Opinion
No. 17 WAP 2021
09-29-2022
COMMONWEALTH of Pennsylvania, Appellee v. Derrick GALLAWAY, Appellant
James Reid Baker, Esq., Sikov & Love, P.A., for Appellant. Paul R. Scholle, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.
James Reid Baker, Esq., Sikov & Love, P.A., for Appellant.
Paul R. Scholle, Esq., Michael Wayne Streily, Esq., Allegheny County District Attorney's Office, for Appellee.
BAER, C.J., TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.
OPINION
JUSTICE TODD
In this appeal by allowance, we consider whether the Superior Court's determination that the probative value of videotape evidence which showed Appellant Derrick Gallaway in prison clothing outweighed its prejudicial effect, such that admission of the evidence did not deprive Appellant of a fair trial under Estelle v. Williams , 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976) (an accused cannot be compelled to stand trial before a jury while dressed in identifiable prison clothing). For the reasons set forth below, we hold that the probative value of the evidence was not outweighed by its prejudicial effect, and, thus, we affirm Appellant's judgment of sentence. On the morning of May 27, 2016, the body of Denhad Taiedi (hereinafter, "the Victim"), who owned the Jefferson Hills Motel (hereinafter, "motel") in Allegheny County, Pennsylvania, was discovered in the motel's office with a fatal gunshot wound to the head. The office was in disarray, a cash box and bank bag were found to have been mostly emptied of money, and the security camera had been ripped from the wall. Blood stains were found on a tray inside the cash box, inside the bank bag, and on the office door, and a trail of fresh blood drops led from the motel office to the parking lot. Testing of the blood revealed that it matched Appellant's DNA, and, on August 26, 2016, a warrant was issued for his arrest. When officers were unable to locate Appellant at any of his known addresses, his information was entered into the National Crime Information Center ("NCIC"). More than a year later, on November 13, 2017, Appellant was arrested in Carmichael, California, and he was extradited to Pennsylvania on or around December 13, 2017.
On December 13, 2017, Appellant was interviewed by two Allegheny County Police Detectives concerning the Victim's murder. During the interview, which took place at the county police headquarters and was videotaped, Appellant wore bright red prison-issued clothing. When questioned by the detectives, Appellant, who had waived his Miranda rights, denied ever having stayed at the motel, and denied being at the motel in 2016. Appellant further denied ever meeting Shawn Urcini and Danielle Walker, individuals with whom Appellant was alleged to have associated at the motel, and, with respect to Urcini, was alleged to have discussed robbing the motel.
Both Urcini and Walker died in 2017, prior to trial.
At Appellant's trial, the Commonwealth presented, inter alia , the testimony of Julan Seidel, a motel guest, who stated that she was at the motel on the night before the Victim's body was discovered and encountered Appellant near one of the motel's vending machines. She testified that she observed Appellant talking with Urcini, and overheard them say "something along the lines of they were about to get money that night, like we're about to get this money." N.T. Trial, 8/28/19, at 214. Additionally, the Commonwealth presented the testimony of Charles Wright, who testified that he met Appellant in 2015 when Walker brought Appellant to Wright's house to purchase drugs. N.T. Trial, 8/29/19, at 422-24.
The Commonwealth also presented the testimony of Nicole Stercula and Linda Holliday, who worked as office clerks at the motel. Both women testified that Appellant had been a resident of the motel for approximately one month or more in late 2015, until he was evicted following an altercation with the Victim. The women also testified that they had seen Appellant spend time with Walker, who was Urcini's girlfriend. Further, they testified that the Victim had tried to help Walker by allowing her to stay in his office, which gave Walker access to the motel's master key, and by giving her money. N.T. Trial, 8/28/19, at 263-67; N.T. Trial, 8/30/19, at 509. Stercula further testified that, approximately one week prior to the Victim's death, Walker had come to the motel and demanded more money from the Victim, but he refused. N.T. Trial, 8/28/19, at 267.
On the third and final day of trial, the Commonwealth sought and was granted permission to play for the jury an edited version of Appellant's videotaped interview by the police detectives. The edited version of the videotaped interview (hereinafter, "videotape") was approximately 17 minutes long, and, as noted above, clearly showed Appellant in bright red prison clothing throughout. The Commonwealth asserted that the videotape evidenced Appellant's consciousness of guilt, as it showed him making false statements to police regarding, inter alia , whether he was in Pittsburgh at the time the Victim was killed, whether he had ever stayed at the motel, and whether he knew Urcini or Walker.
The videotape had been edited to exclude a prejudicial statement made by Appellant, as well as a heated exchange between Appellant and the detectives.
Defense counsel objected to the admission of the videotape on the basis that it would prejudice Appellant in the eyes of the jury because it would allow the jury to observe him in prison clothing. Notably, throughout the trial, Appellant wore a suit in the courtroom. The trial court overruled the objection, stating, "[t]his is not the only case where a defendant, a suspect is interviewed in their jail reds." N.T. Trial, 8/29/19, at 276. The court offered to give a cautionary instruction to the jury, but defense counsel declined the offer.
"Jail reds" refers to prison-issued clothing.
After the videotape was played for the jury, Appellant took the stand in his own defense. Contrary to the statements he made during the interview, Appellant testified that, on the night the Victim was killed, he was in the parking lot of the motel with a prostitute when he heard two or three gunshots. N.T. Trial, 8/30/19, at 631-33. He explained that, upon hearing the gunshots, he ducked down and cut his finger on the jagged edge of the prostitute's crackpipe. Id. at 633-34. Appellant stated that he then saw an individual, whom he thought may have been Urcini, walk past the car in which he was sitting. Id. at 662. Thereafter, Appellant walked into the motel lobby because he "was curious," and saw the Victim's body. Id. at 635. According to Appellant, he began to look around for a phone, but did not find one, so he left without attempting to contact police or anyone else. Id. at 635-36. Appellant also admitted that he may have stayed at the motel for two consecutive days, but insisted that the motel clerks were lying when they testified that he had stayed for a longer period. Id. at 645.
Additionally, Appellant denied ever meeting Wright or going to his house. Id. at 640. When asked if he knew Walker, Appellant stated that "there was a girl there the first time I checked in, but I don't recall if her name was Danielle." Id. at 638. When asked if he ever had a conversation with Urcini, Appellant stated that he never had a conversation with him, but that he may have spoken to him "casually" in the doorway of his motel room or near the motel's vending machine, as he "might have come to get a cigarette or something." Id. at 639.
The jury convicted Appellant of first-degree murder, robbery, theft by unlawful taking, and tampering with physical evidence. The trial court sentenced Appellant to life imprisonment, followed by a term of incarceration of 10-20 years.
Id. § 3701(a)(1)(i).
Id. § 3921.
Id. § 4910(1).
Appellant appealed his judgment of sentence to the Superior Court, challenging the trial court's admission of the videotape, as well as the sufficiency of the evidence of the crime of tampering with evidence. Appellant claimed, inter alia , that the probative value of the videotape was outweighed by the danger of unfair prejudice, as it showed him in prison clothing, and thereby "prejudiced his presumption of innocence in the eyes of the jury." Commonwealth v. Gallaway , 2021 WL 129718, *3 (Pa. Super. filed Jan. 14, 2021). In a memorandum opinion, the Superior Court reversed Appellant's conviction for tampering with physical evidence, but affirmed his remaining convictions.
Although Appellant filed a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), the trial judge resigned prior to preparing an opinion pursuant to Pa.R.A.P. 1925(a). However, the Superior Court determined that it could review Appellant's claims based on the existing record.
The Superior Court recognized that, pursuant to Estelle , a defendant cannot be compelled to attend trial in identifiable prison clothing because of the "possible impairment of the presumption [of innocence] so basic to the adversary system." Id. at *4 (quoting Estelle , 425 U.S. at 504, 96 S.Ct. 1691 ). The Superior Court further acknowledged that the prohibition against forcing a defendant to attend trial in identifiable prison clothing "is based primarily upon the impact that the ‘constant reminder of the accused's condition implicit in such distinctive, identifiable attire’ might have upon the jury." Id. (quoting Estelle , 425 U.S. at 504-05, 96 S.Ct. 1691 ). Finally, the court cited its own decision in Commonwealth v. Keeler , 216 Pa.Super. 193, 264 A.2d 407 (1970) (en banc ), wherein the court held that the defendant, who first appeared before the jury during jury selection wearing his prison uniform, was entitled to a new trial.
The Superior Court concluded, however, that Estelle and Keeler did not afford Appellant relief:
[R]egarding Appellant's assertion that he was entitled to enter the courtroom with the presumption of innocence, Appellant admits that he was in fact wearing civilian clothes throughout the duration of the trial. The subject video was played on the third day of trial at the conclusion of the Commonwealth's case-in-chief. At this point, the jury already received considerable testamentary and physical evidence connecting Appellant to the crimes. This is not the same as the situation[ ] in Keeler ... wherein the defendant was introduced to the jury pool wearing prison attire. Nor, as in Estelle , was Appellant's brief appearance in prison attire in a video a constant reminder to the jury of his condition of incarceration. The duration of the video was less than twenty minutes.
Gallaway , 2021 WL 129718, at *4 (citation omitted).
The court further determined that the videotape's probative value outweighed any prejudicial effect, as evidence of Appellant's false statements to the detectives "was extremely probative of Appellant's consciousness of guilt." Id. at *5. Additionally, the court concluded that, because there was testimony regarding the attempts by police to locate Appellant, and his eventual extradition from California to Pennsylvania, "it was clearly reasonable for the jury to infer that Appellant was incarcerated" for the Victim's murder. Id.
