Commonwealth v. Sullivan

ROBERTS, Justice,

concurring and dissenting.

I agree with the majority that the Post Conviction Hearing Court properly granted appellant, John Sullivan, a new direct appeal. I join in part I of the majority opinion.

I cannot agree, however, with the majority’s conclusion that the evidence presented at trial was sufficient to sustain a conviction of murder of the first degree. I would reverse the convictions and order appellant discharged.

I must also dissent from the majority’s decision that the trial court committed no error when it admitted into evidence thirty-nine color slides of the victims. These slides were inflammatory, and of no evidentiary value. Their presentation to the jury deprived appellant of a fair trial.

*169 I.

The Evidence was Insufficient to Support Appellant’s Conviction.

The evidence presented at trial, viewed in the light most favorable to the Commonwealth, was as follows: The bodies of John Gorey and Rita Janda were discovered on June 18, 1966, in Gorey’s office in the Headquarters of Teamsters Union Local 107. Both had been shot several times. The Commonwealth established that two weapons had been used in the homicides, that the wounds inflicted were the cause of death, and that the time of death was sometime in the early evening of June 17, 1966.

The Commonwealth’s most important witness was Francis J. McGrath, a janitor at the local and a member of the union. McGrath arrived at the local’s office building at about 6:00 p. m. While outside the building, Mc-Grath saw Sullivan looking out a window of an office Sullivan usually did not use. McGrath entered the building and began cleaning. In the course of his chores, he entered the office in which Sullivan was seated. Sullivan asked McGrath why he was working on Friday, McGrath’s day off, a,nd told him to defer his cleaning duties until after a union meeting scheduled for that Sunday so that the building would be clean for the opening of business on Monday. McGrath ignored the advice and continued his activities.

About 6:15 p. m., McGrath re-entered the office in which Sullivan was seated to empty some trash cans, and he and Sullivan observed Gorey and Janda arrive at the building.

McGrath began cleaning the local’s conference room. Gorey entered the room, exchanged a few words with the janitor and left. A few minutes later Sullivan entered the conference room using the same door through which *170 Gorey had exited. Sullivan again suggested that Mc-Grath postpone his duties until Sunday. Meanwhile, Gregory Carchidi, another janitor entered the room but exchanged no greeting with Sullivan. Carchidi also suggested that McGrath wait until Sunday to complete his chores. Shortly thereafter, Sullivan left the conference room by the same door Gorey had used. McGrath stated on cross-examination that he was unable to see whether after Sullivan left the office he proceeded down the hall toward Gorey’s office or had gone in a different direction.

After Carchidi again mentioned McGrath’s cleaning, McGrath heard what sounded to him like a package of firecrackers going off sequentially. McGrath asked Carchidi, “What was that?” Carchidi replied, “Get out of the building and don’t say nothing.”

McGrath promptly left the building, stopping only to note that Sullivan’s, Carchidi’s, Anthony DiPasquale’s and Gorey’s cars were parked near the building, and to talk with a group of men standing outside the building. He returned about 15 minutes later and found that the offices had all been locked, the lights turned off and the building deserted. He removed any evidence indicating that he had been in the building and left.

The Commonwealth also called Irene Glenn. Glenn testified that at about 6:15 p. m., June 17, 1966, she telephoned the union to discuss the local’s efforts to organize the company at which she was employed. She testified that the man who spoke to her identified himself as Gorey. The prosecutor played a tape recording of Gorey’s voice for her but she was unable to identify the recorded voice as the one she had heard on the telephone. She did not testify that Sullivan’s voice was the one she heard on the telephone. The Commonwealth introduced into' evidence a piece of paper found in a waste paper basket upon which Glenn’s name and phone number were written in Sullivan’s handwriting.

*171 Further evidence was introduced which showed that during the investigation, Sullivan denied that he was in the building at the time of the murder.

The defense demurred to the Commonwealth’s evidence and offered no evidence on its own.

