recognizing well-settled principle that “[w]e will not disturb the findings of the PCRA court if they are supported by the record, even where the record could also support a contrary holding”
How later courts described this case
- recognizing well-settled principle that “[w]e will not disturb the findings of the PCRA court if they are supported by the record, even where the record could also support a contrary holding”
- concurring and dissenting opinion of Manderino, J., joined by Roberts, J.
- post-conviction hearing court, having determined that petitioner is entitled to pursue appeal, must not rule upon merits of remaining claims for relief unless the claims were not previously ruled upon by the trial *276 court
- where counsel’s brief on appeal failed to comply with Supreme court rules and appeared to be a “preliminary draft,” appellate counsel was ineffective, and “the proper remedy is to afford appellant a new appeal in which he may reassert the issues adversely affected by his initial counsel’s ineffective stewardship of his appeal.”
Written by the judges who cited it.
The opinion
MANDERINO, Justice,
concurring and dissenting.
I join in the concurring and dissenting opinion of Mr. Justice Roberts, and would reverse the judgment of sentence and order appellant discharged because I believe the evidence was insufficient to prove beyond a reasonable doubt that appellant was one of the perpetrators of the homicides. In addition, I wish to express my amazement and dismay at the majority’s approval of the use at trial of the color slide photographs depicting the bodies of the victims in the instant case. I have viewed these photographs. ' If these photographs do not warrant a reversal and remand for new trial, no retrial will ever be granted because of the admission of inflammatory photographs. Every prior case of this Court granting a new trial because of the admission of inflammatory photographs is sub silentio overruled by the majority’s holding that the photographs admitted in this case do not warrant reversal. These photographs are more gruesome than any other color slides or photographs which I have seen in any previous appeal before this Court. They can accurately be described as a “horror show.” Such a show must have affected the jury greatly. Very few persons exposed to full color slide photographs of blood smeared bodies, with bullet riddled faces, lying in literal pools of blood, could dispassionately decide whether the prosecution had sustained its burden of proving beyond a reasonable doubt that the perpetrator of such crimes was, in fact, the same man accused of committing them. Because of the serious disagreement among the members of this Court as to the sufficiency of the evidence in this case, we should be particularly careful to avoid condoning something which may have unfairly tipped the scales of justice against the appellant at trial.
Over defense objection the prosecution offered into evidence thirty-nine color slides taken by the medical exam *191 iner at the scene of the crime. These slides were shown to the jury for a total time of eighteen minutes and twenty-seven seconds. On the average, therefore, each slide was projected for almost thirty seconds. The group of thirty-nine slides can be divided roughly into four categories. The first category, consists of eight slides depicting the outside of the building in which the victims’ bodies were found, a window with a bullet hole, the layout of the parking lot outside the building, the victim Janda’s purse, a brown paper lunch bag sitting on the window sill, and some severed telephone lines. The second group of photographs contains various shots indicating the relative position in which the victims’ bodies were found. This group includes overall views of the room, scenes showing the relative locations of the desk, various chairs and other office equipment, and the bodies. The third group consists of eight close-up photographs of the head and body of the victim, Gorey. The last group consists of fifteen close-up photographs showing the victim, Janda’s head and body in various positions. It is these latter two groups which are particularly objectionable here.
Of the eight photographs of Gorey, five are photographs of the body depicting it from the waist area to the top of the head, in the position it was found lying on the floor. These five photographs show the victim lying on his back on the floor with his head up against the wall, with eyes closed, chin on shoulder, left hand on chest. Plainly visible is a bullet hole in the middle of the forehead just above the eyebrows; a bullet wound in the corner of the left eye; blood coursing from the bullet wound of the forehead; blood coursing from the bullet wound of the eye; blood, dried and caked in layers coursing from the nose; blood flowing from the right ear; the entire collar and part of the shoulder of the shirt stained and splattered with blood; blood flowing from a bullet wound in the abdominal area just to the left of the navel; *192 and a bullet wound just to the left and above the navel. In another of the photographs in this group, the body has been rolled over to expose the back, stained purple from the settling of blood, with blood-soaked shirt lifted to reveal a bullet wound to the back. The remaining two photographs of the victim, Gorey, depict almost identical close-up shots of the victim’s face; both reveal in horrid detail the bullet wound to the center of the forehead and the bullet wound to the left eye. In both shots fully one-half of the victim’s face and neck is completely covered with blood. In fact, these photographs reveal the blood flowing from the victim’s nose to be dried thick upon his cheek.
