Commonwealth v. Powell, 241 A.2d 119 (Pa. 1968). · Go Syfert
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Commonwealth v. Powell, 241 A.2d 119 (Pa. 1968). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case, last quoted 1977 · …a clear felony murder case where the force used and the nature and extent of the injuries have no bearing in a finding of . . . felony murder. at p. 121 ≈ altered
322 citation events (19 in the last 25 years) across 7 distinct courts.
Strongest positive: Commonwealth v. Martinez (pa, 1977-12-01)
Treatment trajectory · 1968 → 2026 · click a year to view as-of
1968 1997 2026
Top citers, strongest first. 30 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) Commonwealth v. Martinez (8×) also: Cited as authority (rule), Cited "see, e.g."
Pa. · 1977 · signal: see also · quote attribution · 2 verbatim quotes · confidence high
a clear felony murder case where the force used and the nature and extent of the injuries have no bearing in a finding of . . . felony murder.
discussed Cited as authority (rule) Com. v. Mitchell, A.
Pa. Super. Ct. · 2014 · confidence medium
See Mitchell’s Brief at 19-20 (citing Commonwealth v. Eckhart, 242 A.2d 271, 274 (Pa. 1968) (granting a new trial based on the trial court’s admission of a photograph of the murder victim’s skull, which included her “gruesome scalp and bloody web of tangled hair,” which were irrelevant and could easily have been excised from the picture); Commonwealth v. Powell, 241 A.2d 119, 121 (Pa. 1968) (granting a new trial based on the trial court’s admission of color photographs of the victim’s autopsy, as “[w]hatever aid these photographs may have been, their use was clearly outweighed …
cited Cited as authority (rule) Commonwealth v. Derby
pactcomplyork · 1994 · confidence medium
Commonwealth v. Powell, 428 Pa. 275, 278-279 , 241 A.2d 119, 121 (1968).
cited Cited as authority (rule) Commonwealth v. Fox
pactcompldauphi · 1984 · confidence medium
Commonwealth v. Powell, 428 Pa. 275, 278-279 , 241 A.2d 119, 121 (1968).
cited Cited as authority (rule) Commonwealth v. Smith
Pa. Super. Ct. · 1983 · confidence medium
Commonwealth v. Powell, 428 Pa. 275, 278-279 , 241 A.2d 119, 121 (1968).
cited Cited as authority (rule) Commonwealth v. Stetler
Pa. · 1981 · confidence medium
See, e. g., Commonwealth v. Petrakovich, 459 Pa. 511, 521 , 329 A.2d 844, 849 (1974); Commonwealth v. Powell, 428 Pa. 275, 278-79 , 241 A.2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Robinson
Pa. Super. Ct. · 1979 · confidence medium
Where the trial judge in a homicide case is confronted with the question of the admissibility of gruesome or inflammatory photographs, 3 the test he must apply is “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. Powell, 428 Pa. 275, 278-79 , 241 A.2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Batty (2×)
Pa. · 1978 · confidence medium
If, but only if, the photograph is deemed to be inflammatory, the Court must then apply the balancing test . . . i. e., is the photograph of ‘such essential evidentiary value that [its] need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.’ ” [Emphasis supplied.] Commonwealth v. Hilton, 461 Pa. 93, 100 , 334 A.2d 648, 652 (1975) (concurring opinion of Mr. Justice Pomeroy, joined by Mr. Chief Justice Jones and Mr. Justice (now Chief Justice) Eagen, Mr. Justice O’Brien and Mr. Justice Nix), quoting Commonwealth v. Powell, 428 Pa. 275, 278-79 , 241 A.2d …
discussed Cited as authority (rule) Commonwealth v. Yost (2×)
Pa. · 1978 · confidence medium
In making this statement the majority seems to overlook the fact that the Petrakovich test consists of two steps, viz., determining whether a photograph proffered as an exhibit is inflammatory or not, and, if it is, proceeding to determine whether it has such evidentiary value that its “need clearly outweighs the likelihood of inflaming the minds and passions of the jury.” Petrakovich, supra, 459 Pa. at 521 , 329 A.2d at 852 , quoting Commonwealth v. Powell, 428 Pa. 275, 279 , 241 A.2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Liddick (2×)
