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decided: October 8, 1976.



John J. Dean, John R. Cook, Pittsburgh, for appellant.

Robert E. Colville, Dist. Atty., Robert L. Eberhardt, Asst. Dist. Atty., Pittsburgh, for appellee.

Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Roberts, J., filed a concurring opinion in which Pomeroy and Manderino, JJ., joined. Eagen, J., concurs in the result.

Author: Nix

[ 469 Pa. Page 197]


The incident from which this appeal arises represents one of the most odious and pernicious killings that has

[ 469 Pa. Page 198]

    occurred within this Commonwealth in recent years. The Commonwealth produced evidence at trial to establish that Stanley Hoss, then an inmate at the Western Pennsylvania State Correctional Institution at Pittsburgh, in concert with several other inmates lured the victim Walter Peterson, a captain of the correctional officers at the institution, into the basement recreation area of the prison and viciously murdered him. The testimony indicated that Captain Peterson was restrained while he was being punched, struck repeatedly with chairs about the head and slashed with razors to an extent that when other guards were able to gain entrance into the area, Peterson had been completely mutilated and "looked like a piece of raw meat."*fn1 The entire incident was witnessed by another guard who was in the observation area adjacent to the recreation area and separated by iron bars.*fn2 Death resulted from the multiple injuries of the scalp, face and upper neck area. The appellant was tried by jury and convicted of murder of the second degree and sentenced to life imprisonment of not less than ten years nor more than twenty years. This direct appeal followed.

The obligation of society to provide an accused a fair trial is tested to its fullest where the circumstances of the crime are as heinous and atrocious as those exhibited here. Appellant's only objections raise the question whether or not he did in fact receive a fair trial. After careful consideration of the record before us, we are of

[ 469 Pa. Page 199]

    the view that he did and therefore affirm the judgment of sentence.

The first complaint is that the trial court abused its discretion in refusing defense motions for a change of venue. It is argued that because of the pretrial publicity, appellant was deprived of his right to a fair trial.

Under the laws of this Commonwealth it has been clearly established that the grant or refusal of a request to change venue rests within the sound discretion of the trial judge. Commonwealth v. Powell, 459 Pa. 253, 328 A.2d 507 (1974); Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (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. Hoss, 445 Pa. 98, 283 A.2d 58 (1971);*fn3 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. Richardson, 392 Pa. 528, 140 A.2d 828 (1958). However, the exercise of this discretion must be examined in light of Art. I, ยง 9 of the Pennsylvania Constitution which provides that persons accused of crime are entitled to "a speedy public trial by an impartial jury of the vicinage." The guarantee of a right of trial by jury necessarily requires that the accused be afforded a trial before a panel of impartial and unbiased jurors.

"Although this Court has said that the Fourteenth Amendment does not demand the use of jury trials in a State's criminal procedure, (citations omitted), every State has constitutionally provided trial by jury. (Citations omitted). In essence, the right to jury trial guarantees to the criminally accused a fair trial by a

[ 469 Pa. Page 200]

    panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. (Citations omitted). 'A fair trial in a fair tribunal is a basic requirement of due process.' (Citation omitted). In the ultimate analysis, only the jury can strip a man of his liberty or his life. In the language of Lord Coke, a juror must be as 'indifferent as he stands unsworne.' (Citation omitted). His verdict must be based upon the evidence developed at the trial. (Citation omitted). This is true, regardless of the heinousness of the crime charged, the apparent guilt of the offender or the station in life which he occupies." Irvin v. Dowd, 366 U.S. 717, 721-722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961).

The mandate for a fair and impartial jury does not require that the prospective jurors be free of all knowledge of the facts and circumstances surrounding the incident which forms the basis of the trial.

"It is not required, however, that the jurors be totally ignorant of the facts and issues involved. In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case. This is particularly true in criminal cases. 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." Id. at 722-23, 81 S.Ct. at 1642.

Thus, the critical question where members of the panel have been exposed to pretrial media publicity, is whether

[ 469 Pa. Page 201]

    or not they are capable of casting aside any impressions or opinions they may have formed and render a verdict based solely upon the evidence presented to them during the course of the trial. In attempting to ascertain the presence of bias or prejudice, the United States Supreme Court has stated:

"Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula." Irvin v. Dowd, supra at 724-725, 81 S.Ct. at 1643, quoting from United States v. Wood, 299 U.S. 123, 145, 146, 57 S.Ct. 177, 81 L.Ed. 78.

The general rule requires that the accused who claims that the denial of a request for a change of venue has denied him his right of a fair trial must demonstrate the prejudice that has been created by the failure to grant that request. See, Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973). There have, however, been certain circumstances where courts have relieved the accused of the responsibility of establishing a nexus between the pretrial publicity and actual jury prejudice and presumed the existence of prejudice. This has occurred in two distinct situations. First, where the pretrial media coverage is so extensive, so sustained, so pervasive and includes highly inflammatory and prejudicial information (rather than a factual account of the events reported) courts have determined that prejudice may be presumed. Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Commonwealth v. Pierce, supra. The other instance where courts have presumed the existence of prejudice has been where it was determined that in addition to inflammatory pretrial publicity, the dignity and the objectivity of the court proceedings themselves have been disrupted

[ 469 Pa. Page 202]

    by the publicity. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, ...

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