Com. v. Fennell

• Decision Date: 28 June 1971
• Parties: COMMONWEALTH of Pennsylvania v. Haywood FENNELL, Appellant.
• Court: Pennsylvania Supreme Court

Page 884

278 A.2d 884

444 Pa. 1

COMMONWEALTH of Pennsylvania v. Haywood FENNELL, Appellant.

Supreme Court of Pennsylvania.

June 28, 1971.

George Philip Stahl, Jr. (submitted), Philadelphia, for appellant

Arlen Specter, Dist. Atty. (submitted), James D. Crawford, Deputy Dist. Atty., Richard A. Sprague, First Asst. Dist. Atty., Milton M. Stein, Chief, Appeals Division, Philadelphia, for appellee.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

BELL, Chief Justice.

Appellant Haywood Fennell was tried before a jury for the murder of Joseph Hayes. Hayes died as the result of numerous stab wounds, which he suffered at the hands of two or more assailants at approximately 10:30 P.M. on May 19, 1968. An eyewitness to the incident, Thomas Montgomery, positively identified the appellant as one of the perpetrators. The jury found appellant guilty of murder in the first degree. Motions for a new trial and in arrest of judgment were filed and, after argument, denied. Appellant was sentenced to life imprisonment, and from the judgment of sentence appellant has appealed.

In this appeal, appellant raises three contentions. He first contends that the introduction of photographs of the scene of the crime was improper. The photographs which were introduced were taken by John Cahill, a Philadelphia police officer. These photographs were taken at approximately 1:30 A.M. on May 20, 1968. Since it was dark at the time the photographs were taken, it was necessary for Cahill to use a flash standard while taking the pictures. Appellant contends that the use of the flash standard made the scene seem lighter than it naturally was and, therefore, gave the wrong impression of what a person viewing the crime could see. At the time the pictures were received into evidence, and again during the charge to the jury, the trial Judge was careful to point out to the jury that the lighting in the pictures was unnatural and should not be considered as depicting the visibility which confronted the eyewitness, Thomas Montgomery, when he was looking out of his upstairs window. The admission of photographs is within the descretion of the trial Court and will not be grounds for reversal absent a flagrant abuse of discretion. Commonwealth v. Chasten, Pa., 275 A.2d 305 (filed March 25, 1971); Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536; Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421; Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102. In light of the cautionary instructions which were given by the trial Judge, we find no abuse of discretion in admitting the photographs into evidence.

Appellant next contends that the trial Court improperly refused to withdraw a juror after the assistant district attorney had exhibited a 16-ounce Pepsi-Cola bottle to the jury. During the testimony of Dr. Robert Catherman, the assistant district attorney showed him a 16-ounce Pepsi-Cola bottle, and the defense attorney immediately objected. After a side-bar conference, the objection was sustained. ¹ Defense counsel moved for withdrawal of a juror, and this motion was denied. ² The trial Judge carefully instructed the jury to disregard the Pepsi-Cola bottle because it had no bearing on the case. The withdrawal of a juror is within the sound discretion of the trial Judge, and we will not reverse absent a flagrant abuse of discretion. Our review of the record, including the instructions by the trial Judge to the jury, clearly establishes that the denial of the motion to withdraw a juror...