Appellant filed a petition for allowance of appeal with this Court, and we granted review to consider whether the Superior Court's holding that the probative value of the videotape outweighed its prejudicial effect, and, thus, that Appellant was not deprived of a fair trial, conflicts with the United States Supreme Court's decision in Estelle and the Superior Court's en banc decision in Keeler .
Preliminarily, it is axiomatic that the admission of evidence is solely within the discretion of the trial court, and a trial court's evidentiary rulings will be reversed on appeal only upon an abuse of that discretion. Commonwealth v. Le , 652 Pa. 425, 208 A.3d 960, 970 (2019). An abuse of discretion is not simply an error of judgment, but is an overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. Commonwealth v. Talley , ––– Pa. ––––, 265 A.3d 485, 530 (2021).
To be admissible, evidence must be relevant. Pa.R.E. 402. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Talley , 265 A.3d at 530. Pertinent herein, a defendant's omissions and lies in statements to police are relevant as evidence of consciousness of guilt. Commonwealth v. Murphy , 635 Pa. 233, 134 A.3d 1034, 1040 (2016). However, a trial court may exclude relevant evidence if its probative value is outweighed by a danger of, among other things, unfair prejudice. Pa.R.E. 403. "Unfair prejudice" is "a tendency to suggest decision on an improper basis or to divert the jury's attention away from its duty of weighing the evidence impartially." Pa.R.E. 403, Comment. In determining whether evidence should be admitted, a trial court must weigh the relevance and probative value of the evidence against the prejudicial impact of that evidence. Commonwealth v. Reid , 571 Pa. 1, 811 A.2d 530, 550 (2002).
Before this Court, Appellant maintains that the Superior Court erred in concluding that the probative value of the videotape was outweighed by the danger of unfair prejudice because it allowed the jury to view him in prison clothing. Specifically, he contends that the Superior Court improperly found Estelle and Keeler distinguishable from the instant case, because, in his view, the jury's observation of the videotape showing him in prison clothing "was no less damaging" to his right to a fair trial than if he had been forced to wear prison clothing at trial. Appellant's Brief at 16 n.5.
Further, with regard to the Superior Court's finding that the probative value of the videotape outweighed the danger of unfair prejudice because it was evidence that Appellant made false statements, demonstrating his consciousness of guilt, Appellant asserts that the Superior Court's analysis was "somewhat incomplete and dismissive of the needlessly prejudicial import of this visual evidence." Id. at 29. Appellant claims there was no recognition by the Superior Court that the Commonwealth could have played only the audio of the videotaped interview, or that it could have questioned the detectives about Appellant's false statements, alternatives which would have allowed the Commonwealth to introduce evidence of Appellant's consciousness of guilt without prejudicing him by allowing the jury to view him in prison clothing.
Appellant also contends that the Superior Court's finding that he was not prejudiced by the videotape because it was played at the end of the Commonwealth's case, at which time the jury had already heard evidence of his guilt, creates a loophole allowing the Commonwealth to show a defendant in prison attire provided it is done "strategically, under the assumption [the Commonwealth] has already presented overwhelming evidence of guilt." Id. at 26. Moreover, Appellant argues that allowing a jury to view a defendant in prison clothing after other evidence has been introduced will improperly affect the jury's assessment of both previously introduced evidence, as well as any evidence that follows - in this case, Appellant's own testimony.
Finally, with respect to the Superior Court's determination that, based on the references at trial to Appellant's arrest, it was reasonable for the jury to infer that he wore prison clothing in the videotaped interview because the interview occurred after he was arrested in California and extradited to Pennsylvania, Appellant argues that this logic presumes that jurors are knowledgeable about the extradition process, or, alternatively, suggests that a large percentage of arrests on criminal charges result in incarceration. He submits that the theory that a jury reasonably may presume that a defendant, following arrest, remains incarcerated while awaiting trial undermines the rationale of Estelle , in that such presumption will, like forcing a defendant to wear prison clothing during his trial, serve as a "constant reminder" of the defendant's incarceration, resulting in an unfair trial. Id. at 32.
In response, the Commonwealth contends that the Superior Court properly affirmed Appellant's judgment of sentence, as it correctly determined that the probative value of the videotape in demonstrating Appellant's consciousness of guilt outweighed any danger of unfair prejudice to Appellant, particularly since the videotape was only 17 minutes long, as compared to the totality of the Commonwealth's case-in-chief, which took the greater part of three days to present.
The Commonwealth further challenges Appellant's reliance on Estelle and Keeler , noting that, in those cases, the defendants were "compelled to wear jail garb when personally appearing before the jury in court, whereas here [A]ppellant was only seen in a short audio/video recording made in a neutral location away from the courthouse." Commonwealth's Brief at 37. The Commonwealth also highlights that Estelle did not involve an issue of the admission of evidence, and, therefore, the Court in Estelle did not address the proper balance between the potential prejudice and the probative value of the proffered evidence; rather, it simply "established the overarching principle that a jury's impartiality may be compromised when the defendant appears personally before them in a jail uniform." Id. at 39.
The Commonwealth points out that several of our sister states have held that a trial court's admission of a videotape which shows a defendant in prison clothing or handcuffs does not undermine the defendant's presumption of innocence to the same extent as when a similarly-attired defendant is compelled to appear before the jury in person. In the Commonwealth's view, such a distinction is supported by Estelle ’s "concern that a prisoner attending trial in prison clothing could serve as a ‘constant reminder’ to the jury that the accused is incarcerated." Id. at 42.
Finally, the Commonwealth disputes any suggestion by Appellant that the videotape showing Appellant in prison clothing constituted improper "other crimes" evidence. Id. at 43. In this regard, the Commonwealth reiterates the Superior Court's observation that the jury was informed at trial that, after blood evidence at the scene was determined to match Appellant's DNA, a warrant was issued for Appellant's arrest, and he eventually was apprehended in California and extradited to Pennsylvania, whereupon he was interviewed by police regarding the murder. As a result, the Commonwealth submits that it was clear to the jury the videotaped interview related only to the murder of the Victim, and not to any prior crime. Id. at 46.
The Fourteenth Amendment guarantees a defendant the right to a fair trial, a basic component of which is the presumption of innocence in favor of the accused. See Estelle , 425 U.S. at 503, 96 S.Ct. 1691 ("[t]he right to a fair trial is a fundamental liberty secured by the Fourteenth Amendment. The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." (citation omitted)); Deck v. Missouri, 544 U.S. 622, 630, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) (explaining that "the criminal process presumes that the defendant is innocent until proven guilty").
Further, it is understood that a defendant's clothing may impact that presumption. In Estelle , the defendant was charged with assault with intent to commit murder. On the morning of trial, the defendant asked a corrections officer at the jail for his civilian clothes, but his request was denied. Thus, for the entirety of his trial, the defendant wore clothing distinctly labeled as prison-issued, and neither the defendant, nor his counsel, lodged an objection. Following his conviction, the defendant appealed to the Texas Court of Appeals, which affirmed his judgment of sentence. The defendant sought habeas relief in federal court. Although the district court held that it was inherently unfair to require a defendant to stand trial in prison clothing, it denied the defendant relief, finding that the error was harmless. On further appeal, the Fifth Circuit Court of Appeals reversed, concluding the error was not harmless.
On grant of certiorari , the high Court instructed that, in order to "implement" the defendant's presumption of innocence,
courts must be alert to factors that may undermine the fairness of the fact-finding process. In the administration of criminal justice, courts must carefully guard against dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt. The actual impact of a particular practice on the judgment of jurors cannot always be fully determined. But this Court has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny. Courts must do the best they can to evaluate the likely effects of a particular procedure, based on reason, principle, and common human experience.
Estelle , 425 U.S. at 503-04, 96 S.Ct. 1691 (citations omitted).
The Court then noted the general consensus among courts that "an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system." Id. at 504, 96 S.Ct. 1691. In this regard, the Estelle Court specifically recognized the Pennsylvania Superior Court's decision in Keeler , wherein that court opined: "[a] defendant in prison garb gives the appearance of one whom the state regards as deserving to be so attired. It brands him as convicted in the state's eyes. It insinuates that the defendant has been arrested not only on the charge being tried but also on other charges for which he is being incarcerated." Keeler , 264 A.2d at 409. The Estelle Court further highlighted that, in disapproving the practice of forcing an accused to go to trial in prison clothing, the American Bar Association's Standards for Criminal Justice recognized that "the constant reminder of the accused's condition implicit in such distinctive, identifiable attire may affect a juror's judgment. The defendant's clothing is so likely to be a continuing influence throughout the trial that ... an unacceptable risk is presented of impermissible factors coming into play." Estelle , 425 U.S. at 504-05, 96 S.Ct. 1691.
In Keeler , the defendant was charged with violations of the Uniform Firearms Act. On the morning the public defender was notified that the defendant needed to be ready for trial, the defendant was in the county jail, wearing a uniform supplied by the diagnostic clinic from which he was transferred the previous evening. The public defender attempted to secure civilian clothing for the defendant by contacting the defendant's sister. At the time trial was set to commence, the clothing had not yet arrived, and counsel moved for a continuance, which was denied. As a result, during voir dire , the defendant appeared before the jury in the clinic uniform for approximately 35 minutes, at which time his civilian clothes arrived and he was permitted to change his attire. The defendant moved to disqualify the jury before it was sworn in, but the trial court denied the motion, and the defendant was convicted of the charges against him.
