*1
Guldin, dissеnting; and Commonwealth v.
la, J.
(1983),
dissenting.
Zappala,
Submitted Decided June *2 Jr., Balogh, Office Corbett, Paulette J. H.
John appellant. for Defender, Pittsburgh, Public Eberhardt, Dep- L. Colville, Robert Atty., E. Dist. Robert appellee. for Pittsburgh, Atty., Dist. uty FLAHERTY, LARSEN, NIX, C.J., and Before zappala hutchinson, McDermott, PAPADAKOS, JJ. THE JUDGMENT ANNOUNCING
OPINION THE COURT OF McDERMOTT,Justice. Superior Court from an order appeal is an
This of the Court of of Sentence Judgments affirmed County. Allegheny Pleas of Common (2) Appellаnt was convicted of two counts armed gas robbery connection with the robberies of station to con- Appellant fast food restaurant. was sentenced (10) (20) twenty years terms of ten for each secutive denied and robbery. Post trial motions were count affirmed appellant’s subsequently conviction was Court, This A.2d 437. Superior Pa.Super. granted appellant’s allocatur to address specifically procedures utilized by contention that the warranting point Commonwealth were based on the disagree a new trial. and therefore affirm We set reasons out below. night on the question
The robberies in were committed (IV2) 4, 1982, and one-half approximately March within one found that of one another. The trial court hours victims, (3) altogether, three had am- numbering respective *3 face. perpetrator’s area to view the ple time a well-lit being a The described the offender black clerk-victims foot, (5'10") tall, mаle, five inches wear- approximately ten mustache, coat, a “Fu Man Chu” ing having a black leather curl”) (a having and a hairstyle “gerry a having unique descriptions, of these the complexion. On the basis dark (2) composed two investigation conducted an and police (11) (10) consisting of ten and eleven photo arrays, separate to were the victims respectively. arrays The shown photos (3) and three witnesses after the robberies all days severаl perpetrator as the depicting appellant a photograph selected of the robberies. the objections, defense counsel’s Common-
At over ten consisting of photo arrays one of the displayed wealth The which included pictures, to the (10) jury. photographs of each man. Card- front and side views appellant, showed each to photo around placed folder frames were board hanging identification numbers the obsсure the identifica- neck, upon which the chains each man’s but photo The second visible. hung still remained placards tion although testimonial to the was not shown array were to it. Neither out array references made went during jury the deliberations. (2) are following
The issues before the Court on two (1) photo arrays by police whether the used led to a appeal: subsequent identification; (2) in-court tainted and whether denied by was and a fair trial the appеllant prejudiced jury photo used viewing array police identification appellant’s to identification. leading photo by contends that utilized Appellant arrays such suggestive they were of a nature that created a Furthermore, of misidentification. likelihood substantial the trial in allowing maintains that court erred appellant array quality see the one because the to “mugshot”, to permitting was appellant history. infer had process uti- counters proper permissible since the lized was array sim- bore substantial photographs employed appellant; the witnesses had an ilarity opportunity of time under for a substantial amount appellant view conditions; adequate lighting finally, prejudicial merely they depicted because were side profiles. in front and array court found that
The trial in a the viewer with an “assembled manner choices.” It also stated that selection of similar objective presented were no evidence that there was fashion. improper the witnesses in an the authorities *4 the concerning jury’s of error appellant’s allegation As to held that there the the trial court viewing photographs, of viewing from which photographs error the jury no was of a perpetrator individual as the selected an witnesses entirely any of reference the devoid array crime where to a criminal record. of Court, addressing the issue the only Superior
The found the (“mugshots”), of viewing photographs the jury’s photographs reference any of prejudicial absence
159 them, of thus impact the view of jury’s blunted the trial of judgment affirmed the court’s sentence. contention, first the concerning Appellant’s police, process employed by nature of identification has Supreme is without merit. States United objective- to measure the by established the standard ness an identification procedure. on its own hold that each must be considered case
[W]e
facts,
on
identifica-
eyewitness
and that convictions based
photo-
pretrial
by
tion at trial
identification
following
if
ground
photo-
set
only
will be
aside on that
graph
impermissibly
identification
was so
graphic
procedure
give
likelihood
very
as to
rise to a
substantial
suggestive
misidentification.
irreparable
377,
967,
States,
384,
390 U.S.
88 S.Ct.
Simmons v. United
971,
(1968).
