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decided: November 26, 1975.



Mark J. Goldberg, Pittsburgh, for appellant.

Jess D. Costa, Dist. Atty., Washington, Richard A. Sprague, Sp. Prosecutor (Asst. Dist. Atty., Philadelphia), for appellee.

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

Author: Pomeroy

[ 465 Pa. Page 144]


In the early morning of December 31, 1969 Joseph Yablonski, his wife Margaret and their daughter, Charlotte were shot to death as they slept in their home in Clarksville, Washington County, Pennsylvania. Approximately a month later Aubran Wayne Martin, the appellant, was arrested in Ohio and charged with the murders. After extradition to Pennsylvania he was tried by a jury and on November 12, 1971 was found guilty of three counts of murder in the first degree. The jury recommended that the death penalty be imposed. Post-trial motions were denied in September, 1972 by the court en banc. A year later the sentence of death was imposed on appellant on each of the three counts. This appeal followed.

It is not necessary for purposes of this opinion to give a detailed recitation of the sordid facts surrounding these murders. Various factual aspects of the crimes will be mentioned hereinafter as the discussion of the legal issues warrants. Suffice it here to recount that Joseph Yablonski was a stormy petrel in the United Mine Workers of America who in 1969 waged a vigorous but losing campaign for the presidency of that organization.

[ 465 Pa. Page 145]

Claude Edward Vealey, Paul Gilly and Aubran Wayne Martin were hired to assassinate Yablonski for the sum of $5,200.*fn1 Martin was a late substitute in this conspiracy for one James Phillips, who had withdrawn after he, Vealey and Gilly had spent some months in seeking, unsuccessfully, the right opportunity for the assassination. The principal evidence against Martin came from the testimony of his co-conspirator Vealey; evidence filling out and corroborating his story came from federal and State law enforcement personnel, and others. According to Vealey, Martin entered the room of Charlotte Yablonski and shot her twice with a .38 caliber revolver, killing her. Immediately thereafter Vealey, in an adjacent bedroom occupied by Mr. and Mrs. Yablonski, tried to shoot them, but his rifle jammed and the clip fell to the floor. Gilly came to his aid, fixed the rifle, and fired once at the Yablonskis. Martin also entered the Yablonski bedroom and fired four times at Jock and Mrs. Yablonski. Vealey then took Martin's revolver and for good measure shot Yablonski three more times. It was Martin, according to his companions, who took a money clip containing about $240 dollars from the bedroom dresser, which later was split among the three. Their mission accomplished, the murderers left the scene, and on their return journey discarded weapons, ammunition, gloves and stolen film canisters in the Monongahela River and along the roadside.

[ 465 Pa. Page 146]

When they had returned to Cleveland, Vealey and Martin were paid off by Paul Gilly.

Some eighteen errors are assigned, all of them directed to the purported necessity of a new trial. We are satisfied that no error of substance occurred, and will therefore affirm the three convictions of murder. The death sentences, however, will be vacated and the case remanded for resentencing.

The arguments advanced on behalf of appellant may be conveniently grouped into those pertaining to alleged errors which occurred prior to the commencement of the trial proper, those pertaining to errors in the admission of evidence at trial, and errors in the charge. We shall consider them in that order, followed by consideration of the sentencing.


Alleged Pre-Trial Errors

1. Change of venue.

Appellant urges that massive and inflammatory pre-trial publicity in Washington County foreclosed the possibility of a fair trial, and that the trial court thus erred in refusing the motion for change of venue.*fn2

[ 465 Pa. Page 147]

The newspaper accounts admitted into evidence at the change of venue hearing were comprised of one story which described picketing at the United Mine Workers headquarters in Washington, D.C. by supporters of Jock Yablonski; four relating to the denial of Martin's motion for continuance of the trial; one relating to an arrest of appellant's brother; and nine relating to the change of venue motion. In four of these 15 articles mention is made of a statement given by Claude Vealey in June which had implicated Martin, three of the articles mentioning that implication.

This court has many times said that "It is clearly established that the grant or refusal of a change of venue or of a continuance is within the sound discretion of the trial Court." Commonwealth v. Richardson, 392 Pa. 528, 540, 140 A.2d 828, 835 (1958). See also Commonwealth v. Powell, Pa., 328 A.2d 507 (1974); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680, 683 (1974), appeal dismissed, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974); Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974); Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12, (1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 (1969); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971).

In Hoss, supra, where we upheld a refusal to change the venue, we reviewed the considerations bearing on the exercise of discretion as delineated in Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) and Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). We identified three factors as having particular relevancy: length of time between arrest and trial; the effort of the trial court to abate publicity; and

[ 465 Pa. Page 148]

    whether publicity had caused prospective jurors to form an opinion of guilt. Addressing those factors as they apply to the case at bar, the record shows the following:

(1) Martin's trial (voir dire) commenced on November 3, 1971, twenty-one months following his arrest. For about a year and a half of that time Martin was in Ohio, and fighting against extradition to Pennsylvania. In Hoss the time span was five months, which we called a "lengthy time period." 445 Pa. at 106, 283 A.2d at 63. The twenty-one month period in this case was more than sufficient to permit the tide of publicity which followed the Yablonski slayings and subsequent arrests to ebb.