Pa. · 1977 · confidence medium
See Hilton, supra; Commonwealth v. Scaramuzzino, 455 Pa. 378, 383 , 317 A.2d 225, 227 (1974); Commonwealth v. Powell, 428 Pa. 275, 279 , 241 A.2d 119, 121 (1968).
examined Cited as authority (rule) Commonwealth v. Sullivan (4×)
Pa. · 1977 · confidence medium
Commonwealth v. Powell, 428 Pa. 275, 278-79 , 241 A.2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Gonzales
Pa. · 1975 · confidence medium
Commonwealth v. Garrison, supra, 459 Pa. at 667-668 , 331 A.2d at 187 ; Commonwealth v. Scaramuzzino, 455 Pa. 378, 381 , 317 A.2d 225, 226 (1974); Commonwealth v. Powell, 428 Pa. 275, 278-79 , 241 A.2d 119, 121 (1968); see also Commonwealth v. Irwin, 460 Pa. 296 , 333 A.2d 735 (1975); Commonwealth v. Petrakovich, 459 Pa. 511 , 329 A.2d 844 (1975).
discussed Cited as authority (rule) Commonwealth v. Garrison
Pa. · 1975 · confidence medium
Commonwealth v. Woods, 454 Pa. 250, 252 , 311 A.2d 582, 583 (1973), citing Commonwealth v. Dickerson, 406 Pa. 102 , 176 A.2d 421 (1962). “ ‘The proper test to be applied by the trial court in determining the admissibility of photographs in homicide cases is 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. Powell, 428 Pa. 275, 278-279 , 241 A.2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Scaramuzzino
Pa. · 1974 · confidence medium
“The proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases is 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. Powell, 428 Pa. 275, 278-79 , 241 A. 2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Yount
Pa. · 1974 · confidence medium
It is well-settled law in this Commonwealth that “the admission of photographs exhibiting the body of a deceased in homicide cases is primarily within the discretion of the trial judge. . . .” Commonwealth v. Powell, 428 Pa. 275, 278 , 241 A.2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Woods
Pa. · 1973 · confidence medium
See also Commonwealth v. Smalls, 449 Pa. 15 , 295 A. 2d 298 (1972); Commonwealth v. Sullivan, 446 Pa. 419 , 286 A. 2d 898 (1971) (opinion in support of affirmance), Comm onwealth v. Chasten, 443 Pa. 29 , 275 A. 2d 305 (1971); Commonwealth v. Wilson, 431 Pa. 21 , 244 A. 2d 734 (1968), cert. denied, 393 U. S. 1102 (1969). “[T]he proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases is whether or not the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions o…
examined Cited as authority (rule) Commonwealth v. Ford (4×)
Pa. · 1973 · confidence medium
Appellant contends that these photographs were irrelevant in a felony murder case, and that any evidentiary value they might have had was outweighed by the “likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. Powell, 428 Pa. 275, 279 , 241 A. 2d 119, 121 (1968).
discussed Cited as authority (rule) Commonwealth v. Biebighauser (2×)
Pa. · 1973 · confidence medium
Unless there is a flagrant abuse of discretion, this Court has been loath to con- elude that reversible error exists.” Commonwealth v. Powell, 428 Pa. 275, 278 , 241 A. 2d 119, 121 (1968), and the cases cited therein.
cited Cited as authority (rule) Commonwealth v. Powell
Pa. · 1972 · confidence medium
As this Court noted in Commonwealth v. Powell, 428 Pa. 275, 277-78 , 241 A. 2d 119, 120 (1968), proof *129 beyond a reasonable doubt can be established by circumstantial evidence.
discussed Cited as authority (rule) Commonwealth v. Catanzarite
Pa. Super. Ct. · 1971 · confidence medium
The test for the xise of photographs is whether they “are of such essential evidentiary value that their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors.” Commonwealth v. Powell, 428 Pa. 275, 278-279 , 241 A. 2d 119, 121 (1968).