1247
also Manson v. Brath
19 L.Ed.2d
See
(1977).
2243,
waite,
53 L.Ed.2d
432 U.S.
S.Ct.
Where,
here,
in an
employed
phоtographs
similarities,
is not im
array
array possess substantial
testimony
out-of-
suggestive.
regarding
permissibly
Any
identifications
witnesses
by
court identifications
in-court
admitted
array
properly
who
likewise be
viewed
will
Wheeler,
into evidence. See Commonwealth
(1982).
Appellant’s references following testimonial array of one jury’s viewing ground- His contention made to it several witnesses. “mugshots”, were fact that the upon ed *5 them, argues coupled and he that reference to with the viewing, impermissibly alluded to a criminal jury’s prior argument This is not history. persuasive. per against “mug
There is no
se rule
the use of
shots”
this Commonwealth as a method of identification.
Allen,
177,
(1972).
v.
448 Pa.
Previously,
jury.
to their introduction to the
See
“mugshots” prior
Hoss, 445 Pa.
Allen assumed that proof that the defendant of a defendant’s Such, course, is not necessar- had a conviction. previous picture ily possession so. One’s of the though person even charged, was neither tried nor *6 any convicted of crime.
Leaving logic aside the fundamental a previous that prove present recоrd does not guilt, possession photo of one’s does police ineluctably prove previous not a conviction. At the most it proves only that the had a photo of the defendant on file. files,
When an identification is police photo made from photos integral become an and inseparable part of the evidence. When the initial is challenged at trial and their reliability put question, and fairness they become evidence to еxamination subject jury. At difficult, it if impossible, that time is not consistent with the truth, to shield the fact picture that a defendant’s obviously prior on file to his identification. Even when the challenged file are not and the photos are not shown but somehow have been alluded they during the course of the it is a small deduction to conclude that for some prior police reason defendant had contact However, above, of some kind. as we emphasized prior proves nothing. contact with itself It does not crime, prove previous only proves a record or it a previous contact. essential, elemental, photo
Police files are an absolute for the detection of crime and the necessity safety secret, public. they are not a have existed since They That exist and are used on a 24 hour photography. they basis, every and are a tool of identification almost case victim, is nоt known to a perpetrator personally where the knowledge. upon To their use everyday common obviate ground they possible prejudice are a source of large step quick easy far a this mobile world of and too escape.
Once, therefore, file is used that fact can police photo a part nor It is of the case and neither be denied obviated. possible that there is a accept prejudice. wе must the fact the common sense of the rely upon It is here that we must oath, their commitment to their fundamental fair- jurors, implacable logic possession by ness and that the mere of one’s prove prior does not a conviction or superficial accusation. This but sound accepts prejudice, mere words that an ineradicable verbiage, course, cool, is, no impractical logic. There fault under is no reason us to believe that a logic there for not that fact. If accept logic will indeed we jury logic follow accept will not the law and obvious, occasion, clear, part so much a logic so so ever experience, they how can we believe that do. common standing, rules of when logic and constitutional Other defendant, arguably equal possibili- aby exercised contain instance, are satisfied for that a prejudice. We ties the silence of an instructеd will hold properly *7 him; arrest indictment are not against that and accused officer, guilt; testimony police of that the of a evidence doctor, standing or others like clergyman, scientist of have weight other interests. We are satis- greater any no than a witness can by fied that irrelevant answers be police photo court. that by charge a of the Given obviated crime, for the of necessity an absolute detection we files are used, that the can be instructed and accept must where posses- that charge by to a definitive the court respond will itself, picture, proves of no police the of one’s by sion them, accusation, is consideration before any irrelevant not inconsistent with innocence. and is not decisions are here previous
The rationale of our heretofore, now, is not as an Previous conviction altered. an used to bolster accusation. may be argumеnt Hence, a nor an made argument neither reference files that indicate that police photo existence of from the of conviction. previous a record imply suggest they charge jury, the court shall used evidence Where defendant, one’s is because requested when previous does police prove not possession there conviction, no more than that was a suggests and which, not contact, reason for known police previous on issues If bearing has no before them. we and indulge jurors the view that cannot or not follow the will law, nothing. we are left with Superior
The Order of the Court affirmed. J., HUTCHINSON, a concurring opinion. files J., LARSEN, concurs in the result.
FLAHERTY, J., dissenting files in which opinion C.J., ZAPPALA, J., NIX, join.
