Commonwealth v. Ginnery , 320 Pa. Super. 68 ( 1983 )

ROWLEY, Judge:

Appellant James A. Ginnery, was convicted by a jury of indecent exposure. This is his direct appeal from the judgment of sentence imposed following denial of his post-trial motions. The Commonwealth’s evidence was that in April of 1980 David Dombrowski, age fourteen at the time of trial, was delivering newspapers in the late afternoon in the City of Erie when a man drove up in his car and asked David to come over to the car. When David complied he looked in the car and saw appellant’s penis exposed. David left. David did nothing about the incident but the next day he encountered the same individual who again called him to the car. This time David took down the license plate number and reported the incident to his father resulting in appellant’s eventual arrest. David identified Ginnery at trial as the offender.

On appeal, appellant claims primarily that he is entitled to a new trial on the ground that it was error to permit the Commonwealth to make reference to and to display to the jury a photographic array from which David identified appellant. Appellant also argues that the evidence was insufficient to support the verdict and that the verdict was against the weight of the evidence. None of these contentions have any merit.

The trial judge did not abuse his discretion [Commonwealth v. Sinwell, 311 Pa.Super. 419, 457 A.2d 957 (1983) ] in overruling appellant’s objection to testimony at trial regarding the photo line-up and the display of the photo line-up to the jury. Showing these pictures to the jury did not constitute a fact from which “a juror could reasonably infer ... that the accused had engaged in prior criminal activity.” Commonwealth v. Allen, 448 Pa. 177, 181, 292 A.2d 373, 375 (1972).

The disputed testimony arose when the prosecutor called Detective Barnett of the Erie Police Department. Barnett had determined that the license number was registered to appellant and testified that thereafter he showed a series of photographs to David. There were six photographs, each of a different person with like characteristics. David identified appellant’s photograph as the photograph of the perpetrator. The photographs were presented at trial and objected to by appellant’s counsel. The objection was overruled. The photographs were not, however, marked in evidence or otherwise identified for the record. Nevertheless, the photos, which apparently had some police information, including criminal records, on the reverse side were attached to a file folder so that the information on the back was concealed. They were then exhibited to the jury. The photos were described at the time by appellant’s counsel as looking “terrible”, but were stated by the trial judge not to be “mug prints”. Detective Barnett was one of two witnesses for the Commonwealth and his reference's to the photographs constituted a major portion of his testimony.

In Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981), an en banc panel of this Court refused to find prejudice in the testimony of a state trooper that a witness had picked the defendant out of a group of six or seven pictures shown to the witness by the trooper. In Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982), Krasner was distinguished on the basis of the number of photographs shown and the place of showing. The Reiss court found that the viewing by the witness of 100 pictures at police headquarters, when revealed to the jury, could reasonably raise an inference that the photographs viewed were “mug shots.” Because only six photographs were involved in appellant’s case, and because they were shown to the victim in his home, we are of the opinion that Krasner rather than Reiss controls this case.

Other cases cited by appellant are distinguishable. Commonwealth v. Dickerson, 267 Pa.Super. 492, 406 A.2d 1149 (1979) and Commonwealth v. Elmore, 241 Pa.Super. 470, 362 A.2d 348 (1976) were based upon the large number of photographs shown (several hundred in each case). Nor is the case of Commonwealth v. Taylor, 460 Pa. 616, 334 A.2d 261 (1975) controlling. In Taylor, a uniquely prejudicial situation resulted from the particularly suggestive nature of certain comments made by the assistant district attorney in his opening statement to the jury combined with the testimony of the victim concerning the photographic identification.¹

In Commonwealth v. Allen, supra, the Pennsylvania Supreme Court stated that “[t]he suggestion that any reference to a defendant’s photograph is so prejudicial that an inflexible rule of reversal must apply is explicitly rejected.” 448 Pa. at 181, 292 A.2d at 375. The earlier case of Commonwealth v. Luccitti, 295 Pa. 190, 145 A. 85 (1928) was cited as a correct interpretation of the law. In Luccit-ti, photographs in possession of the police were introduced to demonstrate defendant’s change in appearance. The offer was upheld because “[o]n examination of the record, there [was] nothing to indicate that the pictures came from the rogue’s gallery, and the lower court state[d] in its opinion that there was absolutely no markings on the pictures of any kind which would show their use.” Id., 295 Pa. at 199, 145 A. at 89.

Certainly there might be cases where showing pictures to a jury would be prejudicial error. However, this would only be true if there were something in the nature of the photographs themselves, or in testimony referring to them, which might cause a juror to associate them with criminal activity, i.e. if they looked like “mug shots.” Although defense counsel in this case expressed his opinion that the pictures looked “terrible,” he did not elaborate by specifying what he thought was objectionable about them other than by indicating that there was police information on the backs of the photographs. However, the jury was not shown that information. The trial judge examined the pictures and they were attached to a folder so that the information was not visible to the jury. The trial judge also noted that the photographs were not “mug shots.” The pictures were shown to the jury for the valid purpose of corroborating a good, but possibly not perfect,² in-court identification of the appellant. There were viewed only in passing and were not sent out with the jury for close inspection. It is quite evident that the trial judge was aware of the potential for prejudice and that he took precautions to avoid it. There is nothing in the record to indicate that he made the incorrect decision. There is nothing about the photographs, as displayed, or the testimony relative to them that warrants an inference of prior criminal activity on the part of appellant. Nor is there anything to indicate that the jury may have engaged in speculation as to the source or nature of the photographs.

Having reviewed the entire record, we are also satisfied that the evidence was more than sufficient to support the jury’s verdict and that the verdict is not contrary to the weight of the evidence. Judgment of sentence affirmed.

CAVANAUGH, J., filed a dissenting opinion.

1 . There were two specific photographic references during trial. In his opening address to the jury, the Assistant District Attorney stated:

"Now it just so happened that Mr. Watts had seen the defendant on other occasions and Watts also happened to be an off-duty police officer and he knew his name. So he supplied the police with the name of the defendant.

Anyway, at this point the police had been supplied with the name of the defendant. They know who they are looking for. Now Officer Burns recognizes the defendant, he’s been carrying his picture around with him and knows that he’s wanted in connection with this tap room robbery." (Emphasis added).

The other reference was on cross-examination of Mr. Watts (the victim) and was as follows:

"By Mr. Fitzpatrick (counsel for defendant)

Q. Officer Watts, you said that the interview took place inside your home at approximately what time?

A. Approximately 11:00 o’clock I would imagine.

Q. Are you sure it didn’t take place inside the 35th District at 11:00 o’clock?

A. That’s correct. I was at the District during the interview and at home when he brought back photos. He brought the photos to me to look at and identified the defendant from the photos. (The reference to the ‘he’ brought the photos for Officer Watts to look at was to the detective assigned to the case.)” (Emphasis added). Commonwealth v. Taylor, 460 Pa. at 618-19, 334 A.2d at 262.

2 . Immediately following the incident, the fourteen year old victim gave a description of the offender and of the offender’s car, including the license plate number. However, he did not at this time include defendant’s beard in the description. The police located the defendant by tracing his car. The photographic identification was made at the victim’s home, four or five days after the incident.