COMMONWEALTH оf Pennsylvania v. William PETRAKOVICH, Appellant.
Supreme Court of Pennsylvania.
Submitted Jan. 8, 1974. Decided Dec. 5, 1974.
329 A.2d 844
George J. Joseph, Dist. Atty., Howard R. Miller, Asst. Dist. Atty., Allentown, for appellee.
Before JONES, C. J., and EAGEN, O‘BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT
POMEROY, Justice.
Appellant, William Petrakovich, charged with the murder of his wife, was tried before a jury and convicted of murder in the first degree. Upon denial of post-trial motions, a sentence of life imprisonment was imposed. This direct appeal followed.1 We have consid
I. Sufficiency of the Evidence
Appellant first contends that the evidence is insufficient to support a verdict of murder in the first degree. As we have said many times, our scope of review as an appellate court is limited to detеrmining “whether, accepting as true all the evidence, together with all reasonable inferences therefrom, upon which the jury could properly have based its verdict, such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt.” Commonwealth v. Carbonetto, 455 Pa. 93, 95, 314 A.2d 304, 305 (1974) citing Commonwealth v. Clark, 454 Pa. 329, 311 A.2d 910 (1973); Commonwealth v. Bayard, 453 Pa. 506, 309 A.2d 579 (1973). Of course, because the prosecution prevailed in the trial court, the record must bе viewed in the light most favorable to the Commonwealth. Commonwealth v. Rife, 454 Pa. 506, 312 A.2d 406 (1973); Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1972); Commonwealth v. Gray, 441 Pa. 91, 271 A.2d 486 (1970).
Appellant and Rochelle Petrakovich were married in September, 1970 and resided near Allentown, Pennsylvania. Both had been previously married and divorced and had lost custody of their respective children of those prior marriages. In May, 1971, appellant and his wife moved to Arizona where they lived for several months. In October of that year, Mrs. Petrakovich returned to Allentown and obtained employment at the Top Diner, where she had previously worked. On January 12, 1972, appellant appeared at the Diner, spotted his wife behind the lunch counter, and accosted her. The prоsecution version of what then transpired, as presented through three eye-witnesses, was as follows: Appellant leaned over the counter and pushed his wife against a refrigeration unit which was several feet behind her. Mrs. Petrakovich, seeming startled, moved towards the counter and apparently spoke with her husband for one or two minutes. No witness could testify as to thе content of this conversation. Appellant then drew a gun and fired it at his wife; she screamed, clutched her left arm, and fell to the floor. Still holding the gun, appellant leaped over the counter and warned the other employees and patrons not to move or call the police. He then bent over his wife and said “I love you, Shel.” After another warning to an еmployee who attempted to come to the injured woman‘s aid, appellant again professed his love to his wife and fired a second shot into her chest. He then shot himself in the chest and fell upon his wife‘s body. The police and an ambulance were then called. Mrs. Petrakovich died before arrival at a hospital.
Taking the stand in his own behalf, appellant recounted a very different version of the facts, and denied that he had shot his wife. He stated that life for him and his wife had been extremely difficult immediately after their
One of the fundamental responsibilities of a jury is to choose between competing versions of the facts. Commonwealth v. Bayard, supra 453 Pa. at 509, 309 A. 2d at 581. We have repeatedly held that a jury may properly accept or reject all or any part of a defendant‘s testimony. Commonwealth v. Oates, 448 Pa. 486, 295 A. 2d 337 (1972); Commonwealth v. Reid, 448 Pa. 288, 292 A.2d 297 (1972); Commonwealth v. Ewing, 439 Pa. 88, 264 A.2d 661 (1970). The resolution of discrepancies between the evidence presented by the defendant and that of the Commonwealth is a matter of credibility, and, therefore, within the province of the jury. Commonwealth v. Oates, supra 448 Pa. at 490, 295 A.2d at 339.
Here, the jury obviously accepted the version of the facts presented by the Commonwealth‘s witnesses, and we are satisfied that that testimony was sufficient to warrant a verdict of murder in the first degree. A
Appellant argues, however, that there was a discrepancy between one aspect of the testimony of a Commonwealth witness and the physical evidence, and that this inconsistency renders the evidence insufficient to support the verdict. The Commonwealth witness testified that when the shot which entered the arm of the deceased was fired, appellant was standing “directly in front of” her. The evidence showed that the bullet which entered the victim‘s left arm passed into the lеft chest and finally lodged in the right side of the abdomen at the back of the body. This would arguably indicate that the bullet entered the body at an angle, not from “directly in front” of the decedent. Such a variance, however, is one which goes to credibility rather than sufficiency. See Commonwealth v. Osborne, 433 Pa. 297, 249 A.2d 330 (1969). Through cross-examination, appellant made the jury fully aware of this discrepancy. The jury resolved it in favor of the Commonwealth, and this it was entitled to do.
II. Admissibility of Photographic Evidence
The trial judge admitted into evidence, over appellant‘s objection, three photographs of the nude upper torso of the body of the deceased.3 Appellant contends that
We have consistently held that the question of admissibility of photographs of a corpse in homicide cases is a matter within the discretion of the trial judge, and only an abuse of that discretion will constitute reversible error. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973); Commonwealth v. Sullivan, 446 Pa. 419, 286 A.2d 898 (1971) (opinion in support of order); Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969); Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968); Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959); Commonwealth v. Peyton, 360 Pa. 441, 62 A.2d 37 (1948). When the trial judge is confronted with gruesome or potentially inflammatory photographs, the test for determining their admissibility which he must apply is “whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. Powell, supra, 428 Pa. at 278-279, 241 A.2d at 121; Commonwealth v. Peyton, supra, 360 Pa. at 450, 62 A.2d at 41. A photograph which is not deemed to be inflammatory, however, may be admitted so long as it has relevance and can assist the jury‘s understanding of the facts of the case before it. Commonwealth v. Claitt, 454 Pa. 313, 311 A.2d 922 (1973); Commonwealth v. Smalls, 449 Pa. 15, 295 A.2d 298 (1972); Commonwealth v. Morgan, 448 Pa. 494, 295 A.2d 77 (1972).