“The test of the sufficiency of the evidence is whether, accepting as true all the evidence and all reasonable inferences therefrom upon which if believed the jury could have based its verdict, it is sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime for which he has been convicted.”

Commonwealth v. McFadden, 448 Pa. 277, 281 , 292 A.2d 324, 326 (1972); see e. g., Commonwealth v. Murray, 460 Pa. 605, 608 , 334 A.2d 255, 257 (1975).

Here, the Commonwealth relies totally on circumstantial evidence. Of course, circumstantial evidence in itself may be sufficient to establish both the commission of a crime and the accused’s participation if the inferences arising from the evidence establish these facts beyond a reasonable doubt. Commonwealth v. Cox, 460 Pa. 566 , 333 A.2d 917 (1975); Commonwealth v. Alston, 461 Pa. 664 , 337 A.2d 597 (1975). However, a conviction based on suspicion and conjecture cannot stand. Commonwealth v. Garrett, 423 Pa. 8 , 222 A.2d 902 (1968) ; Commonwealth v. Clinton, 391 Pa. 212, 218-19 , 137 A.2d 463, 466 (1958).

The Commonwealth argues that from the evidence adduced at trial the jury could infer that Sullivan was in the building at the time of the killing, that he sat by the window watching for Gorey and Janda to arrive, and that there were only two other people, Carchidi and McGrath in the building at the time of the killing.

Furthermore, the Commonwealth urges that the evidence that Sullivan left the building shortly after the shooting and that he denied to the police that he was present in the building show that he tried to conceal his *172 knowledge of the crime and this supports an inference of guilt.

I cannot agree with the majority that the evidence and the inferences the Commonwealth seeks to draw from it are sufficient to establish beyond a reasonable doubt that Sullivan was guilty of murder. 1 To convict, the jury would have to believe that after leaving the conference room, Sullivan followed Gorey into his office and then took part in the murders. 2 The police department laboratory technicians were unable to uncover any of the scientific evidence that is often used to prove circumstantially that the accused committed the crime. The murder weapons were never discovered and thus there was no evidence indicating that they had ever been in Sullivan’s possession. No fingerprints, shreds of clothing, or other physical evidence were found in the room where the murder occurred which could support an inference that Sullivan had been in the room when the murders were committed. Finally, nothing found on Sullivan’s person or' effects afford an inference that he was present. Compare Commonwealth v. Dawson, 464 Pa. 254 , 346 A.2d 545 (1975) (Eagen, J.); 3 Commonwealth v. Kravitz, 400 Pa. 198, 161 A.2d 861 (1960).

*173 Furthermore, many of the inferences the Commonwealth urges that the jury could have drawn are either based on no evidence at all, or are so conjectural that they cannot support a conviction.

The Commonwealth places great weight on the fact that besides Gorey and Janda, McGrath saw only Carchidi and Sullivan in the building prior to the shooting. However, the record reveals that at the time of the murder the doors to the building were unlocked, that at a time shortly after the shooting several persons were standing outside the building, and that persons could enter the building without being seen by McGrath. There is no evidence that McGrath looked in every office in the building while he was cleaning, and it thus is entirely possible that there were others in the building when McGrath entered. In these circumstances mere presence in the office building is insufficient to support an inference of guilt. Commonwealth v. Garrett, 423 Pa. 8 , 222 A.2d 902 (1968).

Moreover, flight from the scene of a crime is not enough to prove complicity. Commonwealth v. Bailey, 448 Pa. 224 , 292 A.2d 345 (1972)., Flight is just as consistent with fear as with guilt, id., and appellant’s “flight” consisted of no more than leaving the building, as did others. Indeed, in this case, the very witness upon whom the Commonwealth most heavily relies fled from the scene of the crime and thereafter made careful efforts to cover up the fact that he had been in the building at the time of the shooting.

Furthermore, the inference that because Sullivan was seated at the window overlooking the parking lot, he was waiting for Gorey and Janda is nothing more than speculation.

