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COMMONWEALTH PENNSYLVANIA v. ELSWORTH LEROY GROFF (06/26/86)

submitted: June 26, 1986.

COMMONWEALTH OF PENNSYLVANIA
v.
ELSWORTH LEROY GROFF, JR., APPELLANT



Appeal from the Judgment of Sentence of December 2, 1985 in the Court of Common Pleas of Lancaster County, Criminal Division, No. 911 of 1983.

COUNSEL

Christopher M. Patterson, Leola, for appellant.

Richard A. Sheetz, Jr., Assistant District Attorney, Lancaster, for Com., appellee.

Montemuro, Johnson and Cercone, JJ.

Author: Cercone

[ 356 Pa. Super. Page 480]

On September 16, 1983 following a trial by jury, appellant Elsworth Leroy Groff was found guilty of first degree murder. Post-trial motions were filed by trial counsel on September 23, 1983. Later on September 7, 1984 supplemental post-trial motions were filed on appellant's behalf by a new public defender. After a hearing, the lower court denied post-trial motions on December 14, 1984. Then on April 18, 1985 supplemental post-trial motions alleging ineffectiveness of counsel were filed by appointed counsel. An evidentiary hearing on the ineffectiveness claims was held and on November 18, 1985 the court denied the supplemental motion for a new trial alleging ineffective assistance of counsel. Appellant was subsequently sentenced to life imprisonment on December 2, 1985. A timely motion to modify sentence was filed and denied. This appeal followed.

The conviction for first degree murder arose out of the shooting death of the appellant's estranged wife. The shooting occurred in the family home and was incited by a marital dispute. At the time of the incident, one of appellant's children called "911", the police emergency telephone number, to ask for help. An automatic audio recording was made at the police center which picked up much of the noise, shouting and gun shots surrounding the event. Appellant left the home immediately after the shooting incident but was picked up by the local police shortly thereafter. He was initially stopped by the police for a traffic violation but upon approaching appellant's vehicle, the officer realized that the truck matched the assailant's truck as described by police radio. Appellant was arrested and taken to the police station at which time he gave an inculpatory

[ 356 Pa. Super. Page 481]

    statement. Appellant was given an intoxalyzer test which revealed a .10 blood alcohol count, and was then charged with criminal homicide.

In this appeal appellant raises numerous issues which we will address seriatim.

Appellant first claims that the lower court erred in permitting the jury to hear an electronically enhanced 911 emergency number tape recording which contained screams of the victim and her children and, further, that trial counsel was ineffective in failing to object to its use on the basis of the electronic enhancement. The recording was introduced by the Commonwealth as part of its case in chief.

Trial counsel did object to the introduction of the recording at trial claiming that the sounds of the victim's and children's screams would inflame the minds of the jury and that its prejudicial impact would outweigh its probative value.

Our review of the case law in this Commonwealth reveals no decisional law dealing with this type of tape recorded evidence. However, the general test for the admission of demonstrative evidence has been set forth on numerous occasions:

Where relevant photographs of the victim's injuries are offered in evidence, a two-stepped analysis is employed. First, the court must decide whether a photograph is inflammatory in nature. If, but only if, the photo is deemed to be inflammatory, the court must then apply a balancing test, and determine whether the photo is of "such evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors." Commonwealth v. Miller, 490 Pa. 457, 469, 417 A.2d 128, 134 (1980), cert. den. 449 U.S. 1113, 101 S.Ct. 924, 66 L.Ed.2d 842 (1981); Commonwealth v. Batty, 482 Pa. 173, 177, 393 A.2d 435, 437 (1978).

Commonwealth v. Dennis, 313 Pa. Superior Ct. 415, 422 n. 4, 460 A.2d 255, 259 n. 4 (1983); see generally, Commonwealth v. Frederick, 327 Pa. Superior Ct. 199, 213, 475 A.2d

[ 356 Pa. Super. Page 482754]

, 761 (1984) (The test for admissibility of blood stained clothing as demonstrative evidence is same as that for photographs.) On appeal, this court must determine whether the lower court abused its discretion in applying this test to the facts.

We find, based on the facts of this case, that the lower court did err in admitting the 911 tape into evidence. However, we also find that error to have ...


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