Commonwealth v. Hilton

¶1(concurring).

¶2I agree that in admitting the photograph of the deceased victim into evidence the trial court was not in error. I am unable to accept, however, that the standard against which such evidence is to be tested has been accurately articulated in the opinion announcing the decision of the Court.

¶3We have repeatedly held that whether a photograph of a corpse is to be admitted into evidence in a homicide case is a matter within the discretion of the trial court. Only an abuse of that discretion justifies reversal by this Court. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973); 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. Peyton, *100360 Pa. 441, 62 A.2d 37 (1948). A photograph of a corpse is not inflammatory per se. Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974); Commonwealth v. Collins, 440 Pa. 368, 269 A.2d 882 (1970). Whether or not such a photograph is admissible depends, as we have recently restated in Petrakovich, supra,on a two-stepped analysis. First, the trial court must decide whether the photograph possesses inflammatory characteristics. If the Court finds that it does not, the picture is admissible as is any evidentiary item, subject, of course, to the qualification of relevance. If, but only if, the photograph is deemed to be inflammatory, the Court must then apply the balancing test set forth in the majority opinion, i. e., is the photograph of “such essential evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” 1Commonwealth v. Garrison, 459 Pa. 664, 666, 331 A.2d 186, 187 (1975); Commonwealth v. Petrakovich, 459 Pa. 511, 329 A.2d 844 (1974).

¶4In an era in which the American populace is repeatedly witness, via the news media to scenes of brutality in all parts of the world, the comparatively innocuous photograph challenged instantly can hardly be considered inflammatory; at least, we cannot say that the trial court abused its discretion in holding that it was not inflammatory, and further we need not go. The opinion announcing the decision of the Court ignores what Petrakovichpoints to as a court’s preliminary inquiry, and instead proceeds to “balance” this picture’s “essential” evidentiary value against its potential for inflaming a jury. This is putting the cart before the horse, for in the absence of a finding that the photograph is indeed inflammatory, there is nothing which exists to be balanced. Beyond this, whatever the meaning of the word “essential” in the phrase “essential evidentiary value” it cer*101tainly must denote something more than mere relevance. The majority, however, would rob the word of any independent significance. That this is so is clearly demonstrated in the case at bar since, in light of the pathologist’s testimony, this photographic evidence was, at most, cumulative, and thus, only minimally relevant.2

¶5The only logical interpretation of the opinion of my brother Roberts is that, at least implicitly, it suggests that a photograph of a corpse is inherently inflammatory, thus necessitating a balancing of probative value and prejudicial impact in every case. This, it must be reiterated, is not the law of this Commonwealth.