On appeal, an en banc panel of the Superior Court vacated his judgment of sentence and ordered a new trial. It concluded that the trial court abused its discretion in refusing to continue the defendant's trial until civilian clothes were procured, explaining that forcing a defendant to appear in the courtroom in prison clothing not only "gives the appearance of one whom the state regards as deserving to be so attired" and suggests that the defendant has been arrested on charges other than those for which he is on trial, but doing so "demeans the defendant in his own mind. It makes him feel that, although presumed to be innocent, he has already lost his dignity by the very fact of arrest and charge," placing him "in a psychological, emotional disadvantage." Keeler , 264 A.2d at 409.
Thus, the high Court cautioned that an accused should not be compelled to go to trial in prison clothing "because of the possible impairment of the presumption so basic to the adversary system." Id. at 504, 96 S.Ct. 1691. It further opined that "compelling an accused to wear jail clothing furthers no essential state policy. That it may be more convenient for jail administrators, a factor quite unlike the substantial need to impose physical restraints upon contumacious defendants, provides no justification for the practice." Id. at 505, 96 S.Ct. 1691.
In Deck , supra , the Court explained that a defendant may not be forced to appear in court during the guilt or penalty phase of his trial while visibly shackled in leg irons, handcuffs, or belly chains, absent a justifiable essential state interest, such as maintaining security or preventing escape. Deck , 544 U.S. at 624, 125 S.Ct. 2007.
Notwithstanding the above, the Court in Estelle noted that courts generally have declined to adopt a per se rule invalidating all convictions where a defendant had appeared in identifiable prison clothing, and instead applied the harmless error doctrine. Finding that the defendant's failure to object to being tried in prison clothing was sufficient to negate the presence of compulsion necessary to establish a constitutional violation, the Estelle Court reversed the judgment of the court of appeals. Id. at 512-13, 96 S.Ct. 1691.
This Court likewise has recognized that the Fourteenth Amendment prohibits a state from compelling an accused to wear prison clothing during his trial. In Commonwealth v. Cox, 603 Pa. 223, 983 A.2d 666 (2009), the appellant, who was charged with, inter alia , murder, appeared in court on the first day of voir dire wearing prison clothing. The trial court made note of the appellant's attire, and the prosecutor advised the court that it would introduce evidence that the appellant had contacted authorities while he was in prison, thus explaining his attire. Only two jurors were selected that day, and the appellant wore civilian clothes for the remainder of the jury selection and trial. The appellant was convicted, and in a subsequent post-conviction petition for relief the appellant argued that his prior counsel were ineffective for failing to ensure he had civilian clothing for the first day of trial, for failing to file a motion to recuse the two jurors who had observed him in prison clothing, and for failing to litigate the claim. In concluding that the appellant was not entitled to relief, we acknowledged the high Court's holding in Estelle that the Fourteenth Amendment prohibits a state from compelling an accused to wear prison clothing during his trial. Id. at 691. We noted, however, that there was nothing in the record that demonstrated that the appellant was compelled to wear prison attire on the first day of jury selection. Moreover, we observed that, because the appellant alleged ineffectiveness of counsel, he was required to establish prejudice, which he failed to do, as the jury heard evidence that appellant was incarcerated when he contacted authorities, and the evidence of his guilt was overwhelming.
In Commonwealth v. Baker , 511 Pa. 1, 511 A.2d 777 (1986), this Court held that the trial court did not abuse its discretion in refusing to grant a mistrial after the appellant appeared in prison clothing during selection of the first five jurors. In so holding, we recognized that "[t]he law is clear that a state cannot, consistent with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothing." Id. at 784. However, we observed that the trial court "did not order Appellant to stand trial in prison garb," and the appellant "was afforded every opportunity to wear civilian clothing during the trial." Id. Moreover, we noted that the trial judge had found that the garments appellant wore were "not readily identifiable as prison clothing," and, thus, the appellant "suffered no prejudice as a result of the clothing he was wearing." Id.
Further, we have consistently interpreted the holding in Estelle to be based on the concern that compelling an accused to go to trial in prison clothing will serve as a "constant reminder of the accused's condition implicit in such distinctive, identifiable attire," and the potential impact this might have on the jury. Estelle , 425 U.S. at 504-05, 96 S.Ct. 1691. For example, in Commonwealth v. Johnson , 576 Pa. 23, 838 A.2d 663 (2003), the appellant was charged in Pennsylvania with homicide and related offenses, and a warrant was issued for his arrest. He eventually was arrested in New York. At trial, one of the Commonwealth's witnesses testified regarding statements made to him and another individual by the appellant while the three men were incarcerated. The appellant was convicted and sentenced to death. On appeal to this Court, he argued, inter alia , that the trial court erred in allowing the Commonwealth's witness to testify regarding his encounter with the appellant in prison because that testimony "informed the jury that he was incarcerated, thereby prejudicing him in the eyes of the jurors." Id. at 680.
In rejecting his claim, we explained that, "although generally no reference may be made at trial to a defendant's arrest or incarceration for a previous crime, there is no rule in Pennsylvania which prohibits reference to a defendant's incarceration awaiting trial or arrest for the crimes charged." Id. (citations omitted). We further noted that, "although the Court has disapproved forcing a defendant, who was incarcerated prior to trial, to attend trial in identifiable prison clothing, this prohibition is based primarily upon the impact that the ‘constant reminder of the accused's condition implicit in such distinctive, identifiable attire’ might have upon the jury." Id . at 680-81 (quoting Estelle ). We held that "the reference to Johnson's incarcerated status was passing, and not the type of ‘constant reminder’ proscribed by Estelle ." Id. at 681.
Further, in Commonwealth v. Moore , 534 Pa. 527, 633 A.2d 1119 (1993), the appellant was injured during a riot at the prison where he was incarcerated prior to trial. In response to media reports suggesting he was involved in instigating the riot, he moved for a mistrial. The trial court denied the mistrial, but because the appellant had a bandage on his head when he appeared for trial, the trial court, over the appellant's objection, issued an instruction to the jury that it should not consider his appearance, or any media reports as to how he may have been injured, in its deliberations. Before this Court, the appellant argued that the contents of the instruction, together with his appearance, impermissibly "cloaked him as a prisoner" in violation of Estelle . Id. at 1127. In rejecting his claim, we first observed that the high Court in Estelle was concerned "that the defendant[’]s appearance would be a constant reminder of the accused's condition that might have significant effect on the jury's feeling about the defendant, without serving any essential state policy." Id. (emphasis original). Additionally, while recognizing that "the curative instruction by the trial court ... together with appellant's appearance at trial had the effect of informing the jury that appellant was a prisoner and may have been injured while incarcerated," id. , we determined that this factor did not rise to the level of error proscribed in Estelle :
There is nothing in the record to indicate that appellant was compelled to wear prison attire, nor that the jury was aware that appellant was clothed in prison attire. Furthermore, appellant fails to establish that the clothing was marked or identified as prison attire. Moreover, even if we were convinced that appellant had been improperly cloaked as a prisoner by the trial court's curative instruction combined with his appearance at trial, we conclude that such error would be harmless.
Id. at 1127-28 (footnote omitted).
It is established, therefore, that a defendant cannot be compelled to stand trial in prison clothing. However, neither this Court, nor the United States Supreme Court, has considered whether a jury's observation of a videotape in which the defendant is wearing prison clothing carries the same risk to his presumption of innocence as the jury's in-person observation of the defendant in prison clothing at trial. This Court also has not considered the impact of a videotape showing a defendant in prison clothing in the context of balancing the probative value of evidence against the danger of unfair prejudice under Rule 403. However, as both Appellant and the Commonwealth observe, a number of our sister states have addressed these issues.
In State v. Taylor , 240 S.W.3d 789 (Tenn. 2007), for example, the appellant appealed his judgment of sentence for first-degree murder, alleging that the trial court erred in allowing the prosecutor to play for the jury a seven-minute videotape of a conversation between the appellant and his cellmate when the appellant was incarcerated for an unrelated crime. On the videotape, the appellant, who was wearing prison clothing, admitted to the crime for which he was currently on trial. The appellant claimed that the admission of the videotape violated his constitutional right to the presumption of innocence and a fair trial, as recognized in Estelle . He further argued that the videotape was unfairly prejudicial, and unnecessary, because the State had an audio-only version of the tape which defense counsel requested be played instead, but the trial court denied the request.
The Tennessee Supreme Court first determined that, under its rules of evidence, which permit relevant evidence to be excluded if its probative value is substantially outweighed by, inter alia , "the danger of unfair prejudice, confusion of the issues, or misleading the jury," the probative value of the videotape in demonstrating the cellmate's credibility as a witness was not outweighed by the danger of unfair prejudice, as the jury did not see the videotape until after the witness testified that he and the appellant had been in jail together. Id. at 795, 798. The court also found that the videotaped images of the appellant in prison clothing were "countered by [his] appearance wearing street clothes during the three-day trial." Id. at 796.
Regarding the appellant's claim that the admission of the videotape was improper under Estelle , the court reasoned that, under the circumstances of the case – including that the appellant was not tried in jail clothing; the jury saw the videotape after it heard the witness testify that the appellant confessed to him while they shared a jail cell; the videotape was less than ten minutes long; and the trial took place over three days – "the trial court did not violate the [appellant's] due process rights, nor impair the presumption of innocence, by allowing the jury to view the videotape." Id. Noting that "[o]ther courts have reached the same conclusion under similar circumstances," the court concluded that the videotape "did not serve as a ‘constant reminder’ to the jury that the [appellant] had been previously jailed and it did not corrupt the presumption of innocence on which the jury was properly instructed." Id. at 797.
