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COMMONWEALTH v. HOSS (10/12/71)

decided: October 12, 1971.

COMMONWEALTH
v.
HOSS, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Allegheny County, Dec. T., 1969, Nos. 5 and 6, in case of Commonwealth of Pennsylvania v. Stanley Barton Hoss.

COUNSEL

Edgar M. Snyder and Fred E. Baxter, Jr., Assistant Public Defenders, with them George H. Ross, Public Defender, for appellant.

Carol Mary Los and Donald P. Minahan, Assistant District Attorneys, with them Robert W. Duggan, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Eagen, O'Brien, Roberts, Pomeroy and Barbieri, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 445 Pa. Page 101]

This direct appeal follows a conviction of first degree murder and the imposition of the death penalty in a trial by jury in Allegheny County for the killing of a Verona Township policeman on September 19, 1969. Appellant, Stanley Hoss, was tried under the Split Verdict Act*fn1 which provides a two phase trial on the questions of guilt and sentence. He here asserts numerous trial errors including the prejudicial effect of pretrial publicity and the denial of a change of venue, the limits on the scope of questioning at the voir dire, and the admission of certain evidence at the guilt and penalty phases of the trial.*fn2 Upon review of the record and consideration of these contentions, we affirm the conviction, but conclude that appellant must be afforded a new sentencing hearing because of evidence improperly admitted at the penalty phase of the trial. The facts, viewed in the light most favorable to the Commonwealth, are as follows.

Appellant was incarcerated in the Allegheny County Workhouse pending sentencing on a felonious rape conviction when he escaped on the night of September 9, 1969. Police departments throughout the county were

[ 445 Pa. Page 102]

    promptly notified of the escape but their immediate efforts to recapture appellant failed.

Hoss was first seen by one Fred Mangol on September 19, 1969. Mangol, who had known appellant for eleven years and was aware of his recent escape from prison, immediately notified the Pittsburgh Police Department that appellant had just left a restaurant and was driving a yellow Chevrolet in the direction of Allegheny River Boulevard. This information was relayed by the Pittsburgh Police to the Oakmont Police who in turn notified the Penn Hills and Verona Police Departments. Shortly thereafter, Officer Joseph Zanella of the Verona Police Department spotted a Chevrolet with Ohio license plates. Believing the occupant was the appellant, Officer Zanella had him pull his car over to the side of the road on Plum Street in Oakmont. After giving appropriate warnings, he approached appellant's car with his revolver drawn. Two shots rang out, one of which proved fatal to Officer Zanella. Appellant immediately fled, hitching a ride in the direction of Tarentum, Pennsylvania. Two days later, he abducted Karen Malgott at gunpoint in Lower Burrel, Pennsylvania and forced her to drive him through sections of Maryand and West Virginia. During the 18-hour abduction appellant stated that he had shot a "Verona cop". Appellant was finally captured by the local police in Waterloo, Iowa on October 4, 1969 and immediately arraigned before a United States Commissioner for various federal charges including interstate flight from prosecution which was based on appellant's escape from prison pending sentencing on the rape charge.

Appellant was questioned for several days after his arrest by special agents of the FBI. During the course of interrogation, he confessed the killing of Officer Zanella, the kidnapping of Karen Malgott, and identified the gun used to kill Zanella as belonging to one

[ 445 Pa. Page 103]

Dennis Falconer. Hoss was returned to Pittsburgh on October 9 and the next day was sentenced on the rape charge for which he had been convicted before his escape.

Numerous pretrial motions were filed and orders issued. Trial was had before a jury from March 2 to March 10, 1970, and appellant was found guilty of first degree murder and sentenced to death. Post-trial motions were denied by the court en banc. This appeal followed.

I. Finding of Guilt Pretrial Publicity

Prior to trial, appellant filed a motion requesting a change of venue which was denied. He now contends that the death of the Verona policeman, Officer Zanella, and the events surrounding appellant's escape, arrest, and pending trial generated so much inflammatory publicity that he could not receive a fair trial in Allegheny County. This claim raises two questions: (1) whether the pretrial publicity was so prejudicial that only a change of venue could guarantee appellant a fair trial; (2) whether the precautions taken by the trial court and the conduct of the voir dire were sufficient to provide appellant a fair trial.

The day after appellant's escape and the shooting of Officer Zanella, the media reported the events and mentioned Hoss as the individual who had escaped and "allegedly" shot Officer Zanella. During the next few weeks, the publicity intensified, first after the abducted Karen Malgott was released in West Virginia and identified appellant as the abductor, and second after the media emphasized police suspicions that Hoss had kidnapped a Mrs. Peugeot and her daughter*fn3 and a nationwide

[ 445 Pa. Page 104]

    search for appellant had commenced. During this same time period, a television interview was conducted with a Mrs. Thompson, mother of the abducted Mrs. Peugeot. The period of intensive publicity lasted for about six weeks after appellant's escape.*fn4

On October 30, 1969, the trial court issued an order prohibiting any statements by counsel about any aspect of the case and also wrote letters to all the radio and television stations and the newspapers requesting an abatement of publicity so as not to prejudice appellant's right to a fair trial. From the record, it appears that the court's request was honored because the publicity abated and subsequent news reports were limited to a factual account of the procedural developments of the case.

Courts have not been reluctant to intervene where inflammatory and prejudicial pretrial publicity has undermined the right of the accused to a fair trial. In Rideau v. Louisiana, 373 U.S. 723, 83 S. Ct. 1417 (1963), the United States Supreme Court found a denial of due process in a refusal to grant a change of venue where shortly after defendant's arrest a twenty-minute film showing portions of defendant's ...


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