Commonwealth v. Claitt

• Decision Date: 26 November 1973
• Citation: 311 A.2d 922,454 Pa. 313
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Gerald J. CLAITT, Appellant.
• Court: Pennsylvania Supreme Court

311 A.2d 922

454 Pa. 313

COMMONWEALTH of Pennsylvania, Appellee, v. Gerald J. CLAITT, Appellant.

Supreme Court of Pennsylvania.

November 26, 1973.

Joseph N. Bongiovanni, III, Philadelphia, for appellant.

Arlan Specter, Dist. Atty., Richard A. Sprague, 1st Asst. Dist. Atty., Milton M. Stein, Asst. Dist. Atty., Chief Appeals Div., N. E. Gelman, Philadelphia, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

O'BRIEN Justice.

Ellis Bogen a druggist, was shot and killed during a robbery of his drug store at 2601 West Columbia Avenue, Philadelphia, on December 18, 1969. Appellant, Gerald J. Claitt, was arrested and brought to trial for his participation in this murder and he was convicted by a jury of burglary, robbery and murder in the first degree. Posttrial motions were denied and appellant was sentenced to life imprisonment. This appeal followed.

The testimony at appellant's trial revealed the following facts Appellant, armed with a .22 caliber revolver, entered the drug store first, followed by one Howard Kennedy, who was armed with a sawed-off shotgun. During the course of the robbery, Bogen was shot by Kennedy. The two men were seen fleeing from the store by a fifteen-year-old girl who worked at a dress shop in the vicinity. Appellant was also identified by William Levin, an employee of the drug store, who viewed appellant for some five to ten minutes during the crime.

An accomplice, Ricky Collins, who was present at the planning of the robbery and who played an active part in the robbery, testified as to appellant's participation in the robbery-murder. In addition, appellant gave the police a formal written statement in which he admitted his participation in the crime. Appellant had sought to suppress this statement and the oral statement that preceded it, but appellant's motion to suppress was denied after a pretrial hearing.

Appellant's first allegation of error concerns what he alleges to be the prosecuting attorney's improper reference to the oral statement which appellant contends was, in fact, suppressed at the pretrial hearing. However, our examination of the record indicates that, although the court originally indicated an intention to suppress the oral statement, while admitting the written statement, he actually held the entire matter under advisement until he ultimately concluded, after both sides had submitted briefs, that both the oral statement and the written statement were admissible. Since appellant does not contest the correctness of the suppression court's decision that the written statement was admissible, and since, despite the contentions of appellant, either both statements were admissible or both statements were inadmissible (see Harrison v. United States, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968)), we can find no merit in appellant's allegation of error.

Appellant's next allegation of error concerns the Commonwealth's use of a certain photograph in its cross-examination of Johnny Lee Sanders, who was called by the defense as an alibi witness. Sanders had been in the apartment of one Sandra Hightower from which the five robbers left and to which they returned. Sanders testified that appellant was in his presence while he was playing cards and that appellant never left the apartment during the time of the robbery and the killing of Ellis Bogen. When the five who were ultimately thought to be involved were first rounded up with others and taken to the Police Administration Building for questioning, the police took polaroid snapshots of all of them. This was a necessary procedure because so many members of the gang were known only by their nicknames that, when talking with a fellow gang member, the police could not be sure of the correct name of the person to whom the member was referring. The assistant district attorney had nineteen of these photographs marked for identification and used some of them in her cross-examination at trial.

At the time of the original arrests, Sanders had told the police that he had heard a certain five men planning the robbery. One of these men Sanders had identified as a man named 'Kadah' and he had identified photograph C-56 as a photograph of 'Kadah.' At appellant's trial, when shown the same photograph on cross-examination, Sanders admitted that the photograph was of appellant, but claimed that appellant was not the man known as 'Kadah.'

Appellant argues that Sanders' identification of the photograph was constitutionally infirm under United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967), and Commonwealth v. Whiting, 439 Pa. 205, 266 A.2d 738 (1970), and that it was error to permit the Commonwealth to refer to this identification in its cross-examination of Sanders. However, in our opinion, the cases upon which appellant relies are inapplicable. Sanders was not asked originally to choose which photograph of a group of photographs shown to him depicted a man whom he had heard helping to plan the crime. Instead, he was asked to provide the names by which the men, depicted in the polaroid photographs taken previously, were known to him. When the photograph was again shown to Sanders on cross-examination, it was to test his credibility. It was for the jury to determine whether C-56 was the same photograph which Sanders had previously identified as 'Kadah' and now acknowledged to be appellant but not 'Kadah.' The use of the photograph in this way did not violate the constitutional rights of appellant.

Appellant next argues that the trial court erred in allowing a photograph of the deceased to be entered into evidence, and to be used by the jury in their deliberations. As we have said many times, the admission of photographs is left to the discretion of the trial judge and will not be reversed unless he abuses that discretion. See Commonwealth v. Wilson, 431 Pa. 21, 244 A.2d 734 (1968). In the facts of the instant case, we find no abuse of discretion. The photographs of the deceased merely showed the deceased with a sheet covering all but his head. The picture was neither gruesome nor gory so as to inflame the prejudice of the jurors. While the jury may have had little need of the...