Commonwealth v. Young

DISSENTING OPINION

Justice NIGRO.

I respectfully dissent. In my view, Detective Brown’s testimony that an eyewitness had identified Appellant from a group of photographs of individuals “who have had contact with the police” could clearly have created a reasonable inference in the minds of the jury that Appellant had engaged in prior criminal conduct and as such, the trial court should have granted a mistrial based on that testimony.

As the majority notes, in Commonwealth v. Allen, 448 Pa. 177 , 292 A.2d 373, 375 (1972), this Court held that the “controlling question” in determining whether a reference to a photograph is improper “is whether or not a juror could reasonably infer from the facts presented that the accused had engaged in prior criminal activity.” In applying our holding in Allen to the facts of the present case, the majority concludes that Detective Brown’s testimony did not “reasonably imply [that *80 Appellant had been involved in] prior criminal conduct” because “the prior contact with the police could have occurred under a variety of circumstances that were not criminal in nature including involvement in a motor vehicle accident or violation, as a witness to a crime, or as a victim of a crime.” Op. at 1156.1 disagree.

Here, Detective Brown testified that an eyewitness to the shooting came to the police station and was escorted to an area of the station with computers, one of which is called a “photo imager.” N.T., 11/7/2000, at 64. The detective then explained to the jury that “what that machine does is that based on certain variables, descriptions, ages, locations in different areas of the city, it can bring up photographs of individuals who have had contact with the police.” Id. (emphasis added). Contrary to what the majority suggests, it is highly unlikely, at least in my view, that a juror would imagine that such “contact” was as a witness to or victim of a crime, or was in connection with a motor vehicle accident or violation. This is especially true given that any average layperson could reasonably question whether police even take photographs of people in such situations as a matter of routine and if so, whether the police would then place those photographs of victims and witnesses in a system being used for purposes of identifying criminal suspects. I simply find it much more tenable that the jury would deduce from the detective’s testimony that at some point in the past, Appellant was involved in some type of criminal activity, at which time the police took his photograph so that it could be used in future investigations. Indeed, the use of the “photo imager” here is remarkably similar to the practice of showing an eyewitness a group of “mug shots” fitting the eyewitness’ description of the suspect. Given that this Court has indicated that mug shots cannot be referred to at trial because such a reference creates an impermissible inference of prior criminal conduct in the minds of the jury, I see no reason why a detective should be permitted to refer to a machine that “brings up photographs of individuals who have had contact with the police” when such a machine appears to be little more than a computerized *81 catalogue of mug shots. See Commonwealth v. Reiss, 503 Pa. 45 , 468 A.2d 451, 453 (1983) (indicating that it is error for a witness to testify that he identified a defendant from a group of mug shots or photographs that came from police files); see also Commonwealth v. Carlos, 462 Pa. 262 , 341 A.2d 71, 73 (1975); Commonwealth v. Smith, 454 Pa. 515 , 314 A.2d 224, 226 (1973).

Furthermore, I disagree with the majority’s conclusion that the circumstances of this case are akin to those in Commonwealth v. Carlos, 462 Pa. 262 , 341 A.2d 71 (1975) and Commonwealth v. Riggins, 478 Pa. 222 , 386 A.2d 520 (1978). In Carlos , a Commonwealth eyewitness testified that he had identified the defendant from approximately ten photographs shown to him by a detective. Id. at 72. There, unlike in the present case, the photographs were never characterized as pictures of individuals “who have had contact with the police.” Rather, as the Court explained, “aside from the fact that a police detective displayed the [defendant’s] photograph, there was nothing else linking it to the police.” Id. at 73. Thus, the testimony in Carlos is clearly distinguishable from Detective Brown’s testimony in the present case, where he went one impermissible step further and explicitly stated that the photographs were of people who “have had prior contact with the police.”

Similarly, I do not believe that Detective Brown’s testimony is comparable to that of the officer’s testimony in Commonwealth v. Riggins, 478 Pa. 222 , 386 A.2d 520 (1978). In Riggins , the arresting officer testified that he went to talk to the defendant for the following reasons:

[Another officer] brought out a yellow piece of paper with some names on it, and he read these names off, and one of the names I recognized and I told Lt. Martin. I said, “Since we can’t talk to [the victim] now, we might as well and try to get him. I know where he lives at.”

Id. at 524 (emphasis added). This Court held that the officer’s mere passing reference to the fact that he knew where the defendant lived could not have reasonably led the jury to believe that the defendant had been involved in prior criminal *82 activity. Id. Again, this reference to knowing where the defendant lived is clearly different from what occurred here, where Detective Brown specifically explained to the jury that Appellant’s photograph was in the police department’s “photo imager,” a computer system that brings up images of “individuals who have had contact with the police,” and that the eyewitness identified Appellant from a group of 200 photographs in this “photo imager.” See N.T., 11/7/2000, at 64, 70-74. Clearly, Detective Brown’s repeated reference to Appellant’s photograph, which the jury knew was obtained through “prior contact with the police,” was much more likely to lead the jury to infer that Appellant had previously engaged in criminal conduct than the passing reference made by the officer in Riggins that he knew where the defendant lived.

Accordingly, because there is no question in my mind that Detective Brown’s testimony could reasonably have led the jury to infer that Appellant had been involved in prior criminal activity, I would find that the trial court erred in refusing to grant a mistrial based on that testimony.