Following a jury trial appellant was found guilty of robbery. Post-trial motions were denied and a sentence of two to four years’ imprisonment was imposed. This appeal followed.
Appellant argues the lower court erred in failing to grant a mistrial after a Commonwealth witness, while testifying on rebuttal, referred to “pictures” of the appellant. It is contended that the witness’s reference to “pictures” conveyed to the jury the fact that appellant had engaged in prior criminal activity.
The comment at issue occurred when Officer Emery Doaks, testifying on direct, stated as follows:
“Q. Now in reference to the police procedure of Number 2, just in reference to Jerry Jackson. When was the warrant issued for his arrest?
A. The following morning after the alleged occurrence took place.
Q. And what publicity would be given to that warrant to the men who work at Number 2 Police Station?
A. The warrant was run off on a copy machine, a copy of the warrant was put on a bulletin board, accompanied by two pictures of the individuals, names on the warrant were placed on the bulletin board at the station.” (Emphasis added.)
The seminal decision on the subject of testimonial references which may suggest prior unrelated criminal activity on the part of the accused is
Commonwealth v. Allen,
*185 “The suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected. We hold that after the reference to a photograph the controlling question is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity. A mere passing reference to photographs from which a reasonable inference of prior criminal activity cannot properly be drawn does not invalidate the proceedings since there has been no prejudice as a result of the reference; . . . ” Id.,448 Pa. at 181 ,292 A.2d at 375 .
Instantly, we are constrained to conclude that, given the context in which the complained of remark occurred, “a juror could reasonably infer . . . that the accused had engaged in prior criminal activity.”
Id.; Commonwealth v. Taylor,
Although we have concluded that, under the particular circumstances of this case, the reference to “pictures” war
*186
ranted a reasonable inference of prior criminal activity, we nevertheless agree with the Commonwealth’s alternative position that the error was harmless beyond a reasonable doubt.
Commonwealth v. Story,
“ ‘We cannot equate the improper introduction of a photograph or a reference thereto with those violations, such as lack of counsel, coerced confession, or a [prejudiced] judge, that obviously destroy the trial’s fact-finding reliability so that an automatic reversal is required. If, in a particular case, the record raises no reasonable doubt that the improper introduction of a photograph or a reference thereto did not influence the jury’s verdict of guilt, the defendant is not entitled to a new trial.’ ” (Footnote omitted.)
Quoting from
Commonwealth v. Robinson,
Instantly, upon review of the record we are convinced beyond a reasonable doubt that the error at issue did not contribute to appellant’s conviction. The Commonwealth’s evidence established that on May 4, 1976, at approximately 1:30 A.M., Edward Ellis and John Smith had just left a pool room in Pittsburgh when they were approached by two unknown men whom they had previously noticed standing in the exit to the pool hall. One of the two men then placed a gun at Mr. Ellis’ neck and demanded money. After the gunman’s accomplice removed over $1,500 from Ellis’ person, the two robbers fled. Throughout the hold-up both robbers were in open view of Ellis and Smith. Based upon the descriptions furnished by Ellis and Smith, the police promptly issued arrest warrants for appellant and one Charley *187 Williams. At trial, both Ellis and Smith positively and unequivocally identified appellant as to the gunman and Williams as his accomplice.
Given this overwhelming evidence of guilt, * we are convinced beyond a reasonable doubt that the solitary, improper reference could not have contributed to appellant’s conviction and was, therefore, harmless error. Commonwealth v. Story, supra.
Judgment of sentence affirmed.
Notes
Indeed the Commonwealth viewed its case as so strong that no attempt was made to introduce any out-of-court photographic identifications. Moreover, at the commencement of trial the prosecutor informed the Court and defense counsel that he had instructed the witnesses not to mention photographs in their testimony.