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COMMONWEALTH v. STOUFFER (06/21/73)

decided: June 21, 1973.

COMMONWEALTH
v.
STOUFFER, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Franklin County, No. 427 of 1966, in case of Commonwealth of Pennsylvania v. Herman F. Stouffer.

COUNSEL

Jerome T. Foerster, with him Smith, Fox, Roberts, Foerster & Finkelstein, for appellant.

John R. Walker, District Attorney, with him Edwin D. Strite, Jr., Assistant District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Dissenting Opinion by Hoffman, J. Spaulding and Spaeth, JJ., join in this dissenting opinion.

Author: Per Curiam

[ 225 Pa. Super. Page 31]

Judgment of sentence affirmed.

Disposition

Judgment of sentence affirmed.

Dissenting Opinion by Hoffman, J.:

Appellant contends that his motion for a change of venue should have been granted, and that widespread pretrial publicity deprived him of a fair trial in Franklin County.

Appellant was charged with ten counts of uttering forged instruments. After two continuances, a jury was impanelled on May 5, 1967. The Court declared that trial would not be held until May 25, 1967, and excused the jury warning them not to discuss the case with anyone or read anything concerning the case in the interim period before trial.

From April 27, 1967 until May 26, 1967, numerous articles in the local newspapers and radio broadcasts reported the facts of the impending trial and apprised the community that appellant had been convicted in Maryland for "related crimes".*fn1 After a number of these front-page articles appeared, see footnote 1, appellant applied for a change of venue on May 12, 1967.

[ 225 Pa. Super. Page 32]

A hearing was held on May 19, 1967, at which the application was denied. Appellant argued that he could not obtain a fair trial as a result of the wave of publicity,

[ 225 Pa. Super. Page 33]

    certain to inflame and sway the minds of the public, and particularly the jurors. He contended that the prejudice caused by these articles destroyed the impartiality of the community in which he was to stand trial. The trial court reasoned that it had adequately warned the jurors not to read or discuss anything in connection with the case. It concluded: "We cannot talk in abstract. The fact that the articles appeared in the newspapers is not in question . . . what you have to prove is that the articles prejudiced the jury. . . . If you are not prepared to prove prejudice, we cannot grant the motion."

Trial was held on May 25 and 26, 1967, before the jury which had been impanelled almost three weeks prior thereto. Prior to the opening remarks of counsel, the trial judge asked the jurors if they had read or heard anything about the case or about the defendant. They replied in the negative. A request by defense counsel to voir dire the jurors was denied, and the trial proceeded. After the close of all the testimony, the jury returned a verdict of guilty on all counts. Post-trial motions were denied, and this appeal followed.

The United States Supreme Court has spoken emphatically on the question of protecting the defendant's right to a fair trial in the face of prejudicial publicity, either during or before the trial. Sheppard v. Maxwell, 384 U.S. 333 (1966); Rideau v. Louisiana, 373 U.S. 723 (1963); Marshall v. United States, 360 U.S. 310 (1959). The problem of prejudicial publicity can arise in many different ways. Exact parallels with

[ 225 Pa. Super. Page 34]

    factual situations presented by other cases is difficult, and it is for this reason, that "appellate tribunals have the duty to make an independent evaluation of the circumstances" ...


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