Allen H. Krause, Lebanon, John E. Feather, Jr., Annville, for appellant.
George E. Christianson, Dist. Atty., David Brightbill, Lebanon, for appellee.
Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Jones, C. J., did not participate in the consideration or decision of this case. O'Brien, J., concurs in the result. Nix, J., filed a dissenting opinion.
At approximately 8:00 a. m., Friday, November 9, 1973, Jennifer Gross, a sixth grade student and safety patrol member from Lebanon, Pennsylvania, left her home and headed for her safety patrol station a short distance away. She reached neither her station nor the school. Later that day, in a wooded area north of Lebanon, fire fighters engaged in extinguishing a brush fire discovered her body, partially covered with debris, lying on a small trash dump. Death was caused by multiple stab wounds to the neck, and inhalation of fumes from the fire.
The next day, police were told by two men, who had been in the vicinity of the victim's route to her patrol station on the previous morning, that at approximately 8:00 a. m., they had heard a girl screaming, and saw a child and an adult scuffling. They testified that the child was forced into a black Buick automobile. The witnesses moved closer, ascertained that the adult was "short and stocky," and recorded the license number of the automobile, OC3181.
Police investigation revealed that appellant owned a black Buick automobile, that his build was short and stocky, and that the license number of appellant's car was O3C181, the same as the number earlier recorded except that the order of the number "3" and the letter "C" were reversed. The two witnesses to the scuffle were shown appellant's car; they stated they believed it was the same car into which the child had been forced the day before.
From this information, three search warrants were issued: one for appellant's car, one for appellant's person and clothing, and one for appellant's residence.
At 10:15 p. m., Saturday, November 10, 1973, twelve to fifteen police, armed with the search warrants, proceeded to appellant's home. He was found next door at a neighbor's house, and was escorted back to his own home. The neighbor and close friend, who was also a guard at the Lebanon County Prison, accompanied appellant and the police to appellant's home. Appellant's Miranda rights were read to him by the police, he indicated understanding, and asked his friend what to do. The friend told appellant to tell the truth. Appellant initially denied any part in the homicide. When another policeman entered the room where appellant was seated, carrying pants apparently stained with blood however, appellant made certain incriminating statements. Immediately thereafter, at 11:40 p. m., appellant was taken to the district attorney's office and, again, Miranda warnings were read to him. At this point appellant requested an attorney, and all further questioning ceased.
Appellant was tried and convicted by a jury of murder in the first degree on March 20, 1974, and on November 6, 1974, was sentenced to life imprisonment. Post-verdict motions were denied, and this appeal followed.
Appellant's appeal rests on five contentions: he first argues that the trial court erred in denying his request for a change of venue on the basis of inflammatory pretrial
publicity; secondly, he argues that the trial court erred in denying his request to suppress evidence obtained through search warrants allegedly issued without probable cause; thirdly, he contends that the trial court erred in denying his request to suppress certain statements made by him because these statements were given to police involuntarily, having been obtained through fraud and trickery; fourthly, he argues that the trial court erred in permitting two of appellant's friends to testify as to certain conversations they had with him after the murder and before his arrest; and lastly, appellant argues that the trial court erred in refusing appellant's motion for a mistrial based on the allegedly emotional conduct of the victim's family during the trial. We agree with appellant's contention that the trial court abused its discretion in refusing to grant appellant's request for a change of venue. We therefore reverse the judgment of sentence and remand the matter for further proceedings consistent with this opinion. In light of this disposition, we will not now discuss the other issues raised.
The Jennifer Gross homicide occurred in Lebanon County, a largely rural area with a population, according to the latest census, of approximately 100,000. From the moment the news of the homicide became public, the community was emotionally stirred. The story aroused the interests of virtually all citizens of the community. The victim's body was discovered on Friday, November 9, 1973. That discovery was reported by the local newspapers in their headlines the following day. On Monday, November 12, 1973, the Lebanon Daily News, in bold, red print headlines measuring over one-half inch in height, and extending the entire width of the first page, announced: "Arrest Suspect In Murder Of Girl." Immediately beneath these headlines, in three-eighths inch high type, two columns wide, the subheadline stated: "Jail Former Penitentiary Prisoner, 26." Accompanying these headlines was a large photograph of appellant.
The companion story related that appellant had previously been tried and convicted on a morals charge and had spent two and one-half years at Rockview State Penitentiary from which he had been released just two months prior to the homicide. In addition, the report indicated that appellant had spent approximately eighteen months at another state institution. The article also stated that a member of appellant's own family described him as "mentally ill."
Appellant was afforded a preliminary hearing on Monday, November 19, 1973. On the following day, Tuesday, November 20, 1973, the Lebanon Daily News, again in a front-page story, recited some of the key testimony produced at that hearing, including admissions made by appellant during his interrogation by police. This story, consisting of a large photograph of appellant leaving the County Jail to attend his hearing, a three column wide headline stating "Frazier Held For Murder Following His Hearing," and text occupied almost one-third of the total front page. The text of the report began,
"James E. Frazier, Jr., went Christmas shopping after he allegedly murdered an 11-year-old school girl the morning of November 9, a district magistrate was told here Monday afternoon.
[This] comment concerning the shopping trip was made by State Police Sgt. Elwood Krause, one of three Commonwealth witnesses . . . ."
Later, this article quoted Sergeant Krause as saying that he asked appellant if he had planned the murder and of receiving the answer: "No, it was just something that happened." The article continued,
"Sgt. Krause said he then asked, 'Did you stab her with a knife?' To which Frazier replied, 'No, I used a piece of glass.'
Another question which Sgt. Krause said he asked Frazier concerned the place where the child's death
occurred. 'I asked him if it happened in the car or the woods and he said in the woods,' the policeman related."
On Wednesday, November 21, 1973, and on Friday, November 23, 1973, in the "Public Forum" section of the Lebanon Daily News, letters to the editor concerning the offense for which appellant was charged were printed. One of the letters was entitled "Death to Child Killers." That letter, calling for the appellant's death, also complained that he had been previously jailed on morals charges involving youths, and was now paroled. The other letter complained that the photograph published on Tuesday, ...