Com. v. Ford

• Decision Date: 16 March 1973
• Citation: 451 Pa. 81,301 A.2d 856
• Parties: COMMONWEALTH of Pennsylvania v. Albert Andrew FORD, Appellant (six cases).
• Court: Pennsylvania Supreme Court

Page 856

301 A.2d 856

451 Pa. 81

COMMONWEALTH of Pennsylvania v. Albert Andrew FORD, Appellant (six cases).

Supreme Court of Pennsylvania.

March 16, 1973.

Rehearing Denied April 12, 1973.

[451 Pa. 83] Walter T. Darmopray, Philadelphia, for appellant.

Arlen Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., James D. Crawford, Deputy Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief, Appeals Div., Philadelphia, Linda W. Conley, Pro Hac Vice, James T. Ranney, Asst. Dist. Atty., Assistant Chief, Appeals Div., Philadelphia, for appellee.

Before JONES, C.J., and % Eagen/, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

Appellant, Albert Ford, indicted for two murders arising out of the same incident, was tried by a jury and found guilty of murder in the first degree on both indictments. The jury determined that the sentence on the murder charges should be life imprisonment. ¹ Following a denial of motions for a new trial and in arrest of judgment appellant filed this appeal. He alleges three trial errors which we shall discuss seriatim.

Appellant first claims that a particular knife and a photograph of that knife were improperly admitted into evidence over his objection. He contends that because at trial the knife was neither positively identified nor definitely connected with the murder it should not have been admitted into evidence.

Appellant was indicted for two murders. An accomplice, Ernest Sewell, who had earlier pleaded guilty to a charge of second degree murder arisign out of the same incident, testified at trial that on January 23, 1970, appellant had stabbed two persons in a local bar with a kitchen knife about 12 inches long. Sewell then testified that appellant returned to his home where he washed the knife in the bathroom and put it away in the kitchen.

On January 30, 1970, pursuant to a search warrant listing a kitchen knife as one of the items to be seized, the police found a 12-inch knife in appellant's kitchen. At trial the medical examiner testified that the two victims' fatal wounds were caused by a knife with a seven to seven and one-half inch blade. However, he was unable to positively state that he knife found in appellant's kitchen was the murder weapon. Moreover, the accomplice, Sewell, was unable to identify the knife at trial as the one used by appellant. Appellant contends that because the knife was not positively linked to the crime it should not have been admitted into evidence.

However, positive testimony that the knife in question was actually the murder weapon is not required prior to introduction into evidence. United States v. Gordon, 455 F.2d 398 (8th Cir. 1972); United States v. Cunningham, 423 F.2d 1269 (4th Cir. 1970); United States v. Ramey, 414 F.2d 792 (5th Cir. 1969); Pinkney v. United States, 124 U.S.App.D.C. 209, 363 F.2d 696 (1966); Commonwealth v. Ross, 266 Pa. 580, 110 A. 327 (1920). If a proper foundation for admission of the evidence has been laid, as here, then admission into evidence is permissible. United States v. Gordon, supra 455 F.2d at 401--402; United States v. Cunningham, supra, 423 F.2d at 1276; Pinkney v. United States, supra, 363 F.2d at 698. The fact that the knife could not be positively identified affects the weight of such evidence, but not its admissibility. United States v. Gordon, supra; Commonwealth v. Ross, supra, 266 Pa. at 585, 110 A. at 329.

In United States v. Ramey, supra, 414 F.2d at 794 (quoting Banning v. United States, 130 F.2d 330, 335 (6th Cir. 1942)), the Fifth Circuit appropriately noted:

"Weapons, instruments and articles found in the possession of the accused at the time of his arrest, although not identified as those actually used, but similar thereto, or Which from the circumstance of the finding, justify an inference of the likelihood of their having been used, are admissible to show that the accused had them for the purpose of overcoming his victim or to show a design or plan, the carrying out of which required their use. (Emphasis added.)"

Moreover, the admission of such demonstrative evidence is a matter within the discretion of the trial judge, and absent an abuse of such discretion his decision must stand. See Commonwealth v. Dickerson, 406 Pa. 102, 176 A.2d 421 (1962); Commonwealth v. Novak, 395 Pa. 199, 150 A.2d 102 (1959). A proper foundation for admission having been laid, we can find no abuse of discretion in admitting the knife and the photograph of the knife into evidence.