discussed Cited "see" Commonwealth v. Ballard (2×)
Pa. · 2013 · signal: see · confidence high
See Appellant’s Brief at 27 (citing Commonwealth v. Chacko, 480 Pa. 504 , 391 A.2d 999, 1000 (1978) (black and white photographs may still be inflammatory), and Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 , 121 & n. 1 (1968) (photographs still deemed prejudicial despite cautionary instruction because nature and extent of injuries had no bearing on finding of felony murder)).
discussed Cited "see" Commonwealth v. Johnson (2×)
Pa. · 1980 · signal: see · confidence high
See Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968); Commonwealth v. Petrakovich, 459 Pa. 511 , 329 A.2d 844 (1974).
discussed Cited "see" Commonwealth v. Butler (2×)
Pa. Super. Ct. · 1979 · signal: see · confidence high
See Com. v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968).
discussed Cited "see" Commonwealth v. Brueckner (2×)
Pa. · 1974 · signal: see · confidence high
See Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968).
discussed Cited "see" Commonwealth v. Wright (2×)
Pa. Super. Ct. · 1974 · signal: see · confidence high
Commonwealth v. Bartlett, 446 Pa. 392 , 288 A.2d 796 (1972); Commonwealth v. Fennell, 444 Pa. 1 , 278 A.2d 884 (1971); see Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968); Commonwealth v. Novak, 395 Pa. 199 , 150 A.2d 102 , cert. denied, 361 U.S. 882 (1959).
cited Cited "see" People v. Turner
Mich. Ct. App. · 1969 · signal: see · confidence high
See Commonwealth v. Powell, supra; People v. Lefler, supra; State v. Poe (1968), 21 Utah 2d 113 ( 441 P2d 512 ); McKee v. State (1947), 33 Ala App 171 (31 So 2d 656).
discussed Cited "see, e.g." Commonwealth v. Woodard, A., Aplt. (2×)
Pa. · 2015 · signal: compare · confidence low
Compare, e.g., Commonwealth v. Wade, 480 Pa. 160, 172 , 389 A.2d 560, 566 (1978) (rejecting a challenge to the admission of photographs of a child-victim's body), with Commonwealth v. Powell, 428 Pa. 275 , 279 & n. 1, 241 A.2d 119 , 121 & n. 1 (1968) (alluding to the “emotional impact” that photographs of a deceased victim’s body "would undoubtedly have on the jury,” to a degree that limiting instructions were insufficient to alleviate the prejudice).
discussed Cited "see, e.g." Commonwealth v. Woodard, A., Aplt. (2×)
Pa. · 2015 · signal: compare · confidence low
Compare, e.g., Commonwealth v. Wade, 480 Pa. 160, 172 , 389 A.2d 560, 566 (1978) (rejecting a challenge to the admission of photographs of a child-victim’s body), with Commonwealth v. Powell, 428 Pa. 275 , 279 & n.1, 241 A.2d 119 , 121 & n.1 (1968) (alluding to the “emotional impact” that photographs of a deceased victim’s body “would undoubtedly have on the jury,” to a degree that limiting instructions were insufficient to alleviate the prejudice).
examined Cited "see, e.g." Commonwealth v. Smith (4×)
Pa. · 1978 · signal: see also · confidence low
See also Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968).
examined Cited "see, e.g." Commonwealth v. Gaddy (4×)
Pa. · 1976 · signal: see, e.g. · confidence low
See, e.g., Commonwealth v. Powell, 428 Pa. 275 , 241 A.2d 119 (1968); Shepard v. United States, 290 U.S. 96, 104 , 54 S.Ct. 22, 25-26 , 78 L.Ed. 196 (1933); Smith v. Spina, 477 F.2d 1140, 1146 (3d Cir. 1973); Bowers v. Garfield, 382 F.Supp. 503, 510 (E.D.Pa.) aff'd, 503 F.2d 1398 (1974).
Retrieving the full opinion text from the archive…
Commonwealth
v.
Powell, Appellant
Appeals, 374 and 423.
Supreme Court of Pennsylvania.
Jan 3, 1968.
241 A.2d 119
Arthur F. Earley, for appellant., Michael M. Baylson, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Bell, Musmanno, Jones, Cohen, Eagen, O'Brien, Roberts, Koberts.
Cited by 101 opinions  |  Published

