The opinion
ROBERTS, Justice
(dissenting).
I dissent. The trial court permitted the Commonwealth, over appellant’s objection, to introduce into evidence, inflammatory photographs of the victims’ bodies. The court, again over objection, also permitted these photographs to go out with the jury in its deliberations. 1 The photographs had no essential evidentiary value in the circumstances of this case, and their obvious potential for inflaming the jury necessitates that they be held inadmissible. Nevertheless, the majority, ignoring prior case law, condones the trial court’s actions and thereby denies appellant his right to a fair trial.
The test for admitting photographs into evidence was enunciated by this Court in Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968).
“[T]he 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 out *452 weighs the likelihood of inflaming the minds and passions of the jurors.”
428 Pa. at 278-79 , 241 A.2d at 121 .
In Commonwealth v. Garrison, 459 Pa. 664 , 331 A.2d 186 (1975), this Court applied the Powell test to a fact situation identical to the one presented here. In Garrison , the defendant had been charged with murder, and her sole defense was insanity. She did not contest the cause of death, and a pathologist had adequately described the injuries sustained by the victim. Our Court held that in these circumstances the admission of eleven color slides of the deceased’s body was reversible error. Mr. Justice Nix stated:
“Whether the purpose of the evidence was as asserted by the court en banc to illuminate the testimony of the pathologist or as suggested by the court in its charge to the jury to assist the jury in making a finding of a specific intent to kill, it is quite apparent that it sheds little light under either theory. . . . Whereas here there was an absence of any compelling reason for the admission of these slides, we are forced to conclude that their introduction was error.”
459 Pa. at 668 , 331 A.2d at 188 .
Here, as in Garrison , there.is no justification for the admission of the photographs. Appellant, who had pleaded not guilty by reason of insanity, did not deny his involvement in the shootings. A pathologist testified at length regarding the cause of death and the nature of the injuries, testimony which appellant did not contest. Moreover there is no indication that the pathologist requested or needed the photographs in order to testify. Given this uncontested testimony, the trial court’s assertion that the photographs served to prove that appellant killed his victims with malice is insufficient to justify *453 their admission. 2 The jury had ample evidence to determine whether malice could be inferred from the nature of the injuries. The Powell standard requires that photographs have such essential evidentiary value that the likelihood of inflaming jurors is clearly outweighed by the need for the photographs. Commonwealth v. Garrison, supra; Commonwealth v. Powell, supra. See also Commonwealth v. Petrakovich, 459 Pa. 511 , 329 A.2d 844 (1974) (dissenting opinion of Roberts, J., joined by Manderino, J.). Here where there is no evidentiary value to inflammatory photographs, the trial court abused its discretion in admitting them. I would reverse the judgment of sentence and grant a new trial.
MANDERINO, J., joins in this dissenting opinion.
. It is within the sound discretion of the trial court to allow exhibits to go out with the jury. Rule 1114, Pa.R.Crim.P. However, here, where the photographs should not have been admitted, allowing them to go out with the jury compounded the prejudice to defendant.
. The Commonwealth also attempts to justify the introduction of the photographs on the ground that they illuminated the location of the murders. However, the police testified at trial as to the location of the bodies, and appellant did not dispute this testimony-