Appellant's second contention is that the trial judge abused his discretion by keeping the jury in deliberation for eight days, despite repeated reports of a deadlock, and by arbitrarily limiting the periods of time during those eight days when they were permitted to deliberate. Rather than arguing that the length of deliberation caused a coerced verdict of guilty, appellant is arguing that the trial judge coerced the jury's verdict by continually Withdrawing from them their right to deliberate. We find this somewhat unique argument to be totally without merit. In Commonwealth v. Campbell, 445 Pa. 488, 495--496, 284 A.2d 798, 801 (1971), this Court noted that '(t)he length of the deliberation of a jury is wisely left to the sound discretion of the trial Judge, and we reverse only if we find a clear abuse of discretion, or that the verdict was the product of coercion or of an overworked and fatigued jury.' Here the trial judge, by reasonably limiting the time each day during which the jury was permitted to deliberate, was attempting to avoid just such an 'overworked and fatigued jury.' We cannot, and will not, disapprove of such judicial jury supervision. See American Bar Association Project on Minimum Standards for Criminal Justice, Standards Relating to Trial by Jury § 5.4 (Approved Draft, 1968).

Finally, appellant argues that the trial court abused its discretion by permitting the introduction into evidence over his objection of five allegedly prejudicial and inflammatory photographs. Two of the photographs showed the bodies of the two victims lying on the floor of the bar where they were stabbed, while the remaining three photographs showed scenes of the bar. Appellant contends that these photographs were irrelevant in a felony murder case, and that any evidentiary value they might have had was outweighed by the 'likelihood of inflaming the minds and passions of the jurors.' Commonwealth v. Powell, 428 Pa. 275, 279, 241 A.2d 119, 121 (1968).

In Powell this Court did find an abuse of discretion when potentially inflammatory photographs were introduced in a felony murder case. We emphasized there that 'we have a clear felony murder case where the force used and the nature and extent of the injuries involved have no bearing on a finding of first degree felony murder.' Powell, supra at 279, 241 A.2d at 121; see Commonwealth v. Robinson, 433 Pa. 88, 93, 249 A.2d 536, 539 (1969); Commonwealth v. Wilson, 431 Pa. 21, 31, 244 A.2d 734, 740 (1968). Indeed, if this were 'a clear felony murder case,' the Commonwealth would be hard pressed to find any justification for the admission of two close-up photographs of the murder victims showing stab wounds.

However, the Commonwealth's alternative theory of the case was non-felony first degree murder. On this theory these photographs were admissible to show the use of a deadly weapon on a vital part of the body in order to infer an intent to kill. See, e.g., Commonwealth v. Moore, 398 Pa. 198, 202--203, 157 A.2d 65, 68 (1959) and cases cited therein. Clearly though, the test of Powell is applicable to all homicide cases, and therefore we must determine whether the 'essential evidentiary value' of these photographs in this first degree murder case 'outweighs the likelihood of inflaming the minds and passions of the jurors.' Powell, supra at 278--279, 241 A.2d at 121. Applying this test here we find no abuse of discretion in admitting these photographs.

Judgment of sentence affirmed.

NIX, J., filed a dissenting opinion.

NIX, Justice (dissenting).

I cannot agree with the majority's conclusion that the kitchen knife, a picture thereof, and the series of inflammatory photographs were properly admitted into evidence. Accordingly, I must dissent.

I.

In justifying the introduction of the knife and the photograph depicting that knife, the majority refers to United States v. Ramey, 414 F.2d 792 (5th Cir. 1969). There the court properly pointed out that weapons, although not identified as the actual weapon used, are properly authenticated when they are found in the possession of the accused at the time of his arrest, or in the alternative, where circumstances surrounding the finding justify an inference of the likelihood that the weapon was in fact the one used in the perpetration of the crime. In the case before us, I do not believe that this test has been met. First, the knife was not found upon the person of the appellant and secondly, the testimony suggests not a similarity between the knife found and the knife used but rather clearly indicates that the knife introduced was not the weapon used to commit the crimes.

Had the testimony at trial been limited to a showing that after the commission of the alleged crimes the appellant was seen putting the knife away in his kitchen and that a subsequent search of the kitchen revealed a knife similar to the one described, I would agree that there was a sufficient basis for the introduction of the knife. Here, however, the very witness who observed the appellant putting away the knife unequivocally stated that this was not the weapon that he had referred to. The pertinent testimony of this witness, Ernest Sewell, is as follows:

'BY MR. CZAP (Assistant District Attorney):

Q. Mr. Sewell, you said the knife was about 12 inches long?

A. Yes.

Q. And you said it had a handle?

A. Yes, it did.

BY THE COURT:

q. What color handle did it have?

A. Brown.

BY MR. CZAP:

Q. I show you what have (s...