No. 80-3-607, Appeal from the Order of Superior Court, dated December 28, 1979, reversing the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Section, Philadelphia County, at No. 159 July Term, 1971.
Eric B. Henson, Deputy Dist. Atty., Kenneth Gallant, Asst. Dist. Atty., for appellant.
Joseph R. Danella, Philadelphia, for appellee.
O'Brien, C.j., and Roberts, Larsen, Flaherty, McDermott and Hutchinson, JJ. Nix, J., did not participate in the consideration or decision of this case. Larsen, J., joins the Majority Opinion and files a Concurring Opinion. Roberts, J., concurs in the result. O'Brien, C.j., files a Dissenting Opinion. Flaherty, J., joins in this concurring opinion.
On May 5, 1976, Freddy McCutchen was convicted*fn1 by a jury of murder of the first degree in the beating death of a six-year-old boy in the course of committing anal sodomy upon the child. Post trial motions were heard and denied and appeal was transferred from this Court to Superior Court, Special Transfer Docket. This is an appeal by the Commonwealth from the Order of the Superior Court,*fn2 granting the defendant a new trial on the determination that two color slides of the victim depicting the injuries sustained were erroneously admitted at trial. We vacate and remand to Superior Court for consideration of issues raised below but not considered due to the order of a new trial.
Evidence adduced at trial established that on June 7, 1971, at approximately 9:05 P.M., the defendant, known as "Shank," wearing a yellow jacket with a round, blue emblem, was seen walking with the six-year-old victim and calming him after the child's involvement in a scuffle with another child. They walked in the general direction of the crime scene. Later, the fifteen-year-old defendant, no longer wearing the yellow jacket, was seen entering a taproom where he washed his hands. At approximately 10:30 P.M. that evening, the battered body of the victim was found in a dark, abandoned area behind a vacant factory within blocks of where he was seen with the defendant. Slacks around his ankles, undershorts pulled up around his waist, the boy was pronounced dead at the scene. His shirt, stained with feces and semen, was on the ground four feet away. Near the boy's shirt was a large black, "bush type," comb with
"Shank" scratched on the handle. A yellow jacket with a round, blue emblem was found one and one-half days later not far from the scene. Stained with both blood of the victim's type and semen consistent with the defendant's type, the jacket was identified as the one worn by the defendant when he was seen calming the victim and walking in the general direction of the vacant factory.
The medical examiner testified to the various severe injuries to the head, producing at least three comminuted fractures of the skull, opined to have been inflicted by blows of a heavy rounded object. Also recounted was the tearing of the marginal area of the anus in four discrete areas, as a result of the anal sodomy, and the outcome of laboratory examination of material from the anal area which established the presence of semen.
The verbal testimony of the medical examiner was supplemented by the use of two slides projected onto a viewing screen in the darkened ...