No. 524 Pittsburgh, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Erie County at No. 835 of 1980.
Joseph P. Martone, Erie, for appellant.
Timothy J. Lucas, Assistant District Attorney, Erie, for Commonwealth appellee.
Cavanaugh, Rowley and Cirillo, JJ. Cavanaugh, J., filed a dissenting opinion.
[ 320 Pa. Super. Page 69]
Appellant James A. Ginnery, was convicted by a jury of indecent exposure. This is his direct appeal from the judgment of sentence imposed following denial of his post-trial
[ 320 Pa. Super. Page 70]
motions. The Commonwealth's evidence was that in April of 1980 David Dombrowski, age fourteen at the time of trial, was delivering newspapers in the late afternoon in the City of Erie when a man drove up in his car and asked David to come over to the car. When David complied he looked in the car and saw appellant's penis exposed. David left. David did nothing about the incident but the next day he encountered the same individual who again called him to the car. This time David took down the license plate number and reported the incident to his father resulting in appellant's eventual arrest. David identified Ginnery at trial as the offender.
On appeal, appellant claims primarily that he is entitled to a new trial on the ground that it was error to permit the Commonwealth to make reference to and to display to the jury a photographic array from which David identified appellant. Appellant also argues that the evidence was insufficient to support the verdict and that the verdict was against the weight of the evidence. None of these contentions have any merit.
The trial judge did not abuse his discretion [ Commonwealth v. Sinwell, 311 Pa. Super. 419, 457 A.2d 957 (1983)] in overruling appellant's objection to testimony at trial regarding the photo line-up and the display of the photo line-up to the jury. Showing these pictures to the jury did not constitute a fact from which "a juror could reasonably infer . . . that the accused had engaged in prior criminal activity." Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972).
The disputed testimony arose when the prosecutor called Detective Barnett of the Erie Police Department. Barnett had determined that the license number was registered to appellant and testified that thereafter he showed a series of photographs to David. There were six photographs, each of a different person with like characteristics. David identified appellant's photograph as the photograph of the perpetrator. The photographs were presented at trial and objected to by appellant's counsel. The objection was overruled.
[ 320 Pa. Super. Page 71]
The photographs were not, however, marked in evidence or otherwise identified for the record. Nevertheless, the photos, which apparently had some police information, including criminal records, on the reverse side were attached to a file folder so that the information on the back was concealed. They were then exhibited to the jury. The photos were described at the time by appellant's counsel as looking "terrible", but were stated by the trial judge not to be "mug prints". Detective Barnett was ...