No. 45 March Term, 1977, Appeal From The Judgment of Sentence Of The Court Of Common Pleas of Washington County, Pennsylvania at No. 698 of 1975, Criminal Division.
Herman J. Bigi, Salvatore F. Panepinto, Charleroi, Court-appointed, for appellant.
Paul M. Petro, Washington, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Roberts, J., filed a concurring opinion. Manderino, J., filed a concurring opinion. Larsen, J., filed a dissenting opinion.
This is an appeal from a judgment of sentence of life imprisonment entered upon a jury verdict finding appellant guilty of felony murder.*fn1 18 Pa.C.S.A. § 2502(b) (Supp.1978-79). The crucial issue is whether the trial court erred in admitting into evidence, over appellant's objection, two photographs of the victim's body.*fn2 For the reasons set forth below, we conclude that the trial court did err in admitting
these photographs into evidence. Therefore, we reverse the judgments of sentence and order a new trial.*fn3
This Court has recently had occasion to discuss the admissibility of photographic evidence depicting a murder victim's body. Commonwealth v. Schroth, 479 Pa. 485, 388 A.2d 1034 (1978). In Schroth we stated:
"Normally the general rule is that testimony is admissible if it is relevant and competent. This basic rule is equally applicable to the admission of photographs or other types of demonstrative evidence. . . . However, where the photograph possesses gruesome or inflammatory qualities likely to inflame the passions of the viewer, our cases require the application of the 'essential evidentiary value' balancing test."
Id. 479 Pa. at 489, 388 A.2d at 1036 (citations omitted). Therefore, our initial inquiry must determine whether the photographs in the instant case possess gruesome or inflammatory qualities likely to inflame the passions of the jury. We conclude that they do possess such qualities. The photographs are eight by ten inch black and white glossy pictures. Each print shows a close-up view of the victim's body at the scene of the murder, the victim's mobile home. The victim is clothed in what appears to be undergarments, and his body and clothing are splattered with blood. In one photograph, a large, gaping wound in the neck is clearly visible.*fn4
In attempting to rebut appellant's assertion that the photographs were inflammatory, the Commonwealth attempts to distinguish ...