The fifteen photographs depicting the victim, Janda, can also be divided into three groups: one depicting an overview of the body of the victim as it lay on the floor; one group depicting the body from the area of the waist to the top of the head in various positions on the floor; and one group depicting close-ups of various portions of the victim’s anatomy. There is only one photograph in the first group. It depicts the victim lying on her left side on the floor (the desk under which she was found having apparently been removed for purposes of the photograph) in a pool of blood extending from near the top of her head down to her waist. The group of photographs depicting the victim’s torso consists of seven photographs. Three of these are almost identical. They show the victim lying on her left side with her face on the floor, surrounded by dried, caked, blood. These photographs also reveal three bullet wounds to the right side of the head: one in the hair above and to the rear of the right ear; one just in front of the right ear at about the point where the jaw bone connects to the skull; and one to the right temple, just to the rear and above the right eye. Thick, dark red, dried blood extends from all three wounds across the face.
*193 Another photograph reveals the victim’s upper back and right shoulder with her blouse pulled up to reveal a bullet hole in the upper right arm and a back almost completely covered with blood; this picture also reveals a mass of blood on the rear of the victim’s head just above her right ear. The last three photographs in this group show the victim in various positions lying on her back in a pool of blood, with the head, chest, and arms completely covered with blood; her left eye is swollen and blackened, blood courses from her nose and mouth, the left side of her head is red with blood, as if painted with a brush, her arms are completely covered with blood, and blood flows in a river over the floor around the body. Two of these photographs are almost identical views of the victim’s face and chest area showing her to be completely covered with blood from near the top of her head to her waist. In fact, her blouse is saturated with blood over the entire area of her chest. In one of these photographs the victim’s shirt has been opened to reveal her brassiere, saturated with blood, and a bullet wound to the lower abdomen several inches below and to the right of her navel. In this photograph, the victim’s upper lip is drawn slightly upward, revealing her teeth in a grotesque “snarl.”
The last group of photographs of the victim, Janda, consists of seven close-up photographs of various parts of her anatomy. The first depicts the front of her blood-stained blouse. The second depicts a portion of her nude torso from just above the right breast to approximately four inches below the navel, revealing at least two bullet holes in the area just above and just below the navel. The third is a close-up of the victim’s face, neck and upper chest revealing a bullet hole to the right temple, a bullet hole in the left corner of the right eye, blood flowing from the right ear, and blood staining the hair bright red. The next photograph is a close-up of the victim’s right shoulder taken from the rear, re *194 vealing a bullet hole to the upper right arm and also shows the victim’s chin, mouth, right breast, and right arm stained with blood. The next is a close-up view of the right side of the victim’s face, with the face and neck occupying almost the entire frame. It reveals the bullet wound to the right temple, with the blood that once flowed from it across the forehead now dried and caked. It also reveals the bullet wound to the left corner of the right eye, a mass of dried, caked blood in the hair just in front of the right ear, and blood staining the entire area of her cheek, forehead, and neck. The next is an identical close-up of appellant’s face taken from the right, this time with some of the blood removed to more clearly reveal the bullet hole in the left corner of the right eye, the bullet hole in the right temple, the dried and caked blood in front of the right ear, and blood staining the victim’s blonde hair red at the top of her forehead. The last of this group of photographs shows the left side of the victim’s face, the left side of her neck and her right breast, indicating the blackened, swollen, left eye, blood flowing from the nose, and blood flowing from the left ear. In this photograph a section of hair has been shaved to expose a bullet hole in the skull above and to the rear of the left ear. It also shows the victim’s ash blonde hair stained bright red by the blood.
In Commonwealth v. Scaramuzzino, 455 Pa. 378 , 317 A.2d 225 (1974), we noted that the practice of admitting photographs of the body of the decedent is to be condemned unless those photographs have essential evidentiary value. Although the admission of such photographic evidence has been held to be a matter within the discretion of the trial judge, the test remains one of ascertaining 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 , 241 A.2d 119 (1968). Furthermore, “. . . the *195 more inflammatory the photograph the greater the need to establish the essential evidentiary value.” (Emphasis added.) Commonwealth v. Scaramuzzino, 455 Pa. at 381 , 317 A.2d at 226 .
In Scaramuzzino , we reversed and remanded for a new trial because fourteen color slides were introduced over defense counsel’s objection. The ostensible purpose for their introduction was to support and clarify the pathologist’s testimony as to the cause of death.
