Commonwealth v. Ginnery

¶1dissenting:

¶2I respectfully dissent. The question which we address on this appeal is whether reversible error was committed when the trial court permitted photographs of six individuals including appellant to be identified and shown to the jury. Under the circumstances of this case, I believe it is abundantly clear that the jury could reasonably infer from the facts presented that the defendant had engaged in prior criminal activity and that a new trial must be granted.

¶3Appellant James A. Ginnery, was convicted by a jury of indecent exposure and his appeal is from a judgment of sentence 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 him to come over to the car. When Dombrowski complied he looked in the car and saw appellant’s penis exposed and he left. Dom-browski did nothing about the incident but the next day he encountered the same individual who again called him from the car. This time Dombrowski took down the license plate and reported the incident to his father resulting in appellant’s eventual arrest. The minor victim identified Ginnery at trial as the offender. The disputed testimony arose when the prosecutor called Detective Barnett of the Erie Police Department. He determined that the license number was assigned to appellant and testified that thereafter he showed a series of photographs to Dombrowski. There were six photographs of different persons with like characteristics and the witness identified appellant as the perpetrator. These photos were produced at trial and objected to. They were not 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, for that reason, placed on a file folder and shown 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”. *75Detective Barnett was one of two witnesses for the Commonwealth and the references to the photographs represented a major portion of his testimony.

¶4The leading case on the issue of prejudice from reference to photographs from which inferences of prior criminal activity can be drawn is Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972). The court held:

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; so too, where it appears on the face of the record that there is an explanation of the police possession of the photograph unrelated to any inference of prior criminal activity. Thus, testimony suggesting that the photograph was secured from a school yearbook or from the possession of acquaintances of the defendant illustrates situations where the suspect is not prejudiced by the photographic reference.

It is a fundamental precept of the common law that the prosecution may not introduce evidence of the defendant’s prior criminal conduct as substantive evidence of his guilt of the present charge. It has been succinctly stated that “[t]he purpose of this rule is to prevent the conviction of an accused for one crime by the use of evidence that he has committed other unrelated crimes, and to preclude the inference that because he has committed other crimes he was more liable to commit that crime for which he is being tried. The presumed effect of such evidence is to predispose the minds of the jurors to believe the accused guilty, and thus effectually to strip him of the presumption of innocence.” Commonwealth v. Trowery, 211 Pa.Super. 171, 173-174, 235 A.2d 171, 172 (1967). Recognizing the prejudicial effect of such evidence, there is no justification for indirectly allowing the *76introduction of prior criminal activity by reference to photographs of the accused. Once it is determined that a jury could reasonably conclude from the photographic reference prior criminal activity on the part of the defendant prejudicial error has been committed, (footnote omitted)

¶5The principle of the Allencase has received considerable appellate attention. In Commonwealth v. Krasner, 285 Pa.Super. 389, 427 A.2d 1169 (1981), this court sitting en banc found no reversible prejudice in reference to photos which were not characterized as police photos or mug shots and which were not displayed, marked or otherwise referred to at trial. A majority of a panel of this court, however, in a subsequent case granted a new trial where there was repeated reference in the record to the display of photographs to the victim by a police investigator. The court noted that there had been a large number of photographs submitted to the victim from which the identification was made and also pointed out that reference to the photograph had been made in the court’s charge to the jury. Commonwealth v. Reiss, 301 Pa.Super. 96, 447 A.2d 259 (1982), rehearing denied July 19, 1982. Another relevant post Allencase is Commonwealth v. Dickerson, 267 Pa.Super. 492, 406 A.2d 1149 (1979). In this case there was testimony that the victim was shown photographs at the police station from which an identification was made. A new trial was granted and the court stated that it would be “quite naive” to believe the jury could not reasonably infer the photographs were mug shots.

¶6Examining the principles which emerge from these cases and others,1 I believe a new trial must be granted. Here, the evidence was not a mere passing reference but played a significant role in the Commonwealth’s calibration of it’s *77prosecution evidence. It was in fact the chief subject of one of the two Commonwealth’s witnesses’ testimony. The source of the photos was evident since the photographs were taken to the complaining witness’s home by the police detective and, although the court described them as not being mug shots, they were described without contradiction by appellant’s attorney as looking “terrible”. The photos were shown to the jury in a manner necessarily contrived to avoid inspection of the reverse sides, and the identification by the witness took place just four days after the criminal incident. Finally, the court mentioned the photographs in its charge. Under the circumstances, I submit it is unreasonable to conclude that the jurors could fail to reasonably infer that appellant had engaged in prior criminal activity. A new trial should be granted since the presumed effect of the evidence would predispose the minds of the jurors to believe the appellant was guilty and strip him of his presumption of innocence. Commonwealth v. Allen, supra; Commonwealth v. Brunner, 305 Pa.Super. 411, 451 A.2d 714 (1982). Although I find no merit to appellant’s other contentions on appeal, I would grant a new trial.