(2) In the instant case, as in Hoss, the trial court released an administrative memorandum or order as early as April 29, 1970 seeking to abate publicity.*fn3 So far as appears, the restrictions thus imposed were observed both by counsel in this case and by the news media.

[ 465 Pa. Page 149]

(3) With reference to fixed opinions of guilt by veniremen, the voir dire examination is, of course, the proper occasion to develop the facts. "The voir dire examination is the proper place to determine whether a defendant's public notoriety has resulted in a prospective juror's prejudice." U. S. v. Hoffa, 367 F.2d 698 (7th Cir. 1966), vacated on other grounds, 394 U.S. 310, 89 S.Ct. 1163, 22 L.Ed.2d 297 (1969). This is the normal rule and practice in Pennsylvania. Commonwealth v. Jones, 452 Pa. 299, 304 A.2d 684 (1973); Commonwealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470 (1953). In the case at bar, 107 veniremen were asked whether they had heard, read or seen anything about the facts of the case, and 97 answered in the affirmative. On the other hand, only 23 of the 221 persons examined stated that they had formed a fixed opinion of guilt. In Hoss, the corresponding ration was 26 out of 138. Cf. Irvin v. Dowd, supra. It is established that only those jurors who possess fixed, unalterable opinions of guilt are erroneously not excused. As the Supreme Court of the United States stated in Irvin v. Dowd, supra: "To hold that the mere existence of any preconceived notion as to the guilt or innocence of an accused, without more, is sufficient to rebut the presumption of a prospective juror's impartiality would be to establish an impossible standard. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court." 366 U.S. at 723, 81 S.Ct. at 1642.

It is clear to us, therefore, that appellant did not establish at the voir dire examination that a fair and impartial jury could not be empanelled. Indeed, our own examination of the pre-trial publicity indicates that while it was extensive, it was, as in Hoss, basically "factual in nature" and concerned largely with "reports of the procedural developments of the case." See 445 Pa. at 105, 283 A.2d at 63. The journalists showed remarkable

[ 465 Pa. Page 150]

    restraint in their reporting. It is worth remarking that although the order denying the change of venue was without prejudice to a renewal of the motion at the conclusion of the voir dire, no such motion was made.*fn4

It is true, of course, that there can be pre-trial publicity so sustained, so pervasive, so inflammatory and so inculpatory as to demand a change of venue without putting the defendant to any burden to establish a nexus between the publicity and actual jury prejudice. Denial of due process of law is found to be inherent in the situation. Such a case was Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).*fn5 See also Sheppard v. Maxwell, 384 U.S. 333, 352, 86 S.Ct. 1507, 16 L.Ed.2d 600, 614 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). It is enough to say that the egregiously prejudicial elements of Pierce are absent in the case at bar.

2. "Keyman" Jury Selection

Appellant has challenged the "keyman" jury selection process as it operates in Washington County. There appear to be two aspects to appellant's argument. First, there is a claim that this process involves an improper delegation of authority by the jury commissioners to the "keymen" under the Act of April 10, 1867, P.L. 62, § 2, 17 P.S. § 942. Second, it is asserted that the "keyman"

[ 465 Pa. Page 151]

    process denied appellant his right to a fair trial, to due process of law and to equal protection of the laws because it resulted in a jury which did not reflect a representative cross section of the community. The issue was properly preserved for appeal.

(1) The selection of and qualifications of jurors in Washington County, a County of the third class, are governed by the Act of April 16, 1925, P.L. 244, as amended, 17 P.S. § 1322, et seq. and the Act of April 10, 1867, P.L. 62, § 2, 17 P.S. § 942. The Act of 1925, as amended, 17 P.S. § 1332, provides that the jury board in third class counties is to consist of the judges of the court of common pleas and the two elected jury commissioners and that one of the judges and the two commissioners shall constitute a quorum of the board. The Act of 1867 provides for the method of selecting persons to serve as jurors:

"It shall be the duty of said jury commissioners, president judge, or additional law judge of the respective district, or a majority of them, to meet at the seat of justice of the respective counties, at least thirty days before the first term of the court of common pleas, in every year, and thereupon proceed, with due diligence to select, alternately, from the whole qualified electors of the respective county, at large, a number, such as at the term of the court of [common] pleas next preceding shall by the said court be designated, of sober, intelligent and judicious persons, to serve as jurors in the several courts of such county during that year; and the said jury commissioners, president judge, or additional law judge, or a majority of them, shall, in the mode and manner now directed by law, place the names of persons so selected in the proper jury wheel, and the said jury wheel, locked as now required by law, shall remain in the custody of the said jury commissioners, and the keys thereof in the

[ 465 Pa. Page 152]

    custody of the sheriff of said county." 1867, April 10, P.L. 62, § 2. (emphasis added)

The Washington County "keyman" system operated in the following manner. The prospective jurors were selected by the elected jury commissioners, one Democrat and one Republican, and a judge of the court of common pleas,*fn6 each providing one-third of the 2,000 names placed in the jury wheel. Each jury commissioner mailed out 402 questionnaires, one to each of the party committee members in every precinct in Washington County, requesting the names of 4 prospective jurors. Each commissioner received approximately 90% of the questionnaires back, thus obtaining the names of 1500 to 1600 names by this method. In addition, each commissioner received from other sources between 150 and 400 other names. Each jury commissioner then personally selected the 666 prospective jurors which he was responsible for obtaining. The judge obtained names of prospective jurors by personally getting in touch with various civic, fraternal, voluntary, church and veterans organizations throughout Washington County.