In Ritchie v. State , 875 N.E.2d 706 (Ind. 2007), a case cited by the Commonwealth herein, the appellant, following his conviction for murder and related offenses, asserted in a post-conviction petition for relief that his trial counsel provided ineffective assistance by failing to move to suppress a videotape of his pretrial interviews with the news media during which the appellant was shackled and dressed in prison clothing. He argued that the videotapes were inadmissible because they "violated his Fourteenth Amendment right not to be forced to appear in jail clothes or visibly shackled before the jury decided his fate." Id. at 716.
In denying the appellant's ineffectiveness claim, the Indiana Supreme Court acknowledged that, under both state and federal law, "a criminal defendant cannot be forced to appear in either jail clothing or shackles during the guilt or penalty phase of trial without an individualized finding that the defendant presents a risk of escape, violence, or disruption of the trial." Id. at 718 (citing, inter alia , Deck, 544 U.S. at 624, 125 S.Ct. 2007 ; Estelle , 425 U.S. at 512, 96 S.Ct. 1691 ). The court explained that compelling an accused to appear before a jury in jail clothing or shackles threatens to "dilut[e] the presumption of innocence," and creates a risk that the jury "might find guilt based on these extraneous influential factors rather than probative evidence subject to the rigors of cross-examination." Id. The court also noted that shackles could hinder the accused's ability to participate with counsel. Id.
The court concluded, however:
Deck and its predecessors only discuss the use of jail clothing and visible shackles during courtroom proceedings. Ritchie was not forced to appear before the jury in jail clothing and shackles. Rather his claim is one step removed in that the jury viewed a videotape of Ritchie appearing in jail clothing and shackles while in police custody. The concerns with having a criminal defendant appear in jail clothing or shackles in a courtroom proceeding are not directly applicable to Ritchie's situation. Certainly, his right to participate with counsel is not implicated. Additionally, it appears to this Court that the risk of diluting the presumption of innocence or guilt being established by an extraneous influential factor is minuscule. Ritchie presents no evidence of how viewing him in jail
clothing and shackles on the videotape had a bearing on his verdict. Any reasonable juror would have expected Ritchie to be dressed in jail clothing and shackled when meeting with members of the public outside the security of a jail cell. See generally Davis v. State, 770 N.E.2d 319, 326 (Ind. 2002) (stating potential jurors would reasonably expect that anyone in police custody would be restrained).
Id. (emphasis original). Thus, the court opined that, had counsel made an objection to the admission of the videotape, it "would not have been sustained," and, even assuming counsel should have made an objection, the appellant "still has failed to show that, but for counsel's error, the outcome of the trial would have been different." Id. at 718-19.
In Bramlett v. State , 422 P.3d 788 (Okla. Crim. App. 2018), also cited by the Commonwealth, the appellant was arrested on a material witness warrant in Illinois following the murder of his ex-girlfriend in Oklahoma. After being taken into custody, the appellant, who was clothed in an orange jumpsuit and handcuffs, was interviewed by detectives; the interview was videotaped. The appellant denied seeing the victim on the night she was killed, claiming he last saw her several days earlier. When the detectives advised the appellant they had evidence to the contrary, he terminated the interview. At the appellant's subsequent trial for first-degree murder, defense counsel objected to the admission of the videotaped interview on the basis that it was unnecessarily prejudicial because it depicted the appellant in custody and in prison clothing, and he requested that an audio version of the interview be played for the jury instead. The trial court denied the objection, holding the videotape was probative because it allowed the jury to "see Bramlett's demeanor during the interview" in order to determine whether his statement was voluntary. Id. at 794.
On appeal, the Oklahoma Court of Criminal Appeals recognized the United States Supreme Court's holding that "routine use of visible shackling during the guilt phase of trial undermines the presumption of innocence, interferes with the accused's ability to communicate with his lawyer and participate in his own defense, and is an affront to the dignity of judicial proceedings," id. (citing Deck , 544 U.S. at 631-32, 125 S.Ct. 2007 ), but declined to extend Deck to the case before it:
Clearly, [the appellant's] appearance in the video in handcuffs and jail clothing had no bearing on his ability to communicate with his lawyer nor was it an affront to the judicial proceedings. While it is easy to understand how viewing a defendant in handcuffs and jail clothing during trial might risk diluting the presumption of innocence, the same cannot be said about exposure to a video showing the defendant in jail clothing and handcuffs during an interview prior to trial. As the State argues, most jurors would not be surprised by the fact that a defendant was handcuffed and wearing jail clothing while in jail prior to trial. The concerns which arise when a criminal defendant appears at trial in jail clothing or shackles were not implicated under the circumstances of this case. The same degree of potential prejudice was simply not present.
Id. (citation omitted). Accordingly, the Bramlett court concluded that the "video of the interview was relevant and its probative value was not outweighed by the danger of unfair prejudice," and, therefore, that the trial court did not abuse its discretion in admitting the videotape. Id. at 795.
The Commonwealth additionally cites People v. Thames , 467 P.3d 1181 (Colo. App. 2019), wherein the appellant, who was convicted of first-degree murder and first-degree sexual assault, appealed his judgment of sentence on the basis that, inter alia , the trial court erred in allowing the jury to view a videotape of his interrogation in which he was wearing prison clothing. The trial court had admitted the videotape for the purpose of showing the appellant's lack of surprise, anger, shock, and remorse to accusations that he beat, sexually assaulted, and fatally strangled the victim. In denying the appellant relief, the Colorado Court of Appeals first observed that, in reviewing the trial court's admission of the videotape, it was obliged, under the balancing test set forth in its rules of evidence, to "assign to the evidence the maximum probative value and the minimum unfair prejudice that a reasonable fact finder might attribute thereto." Id. at 1191.
The court further rejected the appellant's claim that the admission of the videotape denied him his right to the presumption of innocence as recognized in Estelle , stating "[t]he presumption of innocence is undermined only ‘when the defendant is required to appear before the jury in visible restraints or prison clothes.’ " Id. at 1191 (emphasis original). The court opined that "[t]he risk of prejudicing the defendant due to his clothing is not present when the jury is shown a video depicting the defendant in a prison uniform," id. at 1191-92 (citing Ritchie , supra ), and echoed the Bramlett court's finding that a jury's exposure to a video showing the defendant in handcuffs and a jail uniform prior to trial did not create a risk of diluting the defendant's presumption of innocence, because "[m]ost jurors would not be surprised by the fact that a defendant was handcuffed and wearing jail clothing while in jail prior to trial." Id. at 1192 (quoting Bramlett , 422 P.3d at 794 ) (alteration added)).
Finally, the court in Thames concluded:
Unlike the visual impact of a defendant's attire throughout a trial, the clothing shown in a video lasting one hour and fourteen minutes will not be a "constant reminder" of the defendant's condition or create a prejudicial, continuing influence in jurors’ minds.
[The appellant] does not contend that the trial court required him to appear in the courtroom in visible restraints or prison clothes. Rather, in the video, he is not restrained, is not handcuffed, and is depicted seated in what appears to be a conference room with pictures on the wall. Under these circumstances, [the appellant] was not deprived of his right to have the jury presume him innocent.
Id. (citation omitted).
Most recently, in Early v. State , 313 Ga. 667, 872 S.E.2d 705 (2022), the Georgia Supreme Court rejected the appellant's claim therein that the trial court, in allowing the state to introduce body-camera footage showing the appellant in handcuffs and jail clothing, denied him his right to a fair trial and the presumption of innocence. In Early , the victim was fatally shot during an alleged drug purchase. Within an hour of the shooting, the appellant was arrested for the shooting. Later that evening, he was interviewed by a detective, and initially denied that he shot the victim. He then stated that he saw another man shoot the victim, but subsequently admitted to shooting the victim after a brief physical struggle. The appellant claimed he was afraid of the victim, and that he "blacked out" after the struggle and did not realize the gun was in his hand until he ran outside. Id. at 708.
Approximately six months after his arrest, while he was incarcerated pending trial, the appellant was being disciplined for an unrelated matter and police body-camera footage captured him stating "I'm a murderer." Id. at 709. The appellant's counsel filed a motion to exclude the body-camera footage at trial as unfairly prejudicial because it showed the appellant in handcuffs and jail clothing. The trial court denied the motion, holding that the probative value of the appellant's statement, as captured by the body-camera, was not substantially outweighed by the danger of unfair prejudice from the appellant's appearance in prison clothing. Before the state's high court, the appellant argued that the trial court abused its discretion in admitting the body-camera footage into evidence because it was highly prejudicial, and, under its rules of evidence, its probative value was substantially outweighed by undue prejudice. The appellant further argued, for the first time, that admission of the footage violated his constitutional right to the presumption of innocence and a fair trial under Estelle and Deck .
The Georgia Supreme Court first determined that the video was admissible under its rules of evidence, which provided that "[r]elevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice." Id. at 710. Specifically, the court held that the appellant's statement "I'm a murderer" was highly probative because the appellant was charged with murder, and the statement contradicted his trial testimony that he shot the victim in self-defense. The court also found that the video "was not overly prejudicial" because, inter alia , "the jury would not have been unfairly influenced by the fact that a defendant charged with murder was being detained while awaiting trial." Id.
With regard to appellant's reliance on Estelle and Deck , the court determined that those cases were distinguishable because the appellant did "not contend (and the record does not indicate) that he was shackled or forced to wear jail garb at any time during his trial." Id. at 711. The court further observed that it found no controlling authority from its own court, or the United States Supreme Court, "holding that the admission of a video at trial showing a defendant in jail wearing jail attire and handcuffs violated his constitutional rights. Indeed, many other courts have reached the opposite conclusion." Id. (citing, inter alia , Ritchie ; Thames ; Bramlett ; Taylor ). Thus, the court held that the appellant failed to demonstrate that the trial court's admission of the body-camera video was "plain error."