*174 I have reviewed the entire 1,300 page record of Sullivan’s trial and am completely satisfied that the evidence of Sullivan’s participation in the crime is either nonexistent or so weak and inconclusive that as a matter of law the inferences of fact necessary to establish guilt beyond reasonable doubt could not be reasonably drawn. In this case, the pyramiding of inferences, many of which were of dubious probability in the first place, made impermissible a finding by the jury that, beyond a reasonable doubt, Sullivan committed the crimes charged. The evidence was insufficient to establish guilt beyond a reasonable doubt.

The judgments of sentence should be reversed and appellant should be discharged.

II.

The Color Slides of the Victims should not have been Admitted into Evidence.

Appellant’s conviction should be reversed because there is insufficient evidence to support his convictions, and it therefore is unnecessary to address the other issues decided by the majority. However, in view of the majority’s holding that the color slides of the victims were properly admitted and shown to the jury, I must express my dissent on that issue.

Thirty-nine color slides were admitted at trial over defense objection. I have viewed these slides. Their inflammatory content is accurately described in the Concurring and Dissenting Opinion of Mr. Justice Manderino, which I join, although it is difficult to fully comprehend their prejudicial impact without actually seeing them. When this case was first before this Court, Mr. Justice Pomeroy described the slides as "repulsive, showing not only close-ups of the contorted bodies of the two deceased persons lying in pools of blood, but also closeups of the bullet holes in the heads and other portions of *175 the anatomies of the victims.” Commonwealth v. Sullivan, 446 Pa. 419, 435 , 286 A.2d 898, 904 (1971). (Opinion in Support of Affirmance) (Opinion of Pomeroy, J., joined by Jones and O’Brien, JJ.). Each of the slides was shown to the jury for approximately thirty seconds.

The proper test for determining the admissibility of this type of photographic evidence “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.” Commonwealth v. Powell, 428 Pa. 275, 278-79 , 241 A.2d 119, 121 (1968) (emphasis added); accord, Commonwealth v. Petrakovich, 459 Pa. 511 , 329 A.2d 844 (1974). 4 Applying this test, it is clear that the gruesome nature of these photographs created a “substantial likelihood of inflaming the minds and passions of the jurors.” Since these pictures were of no evidentiary value, and certainly did not have “essential evidentiary value,” they should not have been admitted.

The majority asserts that this photographic evidence was admissible to prove that the two victims were killed with an intent to kill. But the Commonwealth had ballistic evidence showing that each of the victims had been shot by each of two firearms. Janda was shot six times, Gorey three times, all at close range. I cannot believe that a jury needs photographic evidence, in addition to *176 the Commonwealth’s uncontradicted ballistic evidence, to be convinced that a person shot six times at close range was shot with an intent to kill. 5

The majority also asserts that the slides helped to supplement the pathologist’s testimony. Appellant did not question the nature and cause of death, however, and when the pathologist was asked whether there was anything questionable about “his findings” which the photographs might clarify, he replied “I would say no.”

Thus, on this record the color slides had no evidentiary value. They were not needed to clarify the pathologist’s testimony, and were of no value in proving intent to kill. Other uncontradicted evidence available to the Commonwealth, and offered at trial, was more than adequate to prove the cause of death, and that the killings were made with an intent to kill. Given the availability of these alternative sources of evidence, the pictures did not have “essential evidentiary value.”

Moreover, appellant offered to stipulate .that the killing was in the nature of an execution, and that whoever committed the killing was guilty of murder of the first degree. In light of this stipulation, the pictures could not possibly have any evidentiary value.

The majority asserts that appellant’s offer to stipulate cannot deprive the Commonwealth of its right to prove its case by the most convincing evidence available. 6 I *177 fail to see how these pictures, offered as circumstantial evidence that the killing was murder of the first degree, are more convincing than a stipulation to the legal conclusion they were offered to prove. If they are more “convincing,” it is only because their inflammatory nature might lead a jury to convict appellant, even though the prosecution had not proved beyond a reasonable doubt that appellant was the one responsible for these gruesome killings.

