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COMMONWEALTH v. MARTINOLICH (03/25/74)

decided: March 25, 1974.

COMMONWEALTH
v.
MARTINOLICH, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Berks County, No. 1421 of 1969, in case of Commonwealth of Pennsylvania v. Robert Martinolich.

COUNSEL

Clement James Cassidy, with him Joseph M. A. Nelabovige, for appellant.

Grant E. Wesner, Deputy District Attorney, with him Robert L. VanHoove, District Attorney, for Commonwealth, appellee.

Jones, C. J., Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Opinion by Mr. Justice Roberts. Mr. Justice Nix concurs in the result.

Author: Roberts

[ 456 Pa. Page 137]

Appellant Robert J. Martinolich is here on direct appeal from a conviction of murder in the first degree.*fn1 He presents several assignments of error, none of which requires reversal. Accordingly, we affirm.

During the evening of August 12, 1969, twenty year-old Glenn Eckert and eighteen year-old Marilyn H. Sheckler disappeared. They had been out together on a date. Six days later, the car Eckert had been driving on the night of his date was found abandoned on Railroad Street, in Leesport, Pennsylvania. In the car were the couple's shoes, and $489.23, the exact amount of receipts of the father's store for August 12. At this time, the police considered the disappearance an ordinary case of young people running away.

[ 456 Pa. Page 138]

However, leads provided by James Musa Eways and Harlin Bailey led police to search the wooded area immediately southeast of Dreamland Park, an abandoned amusement park just outside the city limits of Reading. After weeks of searching by local and state police, on October 23, 1969, Trooper Robert A. Kaunert spotted sunlight reflected from a pair of sunglasses, which, upon investigation, were in direct contact with the skull of a decomposed body. The body was later identified as Glenn Eckert's.

The Commonwealth's case against appellant for the murder of Glenn Eckert consisted of circumstantial evidence and the testimony of Eways and Bailey. Both men related substantially identical accounts of the events.

Eways testified that one Leroy Stolzfus, appellant, Bailey, and he were all members of a motorcycle club, called the "Pagans." An abandoned theater at Dreamland Park served as a clubhouse for their organization. In the early morning hours of August 13, 1969, the four "Pagans" left their clubhouse to look for girls. They decided their best chance would be to find a couple "parking," to "train"*fn2 the girl, and then to scare the couple into not saying anything about the rape. After a short time driving around, the four came across a young couple parked in a "light blue, '64, 4-door" Ford.

While Eways waited at the driver's seat of their Econoline van, the other three got into the Ford. With Bailey driving, the three, holding the young couple captive, followed the van to an abandoned railway

[ 456 Pa. Page 139]

    station in Leesport. Bailey parked the car there, but kept the ignition keys. The three "Pagans" and the young couple entered the van. Bailey sat in the passenger seat; Stolzfus and appellant were in the back with the young couple.

After a short time, the two in the front of the van switched places with Stolzfus and appellant. Both Bailey and Eways admitted in court that they forced the young woman to have sexual intercourse with them. Again, the two groups switched places.

Eways then drove the van to Dreamland Park but upon approaching it, discovered two police cars parked across its entrance. Unknown to the four, the police were at Dreamland Park to arrest the "Pagans" for the alleged beating and stabbing of three young men earlier that night. The four decided to drive on. After randomly driving for some time, a second attempt was made to return to the clubhouse. But the police were still there.

This time, according to Eway's testimony, appellant told him to stop the van and let everyone out. He complied and Bailey, Stolzfus, appellant, and the young couple exited from the van about one-quarter mile south of Dreamland Park.

Bailey testified to substantially the same version of events. He also described what happened when the three "Pagans" and the young couple left the van. After walking a short distance, appellant gave Bailey his telephone book and told him to make certain calls. Bailey then left Stolzfus and appellant with the young couple.

The calls were never made because Bailey was unable to locate an operating telephone. As daylight was breaking, Eways saw Bailey hitchhiking and stopped the van for him. Eways had driven around for most of the morning, and unsuccessfully tried several times to return to the clubhouse.

