PA Superior Court: Commonwealth May Not Show Photos of Now-Adult Sexual Assault Complainant as Child

Criminal Defense Lawyer Zak T. Goldstein, Esquire

The Superior Court has decided the case of Commonwealth v. Vucich, holding that the trial court erred when it permitted the Commonwealth to introduce photographs of the now-twenty-year-old complainant as a ten-year old child. In other words, the court found that there was no relevance to how the complainant would have appeared at the time of the alleged sexual assault.  

The Facts of Vucich

In Vucich, the defendant was charged with rape of a child, involuntary deviate sexual intercourse, unlawful contact with a minor, corruption of minors, and indecent assault. The Commonwealth alleged that the defendant repeatedly molested his then ten-year-old step-son after he married the complainant’s mother and moved into the home. The complainant did not disclose the abuse until ten years later. He eventually told his therapist, and then subsequently told his mother. The defendant was found guilty of all charges except rape of a child and sentenced to 10-20 years of incarceration.

The Superior Court Appeal

Following his conviction, the defendant appealed to the Pennsylvania Superior Court. The defendant raised a number of issues. However, the most interesting issue that he raised was whether the trial court had improperly allowed the Commonwealth to introduce photos of what the complainant looked like when he was ten years old.

The defendant argued that the photographs were irrelevant and therefore inadmissible. Relevant evidence is evidence that logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact. The defendant argued on appeal that the photos were not relevant because the complainant’s appearance at the time of the alleged abuse did not establish any material fact. What he looked like was not the question. Instead, the only issue was whether the abuse had occurred, and therefore showing the jury what the complainant looked like as a child served only to prejudice the jury against the defendant.

The trial court, however, concluded that the photographs were admissible to help the jury picture the complainant as a child so that the jury could better evaluate his testimony. Likewise, the Commonwealth advanced this argument again in defending the appeal.

The Superior Court, however, rejected the argument. It noted that in homicide cases, photographs of the decedent which were taken while the decedent was still alive are typically inadmissible unless there is something about the decedent’s appearance which makes the photograph relevant. Without some specific connection between the allegations and a decedent’s appearance in a photograph, the introduction of such a photograph may be reversible error because the only purpose of such evidence is to engender sympathy in the jury and prejudice the jury against a homicide defendant. Thus, in most cases, simply showing photographs of a victim or decent is prohibited and could lead to reversal.

Here, the Superior Court recognized that this was a novel issue; no Pennsylvania court had previously addressed the issue of whether a now-adult complainant’s photos as a child could be introduced in a sexual assault case. The Superior Court ultimately concluded that the rule should be the same in these types of cases as it is in homicide cases. The evidence is admissible because it is simply not probative of whether a defendant committed the crimes charged. Therefore, the court agreed with the defendant that the trial court should have sustained the defense attorney’s objections.

What is harmless error? 

Nonetheless, the Court did not reverse the defendant’s conviction because it found that the admission of the photographs amounted to harmless error. Harmless error is the idea that an erroneous ruling by a trial court on an evidentiary issue does not necessarily require the reversal of a conviction where 1) the error did not prejudice the defendant or the prejudice was de minimis; 2) the erroneously admitted evidence was merely cumulative of other unrelated evidence which was substantially similar to the erroneously admitted evidence, or 3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.

Here, the Court found that the prejudice was de minimis and that the error was harmless beyond a reasonable doubt. The Court concluded that the use of the photographs was brief and limited. Although they should not have been introduced, they did not contribute to the verdict. Therefore, the Court upheld the conviction.

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