As the appellant in Early first argued on appeal that he was entitled to relief under Estelle , the court reviewed his claim only for "plain error," which requires proof of an error that (1) was not affirmatively waived; (2) was clear and not open to reasonable dispute; (3) affected substantial rights; and (4) seriously affected the fairness, integrity, or public reputation of judicial proceedings. Early , 872 S.E.2d at 711.
In the instant case, Appellant concedes that "several courts have found that video imaging of the defendant in prison attire is not the ‘constant reminder’ that Estelle prohibits." Appellant's Brief at 24. However, in support of a contrary conclusion, Appellant solely relies on the Kentucky Supreme Court's decision in Deal v. Commonwealth , 607 S.W.3d 652 (Ky. 2020). In that case, the victim was fatally shot outside a nightclub during a fight with the appellant, Maurice Deal. After fleeing the scene, Deal went to the hospital for treatment of a hand wound. At the hospital, Deal was interviewed separately by two police detectives, and two days later, he was arrested and charged with the victim's murder. Unable to post bail, he remained in jail. Approximately two months after his arrest, one of the detectives met with Deal and his counsel at the jail for questioning; the interview was videotaped, and Deal was visibly handcuffed and wearing an orange jumpsuit that was clearly identifiable as prison attire. During the interview, Deal admitted to starting the fight with the victim, but denied knowing who fired the shots that wounded him and killed the victim.
Appellant also cites Jackson v. Washington , 270 Va. 269, 619 S.E.2d 92 (2005). This decision is readily distinguishable from the instant matter, however, as the defendant in Jackson was compelled to stand trial before the jury while wearing prison clothing.
On the morning of trial, Deal's attorney sought to preclude introduction of the videotape on the basis that it would unduly prejudice Deal because it would allow the jury to see him in custody, in handcuffs, and dressed as an inmate. The Commonwealth disputed that the videotape was prejudicial, suggesting that a jury would expect an individual charged with murder to be in custody pending trial. The trial court agreed, and denied Deal's motion, concluding that, because he was charged with murder, "no one would be surprised that he was in jail." Id. at 656. The 35-minute videotape was played in its entirety for the jury, and Deal was convicted of second-degree manslaughter by complicity.
Before the Kentucky Supreme Court, Deal argued that the trial court's admission of the videotape showing him in prison clothing was an abuse of discretion pursuant to Estelle . Recognizing the absence of a controlling decision from its court or the United States Supreme Court, the Deal court noted that "other state appellate courts have considered cases that presented similar facts," and, in particular, examined the Tennessee Supreme Court's decision in Taylor , and the cases cited therein. Id. at 666. Notably, the Deal court stated that it did "not disagree" with the principle that "admitting video evidence depicting a defendant in jail custody is not ‘inherently prejudicial’ under all circumstances." Id. at 667. It further conceded that "[c]ommon sense suggests that the impact of allowing a brief videotaped presentation to the jury depicting the defendant in jail attire or shackles is not as damaging as requiring a defendant to appear that way in person before the jury." Id. Nevertheless, the court stated:
we remain convinced that videos of the defendant "bearing badges of custody" pose a threat to the defendant's right to a fair trial because it tends to suggest to the jury that some official determination has already been made that the defendant needs to be restrained and separated from society. This is especially true when, as in Deal's case, the jury was able to see and hear testimony to the effect that the jail interview was recorded months after the defendant was arrested on the underlying charges.
Id. Ultimately, the court concluded that Deal was entitled to relief "because the video was prejudicial based on specific circumstances of Deal's case," id. , and the trial court failed to engage in the appropriate analysis to determine whether the evidence was "nonetheless justified by some identifiable and essential state interest." Id. at 664.
As the above cases illustrate, courts have declined to hold that a jury's observation of a videotape showing a defendant in prison clothing is per se error requiring a new trial, and we likewise reject such a proposition, which even Appellant does not endorse. Further, the general consensus, with which we also agree, is that a jury's observation of a videotape showing a defendant in prison clothing does not carry the same risk to the presumption of innocence as a jury's in-person observation of a defendant wearing prison clothing or restraints in the courtroom. That said, we do not discount the possibility that a jury's observation of a videotape showing a defendant in prison clothing might, under some circumstances, "divert the jury's attention away from its duty of weighing the evidence impartially." Pa.R.E. 403, Comment.
The dissent rejects our conclusion that a jury's observation of a videotape showing a defendant in prison clothing does not carry the same risk to the presumption of innocence as a jury's in-person courtroom observation of a defendant in prison clothing or handcuffs. See Dissenting Opinion (Wecht, J.) at 237–38. Relying on Holbrook v. Flynn , 475 U.S. 560, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), Justice Wecht suggests that, regardless of whether the jury observes a defendant wearing prison attire in a videotape played at trial or in person during trial, it conveys to the jury the "unmistakable indication of the need to separate a defendant from the community at large." Id. (quoting Holbrook , 475 U.S. at 569, 106 S.Ct. 1340 ). Holbrook , however, did not involve a jury's observation of a defendant in prison clothing. Rather, the defendant in Holbrook complained that the presence of four armed uniformed police officers in the front row of the spectators’ section of the courtroom prejudiced his right to a fair trial. In rejecting this argument, the high Court distinguished "the use of identifiable security officers from courtroom practices we might find inherently prejudicial," stating:
[w]hile shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large, the presence of guards at a defendant's trial need not be interpreted as a sign that he is particularly dangerous or culpable. Jurors may just as easily believe that the officers are there to guard against disruptions emanating from outside the courtroom or to ensure that tense courtroom exchanges do not erupt into violence.
Holbrook , 475 U.S. at 569, 106 S.Ct. 1340. In the case before us, as noted, Appellant appeared throughout his three-day trial in civilian clothing, without handcuffs, and there was nothing to suggest to the jury that Appellant was dangerous or needed to be separated from the community at large.
Furthermore, although the videotape showed Appellant in prison clothing following his arrest and extradition to Pennsylvania nearly two years prior to trial, as the Holbrook Court explained, while an accused is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on the basis of "official suspicion, indictment, continued custody," this principle
does not mean ... that every practice tending to single out the accused from everyone else in the courtroom must be struck down. Recognizing that jurors are quite aware that the defendant appearing before them did not arrive there by choice or happenstance, we have never tried, and could never hope, to eliminate from trial procedures every reminder that the State has chosen to marshal its resources against a defendant to punish him for allegedly criminal conduct.
Id. at 567, 106 S.Ct. 1340. In our view, the mere fact that the jury was reminded, in a 17-minute video, that Appellant had been arrested two years earlier for the offense for which he was on trial does not trigger Estelle .
Accordingly, we hold that, in determining whether a jury should be permitted to view a videotape which shows a defendant in prison clothing, it is sufficient for a trial court to analyze the challenged evidence under Rule 403 of our Rules of Evidence, which requires a court to weigh the probative value of the evidence against the danger of unfair prejudice. However, in considering the danger of unfair prejudice resulting from the jury's observation of a videotape showing the defendant in prison clothing, the court should assess the degree to which the videotape will serve as a "constant reminder of the accused's condition" that may affect a juror's judgment, or whether it is likely to be a "continuing influence throughout the trial," creating a risk that the jury will consider impermissible factors in reaching its decision. Estelle , 425 U.S. at 504-05, 96 S.Ct. 1691. The greater the impact of the evidence in this regard, relative to its probative value, the more likely its admission should be prohibited.
In the case sub judice , after careful consideration of the facts of this case, including a review of the videotape, we conclude that the trial court did not abuse its discretion in admitting the videotape under Rule 403. First, the videotape undoubtedly was probative because it showed Appellant making numerous false statements to the police, which evidenced Appellant's consciousness of guilt.
The dissent faults us for "fail[ing] to criticize the trial court's abject failures in this case and fail[ing] to insist that trial courts in future cases perform the required assessment when confronted with evidence showing a defendant in jail garb." Dissenting Opinion (Wecht, J.) at 243. Specifically, Justice Wecht insists that "[t]rial courts are required to employ the safeguards contemplated in Estelle and Deck ," and maintains that "[w]e are bound to remind them of that duty here." Id. at 243. The dissent's position in this regard, however, is based on his conclusion that the videotape in the instant case served as a constant reminder of Appellant's condition in violation of Estelle , a position we have rejected; thus, a Deck analysis is not implicated in the instant case. Moreover, as discussed previously, Deck prohibits a defendant from being forced to appear in the courtroom in visible restraints or prison clothing, absent a justifiable essential state interest, such as security. As Appellant was not forced to appear in the courtroom in restraints or prison clothing, again, a Deck analysis is unnecessary.
Although the videotape clearly showed Appellant in prison clothing, the record reveals that, prior to the videotape being played, the jury was informed that the interview took place after Appellant was arrested and extradited to Pennsylvania for the alleged murder of the Victim; thus, the jury knew that Appellant was in jail awaiting trial for the Victim's murder, and not for another crime.
Further, the videotape was relatively short – only 17 minutes long – and was played for the jury on the final day of Appellant's three-day trial. As a result, we find that the videotape was not the type of "constant reminder" of Appellant's condition that would have the effect of diluting the presumption of innocence under the principles of Estelle ; it was not "a continuing influence throughout the trial" that created an unacceptable risk of "impermissible factors coming into play" in the jury's judgment. Estelle , 425 U.S. at 504-05, 96 S.Ct. 1691.