A. On direct examination, appellant testified that his relationship with his wife while they lived in Arizona was “beautiful” and relatively care-free. On cross-examination he wаs questioned, over objection, concerning the discordant nature of that relationship when the couple resided in Pennsylvania. Appellant contends that all such questions were beyond the scope of permissible cross-examination and that anything that might have occurred in Pennsylvania was so remote in time from the date of his wife‘s death as to be irrelevant.
The scope of cross-examination of a defendant in a criminal case is one of great latitude. Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967); Commonwealth v. Prophet, 307 Pa. 122, 160 A. 597 (1932).6 Having testified to a happy marriage while in Arizona, appellant opened the way for the Commonwealth to explore other aspects of that relationship and to refute the inference of lack of motive which the appellant surely sought to have the jury draw.
When the victim of an alleged homicide is the spouse of the accused, evidence of the nature of the marital relationship and a lack of affection on the part of the accused towards his spouse is relevant to the issue of motive. Commonwealth v. Littlejohn, 433 Pa. 336, 250 A.2d 811 (1969); Commonwealth v. Nelson, 396 Pa. 359, 152 A.2d 913 (1959); Commonwealth v. Jones, 269 Pa. 589, 113 A. 57 (1921). Although evidence of this sort which is too remote is not properly admissible, Commonwealth v. Boden, 399 Pa. 298, 305, 159 A.2d 894, 898 (1960), it is generally true that rеmoteness of the prior instances of hostility and strained relations affects the weight of that evidence and not its admissibility. Commonwealth v. Jones, supra, 269 Pa. at 592, 113 A. at 59; Commonwealth v. Delfino, 259 Pa. 272, 102 A. 949 (1918). In the instant case, appellant and his wife resided in Pennsylvania until just six months prior to the date of the latter‘s death. We cannot say that the trial court erred in concluding that the episodes disclosed by the cross-examination were not so remote аs to affect admissibility. See Commonwealth v. Patskin, 372 Pa. 402, 93 A.2d 704 (1953).
B. During cross-examination, appellant was asked, over objection, whether his wife had not previously caused his arrest on charges of assault. Although denying that he had ever beaten his wife, appellant did admit the arrest. It is fundamental that a criminal defendant may not be questioned on cross-examination concerning an arrest which has not rеsulted in conviction when the purpose of that question is to impeach his character or to show a propensity to commit a crime. See Commonwealth v. Barron, 438 Pa. 259, 264 A.2d 710 (1970).7 Here, however, that was not the purpose of the Commonwealth‘s question; the purpose was strictly re
C. Counsel for appellant sought to impeach a Commonwealth witness on cross-examination by means of a written prior inconsistent statement. The witness was not permitted to examine the writing before being asked any questions concerning it, but the court allowed counsel tо read to the witness all relevant portions of the statement.
While this Court has never had occasion to squarely consider the proper method of impeaching a witness by a written prior inconsistent statement, the majority of jurisdictions require that the witness first be confronted with the writing. See 4 J. Wigmore, Evidence § 1263, (Chadbourne rev. 1972) and cases collected therein. Professors Wigmоre and McCormick, however, argue against the soundness of the rule. Wigmore, supra at 636; C. McCormick, Handbook of the Law of Evidence § 28 (2nd ed. 1972). Whether or not there should be a requirement that a prior inconsistent writing be shown to a witness before examination concerning it—a question which we need not here decide—appellant should have been permitted to lay thе foundation for impeachment by this method. There was, however, no question as to au
Finally, certain aspects of the trial court‘s charge to the jury are challenged. At trial, however, appellant entered only a general objection to the entire charge. Such an objection was insufficient to preserve these issues for appeal. Commonwealth v. Clair, Pa., 326 A.2d 272 (1974);
Judgments of sentence affirmed.
ROBERTS, J., filed a dissenting opinion in which MANDERINO, J., jоins.
ROBERTS, Justice (dissenting).
I dissent.
In my view, the majority misapplies the test of Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968). In Powell, this Court held:
“We are of the opinion that the proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases is whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.”
428 Pa. at 278–279, 241 A.2d at 121.
The majority today asserts that where the pictures are not inflammatory, the Powell test need not be applied and the photographs may be admitted if they meet the standard test of relevance. This assertion misinterprets
Applying the Powell test, there can be little doubt that the photographs were improperly admitted. The Commonwealth‘s forensic pathologist‘s testimony established the range and angle from which eaсh bullet hit the body. The defense did not dispute his testimony (although their interpretations of the ramifications of these facts differed). The photographs merely duplicated the expert‘s testimony and could have been of little use to the untrained eyes of the jurors. In these circumstances, the value of the photographs was so slight that it was clearly exceeded by the рrejudicial effect these pictures had on the jurors. Therefore, the trial court abused its discretion in admitting the pictures. I would reverse the judgment and grant a new trial.
MANDERINO, J., joins in this dissent.