Appellant contends that these selection procedures are inconsistent with the requirements of the Act of 1867 that the jury commissioners are "with due diligence to select" prospective jurors because the commissioners in effect merely rubber stamp the politicians' choices. A similar challenge was made to the Washington County keymen system in the case of Grove v. Toninecz, 189 Pa. Super. 32, 149 A.2d 547 (1959). The Superior Court, although stating that it was "not approving the method here used as worthy of universal adoption," 189 Pa. Super. at 41, 149 A.2d at 552, found that the provisions of the Act of 1867 requiring that jurors be selected from the "whole qualified electors" of the county was directory and not mandatory and that therefore the

[ 465 Pa. Page 153]

"keyman" procedure was not in violation of the Act of 1867. In reaching the conclusion that the language was directory, the Court relied upon the decision of this Court in Commonwealth v. Zillafrow, 207 Pa. 274, 56 A. 539 (1903). We there had this to say of the provision in question: "The statutory provisions alleged to have been disregarded, though not followed literally, were not contravened as to spirit or intent. The provisions themselves are directory in character. They do not prescribe or bear upon the substance of any duty, but merely upon the manner of its performance, and do not differ in this respect from other provisions of the same or analogous acts which have already been held to be directory only." (citations omitted). What the Superior Court said in Grove, supra, would appear to be directly on point in the instant case: "Conceivably, political considerations in some instances might result in the selection of jurors who should never be permitted to serve. But there is nothing in the record to indicate that any of the persons suggested by the commissioners was not qualified or that the defendant in drawing a jury on the trial of this case was in any way prejudiced." 189 Pa. Super. at 41, 149 A.2d at 552.

In Commonwealth v. Carroll, 443 Pa. 518, 278 A.2d 898 (1971), this Court upheld the "keyman" system as it operated in Erie County against a challenge similar to the one in this case. The practice in Erie was much like that in Washington County. The two elected jury commissioners contacted the committeemen of the political parties in Erie and leaders of various churches, social, civic and fraternal organizations soliciting names of prospective jurors. This resulted in furnishing half of the names placed in the jury wheel. The other half was supplied by three judges of the court of common pleas, one of whom obtained the names he placed in the wheel by going through the voter registration lists and gathering names. We said of these procedures: "The 'keyman'

[ 465 Pa. Page 154]

    jury selection system has been sustained where there is evidence that the jury commissioners have familiarized themselves with all of the significant elements in the community and have made a special effort to consult leaders from these various population groups." 443 Pa. at 525, 278 A.2d at 901. We find that the evidence here too is adequate to support the finding of the trial court that the jury commissioners familiarized themselves with and consulted the significant segments of the community. Thus we conclude that the Act of 1867 and the Act of 1925 were complied with.

(2) The other facet to the "keyman" selection challenge is constitutional: that the Sixth Amendment guarantee of trial by jury -- encompassing as it does the "fair possibility for obtaining [on the jury] a representative cross-section of the community," Williams v. Florida, 399 U.S. 78, 100, 90 S.Ct. 1893, 1906, 26 L.Ed.2d 446, 460 (1970) -- is violated by the system in vogue in Washington County. See also Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975). Martin claims that the keyman method does not allow for the inclusion, at least in adequate numbers, of the youth, the poor, the unemployed, the blacks, the Democrats and the politically independent of the community. To advance this argument it is not necessary that Martin be a member of all of these groups, or any of them. See Peters v. Kiff, 407 U.S. 493, 92 S.Ct. 2163, 33 L.Ed.2d 83 (1972). But he must establish at least a "prima facie case of invidious discrimination" before "the burden of proof shifts to the State to rebut the presumption of unconstitutional action." Alexander v. Louisiana, 405 U.S. 625, 631-32, 92 S.Ct. 1221, 1226, 31 L.Ed.2d 536, 542 (1972). In Alexander, the claim was principally that the defendant was denied equal protection of the laws and due process of law because he had been indicted by a grand jury which had been empanelled from a venire on which were only a token number of Negroes. After reviewing the operation

[ 465 Pa. Page 155]

    of the process in the parish involved, the Supreme Court concluded that a "prima facie case of discrimination" had been made out. 405 U.S. at 629-31, 92 S.Ct. at 1224-1226, 31 L.Ed.2d at 541-42. The Court went on to observe: "This Court has never announced mathematical standards for the demonstration of 'systematic' exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral. The racial designation on both the questionnaire and the information card provided a clear and easy opportunity for racial discrimination." 405 U.S. at 630, 92 S.Ct. at 1225, 31 L.Ed.2d at ...

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