IN THE SUPREME COURT OF PENNSYLVANIA WESTERN DISTRICT

COMMONWEALTH OF PENNSYLVANIA, : No. 96 WAL 2024 : Respondent : : Petition for Allowance of Appeal : from the Unpublished v. : Memorandum and Order of the : Superior Court at No. 1246 WDA : 2022 entered on February 13, 2024, MICHAEL CRAIG PHILLIPS, : affirming the Judgment of Sentence : of the Beaver County Court of Petitioner : Common Pleas at No. CP-04-CR- : 0001529-2020 entered on November 5, 2021

ORDER

PER CURIAM AND NOW, this 25th day of September, 2024, the Petition for Allowance of Appeal is GRANTED, the order of the Superior Court is VACATED, and the case is REMANDED to the Superior Court to consider petitioner’s claim that the admission of the photo prejudiced him, and to determine whether the trial court’s error in admitting the photo was harmless beyond a reasonable doubt. See Pa.R.E. 103(b) (“Once the court rules definitively on the record ― either before or at trial ― a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”). Petitioner’s failure to object to the cautionary instruction regarding the photo waived the issue of whether the instruction was erroneous, not the preserved claim that the introduction of the photo was prejudicial.

See Commonwealth v. LaCava, 666 A.2d 221, 228 & n.8 (Pa. 1995) (holding claim of erroneous jury instruction would normally be waived in absence of objection but nonetheless reaching merits under relaxed waiver rule formerly applicable in capital cases).

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