Commonwealth v. Burton

NIX, Justice

(dissenting).

My dissent in this appeal arises from the belief that the trial judge committed error in his evidentiary rulings pertaining to a picture found among the appellant’s possessions in his home.

Particularly in trials where the savagery of the crimes charged or malevolence exhibited in the method of their execution is likely to excite the emotions and render sober judgment difficult, the responsibility of the trial judge to be especially vigilant in his efforts to preserve an air of impartiality and objectivity is heightened. In such a situation the admission and accentuation of irrelevant, inflammatory and highly prejudicial testimony is at variance with the unbiased, objective, reflective judgment that forms the basic tenet of American jurisprudence. This is especially true in the case at bar where the evidence of guilt was far from overwhelming.

The exhibit which was admitted in this case and permitted to remain with the jury throughout their deliberations depicted a contemptuous disregard and hostility for duly constituted authority and rekindled the antagonism between the races. Coupling the subject matter of the poster, with the fact that appellant was on trial for charges that he was a member of a black revolutionary movement bent upon the irradication of all lawful authority within the community (allegedly to avenge all wrongs that have been visited upon blacks by whites), the highly inflammatory quality of the exhibit cannot seriously be questioned. For this reason also, its erroneous admission and submission to the jury when they retired for their deliberations cannot be passed over as *561 being harmless. Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967).

First, I find great difficulty in ascertaining the relevancy of the exhibit. Relevant evidence must in some degree advance the inquiry. See Commonwealth v. Scaramuzzino, 455 Pa. 378 , 317 A.2d 225 (1974); Commonwealth v. Collins, 440 Pa. 368 , 269 A.2d 882 (1970); Commonwealth v. Wilson, 431 Pa. 21 , 244 A.2d 734 (1968), cert. denied, 393 U.S. 1102 , 89 S.Ct. 901 , 21 L. Ed.2d 794 (1969); Commonwealth v. Eckhart, 430 Pa. 311 , 242 A.2d 271 (1968); Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968). The question is whether a reasonable man might have his assessment of the probabilities of a material proposition enhanced by the piece of evidence sought to be admitted. 1 Here, in my judgment, the introduction of this in the trial in no way aided in the resolution of the issues presented.

Reason forces me to reject the majority’s unstated premise that the possession of a single book, poster, painting or other article reflects upon the philosophical predilection of the possessor. It would be absurd to suggest that possession of ‘Mein Kampf indicates the owner’s acceptance of Prussian superiority, or Milton’s ‘Paradise Lost’ as his explanation for the origin of evil in the world today. While it is true the possession of books, painting, article or other materials relating to a particular subject properly indicate a more than casual interest and even possibly an adherence to a given view, no such evidence was offered in the instant case.

*562 Accepting the majority’s determination of the relevancy of the exhibit this is only a prima facie indication of its admissibility. The question of whether the probative value is outweighed by its inflammatory quality must still be met. Commonwealth v. Scaramuzzino, supra; Commonwealth v. Peyton, 360 Pa. 441, 450 , 62 A.2d 37, 41 (1948). In discussing the introduction of pictures of the body of the deceased in homicide cases, this Court recently reaffirmed the basic law in this area:

“ ‘The proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases 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.’ . . . Such photographs will not be excluded merely because they are horrid or gruesome, . . . but the more inflammatory the photograph the greater the need to establish the essential evidentiary value.” (Citations omitted). Com. v. Scaramuzzino, supra, 455 Pa. at 381 , 317 A.2d at 226 .

Further, in Com. v. Woods, 454 Pa. 250, 254-255 , 311 A. 2d 582, 584 (1974), this Court observed:

“Even assuming the relevancy of these photographs, the resultant prejudice to the appellant far outweighed any probative value. . . . These acts, . [depicted in the pictures], did in themselves cast opprobium upon appellant, and allowing the photographs of the incinerated body to go to the jury could only have served to inflame their minds and prejudice against him.”

Here the highly questionable probative value was far overshadowed by the resulting prejudice that was engendered against the appellant. Thus, even accepting the majority view of relevancy (which I do not) the admission of this poster was an abuse of discretion.

Finally, the error of admission was compounded beyond repair by the trial court’s ruling permitting the ex *563 hibit to go out with the jury during their deliberations. In discussing the practice of allowing exhibits to be taken by the jury for consideration during deliberations the authors of McCormick on Evidence, 2nd Ed. (1972) § 217 wisely observed:

“The case for allowing the jury to take with it tangibles other than writings is somewhat weaker, at least if in-court examination of the tangible by the jury has been had. As noted in an earlier section, demonstrative evidence has peculiar force which arguably does not stand in need of yet additional argumentation.” p. 541

This reasoning has compelling force where, as here, the tangible possesses a highly inflammatory quality. Neither the court below nor the majority today has been able to articulate a single legitimate purpose that was served by the submission of this exhibit to the jury during their deliberations. Yet it cannot be questioned that it did serve as a constant and compelling invitation to the jurors to disregard objectivity and to give vent to their emotional responses.

I would for the reasons stated reverse the judgment of sentence and award a new trial.

ROBERTS, J., joins in this dissent.

. [■ “the Court will of course allow to be considered only such evidence as is worth submitting to men who will judge only by the most common and practicable tests. But to a more important extent the effect is to require a generally higher degree of probative value for all evidence to be submitted to a jury than would be asked in ordinary reasoning. The judge, in his efforts to prevent the jury from being satisfied by matters of slight value, capable of being exaggerated by prejudice and hasty reasoning, has constantly seen fit to exclude matter which does not rise to a clearly sufficient degree of value.”] Wigmore, Evidence, 3rd Ed. (1940) § 28, p. 409.