By contrast, Justice Wecht seems to suggest that any observation of a defendant in prison clothing by the jury, regardless of its length, warrants relief, opining that it is "highly unlikely" that the high Court "intended to set a time limit on constitutionally impermissible jury exposure," as such a rule would be unworkable. Dissenting Opinion (Wecht, J.) at 239–40. Notably, even Appellant does not suggest that any observation of a defendant in prison clothing, regardless of its duration, requires a new trial. Nevertheless, Justice Wecht accuses us of "dodg[ing]" the issue by failing to offer "criteria or parameters that instruct Pennsylvania courts how to know when the exposure was ‘constant’ and when it was not." Id. He further insists that, while some exposure may be considered de minimis , the 17-minute video in the instant case was not, and clearly triggered Estelle . As we have discussed, we disagree that the 17-minute videotape served as a constant reminder of Appellant's condition, a conclusion we find to be consonant with Estelle and its progeny, and consistent with the principle that cases should be read against their facts.
Finally, to the extent Appellant relies on Deal , that case is clearly distinguishable from Appellant's case in several significant respects. First, in granting relief, the Deal court observed that, "[u]nlike the defendant in Taylor , Deal was depicted in the video wearing both jail clothing and shackles." Deal , 607 S.W.3d at 667. In the instant case, the portion of the videotape played for the jury does not show Appellant in shackles. The Deal court also stressed that the trial court therein "dismissed Deal's requests to require the Commonwealth to present the audio version of his interview." Id. In the instant case, Appellant never requested that the Commonwealth play only the audio portion of his interview. Last, the court in Deal noted that the trial court failed to consider other ways in which to minimize the potential prejudice to Deal, such as by "admonishing the jury that Deal's appearance in the video should not be considered in determining guilt." Id. at 668. In the case sub judice , the trial court offered to give the jury a cautionary instruction, but Appellant declined.
Having concluded that the trial court did not abuse its discretion in admitting the videotape of Appellant's interview by police, we affirm Appellant's judgment of sentence.
Judgment of sentence affirmed.
Chief Justice Baer and Justices Dougherty, Mundy and Brobson join the opinion.
Justice Wecht files a dissenting opinion in which Justice Donohue joins.
JUSTICE WECHT, dissenting
"A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison , 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955). To vouchsafe that fairness, the due process clauses of the Fifth and Fourteenth Amendments require criminal juries to presume the defendant innocent until proven guilty beyond a reasonable doubt, using probative evidence only. This presumption of innocence "lies at the foundation of the administration of our criminal law." Coffin v. United States , 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895).
Events at trial sometimes compromise a jury's ability to presume the defendant's innocence. For example, suppose a jury learns that a defendant has a long history of criminality. Jurors may be tempted to take a shortcut: presuming the defendant's guilt using the common, though legally invalid, intuition that individuals who have committed crimes are likely to reoffend. Consider a jury which discovers that the defendant acted violently in situations unrelated to the charges at hand. Jurors might presume a propensity for violence and might assume that the defendant is a danger to their community. This might foster a desire among the jurors to see the defendant imprisoned, regardless of whether they believe that the evidence presented at trial has proven the charges beyond a reasonable doubt.
The need to prevent those sorts of unduly prejudicial inferences from influencing the minds of the jurors is what motivated the Supreme Court of the United States’ decision in Estelle v. Williams , 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). There, the Court held that to compel a criminal defendant to be tried before a jury while dressed in a prison uniform is to undermine the presumption that the accused is innocent until proven guilty, thereby violating the due process right to a fair trial. This is so because presenting the accused to the jury in jail garb is a "constant reminder of the accused's condition implicit in such distinctive, identifiable attire[, which] may affect a juror's judgment." Id. at 504-05, 96 S.Ct. 1691. Forcing a defendant to stand trial in prison clothing threatens "the principle that guilt is to be established by probative evidence" only. Id. at 503, 96 S.Ct. 1691.
The Estelle Court unanimously found that the risk of jurors being unduly influenced by a defendant's appearance as an incarcerated person is so great that there is no need to demonstrate that the jurors’ observation of the defendant actually factored into their assessment of guilt. See id. at 504, 96 S.Ct. 1691 ("[A]n accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system.") (emphasis added). As one Justice observed: "The prejudice may only be subtle and jurors may not even be conscious of its deadly impact, but in a system in which every person is presumed innocent until proved guilty beyond a reasonable doubt, the Due Process Clause forbids toleration of the risk." Id. at 518, 96 S.Ct. 1691 (Brennan J., dissenting).
Justice Brennan, joined by Justice Marshall, agreed with the Estelle Majority that a defendant has a constitutional right not to be tried while clad in jail attire. However, the dissenting Justices rejected Estelle ’s holding that the defendant in that case had consented to being tried in prison garb. See Estelle , 425 U.S. at 518, 96 S.Ct. 1691.
The Estelle Court did not hold that compelled appearance in prison attire requires automatic reversal of a conviction. The Court indicated that, even in circumstances where a particular practice inherently threatens a defendant's right to a fair trial, the practice may not be unconstitutional if it serves some "essential state policy." Id. at 505, 96 S.Ct. 1691. Essential state interests justify displaying the accused in jail garb only if there is a "substantial need" to do so. Id.
In the case that this Court decides today, we need not summon the dictates of "reason, principle, and common human experience" in order to reevaluate "the likely effects" of juries observing defendants dressed in identifiable jail clothing. Id. at 504, 96 S.Ct. 1691. The Supreme Court of the United States already has performed that evaluation and concluded categorically that displaying a defendant before the jury dressed in such attire creates "an unacceptable risk ... of impermissible factors coming into play." Id. It is settled law that such displays undermine the presumption of innocence and call the objectivity of the jury's factfinding into question.
Unlike the Estelle defendant, Derrick Gallaway was compelled to appear before the jury in jail garb by means of a video that the Commonwealth offered as evidence. We must decide whether it makes a difference that the jurors saw video evidence of Gallaway wearing prison garb, rather than observing a defendant dressed in jail clothing in person during the trial. If there is no meaningful distinction between the two scenarios, we must presume that the video was prejudicial. In that case, the question then becomes whether the prejudicial video was nevertheless necessary to achieve an essential state interest, such that its admission into evidence did not produce a constitutional violation. As I reach a different answer than the Majority on these two important questions, I respectfully dissent.
A. The harmful effects of a jury viewing a defendant dressed in jail garb in person during trial occur as well when a jury views a video of a defendant so attired.
My colleagues declare "that a jury's observation of a videotape showing a defendant in prison clothing does not carry the same risk to the presumption of innocence as a jury's in-person observation of a defendant wearing prison clothing or restraints in the courtroom." Maj. Op. at 233–34. I fail to see how a video of a defendant bearing the mark of a convict is any less of a threat to the jury's ability to presume innocence than an in-person appearance in the same attire. Regardless of whether a defendant is wearing jail clothing during trial or is wearing such attire in a video that is played for the jury, both situations signal to a lay jury the same "unmistakable indication[ ] of the need to separate a defendant from the community at large." Holbrook v. Flynn , 475 U.S. 560, 569, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986). That separation is problematic because it "create[s] the impression in the minds of the jur[ors] that the defendant is dangerous or untrustworthy," making it more likely that the verdict will be based upon jurors’ fear of the defendant or other impermissible preconceptions. Id. at 570, 106 S.Ct. 1340 (cleaned up).
The Majority takes issue with my reliance upon the Supreme Court of the United States’ decision in Holbrook . The Majority seems to adopt the view that nothing the Supreme Court said in Holbrook is relevant here because that case addressed the presence of four armed and uniformed police officers in the front row of the spectators’ section of the courtroom. See Maj. Op. at 234 n.14. The Majority's criticism is ill-founded. It is untenable to suggest that the Supreme Court's words apply only in cases that are factually indistinguishable. Our system of justice relies upon the ability of courts to apply general propositions of law to the facts of individual cases. In Holbrook , the Supreme Court recognized the general principle that "shackling and prison clothes are unmistakable indications of the need to separate a defendant from the community at large." Holbrook , 475 U.S. at 569, 106 S.Ct. 1340. We should not disregard the force of the High Court's words based upon the mere fact that Holbrook itself did not concern a defendant who was wearing jail clothing. Holbrook was restating the harm that was first articulated in Estelle , and Estelle did concern prison clothing.
The Majority offers no compelling reason to believe that a video of a defendant bearing the mark of a criminal is unlikely to create those same impressions. By way of analogy, consider that we have never held that prejudicial physical evidence becomes less prejudicial when it is introduced through a photograph or a video recording. The admission of a gruesome photograph of something can be prejudicial, just as the admission of the gruesome item itself can be prejudicial. See Commonwealth v. Liddick , 471 Pa. 523, 370 A.2d 729, 731 (1977) (holding that a photograph of the victim's partially decomposed body was inflammatory and inadmissible). The fact that the alarming nature of an object is revealed to the jury in a photograph, rather than through direct courtroom encounter, has never altered the analysis required in weighing the admissibility of inflammatory evidence. See Commonwealth v. Yount , 455 Pa. 303, 314 A.2d 242, 250 (1974) ("[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 of the jurors. ... This test is also applicable to the other demonstrative evidence, i.e. , the clothing, admitted here.") (cleaned up). In the context of this case, the lone fact that defendant was represented pictorially is a distinction without a difference.
