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COMMONWEALTH v. JOHNSON (10/09/70)

decided: October 9, 1970.

COMMONWEALTH
v.
JOHNSON, APPELLANT



Appeal from order of Superior Court affirming judgment of sentence of Court of Quarter Sessions of Allegheny County, May T., 1968, No. 339, in case of Commonwealth v. William Johnson.

COUNSEL

John M. Tighe, for appellant.

Carol Mary Los, Assistant District Attorney, with her Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice O'Brien. Mr. Justice Jones, Mr. Justice Roberts and Mr. Justice Pomeroy concur in the result.

Author: O'brien

[ 440 Pa. Page 343]

Appellant, William Johnson, was tried September 11-18, 1968, by a judge and jury on charges of assault and battery, burglary and resisting arrest. He was convicted of assault and battery and resisting arrest, but the jury was discharged as to the burglary charge, as it was unable to reach a verdict on that point. Appellant was sentenced to one and one-half to three years, and the Superior Court, in a per curiam opinion, affirmed the judgment of sentence. We granted allocatur and now we reverse.

Appellant raises four arguments in his appeal. Two of these arguments relate to alleged improprieties by the court in the way it handled the problems created by numerous sensational and inflammatory items relating

[ 440 Pa. Page 344]

    to another incident involving appellant, which filled the local news media shortly before appellant's scheduled trial in the instant case.

The crimes for which appellant was being tried were committed in October, 1967. On August 22, 1968, Johnson was accused of having attacked Assistant Superintendent Kelly of the Pittsburgh Police Department during a meeting between black citizens from Pittsburgh's Homewood section and city officials at the City Council Chambers in Pittsburgh. During the next two weeks the newspapers and the radio and television stations in Pittsburgh produced a steady flow of news items mentioning the appellant, some of them highly inflammatory and prejudicial. In his applications for a continuance (first on August 29 and later on September 11), appellant's counsel presented the following news items, allegedly prejudicial to the appellant, as reasons why his trial should be delayed:

[ 440 Pa. Page 1]

(1) A copy of the Pittsburgh Press, hereinafter referred to as the Press, of August 22, 1968. The headline on Page 1 stated: "Black Mob Beats Top Cop Kelly" and a substantial article described the aforementioned incident in the City-County Building and identified the appellant as Kelly's assailant.

[ 440 Pa. Page 1]

(2) A copy of the Pittsburgh Post-Gazette, hereinafter referred to as P.G., for August 23, 1968. On Page 1, the headline stated: "Blacks Beat Assistant Superintendant Kelly." Appellant was identified on the Page 1 article as Kelly's assailant and his and Kelly's photos were reproduced on Page 1 side by side. Also on Page 7 of the same issue, the appellant's previous arrest record was published right next to the continuation of the previously-mentioned Page 1 article.

[ 440 Pa. Page 1]

(3) A Press article of August 23, 1968, featuring a Page 1 editorial on the Kelly incident depicting the assailants as a "vicious mob," "hoodlums," and colorfully

[ 440 Pa. Page 345]

    drawing an analogy between them and famous criminals such as John Dillinger and Al Capone. Right underneath the editorial article was a photograph of the appellant with his name. Also on Page 1 was an article again discussing the Kelly incident and the reaction to appellant and his deeds by the Mayor of Pittsburgh. Also on Page 1 of the same issue and continued on Page 4 right beneath the appellant's photo was a lengthy article giving appellant's prior police arrest record. The continuation of both Page 1 articles onto Page 4 conveniently led the reader into another article wherein the Mayor of Pittsburgh condemned Mr. Johnson's release after "a dastardly act." Also in another separate article appeared commentary of District Attorney Robert Duggan referring to the appellant by name and also interspersing these references with repeated references to "criminals and hoodlums."

[ 440 Pa. Page 1]

(4) A Press article of August 24, 1968, headlined: "Kelly Assailant Held In New Attack." This headline appeared on Page 1. Also on Page 1 an article alluded to the district attorney's characterization of the appellant as a hoodlum and recited the alleged new misconduct of appellant in an automobile incident. The article continued on Page 3 and disclosed more of Mr. Duggan's inflammatory commentary about the appellant.

[ 440 Pa. Page 1]

(5) An article on Page 1 of the P.G. of August 24, 1968. Again, Mr. Duggan's characterization of the appellant as a hoodlum and criminal was published. Also, an article in the same paper related that appellant was arrested for a new charge and pointed out that he was charged with assaulting a police officer nine days previous to the publication of the article. (This latter charge was a third charge and in no way ...


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