*1 when the evaporated defendant said he did not it know was unlawful a gun. At that carry his juncture prior convic- tion established at least his prior knowledge that carrying gun is illegal. Notwithstanding, careful trial judge sustained objections even to questions that might inferen- tially expose that conviction. Again the had no direct knowledge his previous conviction.
The learned trial who judge, carefully, patiently skill- sat fully through four weeks of spirited trial opinion that these and other occasionswere de minimus. To read the over three thousand pages testimony, replete with the care patience Judge exercised, Geisz leaves no doubt that this defendant received a fair trial and was convicted by overwhelming credible evidence. To suggest that the of time dulled passage the trial judge’s memory texture and fabric trial an arch gratutity. To make his careful counsel, admonitions to admonitions that he never conceivedas subjected scornful disobedience, basis for a new tois mind my unsupportable and accordingly I dissent. Pennsylvania, Appellant,
COMMONWEALTH of Freddy McCUTCHEN.
Supreme Pennsylvania. Court Dec. 1982. Argued Decided Dec. 1982. *2 Gallant, Kenneth Dist. Henson, Deputy Atty., B.
Eric Dist. for Atty., appellant. Asst. Danella, Philadelphia, appellee. R.
Joseph LARSEN, FLAH- C.J., ROBERTS, O’BRIEN, Before jj. hutchinson, ERTY, McDermott THE OPINION OF COURT FLAHERTY, Justice. 5, 1976,
On May Freddy McCutchen was convicted1 aby jury murder of the first in the death of a beating six-year-old in the course of boy anal committing sodomy upon the child. Post trial motions were heard and denied and appeal was transferred from this Court to Superior Court, Special Transfer Docket. This is an appeal by Commonwealth from the Order the Superior Court,2 granting defendant a new trial on the determination two color slides of the victim depicting sustained were admitted at erroneously trial. We vacate and remand to Court for consideration of issues raised below but not considered due to the order of a new trial.
Evidence adduced at trial established that on 7,1971, June at P.M., 9:05 the approximately defendant, known as “Shank,” wearing a yellow jacket round, with a blue em- blem, was seen with the walking six-year-old victim and him calming after the child’s involvement in a scuffle with another child. walked in the They general direction of the Later, crime scene. defendant, fifteen-year-old no long- er wearing yellow jacket, was seen entering taproom where he washed his hands. At 10:30 approximately P.M. evening, battered victim was found in a dark, abandoned area behind a vacant within factory blocks of where he was seen with the defendant. Slacks around his ankles, undershorts pulled around his up waist, the was boy pronounced dead at the shirt, scene. His stained with feces semen, and was on the four ground feet away. Near the shirt boy’s black, was large “bush type,” comb with previous 1. A by conviction of this crime was reversed this Court due by to the admission at trial of statements made defendant without presence benefit of and counsel of an interested adult. Common McCutchen, denied, 90, wealth v. (1975) cert. 424 (1976). U.S. 96 47 S.Ct. L.Ed.2d 341 McCutchen, Commonwealth v. 2. Pa.Superior Ct. on the handle. A with a jacket
“Shank” scratched yellow round, blue emblem was found one and one-half later days not far from the scene. with both blood of the Stained with the victim’s and semen consistent defendant’s type was identified as the one worn type, jacket by seen the victim calming walking defendant when he was and in the direction of the factory. vacant general
The medical examiner testified to the various severe inju- head, at least three ries to the comminuted frac- producing skull, tures of the to have been inflicted opined by blows rounded Also recounted was the object. tearing heavy areas, area of the anus in four discrete as a- marginal the anal the outcome result of sodomy, laboratory from the anal area examination material which estab- lished the of semen. presence of the medical examiner
The verbal was testimony supple- mented the use of two slides onto a by projected viewing courtroom.3,4 The first screen in the darkened depicts depicting projected twenty-two the head was 3. The slide seconds, seconds. that of the anal area for fourteen slides, projection 4. Prior to the cautioned court as follows: being you part These or these slides are shown to as any of the evidence in this case. You are not to assume from facts any viewing except or come to conclusions from the of these slides picture being presented you to draw a of the evidence as it’s you give weight your will later such to it in deliberations. The However, may unpleasant. purpose slides be a little is to to testimony accuracy given examine the and the as it has been you given you and will be from the commonwealth’s witness. light You will view the slides in the for the *4 purpose determining injuries of the extent of the as described to you. You are not to become emotional about the slides. You are yourselves among not to discuss this matter until the conclusion of of you charged responsibility the case and have been with the determining charge you this will to deter- the issues that Court presentation has a certain aura mine. The fact that this manner of you disregard. it are You are to of drama about is a matter that to they may you disregard any inflammatory upon influence that have may may you may or that see or feel that otherwise come from being presented pictures these or slides because these slides are solely helping convey purpose the that for the to information they possibly accuracy the to the circum- contain and also add to depicted. stances and the details that are unclothed frontal view of the victim from the hipbone to up and head, showing the the and bruises including sustained: bruise of the large right one the across cheek eye area the to and toward and side of the extending lips down jaw; socket, one the left above a blunt eye being impact wound; which the injury one across produced gaping top of the head, also a blunt impact injury produced which wound; larger and to the in gaping injury resulting mouth loss several teeth. The second slide shows but- victim, tocks of the spread fingers the examiner to reveal the tears area, four of the anal from one-half ranging to of an inch in five-eighths length. Both of slides are these nature, clinical in taken the course during postmortem examination, and after blood, was cleansed of all dirt and fecal matter.