HUTCHINSON, Justice, concurring. opinion announcing judgment
I join procedure used in its determination proper. was however, regard only, I concur in the result photographs. file viewing array of On jury’s case, I of the photo- am that use persuaded facts evidence, them to the including showing as graphs Indeed, at counsel error. defense reversible closing argument in her alluded jury.1 out N.T. they be sent suggested that (Partial Transcript), at November I do not the use of file equate the fact that arrest and indict- evidence with demonstrative person’s or with the accused guilt ment are not evidence latter are fundamental as- to remain silent. These right has no such justice. prosecution our system pects *8 introduction and admission right to the fundamental equate I into Nor evidence. would police photographs presented photographs in improperly inherent prejudice may inherent prejudice which lesser profession other witness whose testimony expert of an to credibility the wit- greater give appearance an testimony. ness’s necessary file are for photographs
I agree
use of
A
of whether
of crime.
determination
detection
jury.
out with
photographs were
sent
1. The
not
must
an
photographs
prejudicial
upon
these
be based
Allen,
of the individual case.
analysis
Commonwealth v.
[A]fter juror reasonably is whether or not a could infer quеstion facts that the accused had presented from the criminal prior activity. it is determined that a could jury
... Once
conclude from the
reference
of the defendant
error has
activity
part
on the
been committed.
181-82,
me,
448 Pa. at however, in- implies that Mr. Justice McDermott that an counsel, defense requested by struction to the when any to ensure that the will not make always sufficient impermissible inferences. .
I must examine the facts and circumstances of bеlieve we determine a defendant has been given case to whether so the use of file prejudiced by A rule is not necessary. per problem mistrial is se on appropriate. Justice,
FLAHERTY, dissenting. occurred appellant The robberies of which was convicted neighbor- hours of each other in approximately within two obtaining After ing City Pittsburgh. sections of the guilty party from the victims involved descriptions robberies, investigation conducted an the two presentеd which were prepared photographic arrays recognized photograph The victims those victims. as the perpetrator and identified appellant, robberies. counsel, objection by defense despite
At strenuous ten prosecution displayed
165 photographic used had been in one of the aforementioned them, pictures, appellant’s among had been arrays. records. selected files of individuals with views, in men pictures These showed front-and-side ob- pictures identification numbers on the had been contends Appellant scured cardboard folder frames. in see these permitting the trial court erred to “mug shots” unmistakably because the were photos, had conveyed to the the fact past. other criminal committed offenses that, prosecution, well in a criminal It established prior of a defendant’s criminal conduct evidence as guilt as evidence of generally introduced substantive Allen, v. 177, Commonwealth Pa. charge. 448 to Commonwealth (1972). 181, 373, A.2d 292 375 As stated Trowery, 171, 173-174, 171, v. 235 172 Pa.Super. 211 A.2d (1967), presumed predis- effect of to such evidence is “[t]he guilty, the minds the accused pose jurors believe strip presumption and thus him of the effectually innocence.” applicable determining
The test whether accused, were photographs, or references to such Common was set as follows properly admitted forth Allen, v. 375, wealth 181-182, at 292 A.2d at the controlling the reference to a [Ajfter photograph a juror whether or not could infer question had presented from the facts the accused criminal prior activity. could reasonably Once it is determined that a jury
... criminal prior from the reference conclude has on the of the defendant error activity part been committed. themselves,
Thus, pictures relating if the or testimony thereto, conveying fairly “can be characterized fact implication, expressly either reasonable offenses, guilt of a verdict of reversal Clark, ...” Commonwealth v. Pa. 453 must result also A.2d See *10 Reiss, 503 Pa. Com (1983); 45, 49-50, 468 A.2d 453 Carlos, v. 262, 265-266, 341 A.2d monwealth 462 Pa. Turner, v. (1975); 72-73 A.2d 899 case, question clearly the in present photographs
