Commonwealth v. McCutchen

417 A.2d 1270, 274 Pa. Super. 96, 1979 Pa. Super. LEXIS 3478
CourtSuperior Court of Pennsylvania
DecidedDecember 28, 1979
DocketNo. 105 Special Transfer Docket
StatusPublished
Cited by7 cases

This text of 417 A.2d 1270 (Commonwealth v. McCutchen) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. McCutchen, 417 A.2d 1270, 274 Pa. Super. 96, 1979 Pa. Super. LEXIS 3478 (Pa. Ct. App. 1979).

Opinions

NIX, Justice:

Appellant Freddy McCutchen, who was fifteen years of age at the time of the crime, was twice convicted by a jury of murder in the first degree arising out of a homosexual [99]*99attack upon a six year old boy in Philadelphia.1 The Pennsylvania Supreme Court reversed the first conviction because the trial court erred in refusing to suppress McCutchen’s confession. Commonwealth v. McCutchen, 463 Pa. 90, 343 A.2d 696 (1975), cert. denied 424 U.S. 934, 96 S.Ct. 1147, 47 L.Ed.2d 341 (1976) (McCutchen I). McCutchen was subsequently retried and again found guilty of first degree murder. The present case is the direct appeal from McCutchen’s retrial. For the reasons set forth below, we are constrained to conclude that McCutchen was again denied his constitutionally guaranteed right to a fair trial, and therefore reverse the judgment of sentence and remand the case for a second retrial.

During the testimony of the medical examiner, the jury was shown two color slides of the victim’s body. In determining the admissibility of photographic evidence depicting a murder victim’s body, we are bound by the rules set forth by the Supreme Court in Commonwealth v. Chacko, 480 Pa. 504, 506, 391 A.2d 999, 1000 (1978) and its predecessors:

“Normally the general rule is that testimony is admissible if it is relevant and competent. This basic rule is equally applicable to the admission of photographs or other types of demonstrative evidence. . . . However, where the photograph possesses gruesome or inflammatory qualities likely to inflame the passions of the viewer, our cases require the application of the ‘essential evidentiary value’ balancing test.”

Therefore, our initial inquiry must determine whether the photographs in the instant case possess gruesome or inflammatory qualities likely to inflame the passions of the jury. Id., 480 Pa. at 507, 391 A.2d at 1000, quoting from Commonwealth v. Schroth, 479 Pa. 485, 489, 388 A.2d 1034, 1036 (1978).

[100]*100The first color slide presented the jury with a frontal view of the victim’s naked body from the hips upwards. The victim clearly has a large gaping deep gash on the top of his head exposing the blood-red interior of the skull; matted hair and scalp are pulled back from the wound. There is a large gash above the victim’s left eye from his forehead to his cheek. The interior of this gash is plainly visible and blood-red in color; the skin surrounding the gash is visibly bruised and discolored. The victim has severe red and brown bruises and lacerations of the entire right side of his face and torn skin is clearly visible. His mouth is swollen and discolored with lacerations surrounding it. The victim’s mouth is open showing that his teeth have been knocked out. His upper left arm and upper right chest are bruised and lacerated.

The second color slide was a close-up view of the victim’s anus in which the fingers of an assistant are pulling apart the victim’s buttocks to enable a clear view of the anal area. The victim’s anus is obviously torn and ripped open in four places and the outer walls of the anus are jagged pieces of flesh. The interior of the anus is darkly stained. The small stature of the victim is emphasized by comparison to the assistant’s fingers.

It is without doubt that these two color slides depicted an exceedingly gruesome and inflammatory subject matter. “Having found the [slides] to be inflammatory, we must next determine whether they were of essential evidentiary value to the prosecution’s case.” Commonwealth v. Chacko, 480 Pa. at 507, 891 A.2d at 1001. The Commonwealth justifies the use of these slides because they demonstrated the severity of the attack evidencing an intention to kill the victim. We believe that the use of these slides was not necessary to supplement the otherwise specific testimony of the medical examiner and other witnesses concerning the victim’s wounds. In our judgment, this evidence, without the usé of the color slides, was more than adequate to show the savagery and brutality of the assault and strongly supported an inference of a specific intent to kill.

[101]*101The testimony of the medical examiner culminated a series of witnesses who testified concerning the extent and nature of the victim’s wounds. Three police officers and a medical technician had described in detail the wounds, and had identified four color photographs of decedent’s wounds and one black and white photograph of the victim’s anal area.2 The medical examiner also described to the jury in graphic detail the battered and gruesome condition of the victim’s body. After all of this testimony, which is not the subject of this objection, the Commonwealth sought to introduce into evidence and show to the jury 30 color slides of the victim. In the course of an in-camera hearing concerning these slides, the medical examiner stated that the wounds were not beyond his power of description. The trial judge allowed two of these slides to be shown to the jury following a cautionary instruction to the jury.

We believe that this point is controlled by the reasoning of the Supreme Court in Commonwealth v. Scaramuzzino, 455 Pa. 378, 383, 317 A.2d 225, 227 (1974):

While we do not condemn the use of photographs to aid the fact-finder in understanding a witness’ testimony, Commonwealth v. Snyder, 408 Pa. 253, 256, 182 A.2d 495, 496 (1962), they should not be resorted to where the witness can clearly convey the facts to the jury without their use. These slides were simply cumulative to the pathologist’s testimony as to the cause, position, number and severity of the wounds. In [Commonwealth v. Powell, 428 Pa. 275, 241 A.2d 119 (1968)] we said “assuming the relevance of the photographs with respect to appellant’s intent to commit grievous bodily harm, nowhere is it illustrated to our satisfaction that the pathologist could not have adequately and effectively testified without the use of these photographs.” Commonwealth v. Powell, supra, 428 Pa. at 279, 241 A.2d at 121.

[102]*102The fact that cautionary instructions were given to the jury before the slides were shown to them, does not cure the prejudice or wipe away the taint created in the jurors’ minds by these slides. As the Supreme Court stated in Commonwealth v. Garrison, 459 Pa. 664, 669, 331 A.2d 186, 188 (1975):

[W]e cannot accept the Commonwealth’s argument that the cautionary instructions of the court relating to this evidence or the limitation placed upon the viewing time adequately assured against the prejudice created. It is unrealistic to believe, even after a limited view, that the horror engendered by these slides could ever be erased from the minds of the jurors or that its prejudicial effect could be avoided by cautionary instructions.

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Related

Com. v. McCutchen, F.
Superior Court of Pennsylvania, 2018
State v. Broberg
677 A.2d 602 (Court of Appeals of Maryland, 1996)
Commonwealth v. McCutchen
454 A.2d 547 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. Lauer
18 Pa. D. & C.3d 157 (Adams County Court of Common Pleas, 1981)

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Bluebook (online)
417 A.2d 1270, 274 Pa. Super. 96, 1979 Pa. Super. LEXIS 3478, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-mccutchen-pasuperct-1979.