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COMMONWEALTH PENNSYLVANIA v. HUGH GERARD HERRON (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
HUGH GERARD HERRON, APPELLANT



COUNSEL

Leonard G. Ambrose, III, Erie, for appellant.

Robert H. Chase, Dist. Atty., Charles D. Agresti, Asst. Dist. Atty., Erie, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.

Author: Cercone

[ 243 Pa. Super. Page 322]

This is an appeal from the judgment of sentence imposed upon Hugh "Red" Herron following his conviction by a jury of possession with intent to deliver controlled substances*fn1 and possession of controlled substances.*fn2 Appellant asserts numerous assignments of alleged error including the refusal of a change of venue, the admission of evidence seized as a result of a search, the admission into evidence of contraband obtained by an informer, limitations on the scope of voir dire, and denial of a closed voir dire examination.

[ 243 Pa. Super. Page 323]

The record establishes that on February 22, 1974, at approximately 2:00 P.M., a confidential informant advised Detective Sergeant William Loesch of the Millcreek Township Police Department, Erie County, that he had recently observed a large quantity of drugs at the appellant's residence. Sergeant Loesch asked the informant what specific drugs he had seen and whether he was presently in possession of any. The informer responded that he did not have any of the drugs, but believed that he could obtain some cocaine. Acting upon this information, Sergeant Loesch first verified that the informant did not have any drugs on his person, and then followed him to a location where he could observe the informer entering the appellant's house yet remain undetected. On their first visit no one answered at the house. A short time later, however, they returned and the informer was admitted into the house. Approximately five minutes later, the informant came out and returned with eight individually wrapped packets, each containing a white powdery substance. Subsequent laboratory analysis established that the substance was cocaine. Sergeant Loesch then proceeded to obtain a warrant authorizing a search of appellant's residence. Shortly thereafter, appellant's home was searched and various drugs were seized.

I. Change of Venue

Appellant first contends that the court below abused its discretion in refusing to grant a change of venue. Hearings were held on this matter on June 12 and 28, of 1974. The evidence presented at these hearings consisted of seventeen separate items disseminated in the Erie County area via newspaper or television between February 23, 1974 and June 1, 1974. Appellant argues that this pre-trial publicity was so inflammatory that it precluded him from receiving a fair trial in Erie County. Specifically, appellant cites three instances of

[ 243 Pa. Super. Page 324]

    alleged inflammatory publicity which compelled a change of venue. First, and foremost, according to appellant, was a television broadcast on April 19, 1974, which quoted a judge of the Court of Common Pleas of Erie County as stating that appellant is a "danger to the community." Secondly, appellant directs our attention to two television interviews that occurred in March and April of 1974, in which the Erie County district attorney commented on the fact that appellant had recently been convicted on another drug offense*fn3 and the Commonwealth would ask that his bail be revoked. Appellant also notes that there were news articles which reported appellant's prior conviction. Appellant submits that in view of the source of the first two of the above items, a new trial is mandated under Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973).

In Pierce, our Supreme Court, per Mr. Justice Eagen, held inter alia, "that in this Commonwealth policemen and members of the staffs of the office of District Attorneys shall not release to the news media: (a) the existence or contents of any statement or confession given by the accused, or his refusal to give a statement or to take tests; (b) prior criminal records of the accused including arrests and convictions; (c) any inflammatory statements as to the merits of the case, or the character of the accused; (d) the possibility of a plea of guilty; (e) nor shall the authorities deliberately pose the accused for photographs at or near the scene of the crime, or in photographs which connect him with the scene of the crime." (Citation omitted.) Pierce, 451 Pa. at 200, 303 A.2d at 215. However, in Commonwealth v. Nahodil, 462 Pa. 301, 306, 341 A.2d 91, 93 (1975), the court, again speaking through Mr. Justice Eagen, explained: "[I]n Pierce, we condemned and proscribed the practice of police and

[ 243 Pa. Super. Page 325]

    law enforcement agents in releasing to the news media the existence and contents of statements or confessions given by those accused of crime. However, a violation of our ruling in Pierce does not necessarily mandate a new trial. It must also appear that the news accounts were so 'inherently prejudicial' that the possibility of a fair trial was questionable." [Emphasis supplied.] In the case at bar, we find that the news accounts in question did not compel such a probability of prejudice to appellant that they can be classified as "inherently prejudicial." See Pierce, supra.

Appellant was brought to trial in September of 1974, almost seven months following his arrest. In Commonwealth v. Hoss, 445 Pa. 98, 106, 283 A.2d 58 (1971), the court found it significant that there was a "lengthy time period" of five months between arrest and trial. Furthermore, the extent of the pre-trial publicity in the present case did not approach the dimensions of that in Hoss. More importantly, we are in complete accord with the lower court's ruling that the reporting was factual in nature and not inflammatory.

The argument that the Honorable Fred P. Anthony's statement (that appellant is a "danger to the community") necessitated a change of venue is specious. The statement, or more accurately the finding, was made in the course of a bail revocation hearing. Rule 4010(A)(2)(iii) of the Pennsylvania Rules of Criminal Procedure, specifically provides for such a finding. The attempt of counsel for appellant to portray this finding as an isolated statement which "is tantamount to a conviction without a trial," exceeds the limits of proper advocacy. Moreover, the amount of news coverage given to the finding was so insignificant and removed in time as to dissipate any possibility of actual prejudice.

With respect to the contention that the television interviews in which the district attorney commented on appellant's

[ 243 Pa. Super. Page 326]

    recent conviction for a similar offense, we again conclude that these accounts were not so "inherently prejudicial" as to cast doubt upon the possibility of appellant receiving a fair trial. Commonwealth v. Nahodil, supra. The interviews were conducted at least five months prior to trial and, therefore, "there was time for the effect of these new stories to fade from the minds of prospective jurors." Commonwealth v. Powell, 459 Pa. 253, 260, 328 A.2d 507, 511 (1974); Commonwealth v. Nahodil, supra. Furthermore, the interviews were conducted in connection with the Commonwealth's efforts to revoke appellant's bond on his recent prior conviction. This was not an intentional attempt by the district attorney to jeopardize appellant's chances of receiving a fair trial by releasing inflammatory information, rather it was simply a factual disclosure that the Commonwealth was seeking revocation of appellant's bond in light of his recent arrest.

In addition, all prospective jurors were questioned as to whether they had heard or read any newspaper, television or radio accounts relating to appellant's case. See Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975); Commonwealth v. Nahodil, supra. Any prospective jurors who acknowledged that they had read or heard of the case was further questioned as to whether they had formed fixed opinions regarding appellant's guilt or innocence. Only one juror responded affirmatively to this inquiry and was then excused. Furthermore, as pointedly noted by the lower court, "if defendant had found evidence of prejudice existing at the time he voir dired the jury, he could have renewed his [change of venue] motion at that time." Cf. Commonwealth v. Martin, supra. On this record, we cannot find that ...


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