In the implication the a reasonable conveyed jury have to would This activity. had in that appellant that, as the Commonwealth notwithstanding the fact is so out, in this case testimo- there were not pointed has photos the to the which identified photos nial references filеs. The Common- department from having police come references that the lack of such testimonial claims wealth came from photos the the likely jury it believed makes However, elicited the Commonwealth a neutral source. appellant’s robbery three of the victims that testimony from photo arrays arranged by police, identified picture was and, photos testified that the were although the victims rather than at employment at their рlaces shown to them such as to station, photographs of the is the nature police a neutral source. not come from a photos indicate that the did arrays, in of the and submitted used one photographs The nine others inspection, depicted appellant jury to the for frames were folder in front and side views. Cardboard the jury’s from the view photos to obscure attached An examina- photos. on the identification numbers police not help the could reveals tion of the composed photo array have concluded but identical in are Indeed, photos all of the shots.” “mug traditionally one associated format, being format lighting, background, The “mug shots.” to photo from one vary size does not print pose, identification numbers fact that Despite the another. frames, the nature of by cardboard have been obscured appar- immediately frames is by being concealеd what there is including appellant’s, photos, ent. In all photo- of the individual the neck a chain around visible in a manner that would positioned The chains are graphed. identifica- displaying sign support to expected number, and, fact, in photos array in some of the tion top edge sign to chain. there is visible the attached appellant, The is not visible in the but sign is, to In one of and the inference be made clear. chain it is to array possible even discern See Com edge top sign. “POLICE” on word Dickerson, 492, 494, monwealth 406 A.2d Pa.Super. 1149, 1150 (1979) (“[O]ne quite would be naive believe ‘mug infer the were could shots’.”). pictures, front and side view inferences induced attached obscure identi- coverings have been Barnes v. United numbers,
fication were described *11 States, 509, (D.C.Cir.1966): 365 F.2d 510-511 picture, profile
The with front and shots double-shot other, familiar, post- so from “wanted” each alongside television, office, pictures motion and that post ers in the has a criminal person involved thе inference that in record, police, or at least trouble with has been natural, rudimentary tape The cover automatic. perhaps photograph, numbers on the placed prison over the side, disguised on the reverse neither over the notations prejudice. If picture of nor avoided the the nature hid- being something that anything, by emphasizing den, disguise taken here to the nature steps heightened importance have picture may well jury. in of the minds picture prejudice and the Commonwealth, there been established In this has use, or at against mention uniform proscription accused, pictures inherently since such “mug shots” in impression that the accused has convey an Reiss, 503 v. 50, activity. Commonwealth at Pa. criminal Carlos, 462 v. Commonwealth at 453; Pa. at 468 A.2d Dickerson, v. Commonwealth Pa.Su 73; 267 341 A.2d at (1979); A.2d at 1150 at per. 174-175, at The
Trowery,
235 A.2d
Pa.Super.
at
case would
in the instant
shown
perceived
have been
shots,”
to be “mug
should,
therefоre,
granted
a new trial.
The
that,
Commonwealth contends
if
position
its
that the
photos would not have been perceived as “mug shots” is
rejected, a balancing analysis should be invoked whereby it
might be determined that the prejudice to appellant was
outweighed by the Commonwealth’s need to submit the
photos to the jury on the issue of
identity
this case where
identification was strongly contested due to appellant’s hav-
ing asserted an alibi defense. This Court has previously
considered and rejected the utilization of such a balancing
test, holding instead
photos,
thereto,
references
which create a reasonable inference of a defendant’s prior
are,
themselves,
record
and of
so highly preju-
dicial as to mandate a new trial.
Allen,
Commonwealth v.
trial, inuring as a result of introduction of the instant “mug shots,” is substantially ignored in opinion announcing judgment thе Court authored Mr. Justice McDer- assume, mott. It is does, naive opinion jurors deduce, will not based upon the fact that “mug exist, shots” that the accused has had a record of prior criminal contact with the police. Police do not collect “mug shots” merely response to an avocational interest *12 in photography. Nor are such photographs taken per- sons with whom police merely engage socialize or in other innocuous pursuits.
Although Opinion Announcing the Judgment of the authored by Court Mr. Justice McDermott asserts that rationale of our previous decisions not here “[t]he [is] altered,” the reality previous that our decisions are eroded, substantially overruled, indeed by departing the longstanding rule that an accused must not preju- diced inferences of prior criminal activity, hold- effect, ing, in that inferences of criminal activity may now “mug be introduced via shots.” Believing the long- adherence, I dissent standing worthy rule to be continued new appellant a trial. grant and would ZAPPALA, J., NIX, dissenting C.J., join opinion. A.2d 603 Pennsylvania, Appellee,
COMMONWEALTH CHESTNUT, Appellant. Stafford Supreme Pennsylvania. April
Submitted 30, 1986. Decided June