No. 105 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, as of July Term, 1971, No. 159.
Joseph Danella, Philadelphia, for appellant.
Sheldon M. Finkelstein, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn* Wieand, J., files a concurring and dissenting statement.
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Appellant Freddy McCutchen, who was fifteen years of age at the time of the crime, was twice convicted by a jury of murder in the first degree arising out of a homosexual
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attack upon a six year old boy in Philadelphia.*fn1 The Pennsylvania Supreme Court reversed the first conviction because the trial court erred in refusing to suppress McCutchen's confession. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 696 (1975), cert. denied 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976) (McCutchen I). McCutchen was subsequently retried and again found guilty of first degree murder. The present case is the direct appeal from McCutchen's retrial. For the reasons set forth below, we are constrained to conclude that McCutchen was again denied his constitutionally guaranteed right to a fair trial, and therefore reverse the judgment of sentence and remand the case for a second retrial.
During the testimony of the medical examiner, the jury was shown two color slides of the victim's body. In determining the admissibility of photographic evidence depicting a murder victim's body, we are bound by the rules set forth by the Supreme Court in Commonwealth v. Chacko, 480 Pa. 504, 506, 391 A.2d 999, 1000 (1978) and its predecessors:
"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."
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. Id., 480 Pa. at 507, 391 A.2d at 1000, quoting from Commonwealth v. Schroth, 479 Pa. 485, 489, 388 A.2d 1034, 1036 (1978).
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The first color slide presented the jury with a frontal view of the victim's naked body from the hips upwards. The victim clearly has a large gaping deep gash on the top of his head exposing the blood-red interior of the skull; matted hair and scalp are pulled back from the wound. There is a large gash above the victim's left eye from his forehead to his cheek. The interior of this gash is plainly visible and blood-red in color; the skin surrounding the gash is visibly bruised and discolored. The victim has severe red and brown bruises and lacerations of the entire right side of his face and torn skin is clearly visible. His mouth is swollen and discolored with ...