The Court panel determined that the images depicted gruesome were and and that inflammatory verbal the medical examiner “more than to and adequate show of the savagery assault” brutality which supported an inference of a “strongly intent specific to McCutchen, kill.” 274 Pa.Superior Ct. 96, 100, 1273 (1979). We After disagree. viewing slides, we considering conclude that value of this evidence both establishing as a sodomy, motive for the killing, of the brutality beating, thus allowing an inference of an intent to kill in of the support verdict sought by murder of the first degree, fully compensates any likelihood that such clini- cal evidence inflame may passions jury. Petrakovich, 511, 521, A.2d (1974) (citations omitted) we said: slides, Usually photographs, pictures, greater accuracy are than words, reason, presented they you, and for that are to but I caution you you your any feelings that should clear minds of emotional may unpleasant seeing any your that arise from because scenes course, mission, to facts decide the and the issues this case Now, dispassionately any feeling and without of emotion. these any may apply any same instructions would at time, you during the course be shown .... *5 held that the of admissi- We have consistently question in homicide of cases is a bility photographs corpse matter the discretion of the trial judge, only within will an abuse of that discretion constitute reversible error is confronted with gruesome .... When the trial judge or the test for de- potentially inflammatory photographs, their which he must apply termining admissibility “whether or not the are of such essential photographs need clearly outweighs value that their evidentiary the minds and of the likelihood of inflaming passions jurors.” is, nature,
A criminal homicide trial
its
very
unpleas-
ant,
and the
of the
inflicted are
photographic images
in-
consonant with the
of
of
merely
brutality
subject
To
nature of the
of the
disturbing
quiry.
permit
victim
would result in
admissibility
to rule
question
victim,
exclusion of all
of the homicide
the essential functions of a criminal
would defeat one of
of the actor. There is no need
into the intent
inquiry
to so
an
to sanitize
evidence
attempt
overextend
condition of the
as to
Commonwealth
deprive
of the onerous burden of
proof
support
opportunities
a reasonable doubt.
proof beyond
are indeed
were of-
unpleasant, they
While these slides
of the element of murder of
proof
fered in support
kill, the
of which
general
first
of intent to
propriety
Edwards,
v.
See,
is well established.
e.g.,
Wade,
281,
(1981);
493 Pa.
The essential nature of the evidence is further established the absence of by any evidence of intent aside from the condition This of evidence body. type is conveyable to the to a limited only degree by verbal technical nature the medical examiner. The availability evidence, thus, alternate does not obviate the admissibili- and, here, ty photographs, the absence of alternative evidence fortiori commends the court’s admission of the slides. Accordingly, the trial judge’s admission of the slides clearly proper due the essential value evidentiary balanced against limited likeli- hood of inflaming the jury.
Vacated and to Superior remanded Court for consideration of other issues raised in the prior appeal. J.,
NIX, did not in participate the consideration or decision of this case.
LARSEN, J., joins the Opinion and files a Majority Con- Opinion. curring
ROBERTS, J., concurs in the result.
O’BRIEN, C.J., files Dissenting Opinion.
LARSEN, Justice, concurring.
I join opinion. majority as I Additionally, stated my opinion dissenting Commonwealth v. Rogers, 485 Pa. 132, 136, A.2d 331 (1979), “an emotional response reason, how- natural. For some of violent death
pictures emotional this thinks ever, Rogers] the majority [in reaction and then a negative into is transferred response think this psychological I do not the defendant. on posited occurs.” phenomenon concurring opinion. in this
FLAHERTY, J., joins O’BRIEN, Justice, dissenting. Chief appel- Order granting Court’s I would affirm court’s comprehensive of that trial on the basis lant a new which were shown two color slides concerning discussion McCutchen, 274 Pa.Superior to the jury. however, to I am compelled, Ct. *7 the majority’s analysis. to one respond portion The states: majority nature of disturbing
“To permit result in would admissibility question victim to rule victim, and of the homicide exclusion of all photographs of a criminal functions of the essential would defeat one is no actor. There intent of the into the inquiry the evidence to sanitize an attempt to so overextend need the Common- deprive condition of the overous in support of proof wealth of opportunities doubt.” a reasonable beyond burden of proof settled this Commonwealth has been long It (At 549). the use inferred from to kill bemay intent that the specific body. of the victim’s on a vital part weapon deadly (1981); 496 Pa. v. Tempest, (1952); A.2d 287 Heller, Pa. A. 1024 Greene, examiner that the medical case, the the instant head with a blunt on the beaten repeatedly the victim the requisite specific to establish was sufficient instrument first degree. murder of the intent to kill for a conviction I dissent.