“The slides in issue involved three photographs of the heart removed from the body of the deceased, five portrayed the wounded portions of the nude torso emphasizing, because of the color, the dried blood, including a side view of the torso with glass rods protruding from the wounds to indicate the direction of the wounds; three photographs which were virtually identical to three previously shown but with the blood removed ; one photograph of a wound at back of the ear with the hair pulled away; one slide of a wrist wound; and one of a finger wound. The total viewing time was ten minutes and five seconds.”
Id. at 380-81 , 317 A.2d at 226 .
Commenting upon this slide show we said in Scaramuzzino ,
“ [n] ever before have we been faced with the admission of so many slides, unquestionably repetitive, and viewed for so long a period of time. (Footnote omitted.)”
Id. at 381 , 317 A.2d at 226 .
In refusing to accept the prosecution’s contention that the photographs in Scaramuzzino were necessary “to aid the pathologist in explaining to the jury the wounds which were suffered by the decedent . . . and injuries which resulted in her death”, we distinguished Com *196 monwealth v. Collins, 440 Pa. 368 , 269 A.2d 882 (1970), státing that Collins ,
“. . . involved only a single slide which was ‘as noninflammatory as possible because all excess blood had been removed from the decedent’s face before the photograph was taken, so this is not a case where some less inflammatory version of the slide could have been utilized.’ ”
455 Pa. 382 , 317 A.2d 227 .
The prosecution in Scaramuzzino , on the other hand, had made no effort to limit the slides to those reasonably necessary to aid the pathologist’s testimony, or to those in which excess blood had been removed. We therefore concluded that
“there was certainly no need for three pictures of the heart removed from the body; nor was there any evidentiary purpose whatsoever in introducing slides of the nude torso, arm, and back with excess blood plainly visible where these same slides, but without blood, were available and were indeed introduced.” (Emphasis in original.)
Id. at 383 , 317 A.2d at 227 .
The majority opinion here attempts to supply the “essential evidentiary value” required by Powell, supra, and Scaramuzzino, supra, by stating that the slides were “offered to aid the jury in understanding the physical scene of the crime, the nature and extent of the wounds inflicted and the brutality of the murder to graphically demonstrate the existence of an intent to take life.” (Maj. opinion at pages 481, 482). In concluding that the photographs at issue here were admissible for these purposes the majority overlooks our conclusion in Scaramuzzino that such slides “. . . should not be resorted to where the witness can clearly convey the facts to the jury without their use.” 455 Pa. at 383 , 317 A.2d at 227 .
In Scaramuzzino we condemned introduction of the photographs because they showed various parts of the *197 victim’s body with its heart having been removed by the pathologist. We felt that such photographs were highly inflammatory. In the instant case we have almost three times as many photographs shown to the jury for almost twice as long a period of time, depicting the bodies of the victims, revealing in horrible detail how they were mutilated by the perpetrator of the homicide. The inflammatory effect of the photographs in the instant case was significantly greater, it seems to me, than was condemned in Scaramuzzino .
In Scaramuzzino we concluded that the photographs had no evidentiary value because the facts which they were introduced to convey to the jury — the nature and direction of the wounds, — could as readily have been conveyed to the jury by less prejudicial means. The same is true in the instant case. Those photographs depicting the physical scene of the crime, while some of them were gruesome to the extent that they depicted the blood flowing across the floor, and were objectionable for that reason, could have been taken after the blood had been cleaned. Those photographs which were introduced to show the jury the nature and extent of the wounds were completely unnecessary because the pathologist’s testimony provided the jury with that information. Furthermore, if the prosecution felt it desirable, schematic drawings of the victim’s bodies, showing the relative position of the various bullet wounds could also have been provided for the jury’s benefit. The same is true of their ostensible evidentiary value to show that the perpetrator possessed the intent to kill necessary to convict of murder in the first degree. Testimony by the pathologist as to the number and nature of the wounds was more than adequate to prove this element of the crime. As in Scaramuzzino ,
“These slides were simply cumulative to the pathologist’s testimony as to the cause, position, number, and severity of the wounds.”
455 Pa. at 383 , 317 A.2d at 227 .
*198 In short, the photographs provided no information that could not have been amply supplied by other sources. The one thing that their introduction accomplished, however, was to assure that no jury would return a verdict of not guilty. For these reasons it was an abuse of discretion to allow them to be shown to the jury.
I would therefore reverse the judgment of sentence.
ROBERTS, J., joins in this concurring and dissenting opinion.