F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Asst. Dist. Atty., Chief, Appeals Div., Abraham J. Gafni, Deputy Dist. Atty., for Law, Maxine J. Stotland, Asst. Dist. Atty., Philadelphia, for appellee.
F. Ross Crumlish, Joseph M. Smith, Philadelphia, for appellant.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., took no part in the consideration or decision of this case.
Appellant was charged with the murder of a seventeen-year-old youth, Raymond Clairborne. After trial before a judge and jury, Mr. Douglas was convicted of murder in the second degree and conspiracy. Post-trial motions were denied and a sentence of 10 to 20 years imprisonment
was imposed under the murder indictment.*fn1 This direct appeal followed.*fn2
Appellant initially charges that the trial court erroneously denied his motion to quash the indictment. This motion was based on alleged pre-trial publicity which appellant contended made it impossible for him to receive a fair and impartial trial. To support this claim, two newspaper articles published at the time of his arrest approximately 11 months prior to trial were made part of the record. There is no evidence of any other news coverage other than these two exhibits. The articles in question in essence indicated the fact of Mr. Douglas' arrest for the crime in question and also referred to the fact that at the time of the alleged commission, he was on bail awaiting trial on another homicide charge. The articles also indicated that the information was derived from the police department.
The accepted procedure, wherein an accused claims to have been prejudiced by an inordinate dissemination of pre-trial publicity pertaining to the crime charged, is either by a motion requesting a change of venue or in the alternative, a request for a continuance. See Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); Commonwealth v. Powell, 459 Pa. 253, 328 A.2d 507 (1974); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971); Commonwealth v. Swanson, 432 Pa. 293,
A.2d 12 (1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); see also ABA Project on Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press § 3.2 (Approved Draft, 1968). The thrust of appellant's argument is not that the alleged adverse publicity permeated the indictment process and thus resulted in the return of a true or approved bill improperly, but rather that the publicity infected the trial and thereby denied him due process. It is therefore apparent that the relief sought, i. e., a motion to quash the indictment, was in no way related to the injury claimed. This Court has been, and is, steadfast in our denunciation of prejudicial and inflammatory news coverage which inundates a community and deprives one charged with crime the opportunity of a fair trial. To our knowledge, no jurisdiction or respected legal authority has ever advocated quashing the indictment as a remedy if, in fact, this type of wrong has been found to exist. The obvious remedies to be employed to rectify such a condition are either to permit the accused to be tried in an area which is free from the effects of the adverse publicity or to postpone the date of trial until the effects of the publicity have been sufficiently dissipated to allow for a fair and impartial trial.
The trial court was not only correct in denying the motion on the grounds that it was an inappropriate request, but also because it was completely without merit. There is not a scintilla of evidence on this record that supports the claim of appellant that he was denied a fair trial because of adverse pre-trial publicity. Here, as stated, there were only two articles published approximately 11 months prior to the commencement of the trial. See, Commonwealth v. Hoss, supra; Commonwealth v. Swanson, supra; Commonwealth v. Lopinson, 427 Pa. 284, 234 ...