Application of the standard governing admissibility of photographs requires careful examination of the purposes for which they are offered, and the alternatives available to the Commonwealth. Photographs are not automatically admissible whenever the Commonwealth asserts they might help prove a specific intent to kill, or that they might help to clarify the pathologist’s testimony. Unless the probity of the particular pictures offered is carefully considered, and the alternative sources of proof are given proper consideration, these assertions become legal fictions by which the standard set out in Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968), is circumvented.

The admission into evidence of the thirty-nine color slides of the victims, in the absence of any need to have the jury see this evidence, deprived appellant of a fair trial. Appellant’s conviction should be reversed, and a new trial ordered, on this ground.

Accordingly, while I agree with the majority that the order granting appellant a new direct appeal should be affirmed, 1 must dissent from the majority’s decision to affirm the conviction.

*178 MANDERINO, J., joins in this concurring and dissenting opinion.

. The six justices of this Court who heard appellant’s first appeal were evenly divided on the issue of the sufficiency of the evidence to support conviction. Mr. Justice (now Chief Justice) Jones, Mr. Justice O’Brien, Mr. Justice Pomeroy were in support of affirmance of appellant’s conviction. Chief Justice Bell, Mr. Justice Eagen, and this writer would have reversed the judgment against appellant, and ordered his discharge, because there was insufficient evidence to support the conviction. Commonwealth v. Sullivan, 446 Pa. 419 , 286 A.2d 898 (1971).

Appellant’s co-defendants, tried separately, were both acquitted.

. Because the record is devoid of any evidence that Sullivan was a member of a conspiracy to murder Gorey and Janda, a guilty verdict could only be returned if the jury found Sullivan actually took part in the murder.

. In Commonwealth v. Dawson , the deceased had been bludgeoned and shot to death. The police found in appellant’s car a blanket, hátchet handle and other items, all of which were stained with blood of decedent’s blood type. Also found in the *173 car were spent cartridges of the same caliber as the bullets removed from the deceased’s body. We held that this evidence together with other circumstantial evidence was sufficient to sustain a conviction for murder in the second degree.

. In Commonwealth v. Petrakovich, 459 Pa. 511 , 329 A.2d 844 (1974), the majority decided that the test announced in Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968), applies only after it is first determined that the photographs have inflammatory characteristics. This writer dissented, contending that if the pictures in question are not inflammatory, this is merely a factor to be considered in applying the Powell test. Commonwealth v. Petrakovich, 459 Pa. 511, 526 , 329 A.2d 844, 851 (1974) (Dissenting opinion of Roberts, J., joined by Manderino, J.). Even under the view announced by the majority in Petrakovich , however, the Powell test applies, because the color slides shown in this case were inflammatory. Mr. Justice Manderino in his Concurring and Dissenting opinion correctly labels the slides as a “horror show” including “full color slide photographs of blood smeared bodies, with bullet riddled faces, lying in literal pools of blood.”

. The majority asserts that the slides also might aid the jury in understanding the location of the bodies, to rule out the possibility that Janda and Gorey shot each other. This possibility is completely rebutted by ballistic evidence that each victim was shot by each of the weapons. Moreover, the location of the bodies could be established by other testimony, including that of the photographer, and the physical scene of the crime could have been depicted by a picture of the room taken after the bodies had been removed.

. In support of this proposition, the majority relies on Commonwealth v. Sullivan, 446 Pa. 419 , 286 A.2d 898 (1971) (Opinion in Support of Affirmance) (Opinion of Pomeroy, J., joined by Jones and O’Brien, JJ.), which did not express the views of a majority of this Court. Moreover, the proposition that a stipulation can *177 not render the Commonwealth’s “most convincing evidence” inadmissible misapplies the test set out in Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 199 (1968). Even if the photographs are slightly more convincing, the stipulation offered may be an adequate substitute, so that the photographs no longer have “such essential evidentiary value” as to “clearly outweigh” their prejudicial effect.