# Commonwealth v. Brown

> Supreme Court of Pennsylvania · June 30, 1986 · 511 Pa. 155

URL: https://www.frixlaw.com/law-library/cases/9697192

## Case

- **Full name:** COMMONWEALTH of Pennsylvania, Appellee, v. Albert BROWN, A/K/A Albert Clemons, A/K/A Elbens Brown, Appellant
- **Court:** Supreme Court of Pennsylvania
- **Decided:** June 30, 1986
- **Citations:** 511 Pa. 155; 512 A.2d 596; 1986 Pa. LEXIS 800
- **Precedential status:** Published
- **Opinion:** Dissent by Flaherty
- **Judges:** Nix, Larsen, Flaherty, McDermott, Papadakos, Hutchinson, Zappala
- **Cited by:** 20 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9697192

## How later opinions describe it (automated extraction)

- stating that “there is no per se rule against use of ‘mugshots’ as a method of identification. The use of any photograph during an identification procedure is analyzed under facts and circumstances of each particular use.”

## Opinion text

FLAHERTY, Justice,
dissenting.
The robberies of which appellant was convicted occurred within approximately two hours of each other in neighboring sections of the City of Pittsburgh. After obtaining descriptions of the guilty party from the victims involved in the two robberies, the police conducted an investigation and prepared photographic arrays which were presented to those victims. The victims recognized a photograph of appellant, and identified appellant as the perpetrator of the robberies.
At trial, despite strenuous objection by defense counsel, the prosecution displayed to the jury ten photographs which *165 had been used in one of the aforementioned photographic arrays. The pictures, appellant’s among them, had been selected from police files of individuals with police records. These pictures showed men in front-and-side views, and the police identification numbers on the pictures had been obscured by cardboard folder frames. Appellant contends that the trial court erred in permitting the jury to see these photos, because the photos were unmistakably “mug shots” which conveyed to the jury the fact that appellant had committed other criminal offenses in the past.
It is well established that, in a criminal prosecution, evidence of a defendant’s prior criminal conduct may not generally be introduced as substantive evidence of guilt as to a present charge. Commonwealth v. Allen, 448 Pa. 177, 181 , 292 A.2d 373, 375 (1972). As stated in Commonwealth v. Trowery, 211 Pa.Super. 171, 173-174 , 235 A.2d 171, 172 (1967), “[t]he 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.”
The test applicable to determining whether photographs of the accused, or references to such photographs, were properly admitted was set forth as follows in Commonwealth v. Allen, 448 Pa. at 181-182 , 292 A.2d at 375 ,
[Ajfter 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.
... 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.
Thus, if the pictures themselves, or testimony relating thereto, “can be fairly characterized as conveying to the jury, either expressly or by reasonable implication, the fact of prior criminal offenses, a reversal of a verdict of guilt must result ...” Commonwealth v. Clark, 453 Pa. 449, 453 , 309 A.2d 589, 591 (1973). See also Commonwealth v. *166 Reiss, 503 Pa. 45, 49-50 , 468 A.2d 451, 453 (1983); Commonwealth v. Carlos, 462 Pa. 262, 265-266 , 341 A.2d 71, 72-73 (1975); Commonwealth v. Turner, 454 Pa. 439 , 311 A.2d 899 (1973).
In the present case, the photographs in question clearly would have conveyed to the jury a reasonable implication that appellant had engaged in prior criminal activity. This is so notwithstanding the fact that, as the Commonwealth has pointed out, there were not present in this case testimonial references to the photos which identified the photos as having come from police department files. The Commonwealth claims that the lack of such testimonial references makes it likely that the jury believed the photos came from a neutral source. However, the Commonwealth elicited testimony from three of the robbery victims that appellant’s picture was identified from photo arrays arranged by police, and, although the victims testified that the photos were shown to them at their places of employment rather than at a police station, the nature of the photographs is such as to indicate that the photos did not come from a neutral source.
