Commonwealth v. Sullivan ( 1971 )

Opinion by

Mr. Justice Boberts

in Support of Reversal of the Order :

I dissent because the Commonwealth, on this record, has failed to show any connection between the appellant and the murders charged. The opinion in support of the order sustains a conviction of first degree murder and a sentence of life imprisonment. It does so on the circumstantial evidence that appellant Sullivan, was one of five or six people in the building at the time of the killing, that a few minutes before the killing appellant had asked a janitor to leave a conference until after a “meeting” and finally that appellant had misstated his identity to a telephone caller shortly before the hillings. This evidence in my judgment is completely insufficient to support a conviction and I would grant the motion in arrest of judgment and order the defendant discharged.

It is well established that “where a conviction is based entirely on circumstantial evidence, ‘the theme of guilt must flow from the facts and circumstances proved, and be consistent with them all’.” Commonwealth v. Simpson, 436 Pa. 459, 464, 260 A. 2d 751, 754 (1970); Commonwealth v. Clinton, 391 Pa. 212, 218, 137 A. 2d 463, 466 (1958). Furthermore, “. . . in a prosecution based upon circumstantial evidence, conviction may not be based upon suspicion or conjecture, but rather the evidence must be such as “ ‘reasonably and naturally to justify any inference of the guilt of the accused . . . and of such volume and quality as to overcome the presumption of innocence. . . .’ Id. [Commonwealth v. Clinton, 391 Pa.] at 218-19, 137 A. 2d at 466.” Commonwealth v. Townsend, 428 Pa. 281, 286, 237 A. 2d 192, 195 (1968) (emphasis added).

The evidence against appellant at most reaches only to the level of “suspicion or conjecture.” At the time, of the killings, five, or six persons were in the union hall, one of whom may have been appellant. A janitor, McGrath, arrived at the union hall at 6:00 p.m. and saw two cars belonging to appellant and one Carchidi in the parking lot. McGrath encountered Sullivan and Carchidi in the building. When McGrath began his cleaning work, Sullivan asked him why he was cleaning the building that night, suggesting that he wait until Sunday. The janitor continued and was cleaning the conference room when appellant again asked Mc-Grath to stop work “until after the meeting”. Appellant then left the conference room. Shortly thereafter, Mc-Grath heard sounds like “firecrackers”. McGrath immediately left the building seeing appellant’s car still parked in -the lot, When lie returned 15 to 20 minutes later, appellant’s car was gone. Finally, a Mrs. Irene Glenn testified that she called the union hall between 6:15 p.m. and 6:30 p.m., leaving a message with a person who identified himself as ■ “Bill Gorey”. A scrap of paper was found in a nearby waste basket containing Mrs. Glenn’s number and Sullivan’s signature. The writing was identified as that of Sullivan.

The opinion in support of the conviction recites the above evidence and simply concludes that it is sufficient to sustain a conviction of. murder in the first degree. I cannot agree. The Commonwealth has merely established that appellant may have been in the building when the killings occurred. He was only seen a short while before the homicides occurred. Furthermore, appellant’s car was no longer in the parking lot when McGrath returned at 7:20 p.m. and the building was empty. These circumstances demonstrate only that appellant was one of five or six possible suspects. Carchidi, who, like appellant had been in the building shortly before the killings, was acquitted. Yet, it was Carchidi, shortly after McGrath heard the “firecrackers” who told McGrath to “Get out of the building and don’t say nothing”.

Aside from the insufficiency of the evidence, the result reached by the opinion in support of the order suffers from another fatal defect. On this record, it was clear and prejudicial error for the trial court to admit over objection evidence of forty color slides. The opinion in the support of the order describes the pictures as “repulsive, showing not only close-ups of the contorted bodies of the two deceased persons lying-in pools of blood, but also close-ups of the bullet holes in the heads and other portions of the anatomies of the victims.” Each of the gruesome color slides of the murder victims was shown to the jury for approximately 30 seconds. Even under the theory of the opinion in support of the order it is submitted that appellant is entitled to a new trial.

The slides were shown to the jury ostensibly for the purpose of clarifying the testimony of the medical examiner who described the wounds and the positions of the bodies at the time the shots were fired, although appellant did not question the nature or cause of the deaths. Indeed, the medical examiner, when asked whether his testimony accurately reflected what the. slides portrayed, replied: “To the best of my descriptive ability, it does”; furthermore, when asked if there was anything questionable about “his findings” which the photographs might clarify, he replied “I would say no”. This testimony shows that there was simply no need for the slides. There is nothing in the record to support the Commonwealth’s contention “that the slide[s] were necessary to the jury’s understanding of the medical examiner’s testimony. . . .” Commonwealth v. Collins, 440 Pa. 368, 371, 269 A. 2d 882, 884 (1970).

In Commonwealth v. Powell, 428 Pa. 275, 241 A. 2d 119 (1968), this Court held that the proper test for admissibility of this type of photographic evidence “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.” Id. at 278-79, 241 A. 2d at 121; accord Commonwealth v. Wilson, 431 Pa. 21, 31, 244 A. 2d 734, 740 (1968) , cert. denied, 393 U.S. 1102, 89 S. Ct. 901 (1969) ; Commonwealth v. Eckhart, 430 Pa. 311, 317, 242 A. 2d 271, 274 (1968).

It is evident to me that the slides, gruesome and horrid to look at and shown to the jury for about twenty minutes, were not of “such essential evidentiary value” as to “clearly outweigh the likelihood of inflaming” the jurors. The Commonwealth’s case rested entirely on at best questionably sufficient circumstantial evidence. Such deficiencies in proof should not be overcome by the admission of prejudicial and inflammatory slides.

Accordingly, I would grant the motion in arrest of judgment and order the defendant discharged.