No. 94 May Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Dauphin County, at No. 2645 Criminal Division 1972.
Bruce D. Foreman, Harrisburg, for appellant.
Marion E. MacIntyre, 2nd Asst. Dist. Atty., for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, Manderino and Larsen, JJ., concur in the result.
Louis Cecil Schroth, appellant, was found guilty of murder in the first degree in connection with the strangulation death of Linda Lugar, and was sentenced immediately to life imprisonment. No post-trial motions were filed in the trial court, but a direct appeal from judgment of sentence was filed in this Court. We remanded the case to the trial court for a hearing to determine if Schroth's decision not to file post-trial motions was knowing and intelligent. Commonwealth v. Schroth, 458 Pa. 233, 328 A.2d 168 (1974).
Thereafter, the trial court permitted appellant the right to file post-verdict motions. Post-verdict motions were filed and after consideration denied. No appeal was taken from the order denying those motions. Subsequently appellant filed a Post-Conviction Hearing petition with the court of common pleas alleging inter alia, that he had been denied his right to a direct appeal. The Post-Conviction Court granted appellant the right to file a direct appeal nunc pro tunc and denied the other grounds asserted.*fn1
In this direct appeal appellant relies upon two assignments of error. First, it is contended that the trial court abused its discretion in admitting into evidence, over timely objection, a photograph of the nude body of the deceased victim. It is argued that the "essential evidentiary value" of this exhibit was outweighed by its inflammatory nature.
"[10-12] We have consistently held that the question of admissibility of photographs of a corpse in homicide cases is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973); Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971) (opinion in support of order); Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969); Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968); Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959); Commonwealth v. Peyton, 360 Pa. 441, 62 A.2d 37 (1948). When the trial judge is confronted with gruesome or potentially inflammatory photographs, the test for determining their admissibility which he must apply 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, supra, 428 Pa. at 278-279, 241 A.2d at 121; Commonwealth v. Peyton, supra, 360 Pa. at 450, 62 A.2d at 41. A photograph which is not deemed to be inflammatory, however, may be admitted so long as it has relevance and can assist the jury's understanding of the facts of the case before it. Commonwealth v. Claitt, 454 Pa. 313, 311 A.2d ...