Commonwealth v. Cash, O., Aplt.

Opinion

[J-27-2016] [MO: Todd, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 700 CAP : Appellee : Appeal from the Judgment of Sentence : entered on 11/15/2013 in the Court of : Common Pleas, Philadelphia County, v. : Criminal Division at No. CP-51-CR- : 0000573-2009. : OMAR SHARIF CASH, : SUBMITTED: September 9, 2015 : RESUBMITTED: January 20, 2016 Appellant :

CONCURRING OPINION

JUSTICE WECHT DECIDED: MAY 25, 2016 I join the learned Majority’s opinion in full. In light of today’s precedent and our

previous decision in Commonwealth v. Jordan, 65 A.3d 318, 329 (Pa. 2013), I elaborate

briefly here upon how trial courts should handle slow motion video evidence.

Today’s Majority concludes correctly that the slow motion video showing Cash’s

actions was relevant and admissible. The Majority properly determines that any

prejudicial impact that arose from slowing the video down was outweighed by the

evidence’s probative value. This latter conclusion rests upon the following three points:

(1) the jury also saw the video at normal speed; (2) the slow motion video clearly was

marked as such; and (3) the trial court specifically instructed the jurors to avoid letting

the reduction in video speed inflame their passions. See Maj. Op. at 22. I agree with

these three points. Further, I note that the slow motion video in this case is no more

graphic than the video when played at normal speed. The slow motion video here depicts nothing gruesome or shocking that the jurors did not see when they viewed the

video at its real pace. Cash’s claim under Pa.R.E. 403 is entirely unsuccessful.

As a general matter, trial courts must recognize that the probative benefits of

frame-by-frame or reduced speed video can be accompanied by patent risks. Such

videos may, in a given case, accentuate images and depictions that, by their very

nature, are so disturbing as to impart unfair prejudice that outweighs the video’s

probative value. As one Pennsylvania court noted, “[i]n a sense, all slow motion and

freeze frame video distorts reality. It distorts it in the same way that magnification of a

photograph distorts reality. Such distortion may enhance the jury’s understanding or it

may do the opposite.” Commonwealth v. Hindi, 631 A.2d 1341, 1345 (Pa. Super.

1993). Of course, this does not render slow motion videos inadmissible per se, nor do

our decisions in this case and in Jordan mean that such videos are admissible in all

cases. In short, admissibility of slow motion video requires calibrated and individualized

decision-making by our trial courts rather than blanket rules of prohibition or admission.

Trial courts must carefully ascertain and weigh both the prejudicial impact and

the probative value of slow motion videography in each instance pursuant to Rule 403.

In doing so, courts must scrupulously and contextually assess, within the particular facts

and circumstances of the case, whether decreasing the speed of a video significantly

enhances the violent and graphic depiction of the crime to the point at which the video

becomes unfairly prejudicial, outweighing the evidence’s probative value and

threatening the fairness of the trial.

[J-27-2016] [MO: Todd, J.] - 2