Opinion by

Me. Justice Cohen,

Appellant was convicted of murder in the first degree, aggravated robbery and aggravated assault and battery. The jury imposed the penalty at life imprisonment on the murder conviction. This appeal is from the denial of appellant’s post-trial motions for an arrest of judgment or the grant of a new trial.

The evidence as presented by the Commonwealth established that the deceased and her sister were assaulted and robbed as they were approaching the entrance to their apartment. As a result of multiple injuries to the head inflicted by the person committing the assault, the deceased died early that evening.

The evidence linking appellant to the crime consisted of the testimony of a friend of appellant’s brother that he was with appellant on the day of the assault. He further testified that appellant kept talking, rubbing his hands and looking down the street. Appellant then told the Commonwealth’s witness “he was going to get these ladies’ pocketbook.” The witness then stated he immediately looked down the street and saw two women on the left-hand side of the street. He testified that they were the only women in sight, and that the sister of the deceased, who was in court on the day of his testimony, was one of the women. The witness said he did not see the attack but approximately five minutes after his conversation had ended with appellant, he heard the sister of the deceased screaming, “murder, thief, murder, thief.”

Appellant contends that he is entitled to an arrest of judgment. We disagree. The only question for our determination is whether there was sufficient circumstantial evidence of appellant’s guilt beyond a reason[*278] able doubt. Commonwealth v. Gooslin, 410 Pa. 285, 189 A. 2d 157 (1963); Commonwealth v. Kravitz, 400 Pa. 198, 161 A. 2d 861 (1960).

We believe the testimony revealing the manner and thoughts of appellant only a short time prior to the commission of the crime and what transpired shortly thereafter was sufficient circumstantial evidence to convict appellant. On this basis appellant is not entitled to an arrest of judgment.

However, appellant alleges another ground in support of his motion for a new trial. He vigorously contends that the trial judge erred in admitting in evidence certain color photographs of the victim of the assault. We agree.

During the course of the trial, the Commonwealth called a pathologist to testify as to his findings with respect to a post mortem examination he performed on the deceased. The pathologist was then permitted to exhibit and use color-slide films of the deceased in an effort to help the jury understand his medical testimony. Counsel for appellant strenuously objected on the ground that the photographs were gruesome and could only serve to inflame the minds and arouse the sympathy of the jurors.

Our Court has frequently held that the admission of photographs exhibiting the body of a deceased in homicide cases is primarily within the discretion of the trial judge. Unless there is a flagrant abuse of discretion, this Court has been loath to conclude that reversible error exists. Commonwealth v. Dickerson, 406 Pa. 102, 176 A. 2d 421 (1962) ; Commonwealth v. Novak, 395 Pa. 199, 150 A. 2d 102 (1959); and Commonwealth v. Peyton, 360 Pa. 441, 450, 62 A. 2d 37, 41 (1948).

We are of the opinion that the proper test to be applied by a trial court in determining the admissibility of photographs in homicide cases is whether or not the photographs are of such essential evidentiary value that[*279] their need clearly outweighs the likelihood of inflaming the minds and passions of the jurors. Applying this weighing process to the facts of the instant case, we find that the trial judge abused his discretion by admitting the photographs. Here, we have a clear felony murder case where the force used and the nature and extent of the injuries involved have no bearing on a finding of first degree felony murder. Moreover, assuming their relevance 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. Whatever aid these photographs may have been, their use was clearly outweighed by the emotional impact it would undoubtedly have on the jury. [1] For this reason alone appellant is entitled to a new trial.

Judgment reversed and a new trial ordered.

Mr. Justice Koberts concurs in the result. Mr. Chief Justice Bell and Mr. Justice Jones dissent.
1

The fact that the trial judge specifically informed the jury that the photographs were not being shown for prejudicial or inflammatory purposes, but only to aid in the presentation of medical testimony, is of no consequence and could not remedy the error which already had been committed.