The photographs used in one of the arrays, and submitted to the jury for inspection, depicted appellant and nine others in front and side views. Cardboard folder frames were attached to the photos to obscure from the jury’s view the police identification numbers on the photos. An examination of the photographs reveals that the jury could not help but have concluded that the photo array was composed of “mug shots.” Indeed, all of the photos are identical in format, the format being one traditionally associated with “mug shots.” The photographic lighting, background, pose, and print size does not vary from one photo to another. Despite the fact that police identification numbers have been obscured by cardboard frames, the nature of what is being concealed by the frames is immediately apparent. In all of the photos, including appellant’s, there is visible a chain around the neck of the individual photographed. The chains are positioned in a manner that would be expected to support a sign displaying a police identifica *167 tion number, and, in fact, in some of the photos in the array there is visible the top edge of a sign attached to the chain. The sign is not visible in the photo of appellant, but the chain is, and the inference to be made is clear. In one of the photos in the array it is even possible to discern the word “POLICE” on the top edge of the sign. See Commonwealth v. Dickerson, 267 Pa.Super. 492, 494 , 406 A.2d 1149, 1150 (1979) (“[O]ne would be quite naive to believe the jury could not reasonably infer the photographs were ‘mug shots’.”).
The inferences induced by front and side view pictures, to which coverings have been attached to obscure police identification numbers, were described in Barnes v. United States, 365 F.2d 509, 510-511 (D.C.Cir.1966):
The double-shot picture, with front and profile shots alongside each other, is so familiar, from “wanted” posters in the post office, motion pictures and television, that the inference that the person involved has a criminal record, or has at least been in trouble with the police, is natural, perhaps automatic. The rudimentary tape cover placed over the prison numbers on the photograph, and over the notations on the reverse side, neither disguised the nature of the picture nor avoided the prejudice. If anything, by emphasizing that something was being hidden, the steps taken here to disguise the nature of the picture may well have heightened the importance of the picture and the prejudice in the minds of the jury.
In this Commonwealth, there has been established a uniform proscription against mention or use, at trial, of “mug shots” of the accused, since such pictures inherently convey an impression that the accused has engaged in prior criminal activity. Commonwealth v. Reiss, 503 Pa. at 50 , 468 A.2d at 453 ; Commonwealth v. Carlos, 462 Pa. at 266 , 341 A.2d at 73 ; Commonwealth v. Dickerson, 267 Pa.Super. at 494 , 406 A.2d at 1150 (1979); Commonwealth v. Trowery, 211 Pa.Super. at 174-175 , 235 A.2d at 173 . The photographs shown to the jury in the instant case would *168 reasonably have been perceived to be “mug shots,” and appellant should, therefore, be granted a new trial.
The Commonwealth contends that, if its position that the photos would not have been perceived as “mug shots” is rejected, a balancing analysis should be invoked whereby it might be determined that the prejudice to appellant was outweighed by the Commonwealth’s need to submit the photos to the jury on the issue of identity in this case where identification was strongly contested due to appellant’s having asserted an alibi defense. This Court has previously considered and rejected the utilization of such a balancing test, holding instead that photos, or references thereto, which create a reasonable inference of a defendant’s prior criminal record are, in and of themselves, so highly prejudicial as to mandate a new trial. Commonwealth v. Allen, 448 Pa. at 183 , 292 A.2d at 376 .
The high degree of prejudice to appellant’s right to a fair trial, inuring as a result of introduction of the instant “mug shots,” is substantially ignored in the opinion announcing the judgment of the Court authored by Mr. Justice McDermott. It is naive to assume, as that opinion does, that jurors will not deduce, based upon the fact that the “mug shots” exist, that the accused has had a record of prior criminal contact with the police. Police do not collect “mug shots” merely in response to an avocational interest in photography. Nor are such photographs taken of persons with whom police merely socialize or engage in other innocuous pursuits.
Although the Opinion Announcing the Judgment of the Court authored by Mr. Justice McDermott asserts that “[t]he rationale of our previous decisions [is] not here altered,” the reality is that our previous decisions are substantially eroded, indeed overruled, by departing from the longstanding rule that an accused must not be prejudiced by inferences of prior criminal activity, and by holding, in effect, that inferences of prior criminal activity may now be introduced via “mug shots.” Believing the long *169 standing rule to be worthy of continued adherence, I dissent and would grant appellant a new trial.
NIX, C.J., and ZAPPALA, J., join this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9697192. Public record. Not legal advice.