[ 456 Pa. Page 140]

Bailey and Eways drove into a gasoline station, where they were arrested for the August 12 beating of the three young boys. They were searched. Keys, which were later identified as those for the car Glenn Eckert had been driving on August 12, and appellant's telephone book were seized from Bailey.

Bailey also testified that appellant and he talked together while in prison. That conversation was described at trial. "By Mr. Van Hoove [District Attorney]: Q. Was there any subsequent conversation between you and Mr. Martinolich concerning the boy? A. [Bailey] At another time there was, sir. Q. Do you recall when that was and where it was? A. That was later on, in the same afternoon, in the [prison] yard again, and at this time we were in the presence of another -- Leroy Stolzfus, Martinolich and myself were in the yard. Q. Referring to the matter involving the boy, would you tell us, to the best of your recollection, the exact conversation between you and Mr. Martinolich? A. I asked Martinolich like, what had happened, and at this time, he told me that he asked the boy, Martinolich like asked the boy, what it was worth for him to live, and the boy laughed at him, he told me, and so he said that he shot him. Q. With regard to the boy, did Mr. Martinolich say anything further regarding the shooting of the boy? A. He told me, at that time, to keep quiet about it because I was the only one that knew about it, and if it ever got out that he'd get me for it. Q. Did he say -- did Mr. Martinolich tell you where he had shot the boy; in what area? A. He said in the head, sir." Both Eways and Bailey testified that appellant was in possession of a handgun when the four of them left Dreamland Park.

Appellant denied any involvement in the death of Glenn Eckert. He stated that during the critical hours Stolzfus and he were hiding from the police under the floor of one of the buildings in Dreamland Park.

[ 456 Pa. Page 141]

On the basis of all the evidence the jury chose to accept the Commonwealth's version of the facts. Appellant was found guilty of murder in the first degree, and was sentenced by the jury to life imprisonment with a recommendation of no parole.

No challenge is here made to the sufficiency of the evidence. Appellant argues that various asserted errors, which occurred in the course of an eleven-day trial, were so prejudicial that he was denied due process of law. We disagree. The record amply demonstrates that appellant received a fair trial.

Change of Venue

Appellant's first assignment of error is that the trial court improperly denied his motion for a change of venue.*fn3 Appellant argues that the existence of substantial, adverse pretrial publicity deprived him of his right to a fair trial. Dispositions of motions for a change of venue are within the sound discretion of the trial court. Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Hoss, 445 Pa. 98, 107, 283 A.2d 58, 63 (1971); Commonwealth v. Swanson, 432 Pa. 293, 299, 248 A.2d 12, 15 (1968), cert. denied, 394 U.S. 949, 89 S. Ct. 1287 (1969). On this record there was no abuse of discretion.

In its opinion the court en banc stated: "The alleged crime in this case was committed on or about August 13, 1969. Defendant was charged with the crime several months thereafter. On November 20, 1969 he was arraigned, and a plea of not guilty was entered. The case was listed for trial in December 1969. At the request of defendant, a continuance was granted because of publicity relating to the case and to permit

[ 456 Pa. Page 142]

    counsel additional time for preparation . . . . Again, in March 1970, a continuance was granted for similar reasons. When the case came to trial on June 1, 1970, we are satisfied that the effect of any publicity had abated and the selection of the jury was not influenced by any such publicity." Commonwealth v. Martinolich, 65 Berks County L.J. 99, 113 (Pa. C.P. 1973) (Hess, J.).

This conclusion is fully supported by the record. Defense counsel at the March, 1970 hearing offered several newspaper accounts as proof of overwhelming community prejudice against appellant. However, many of these articles describe only the unrelated incident of the August 12 beating of the three young men, and others speak of the unexplained disappearance of Eckert and Sheckler. It is true that a few newspaper stories are written in the graphic style endemic to journalism, but their total number is small.*fn4 Most of the newspaper articles in the record are simply straightforward ...


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