Com. v. Krajci
| Decision Date | 09 January 1981 |
| Citation | 424 A.2d 914,283 Pa.Super. 488 |
| Parties | COMMONWEALTH of Pennsylvania v. Michael D. KRAJCI, Appellant. |
| Court | Pennsylvania Superior Court |
Malcolm W. Berkowitz, Philadelphia, for appellant.
Ellen Mattleman, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.
Before SPAETH, BROSKY and VAN der VOORT, JJ.
This is an appeal from judgments of sentence for robbery, criminal conspiracy, and possession of an instrument of crime.
On July 19, 1977, at approximately 9:30 a. m., Marcelo's Pharmacy in Philadelphia was robbed by two armed men. At least two hundred dollars was stolen, as well as quantities of dilaudid, percodan, desoxyn, quaalude, and valium. A principal issue at trial was whether appellant was one of the robbers.
Edmund Marcelo testified that appellant and one Daniel Cronin were the robbers. He also testified that several days after the robbery, he had identified appellant's photograph in a photo array, and that on August 17, 1977, he had identified appellant in a line-up. Marcelo said that during the robbery he was able to observe appellant for three minutes at a distance of three feet in good lighting while appellant was holding a gun on him, and that he remembered appellant's clothing and physical characteristics.
James Dunlevy, a postman, testified as follows. He walked into Marcelo's Pharmacy at the time of the robbery and was approached by Cronin, who pointed a silver revolver at his head and conducted him to the rear of the store, where he was forced to lie on the floor facing the wall. He remained in that position for five to six minutes until the robbery was over and the robbers had fled. During the robbery, Dunlevy saw only Cronin and one of Marcelo's children; he was therefore unable to identify appellant as one of the robbers. Several months after the robbery, Dunlevy identified Cronin's photograph and a photograph of the revolver used by Cronin.
No other eyewitnesses to the robbery testified. 1 Detective McNamee testified to the investigation that occurred immediately after the robbery. Detectives Henwood and Cashman testified to subsequent investigations that occurred, including their observation of appellant on the evening of the robbery wearing a full beard and mustache, and the search of appellant's residence on July 21, 1977, which search uncovered no incriminating evidence. Detective Caruso testified that on August 5, 1977, appellant was arrested when he went to a hospital in Bucks County to fill a drug prescription, and that when arrested, appellant was clean-shaven. Detective Margulis testified to the circumstances surrounding Marcelo's line-up identification of appellant.
Of appellant's numerous arguments in support of a new trial, we need address but one. 2
During his cross-examination of James Dunlevy, the postman who walked into the pharmacy at the time of the robbery, appellant's counsel asked that the photograph of Cronin's revolver, which Dunlevy had been shown after the robbery, be produced. The district attorney said that the photograph was not in his possession, but the court stated that it should be produced. The next day the district attorney called to the stand Officer Loub of the Collingswood, New Jersey, Police Department. Over appellant's objection, the officer was permitted to testify as follows. On November 5, 1977, he stopped a motorist, who was later identified as Cronin, because his car was carrying an invalid inspection sticker. Cronin was the only person in the car. When asked for identification, Cronin produced a Pennsylvania operator's license and a New Jersey car registration, both in the name of Richard Noble. Loub then asked for additional identification, explaining to Cronin that he wished to run a check to learn if Richard Noble had a revoked New Jersey operator's license. When Cronin began to reach into a gym bag that was inside the car, Loub told him to remove his hand from the bag and to face him. Cronin, however, continued to look over his shoulder to see Loub's position. Loub became alarmed and placed his hand on Cronin's back, saying, "Take your hands out of the bag." Cronin said he was getting his identification, but when he turned he had a metal object in his hand. Loub grabbed Cronin's wrist, but Cronin broke the wrist free and held the object, which Loub now recognized as a gun, in Loub's face. Loub quickly snapped Cronin's hand against the roof of the car and hit Cronin on the head with a flashlight. Cronin and Loub then wrestled, each trying to overpower the other. Eventually, Loub was able to reach his own gun, and placed it against Cronin's head. Loub warned Cronin to drop his gun, but Cronin continued fighting, slapping the gun from his head. Loub shot twice. One bullet struck Cronin's neck, the second his head. When Cronin fell, he was dead.
