Commonwealth v. Reiss

The majority here holds that if during a trial three references are made to a photographic identification of the defendant he or she must be awarded a new trial. I respectfully disagree.

*103Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972) rejected a per se rule requiring a new trial whenever a photographic identification is mentioned before a jury. A reviewing court must instead look to the record to see if a jury was prejudiced against the defendant by such references. The question becomes whether a juror could reasonably infer that an accused had engaged in prior criminal conduct.…