Opinion
September 8, 1969.
November 12, 1969.
Criminal Law — Evidence — Reference to prior criminal record — Identification testimony — Police photographs with criminal file numbers on them — Subsequent explanation that photographs were taken at time of arrest in instant case.
1. Whenever the jury may infer from any testimony that the accused has a prior criminal record, such testimony is prejudicial and its admission is ground for a new trial.
2. At the trial of defendant, charged with aggravated assault and battery and other offenses, the Commonwealth introduced identification testimony in the form of a statement made by the victim. In the statement the victim identified the defendant by police photographs with criminal file numbers on them. After objection by counsel for defendant, it was agreed that the arresting officer would be recalled and that he would explain to the jury that the photographs were taken at the time of arrest in the instant case, and this was done.
It was Held that the subsequent explanation by the Commonwealth's witness could not remove the prejudice already created in the minds of the jurors, and that a new trial was required.
Before WRIGHT, P.J., WATKINS, MONTGOMERY, JACOBS, HOFFMAN, SPAULDING, and CERCONE, JJ.
Appeal, No. 845, Oct. T., 1969, from judgment of Court of Common Pleas of Philadelphia County, May T., 1965, No. 1341, in case of Commonwealth of Pennsylvania v. Thaddeus Jamison. Reversed and remanded for new trial.
Indictments charging defendant with murder, assault and battery with intent to murder, and conspiracy. Before SLOANE, P.J.
Verdict of guilty of assault and battery with intent to murder and judgment of sentence entered thereon. Defendant appealed.
I. Leonard Hoffman, with him Ettinger, Poserina, Silverman, Dubin, Anapol Sagot, for appellant.
James D. Crawford, Assistant District Attorney, with him Taras M. Wochok, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
WRIGHT, P.J., would affirm the judgment of sentence of the court below.
Argued September 8, 1969.
Appellant Thaddeus Jamison appeals his conviction on October 7, 1966, in the Court of Common Pleas of Philadelphia County by a jury on a charge of aggravated assault and battery for which he was sentenced to serve 18 months to 3 years in a state prison. He was acquitted of other charges. At trial, the Commonwealth introduced identification testimony in the form of a statement made by the victim Edward DeJesus. In the statement DeJesus identified appellant by police photographs with criminal file numbers on them.
Appellant alleges that he was constitutionally prejudiced by this reference to the jury of the police photographs. Immediately after the reading of the statement, upon request of defense counsel, a side bar conference was held by the court, the District Attorney and defense counsel. Counsel presented objections to the reference to photographs identified by numbers. It was agreed that the arresting officer would be recalled and explain to the jury that the photographs were taken at the time of arrest in the instant case. This was done. The question before us is whether this limited explanation vitiated the prejudice already incurred against appellant. We think not. Commonwealth v. Trowery, 211 Pa. Super. 171, 235 A.2d 171 (1967), stands for the principle that whenever the jury may infer from any testimony that the accused has a prior criminal record, such testimony is prejudicial and its admission is ground for a new trial. We stated at 174: "It is not the fact that the pictures are from the police files that makes them objectionable per se, but that the jury may recognize them as such and be prejudiced against the defendant by the knowledge that he has had previous contact with the police." In Commonwealth v. Allen, 212 Pa. Super. 314, 242 A.2d 901 (1968), reference to "mug shots" was held to be prejudicial error requiring a new trial. In that case where the Commonwealth contended that the likelihood of prejudice was vitiated by the fact that only mention of the "mug shots" was made and that they were not actually admitted, was held to be without merit.
It is patent that in the instant case the subsequent explanation made by the Commonwealth witness could not remove the prejudice already created in the minds of the jurors.
Reversed and remanded for new trial.
WRIGHT, P.J., would affirm the judgment of sentence of the court below.