Com. v. Hilton
Decision Date | 18 March 1975 |
Citation | 461 Pa. 93,334 A.2d 648 |
Parties | COMMONWEALTH of Pennsylvania v. Barry HILTON, Appellant. |
Court | Pennsylvania Supreme Court |
F. Emmett Fitzpatrick, Jr., Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., John H. Isom, Asst. Dist. Atty., Abraham J. Gafni, Deputy Dist. Atty. for Law, Philadelphia, for appellee.
Before JONES, C.J., and EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
Appellant Barry Hilton was convicted, after trial before a jury, of voluntary manslaughter for the shooting death of John Aikens. Following denial of post-trial motions, 1 this appeal ensued. 2 We affirm.
The facts of this case are ably summarized in the opinion of the trial court denying appellant's post-trial motions:
to serve a drink to Mr. Taylor. Despite the requests of Mr. Jenkins, the decedent, Aikens, and Mr. Taylor refused to leave and the defendant was awakened and asked to come downstairs to eject them, which he did.
Decedent was struck in the right side of the head and died instantly.
Two of the issues appellant raises here have not been preserved for appellee review. First, he argues that the trial court erred in refusing two of appellant's requested jury instructions on self-defense and defense of others. Following the court's refusal, this exchange occurred:
After the court's instructions to the jury, defense counsel stated: 'I have no objections or additions or modifications that I request in the charge.' Appellant's counsel apparently found the court's instructions unobjectionable in spite of the refusal of his requested instructions. Any objections to the charge have been waived, and any errors therein may not be raised on appeal. See Pa.R.Crim.P. 1119(b); Commonwealth v. Johnson, 457 Pa. 554, --- n. 8, 327 A.2d 632, 637 n. 8 (1974); Commonwealth v. Martinolich, 456 Pa. 136, 150 n. 10, 318 A.2d 680, 688 n. 10, cert. denied, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974); Commonwealth v. Watlington, 452 Pa. 524, 306 A.2d 892 (1973); see also Commonwealth v. Clair, --- Pa. ---, 326 A.2d 272 (1974).
Second, appellant argues that he was deprived of a fair trial by prejudicial remarks concerning appellant's use of narcotics made by the prosecutor in his closing argument to the jury. This issue has also not been preserved for review. Immediately before the jury retired to deliberate, appellant's counsel stated:
'I have wanted to enter an objection to the argument of the District Attorney, and I'll reserve that objection until the verdict . . ..
'The Court: Okay.'
This objection was equivalent to no objection at all. The purpose of requiring objection to improper argument prior to the beginning of the jury's deliberations is to bring the error to the attention of the trial court so that the court may attempt to cure it. See Commonwealth v. Sampson, 454 Pa. 215, 220, 311 A.2d 624, 627 (1973); cf. Commonwealth v. Riley, --- Pa. ---, ---, 326 A.2d 400, 402--03 (1974) (opinion of three Justices). Here, while counsel raised the issue in a timely fashion, he in effect invited the court to abstain from attempting a cure by curative instructions or otherwise. Failure to seek any remedy for whatever prejudice may have resulted from the remarks constitutes a waiver, and appellant may not now urge that prejudice as grounds for awarding him a new trial. Commonwealth v. Sampson, supra; see also Commonwealth v. Clair, supra.
Appellant's only properly preserved argument is that the trial court erred in admitting into evidence a photograph that appellant claims is prejudicial and inflammatory. We disagree.
The photograph depicts the body of John Aikens lying on the sidewalk as he was found by the police. It is an 8 by 10 black-and-white photograph taken some distance from the body. Neither the wound nor the face of the deceased is visible, and he is fully clothed. The only possible inflammatory element is a very small dark area around the deceased's head; that area is a puddle of blood, although not obviously so.
In determining the admissibility of potentially inflammatory photographs, the trial court must apply a balancing test of "'whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors."' Commonwealth v. Garrison, --- Pa. ---, ---, 331 A.2d 186, 187 (1975).
In this case, the "'likelihood of inflaming the minds and passions of the jurors"' is exceedingly slight. Compare Commonwealth v. Garrison, supra, at ---, 331 A.2d at 187. The photograph did serve an essential evidentiary purpose. Appellant contended at trial that he fired his gun to protect his family from imminent attack by Aikens who, appellant testified, was poised to enter or throw some object through a first-floor window. The photograph persuasively tends to rebut that contention. The Commonwealth's medical witness testified that the gunshot wound killed Aikens instantly and he fell at practically the exact point where he was standing. The photograph, in conjunction with other photographs, establishes that the deceased was a considerable distance from appellant's home and moving away from it when shot.
We conclude that the trial court correctly determined that the evidentiary value of the photograph clearly outweighed its inflammatory potential.
Judgment of sentence affirmed.
I agree that in admitting the photograph of the deceased victim into evidence the trial court was not in error. I am unable to accept, however, that the standard against which such evidence is to be tested has been accurately articulated in the opinion announcing the decision of the Court.
We have repeatedly held that whether a photograph of a corpse is to be admitted into evidence in a homicide case is a matter within the discretion of the trial court. Only an abuse of that discretion justifies reversal by this Court. Commonwealth v. Woods, 454 Pa. 250, 311 A.2d 582 (1973); Commonwealth v. Chasten, 443 Pa. 29, 275 A.2d 305 (1971); Commonwealth v. Robinson, 433 Pa. 88, 249 A.2d 536 (1969); Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968); Commonwealth v. Peyton, 360 Pa. 441, 62 A.2d 37 (1948). A photograph of a corpse is not inflammatory Per se....
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Com. v. Hubbard
...of inflaming the minds and passions of the jurors. '"" Commonwealth v. Hilton, 461 Pa. 93 at 99, 334 A.2d 648 at 652 (1975) (concurring opinion of Pomeroy, J., joined by Jones, C.J. and Eagen, O'Brien, and Nix, JJ.) (footnote The fact that pictures depict the corpse of a victim does not ren......
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Commonwealth v. Hubbard
... ... likelihood of inflaming the minds and passions of the jurors ... '"" Commonwealth v. Hilton, 461 Pa. 93 ... at 99, 334 A.2d 648 at 652 (1975) (concurring opinion of ... Pomeroy, J., joined by Jones, C.J. and Eagen, O'Brien, ... and Nix, ... ...
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Com. v. Yost
...explicitly rejected. See, 459 Pa. at 522, 329 A.2d 844. See also, Commonwealth v. Hilton, 461 Pa. 93, 101, 334 A.2d 648, 650 (1975) (Pomeroy, J., concurring, joined by Jones, C. J., and Eagen, O'Brien, and Nix, JJ.). In the instant case the conclusion is inescapable that the photograph whic......