The Majority also relies a great deal upon the fact that, while Estelle involved a defendant who was dressed in jail garb throughout the trial, video evidence appears during only a fraction of a typical trial. The Majority observes that, in this case, "the videotape was relatively short – only 17 minutes long – and was played for the jury on the final day of [Gallaway's] three-day trial." Maj. Op. at 235. The Estelle Court did not limit its holding to those cases in which a defendant was dressed in jail garb throughout the entirety of the trial, nor did its decision turn upon the issue of how long the jury was exposed to the prison-clad defendant.
Estelle ’s reliance upon Commonwealth v. Keeler , 216 Pa.Super. 193, 264 A.2d 407 (1970) (en banc ) is telling. See Estelle , 425 U.S. at 504, 96 S.Ct. 1691 (citing, inter alia , Keeler for the proposition that "an accused should not be compelled to go to trial in prison or jail clothing because of the possible impairment of the presumption so basic to the adversary system"). Keeler involved a defendant who was forced to attend his jury selection while wearing jail garb. The defendant was compelled to stand before the jury so attired for approximately thirty-five minutes. The trial court denied the defendant's request for a new panel of prospective jurors, and the parties proceeded to trial. After the jurors who observed the defendant dressed in a jail uniform returned a guilty verdict, the defendant appealed.
An en banc panel of the Superior Court vacated the defendant's judgment of sentence and ordered a new trial. The en banc panel explained that forcing a defendant to appear before prospective jurors in jail clothing impairs the all-important precept that "defendants are presumed innocent until" the Commonwealth "bring[s] forth evidence to overcome that presumption." Keeler , 264 A.2d at 409. Only evidence that is "competent and probative" can overcome the presumption of innocence. Id. When jurors view the defendant dressed in jail clothing, they are likely to convict based upon "prejudice and fear." Id. That is so because "prison garb gives the appearance of one whom the state regards as deserving to be so attired. It brands him as convicted in the state's eyes." Id.
The Keeler court did not assign any weight to the fact that the venirepersons saw the defendant dressed in prison clothing for only thirty-five minutes before the commencement of his trial. The earliness and brevity of the juror's observation of the defendant had no bearing upon the outcome. Nor is there a constitutionally significant difference between the thirty-five minutes at issue in Keeler and the seventeen minutes at issue here. Both periods are long enough that a reviewing court safely may assume that the jurors observed the defendant and took notice of his clothing.
I doubt that Estelle ’s use of the phrase "constant reminder" was intended to limit its holding to cases where the jury sees the defendant dressed in prison clothing from the commencement of trial to the time that the jury begins its deliberations. If that is what the High Court intended, then a defendant could be forced to dress in prison clothes for two days of a three-day trial with no resulting encroachment upon the presumption of innocence. I presume that is not a practice which either the Majority or Estelle would endorse.
The use of the term "constant" likely meant only that a de minimis exposure generally does not rise to the level of a constitutional violation. Indeed, we have found the brevity of a defendant's compelled appearance in prejudicial attire to be a relevant consideration in other cases. For example, in Commonwealth v. Evans , 465 Pa. 12, 348 A.2d 92, 93 (1975), a defendant wearing handcuffs was waiting for an elevator during a recess when one juror and one alternate juror passed by. In rejecting the defendant's request for a new trial, we explained that the incident "was very brief; if indeed the defendant was observed and the handcuffs were noted, it was hardly the sort of happening that would contaminate the jury's decision-making process." Id. at 94. There is no dispute that, in this case, Gallaway was wearing identifiable prison attire throughout the video, nor any doubt that the jury knew it. Unlike Evans , this is not a case where the amount of time involved allows us to credibly doubt whether the jurors observed the prejudicial attire.
It is highly unlikely that the United States Supreme Court intended to set a time limit on constitutionally impermissible jury exposure. Plainly, no such device would be workable. The Majority nonetheless appears to assume as much, while simultaneously offering no criteria or parameters that instruct Pennsylvania courts how to know when the exposure was "constant" and when it was not. The Majority simply dodges the difficult question of how long jurors must observe a defendant before a constitutional violation arises. The lead opinion advances no principled basis to conclude that seventeen minutes is an insignificant amount of time. That is because there is none. Seventeen minutes is ample time for a jury to observe a defendant clothed as a convict and imbued with all of the negative connotations that come with that attire. A seventeen-minute video simply cannot be blithely dismissed as the kind of "passing" observation that does not trigger the concerns and protections of Estelle . Compare Commonwealth v. Johnson , 576 Pa. 23, 838 A.2d 663, 681 (2003) (holding that a testimonial "reference to Johnson's incarcerated status was passing, and not the type of ‘constant reminder’ proscribed by Estelle "), with Commonwealth v. Cruz , 226 Pa.Super. 241, 311 A.2d 691, 693 (1973) (granting a defendant a new trial because he had twice been observed handcuffed inside the courtroom by the jury).
Neither the fact that jurors saw Gallaway in a video recording rather than in person, nor the fact that jurors observed him in jail garb for less than the entirety of trial, warrants the conclusion that Gallaway did not suffer prejudice. "[T]he consequences of compelling a defendant to wear prison clothing ... cannot be shown from a trial transcript." Riggins v. Nevada , 504 U.S. 127, 137, 112 S.Ct. 1810, 118 L.Ed.2d 479 (1992). We are constrained to presume prejudice in any case where a defendant is compelled to appear before the jury wearing a jail uniform for an extended period of time. See id. Regardless of the means by which the jury comes to view the defendant dressed in prison attire, Estelle ’s reasoning applies with equal force, and courts must infer that the objectivity of the jurors was affected.
This is not to say that trial courts cannot inquire into the degree of prejudice that is likely to result in a given case, nor that they cannot determine whether other case-specific circumstances rendered the prejudice necessary or harmless. Indeed, Estelle made clear that a defendant's appearance in prison attire does not automatically require a mistrial in every case. As noted, evidence that threatens a defendant's right to a fair trial may nonetheless fall short of a constitutional violation if the trial court finds the evidence necessary to achieve some "essential state interest." Estelle , 425 U.S. at 505, 96 S.Ct. 1691. Here, however, the trial court failed entirely to perform the required assessment. Today's Majority turns a blind eye. This is error.
B. The trial court committed an error of law in failing to determine whether the video was substantially necessary to fulfill an essential state interest.
In Deck v. Missouri , 544 U.S. 622, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005), the Supreme Court provided guidance on how an essential state interest can excuse a practice that threatens the presumption of innocence. Deck addressed the constitutionality of shackling a defendant at the penalty phase of a capital trial. The Court held that shackles present the same inherent risk of undue prejudice as prison uniforms, as shackling also signals to the jury "that court authorities consider the offender a danger to the community," which is "often a statutory aggravator and nearly always a relevant factor" in the decision of whether or not to impose the death penalty. Id. at 632-33, 125 S.Ct. 2007. The Supreme Court concluded that "the Fifth and Fourteenth Amendments prohibit the use of physical restraints visible to the jury absent a trial court determination, in the exercise of its discretion, that they are justified by a state interest specific to a particular trial." Id. at 629, 125 S.Ct. 2007.
"[A]ny such determination must be case specific; that is to say, it should reflect particular concerns ... related to the defendant on trial." Id. at 634, 125 S.Ct. 2007. Where the trial court has not made "formal or informal findings" as to the necessity of the practice, the trial court cannot be said to have "acted within its discretion." Id. The trial court's decision will be upheld only where "the record itself makes clear that there are indisputably good reasons" to support the use of the challenged practice. Id. at 635, 125 S.Ct. 2007. In deciding whether such reasons exist, a trial court should consider the availability of alternatives that alleviate as much prejudice as possible. See id. at 634-35, 125 S.Ct. 2007 (admonishing the trial judge for failing to explain why, "if shackles were necessary, [the judge] chose not to provide for shackles that the jury could not see").
The Deck Court reiterated that, "where a court, without adequate justification," compels a defendant to be displayed to a jury in restraints or jail garb, "the defendant need not demonstrate actual prejudice to make out a due process violation." Id. at 635, 125 S.Ct. 2007. The defense does not have a duty to make a record of "the degree of the jury's awareness" of the challenged practice, which goes to "the kinds of prejudice that might have occurred." Id. at 634, 125 S.Ct. 2007. The burden to make a record in this context rests with the trial court alone, which must detail its reasons for finding the practice justified in the case at hand. If the trial court fails to do so, the prosecution then has a burden to "prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained." Id. at 635, 125 S.Ct. 2007 (cleaned up).
In the case at hand, the trial court's treatment of Gallaway's objection was an affront not only to Estelle , but also to Deck , and to the fundamental constitutional rights that those cases seek to protect. The presiding judge cavalierly dismissed Gallaway's right to not be shown in jail garb, declaring merely that "[t]his is not the only case where a defendant, a suspect is interviewed in their jail reds." N.T. Trial, 8/29/19, at 276. This is far from a case-specific finding that the video served an essential state interest, as our Constitutions demand. The trial judge also was required to explain how the video was substantially necessary to serve that essential state interest. The court did neither. Deck has made those findings a necessary part of a trial judge's exercise of discretion, as a matter of law. The trial court's total failure to consider any safeguards undermines the contention "that the trial judge saw the matter as one calling for discretion." Deck , 544 U.S. at 634, 125 S.Ct. 2007 ; cf. Commonwealth v. Ballard , 622 Pa. 177, 80 A.3d 380, 393 (2013) (explaining that a trial court abuses "its discretion in admitting [gruesome] photographs when the situation generally entails indifference from the trial court or the Commonwealth to the photographs’ prejudicial effect , or where the precautions taken were not commensurate with the nature of the scene depicted") (emphasis added). Indifference indeed is what the trial court manifested here.
