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COMMONWEALTH PENNSYLVANIA v. BARNEY LIAM RUSSELL (10/16/74)

decided: October 16, 1974.

COMMONWEALTH OF PENNSYLVANIA
v.
BARNEY LIAM RUSSELL, APPELLANT



COUNSEL

Harry F. Swanger, Pittsburgh, for appellant.

Allen E. Ertel, Dist. Atty., Williamsport, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, Nix and Manderino, JJ., concur in the result.

Author: Jones

[ 459 Pa. Page 5]

OPINION OF THE COURT

The appellant, Barney Liam Russell, was convicted of murder in the first degree of Gary Rosenberger, a state police officer working as an undercover narcotics agent. Punishment was fixed at life imprisonment. A motion for new trial was denied, and sentence was imposed as the jury had directed. This appeal followed. Appellant

[ 459 Pa. Page 6]

    challenges the verdict below on several grounds. We affirm.

Appellant initially alleges that the denial of his motion for a change of venue constituted prejudicial error. He contends that the volume of unfavorable newspaper coverage so inflamed the community as to prevent a fair, impartial verdict. The newspaper coverage was not unduly sensational and was limited to factual reporting. All accounts referred to the appellant as the "accused." One article did mention the defendant's prior arrest record, but the same item also reported that the single charge was dismissed. Additionally, neither the state or local police nor the office of the district attorney provided this arrest information to the press. Although the authorities did release some evidence, they did not disclose any link between the evidence and the defendant. Unlike the coverage at issue in Commonwealth v. Pierce, 451 Pa. 190, 200, 303 A.2d 209, 215 (1973), the publicity was not inherently prejudicial.

Appellant also maintains that the prospective jurors could have been, or were in fact, aware of appellant's motion for change of venue. He argues that this awareness so prejudiced him in the mind of the jury that a change of venue became obligatory. However, if the motion creates overwhelming prejudice, the motion itself becomes the sole justification for its grant. The trial judge properly exercised his discretion in denying the motion for a change of venue. Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971).

Appellant next argues that the elimination from the jury of veniremen who expressed total opposition to the death penalty was contrary to the requirements of Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). Although such exclusion in no way violated the Witherspoon mandate, 391 U.S. at 513-514, 88 S.Ct. 1770, we held in Commonwealth v. Stafford, 450 Pa. 252,

[ 459 Pa. Page 7299]

A.2d 590 (1973), that the elimination of the death penalty ...


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