James M. Potter, Reading, for appellant.
Grant E. Wesner, Deputy Dist. Atty. for Law, Reading, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., and Nix, J., concur in the result.
The appellant, LeRoy Stoltzfus, was found guilty by a jury of murder in the first degree. Post trial motions were denied and a sentence of life imprisonment was imposed. This direct appeal followed.
The prosecution stemmed from the untimely death of Marilyn H. Sheckler, eighteen years of age in Berks County. She was last seen alive, in an automobile in the company of her boy friend, Glenn W. Eckert, at 9:30 p. m. on August 12, 1969. On August 19, 1969, the automobile which Eckert had been driving was found abandoned in Leesport, Pennsylvania. Found in the automobile were several articles of clothing identified as belonging to Miss Sheckler and Eckert. On October 24, 1969, while making a search in a wooded area in Berks County, State Police officers discovered under some rocks near a stone wall, a decomposed body partially clad in a yellow dress. The body was later identified as Miss Sheckler.*fn1
At trial, the Commonwealth's case against Stoltzfus rested primarily on the testimony of James Eways and Harlin Bailey, which may be summarized as follows:
At approximately 1:00 a. m., on August 13, 1969, Stoltzfus, Eways, Bailey and Robert Martinolich, pursuant to a plan to kidnap a girl for the purpose of satisfying each of the group member's sexual whims, drove to Skyline Drive, located on the top of a mountain overlooking Reading, Pennsylvania. After driving around for a short time, they stopped alongside a parked vehicle occupied by Eckert and Miss Sheckler. Stoltzfus, Bailey and Martinolich entered the parked vehicle, and took the young couple captive. They then proceeded to follow Eways, who was driving a panel truck, to Leesport where the Eckert vehicle was abandoned. Miss Sheckler was forced to undress in the rear of the panel truck where a variety of sexual abuses were performed upon her by Stoltzfus and his companions. Subsequently, the four proceeded with their captives to Dreamland Park where their "clubhouse" was located. However, on approaching it, they discovered two police vehicles parked across its entrance. Stoltzfus, Bailey and Martinolich, along with the two captives, then exited from the panel truck and entered the woods wherein Miss Sheckler's body was eventually discovered. Eways then drove away in the panel truck and, shortly thereafter, Bailey left the woods in order to find transportation for the group.
In addition to the foregoing, Bailey testified to three conversations he had with Stoltzfus following their arrest. In one, Bailey asked Stoltzfus what happened to the boy and girl [Eckert and Miss Sheckler], and the latter replied, "Don't worry about it, we took care of them, just forget you ever saw them." In the other two conversations, Stoltzfus explained that he attempted to choke Miss Sheckler and when she wouldn't die he crushed her skull with a rock and buried the body underneath rocks obtained from a nearby stone fence.
Stoltzfus was indicted for the murder of Miss Sheckler, and Martinolich was indicted for the murder of Eckert, whose body was discovered on October 23, 1969. Upon Stoltzfus' motion he was granted a separate trial. Martinolich was tried first and was convicted in June 1970 of murder in the first degree.*fn2 Stoltzfus was tried in September 1970 and found guilty of murder in the first degree.
A number of trial errors are asserted on this appeal. We find none meritorious and will, therefore, affirm the judgment. These claims of error will be discussed seriatim.
Initially, it is urged the trial court erred in refusing to grant pretrial motions for a change of venue.*fn3 Stoltzfus contends substantial adverse publicity at the time of the slayings and during the Martinolich trial denied him a fair trial by an impartial jury.
The grant or refusal of a change of venue is within the sound discretion of the trial court. Commonwealth v. Powell, 459 Pa. 253, 261, 328 A.2d 507, 510 (1974); Commonwealth v. Martinolich, supra, 456 Pa. at 141, 318 A.2d at 683; Commonwealth v. Hoss, 445 Pa. 98, 107, 283 A.2d 58 (1971). On appeal from the refusal of the trial court to grant a change of venue, the test is whether the court abused its discretion or committed an error of law which controlled the outcome of the case. Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12 (1968).
Although there was extensive media coverage of the crimes at the time the bodies of the victims were found, and also during the Martinolich trial, by the time Stoltzfus' trial commenced, the effect of any damaging publicity had subsided, and the selection of the jury was not adversely affected. Stoltzfus' trial was more than a year after the crimes occurred and three months after Martinolich's trial. Under the circumstances, "there was time for the effect of these news stories to fade from the minds of prospective jurors." Commonwealth v. Powell, supra. See also Commonwealth v. Hoss, supra. Moreover, the reporting was factual in nature and not particularly inflammatory. As noted by this Court in Commonwealth v. Martinolich, supra 456 Pa. at 142, 318 A.2d at 684:
"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 [Miss] Sheckler. It is true that a few newspaper stories are written in the graphic style endemic to journalism, but their total number is small. Most of the newspaper articles in the record are simply straightforward accounts of the police investigation, judicial proceedings, and other matters in the public record. [Emphasis supplied.]
Similar reasoning is applicable instantly.*fn4
In addition, the trial court determined that it was possible to select jurors who had no fixed opinion as to Stoltzfus' guilt. Commonwealth v. Powell, supra; Commonwealth v. Hoss, supra. The record justifies this conclusion.
Of the one hundred and thirty-nine prospective jurors questioned on voir dire, only thirty-one indicated they had formed an opinion as to the guilt or innocence of Stoltzfus and only one of these thirty-one served on the trial jury. This juror stated affirmatively that he could set aside his opinion and render a decision based solely on the evidence presented at trial.*fn5 The other eleven jurors and two alternates selected stated they had no opinion as to the guilt or innocence of Stoltzfus.
The trial court denied the motions for a change of venue because it was satisfied Stoltzfus could receive a fair trial in Berks County. Upon this record, we find no abuse of discretion or error of law in ...