know this man was married, he was a father, he in fact was a family man." The prosecutor further stated that the victim "is more than a body" and that the prosecutor wanted the jury "to get some feel for this activity of his life." It is evident that the Commonwealth explicitly sought to create sympathy for the victim and his family and to inflame the jury against appellant. We condemn such trial tactics. As the Illinois Supreme Court has observed:

"[The] defendant, no matter how reprehensible his crime, was entitled to have jurors consider both the matter of his guilt and punishment, uninfluenced by the circumstance that decedent's widow had been left alone with children of tender ages as the result of the homicide."

People v. Bernette, 30 Ill.2d 359, 372, 197 N.E.2d 436, 444 (1964).

The Commonwealth relies on Commonwealth v. Ross, 413 Pa. 35, 195 A.2d 81 (1963), to argue that Marilyn Wallace's testimony and the photographs of the victim on vacation with his daughter on a beach were relevant to demonstrate "the natural development of the facts of the case." Ross provides no support for the Commonwealth's position. Ross was charged with the murder of a woman with whom he once resided. The woman's son was murdered at the same time. The Commonwealth called a pathologist to testify that he had performed an autopsy on the son and that the son had died from a gunshot wound. The defendant contended that it was prejudicial error to permit any testimony that the son died as a result of the shooting. In affirming the admission of this evidence, this Court noted that, ordinarily, evidence of the commission of a crime other than the

[ 476 Pa. Page 400]

    one for which the defendant is being tried is not admissible. We stated that an exception to this rule is recognized where the criminal or bad act is used to show "'intent, scienter, motive, identity, plan or the accused to be one of an organization banded together to commit crimes of the sort charged, or that such prior conviction or criminal act formed a part of a chain, or was one of a sequence of acts, or became part of the history of the event on trial, or was part of the natural development of the facts. . . .'" Id. at 40, 195 A.2d at 83; quoting Commonwealth v. Williams, 307 Pa. 134, 148, 160 A. 602, 607 (1932) (emphasis altered).

The principle enunciated in Ross is designed to give the trier of fact background information when such information is necessary to understand the criminal episode which forms the basis of the charges against the accused. Here, evidence of the victim's family life and the photographs of the victim with his daughter shed absolutely no light on the criminal episode which resulted in Patrick Wallace's death. This evidence had no relevance to "the natural development of the facts" of this case.

Other jurisdictions which have addressed the issue whether evidence of a murder victim's family status is probative have held that such evidence is irrelevant and prejudicial to the accused. See Knight v. State, 273 Ala. 480, 142 So.2d 899 (1962); Walker v. State, 239 Ark. 172, 388 S.W.2d 13 (1965); Foster v. State, 266 So.2d 97 (Fla.Dist.Ct.App.1972); Wolfe v. State, 202 So.2d 133 (Fla.App.), appeal dismissed, 207 So.2d 457 (Fla.1967); People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436 (1964); People v. Miller, 6 N.Y.2d 152, 188 N.Y.S.2d 534, 160 N.E.2d 74 (1959).

In People v. Miller, supra, the brother of the murder victim testified concerning his identification of the victim at the morgue. He was asked whether the victim had a wife and children. The New York Court of Appeals held that it was prejudicial error to permit testimony that the victim had a wife and seven children, for such evidence had "no bearing on the materiality of the issues before the jury, [and] was calculated to appeal to the passion and sympathy

[ 476 Pa. Page 401]

    of the jury . . . ." The court concluded that "[t]here could be no purpose to this line of testimony but to conjure up in the minds of the jurors undue prejudice against the defendant." Id. at 157, 188 N.Y.S.2d at 539, 160 N.E.2d at 77.

The Illinois Supreme Court held that the admission into evidence of the victim's family status was reversible error in People v. Bernette, supra. The court stated:

"A defendant's guilt must be established by legal and competent evidence, uninfluenced by bias and prejudice raised by irrelevant evidence and, in such connection this court has consistently condemned the admission of evidence that the deceased left a spouse and a family, inasmuch as such evidence has no relationship to the guilt or innocence of the accused or the punishment to be inflicted upon him, but serves ordinarily only to prejudice him in the eyes of the jury. . . ."

30 Ill. at 371, 197 N.E.2d at 443 (citations omitted).

In Knight v. State, supra, the Alabama Supreme Court observed:

"How many children the slain man had, their ages . . are irrelevant facts . . . . [T]o hold such evidence not prejudicial to the defendant is to disregard the realities of trial atmosphere and the emotional frailties of human nature."

273 Ala. at 491, 142 So.2d at 910.*fn7

[ 476 Pa. Page 402]

Ordinarily, in determining whether evidence is admissible at trial, the trial court must balance the probativeness of the evidence against its prejudicial impact. Commonwealth v. Ulatoski, 472 Pa. 53, 63 n.11, 371 A.2d 186, 191 n.11 (1977); J. McCormick, Evidence § 185, at 438-40 (2d ed. 1972). In this case, however, the evidence in question was totally irrelevant to the determination of appellant's guilt or innocence. It was therefore unnecessary for the trial court to determine whether the probativeness outweighed the prejudice. See Commonwealth v. Fell, 453 Pa. 531, 309 A.2d 417 (1973). We hold that the trial court erred in permitting the Commonwealth to present Marilyn Wallace's testimony and the photographs of the victim with his daughter. See 1 Wharton's Criminal Evidence § 164, at 304 (13th ed. 1972) ("Evidence which has the effect of inspiring sympathy for the . . . victim of the crime is prejudicial and inadmissible when otherwise irrelevant. Thus, in a prosecution for murder, it is not permissible to show that the victim had a family or a specific number of children . . .").


Appellant asserts that the Commonwealth continued its strategy of inflaming the jury against appellant when it presented evidence, in its case in chief, concerning the victim's professional reputation.*fn8 Appellant contends

[ 476 Pa. Page 403]

    that it was improper for the Commonwealth to present evidence of the victim's reputation since appellant neither attacked the victim's reputation nor asserted that the killing was justified because the victim was the aggressor. We agree.

It is well established that the Commonwealth cannot offer evidence of the victim's reputation unless and until the victim's reputation is put in issue by the defense. Commonwealth v. Castellana, 277 Pa. 117, 121 A. 50 (1923), cited with approval in Commonwealth v. Donovan, 447 Pa. 450, 291 A.2d 116 (1972) (dictum); Walker v. State, supra; J. McCormick, Evidence § 193, at 461 (2d ed. 1972); 1 Wharton's Criminal Evidence § 236 (13th ed. 1972); 1 A.L.R.3d 571 (1965). Here, ...

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