Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Allegheny County No. 8305026A.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Robert L. Eberhardt, Deputy District Attorney, Pittsburgh, for Com., appellee.
Wieand, Popovich and Lipez, JJ.
[ 349 Pa. Super. Page 322]
John Voytko was tried by jury and was found guilty of third degree murder in connection with the shooting death of Robert Cole. On direct appeal from the judgment of sentence, the principal arguments advanced are that the trial court erred in allowing the jury to examine photographs of the interior of the decedent's truck following the shooting, and that the trial court inadequately instructed the jury on the offense of voluntary manslaughter.
The evidence presented at trial showed that approximately seven weeks prior to the shooting, Voytko had found his wife, Michelle, in bed with Robert Cole at the latter's home.
[ 349 Pa. Super. Page 323]
Six weeks later, about a week before the shooting, Voytko and Cole became involved in a fight. About the same time, Voytko and his wife had an argument, and she left the marital home to return to the home of her parents. On May 23, 1983, at or about 5:00 a.m., Cole returned Michelle to her parents' home following a date. As Cole was parking his truck, Voytko pulled in behind him, stopped and walked over to the truck. He screamed that his wife should get out of the truck. When Cole opened the door on the driver's side of the truck, Voytko shot Cole in the head with a shotgun. Voytko then retreated to the back yard of the home, threatening to commit suicide. Police were summoned and, after an extensive conversation with Voytko, were able to persuade him to dismantle the gun and surrender. Cole died later the same day.
Appellant's first contention is that the trial court erred when it allowed into the jury room two black and white photographs depicting the interior of Cole's truck after the shooting. These photographs, appellant argues, were inflammatory, and their prejudicial effect outweighed any evidentiary value they might have had.
In Commonwealth v. Garcia, 505 Pa. 304, 479 A.2d 473 (1984), the Supreme Court said:
The admission into evidence of photographs depicting the corpse of the homicide victim or the location and scene of the crime lies within the sound discretion of the trial judge. See Commonwealth v. Hudson, 489 Pa. 620, 630, 414 A.2d 1381, 1386 (1980); Commonwealth v. Gilman, 485 Pa. 145, 152, 401 A.2d 335, 339 (1979); Commonwealth v. Gidaro, 363 Pa. 472, 474, 70 A.2d 359, 360 (1950). A photograph which is judged not inflammatory is admissible if "it is relevant and can assist the jury in understanding the facts." Commonwealth v. Gilman, 485 Pa. at 153, 401 A.2d at 339. A gruesome or potentially inflammatory photograph is admissible if it is of "such ...