Today's Majority uncritically excuses the trial court's rash dismissal of Gallaway's attempt to prevent the jury from viewing him in clothing that branded him as "dangerous or untrustworthy." Holbrook , 475 U.S. at 570, 106 S.Ct. 1340. My colleagues go out of their way to justify the trial court's decision, despite that court's own apparent belief that it was not even required to do the same. From an appellate perspective, we are not in the best position to assess the video in relation to other evidence. We did not see the Commonwealth's evidence first-hand in open court. We did not hear the witnesses testify, nor did we observe their demeanor. The trial judge did. That is why the ball lands first in his court to engage in the correct legal analysis. The trial court here didn't even try.
Today's Majority presses on nonetheless. It relies upon a cold record alone to declare that "the videotape undoubtedly was probative because it showed [Gallaway] making numerous false statements to the police, which evidenced [his] consciousness of guilt." Maj. Op. at 235. The trial judge was the only one that could make that determination. And he failed to do so. In fact, he had not even viewed the video at the time he overruled Gallaway's objection, inasmuch as Gallaway objected before the video was played at trial. It is hard to understand how this Court can assume that the trial judge understood the video's relevance when he had not yet viewed the video. The trial court's disregard for the law entitles Gallaway to a new trial.
See Ballard , 80 A.3d at 393 (A trial court abuses its discretion in admitting prejudicial evidence where the trial court was indifferent to the prejudicial effect, or where the precautions taken were insufficient).
Under normal circumstances, I would recommend a remand to the trial court to allow it to make the required determinations at this juncture. If the trial court then found that the video was substantially necessary to achieve an essential state interest, Gallaway's conviction and sentence presumably would stand. If the court found the prejudice to be inexcusable, Gallaway would be entitled to a new trial. However, such a remand is not feasible in this particular case, as Judge Mark Tranquilli, who presided at Gallaway's trial, has resigned from the bench.
C. Even if this Court were permitted to perform the assessment in the first instance, the Majority does not demonstrate that the video was substantially necessary to achieve an essential state interest.
Assuming that the Majority is correct in declaring that the recording of the statements "undoubtedly was probative," that makes the Commonwealth's decision to play the video all the more problematic. Id. at 234–35. The jury's assessment of the statements was tainted by the fact that Gallaway was wearing the jail uniform while making those statements. The Commonwealth sought to prove that Gallaway was a liar and that his lies revealed his consciousness of guilt. Because the jurors saw Gallaway make the recorded statements while bearing a badge of criminality, those jurors were more likely to find the statements to be deceptive. See Jackson v. Washington , 270 Va. 269, 619 S.E.2d 92, 97 (2005) ("It is difficult to conceive of a circumstance more likely to disadvantage an accused than compelling him to testify in his own defense to the jury while wearing jail clothes. Reason and common human experience dictate, at a minimum, that the accused's appearance in jail clothes is such a badge of guilt that it would render an accused's assertion of innocence less than fully credible to the jury.").
This point demonstrates an additional flaw in the Majority's reliance upon the fact that the video of Gallaway lasted for seventeen minutes of Gallaway's three-day trial. On the one hand, the Majority declares that the video was not prejudicial because it was not on display for the entirety of Gallaway's trial. But, on the other hand, the Majority declares that the seventeen-minute video "undoubtedly was probative." Maj. Op. at 235. While the video may not have been at the front of the jurors’ minds during Gallaway's entire trial, the video was certainly a "constant reminder" of Gallaway's carceral status for the entire time that the jurors were considering what the Majority deems to be such a critical piece of evidence. See Estelle , 425 U.S. at 504-05, 96 S.Ct. 1691.
The Majority's reliance upon the fact that the jurors already knew that Gallaway was extradited is flawed as well. Arrest and extradition do not mean that a defendant always will be incarcerated while he awaits trial. There is no reason for us to assume the jury did not think that Gallaway was being held on the basis that he was more dangerous and untrustworthy than the average citizen who has been charged with a crime and thus could not be released on bail. Regardless of whether the jury did or did not infer that Gallaway was being held on charges unrelated to the instant case, that undue inference is not the only harm that the prohibition on jail garb aims to prevent.
As the Superior Court once noted, prison attire "also demeans the defendant in his own mind. It makes him feel that, although presumed to be innocent, he has already lost his dignity by the very fact of arrest and charge. ... The defendant is thereby placed in a psychological, emotional disadvantage." Keeler , 264 A.2d. at 409. That observation is particularly relevant here. The video was played for the jury immediately before Gallaway testified. He was forced to convince the jury of his innocence, despite the jury having just viewed him dressed as someone who is guilty and untrustworthy. See Holbrook , 475 U.S. at 570, 106 S.Ct. 1340. Such a disadvantage makes it all the more likely that Gallaway would not be able to present his testimony in a compelling fashion. The Majority relies heavily upon the duration of the video and upon the fact that the jury knew about Gallaway's extradition. But my colleagues readily dismiss the effects that the jail garb necessarily had upon the jury's assessment of the statements in the video and the devastating effects of playing the video just before Gallaway's credibility "took center stage." Gallaway's Br. at 27. Estelle and Deck command more.
All of these potential harms could readily have been avoided. The Commonwealth could have introduced only the audio of Gallaway's interview. That would have permitted the jury to hear the probative evidence while eliminating all undue prejudice. Far from criticizing the trial judge's failure to take any meaningful steps to alleviate the harm, my colleagues instead fault Gallaway for failing to consent to the trial judge's suggested curative instruction. See Maj. Op. at 234–35. A curative instruction cannot be deemed adequate when there was no need to sow error in the first place.
See Commonwealth v. Powell , 428 Pa. 275, 241 A.2d 119, 121 & n. 1 (1968) (holding that the admission of prejudicial photographs of the victim's injuries constituted reversible error, despite the trial court's provision of a cautionary instruction, because the nature and extent of injuries had no bearing on finding of felony murder).
D. Conclusion
The Supreme Court of the United States has instructed trial courts to assess whether displaying a defendant in jail garb serves a valid state interest, and if so, whether there are less prejudicial ways to fulfill that interest. The trial court violated these instructions here. It is not our job to fill in the gaps. It is our job to enforce the presumption of innocence. In order to ensure that the Supreme Court's words are something more than a mere advisory, we must vacate Gallaway's conviction and sentence. The Majority fails to criticize the trial court's abject failures in this case and fails to insist that trial courts in future cases perform the required assessment when confronted with evidence showing a defendant in jail garb. Trial courts are required to employ the safeguards contemplated in Estelle and Deck . We are bound to remind them of that duty here. Here is a striking oddity: We have insisted that trial courts employ far more stringent prophylactics in situations far less constitutionally suspect. Our decision in Commonwealth v. Purnell , ––– Pa. ––––, 259 A.3d 974 (2021), is a recent example. There, we addressed whether a trial court may permit a witness to be accompanied by a support dog during his or her trial testimony. We answered that question in the affirmative. However, we recognized that the presence of a dog in a courtroom bears a risk of prejudice to a defendant. Purnell thus held that, before permitting the use of a support dog, courts first must "balance the degree to which the accommodation will assist the witness in testifying in a truthful manner against any possible prejudice to the defendant's right to a fair trial and employ means to mitigate any such prejudice." Id. at 986. We thus instructed courts "to minimize any potential prejudice to the defendant by, inter alia , considering the dog's training, providing the jury with limiting instructions, and employing means to limit the jury from viewing the dog." Id.
The Majority incorrectly characterizes my position as suggesting that any observation of a defendant in prison clothing requires a new trial. See Maj. Op. at 235 n.16. I do not argue that brief glimpses of a defendant in jail garb require a new trial automatically. Indeed, I do not argue that even a prolonged observation of a defendant so attired requires a new trial automatically. Rather, my position is that, when a defendant is compelled to appear before a jury dressed in jail garb, the trial court must assess whether case-specific circumstances render the prejudice either necessary or harmless. If the trial court finds that the prejudicial evidence was necessary to achieve some "essential state interest" or that the prejudice ultimately was harmless, then no relief is warranted. Here, the trial court failed utterly to perform any analysis at all.
Today's case is not merely about the presence of a support dog in a courtroom. The Supreme Court of the United States has held that to display a defendant in jail garb in the courtroom is to compromise that defendant's right to be presumed innocent until the Commonwealth proves guilt with probative, legally competent evidence. Even so, my colleagues still refuse to encourage precautions remotely similar to those we required when a canine enters the room. The Majority instead gives its blessing to the trial court's plain disregard of Gallaway's right to a fair trial. Today's decision will signal to trial courts that they are free to overlook matters that encroach upon the presumption of innocence as long as the cause of the encroachment is intertwined with otherwise admissible evidence, or as long as the encroachment does not continue for the entire duration of the trial.
While we all recognize "the importance of preserving trial court discretion (reversing only in cases of clear abuse)," we also must recognize the "limits on that discretion." Deck , 544 U.S. at 629, 125 S.Ct. 2007. Here, the "the record contains no formal or informal findings" as to the necessity of playing the video of Gallaway, a circumstance that obviously and necessarily undermines the conclusion that "the trial judge saw the matter as one calling for discretion." Id. at 634, 125 S.Ct. 2007. "If there is an exceptional case where the record itself makes clear that there are indisputably good reasons for" allowing the jury to see a defendant dressed in a jail uniform, "it is not this one." Id. at 635, 125 S.Ct. 2007. Gallaway is not required to "demonstrate actual prejudice to make out a due process violation." Id . Because the Commonwealth has not demonstrated that the admission of the video was harmless beyond a reasonable doubt, Gallaway is entitled to a new trial.
Justice Donohue joins this dissenting opinion.