Following this recitation, Officer Loub was asked by the district attorney to identify certain photographs that had been taken in connection with the shooting of Cronin. The first photograph showed Cronin lying on the pavement beside a car. A dark stream of what appeared to be blood was flowing from his head, and a gun lay nearby. The second photograph focused on the gun lying beside Cronin's body. The third photograph, which apparently was taken at a different time and place than the shooting, showed Cronin's gun on a table next to a ruler. The fourth photograph, the only one in color, portrayed Cronin's face and torso after the shooting; partially dried blood appeared on Cronin's forehead, neck, and right nostril. 3
After appellant's counsel had cross-examined Officer Loub, the Commonwealth recalled Dunlevy. Dunlevy identified the gun depicted in the third photograph as lying beside a ruler as the gun that Cronin had used in the robbery. He also identified the color photograph of Cronin. All four photographs were shown to the jury, although they did not go out with the jury during its deliberations. N.T. 1/26/78 at 91, 97-98. 3a
As mentioned, Officer Loub testified over appellant's counsel's objection; the only part of the testimony to which counsel did not object was when Loub stated that on November 15, 1977, he apprehended Cronin in New Jersey, and as a result recovered a gun that was photographed, which photograph was being offered as a Commonwealth exhibit. E. g., N.T. 1/25/78 at 28-29, 32-34, 47, 49. Counsel also objected to the introduction of the three photographs taken at the scene, i. e., the photograph of Cronin lying by the car, the photograph focusing on the gun beside Cronin's body, and the photograph of Cronin's face and torso, on the ground that they were irrelevant and inflammatory. E. g., N.T. 1/25/78 at 40.
In determining whether the lower court erred in allowing Officer Loub to testify to the circumstances of Cronin's apprehension and death, and admitting into evidence the photographs connected with Loub's testimony, we begin with the general rule that the admission and exclusion of evidence is a matter within the discretion of the trial judge. E. g., Commonwealth v. Hart, 479 Pa. 84, 387 A.2d 845 (1978); Commonwealth v. Scott, 469 Pa. 258, 368 A.2d 140 (1976); Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979). That discretion, however, may be abused, and abuse may be found if it appears that the judge admitted irrelevant evidence that was prejudicial to the accused, e. g., Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978); Commonwealth v. Hickman, 453 Pa. 427, 309 A.2d 564 (1973), or evidence the probative value of which was outweighed by its prejudicial impact. E. g., Commonwealth v. Schroth, 479 Pa. 485, 388 A.2d 1034 (1978); Commonwealth v. Ulatowski, 472 Pa. 53, 371 A.2d 186 (1977); Commonwealth v. Bighum, 452 Pa. 554, 307 A.2d 255 (1973); Commonwealth v. Kramer, 247 Pa.Super. 1, 371 A.2d 1008 (1977); McCormick, Evidence § 185 (Cleary ed. 1972). First, therefore, we must appraise the relevance of Loub's testimony and the photographs, and then we must weigh that relevance against their prejudicial impact.
Evidence is relevant if it tends to make more or less probable the existence of some fact material to the case. Commonwealth v. Hickman, supra at 433, 309 A.2d at 567. See also Commonwealth v. Story, supra at 398, 383 A.2d at 158, quoting McCormick, Evidence § 185 at 438 (Cleary ed. 1972) ("Relevant evidence then, is evidence that in some degree advances the inquiry, and thus has probative value, and is prima facie admissible"). In the present case, the principal issue in dispute was not whether Marcelo's Pharmacy was robbed on July 19, 1977, by two armed men, but whether appellant was one of the robbers. It will be recalled that Edmund Marcelo was the only person to identify appellant as one of the robbers. Since James Dunlevy could identify only Cronin as one of the robbers, his testimony could be relevant to the issue of appellant's identity only to the extent that it supported, or contradicted, Marcelo's testimony. In certain respects, Dunlevy's testimony plainly did support Marcelo's, in particular, the testimony that Marcelo's Pharmacy had indeed been robbed on July 19, and that the robber Dunlevy observed (Cronin) was armed. Dunlevy's testimony that several months after the robbery he was shown a photograph of a gun that he recognized as having been used by Cronin in the robbery, together with the introduction of the photograph, was relevant only by way of illustrating Dunlevy's earlier testimony, thereby giving the jury a better understanding of the kind of gun Cronin possessed. Loub's testimony that on November 5, 1977, he apprehended Cronin and recovered a gun that was subsequently photographed was relevant to establish a foundation for the photograph identified by Dunlevy. This testimony also tended to corroborate Dunlevy's identification of Cronin as a robber since it placed in Cronin's possession the gun used in the robbery. Thus, up to this point it may...
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