decided: March 31, 1977.
COMMONWEALTH OF PENNSYLVANIA
DOMINIC MANCUSO AND JOSEPH MANCUSO, JR., APPELLANTS
Appeal from Judgment of Sentence of the Court of Common Pleas of Fayette County, Pennsylvania, Criminal Division, at Criminal Action Nos. 295, 268 and 461 of 1975. No. 544 and 545 April Term, 1976.
R. W. Ziegler, Jr., Pittsburgh, with him Richard S. Ombres, Pittsburgh, for appellants.
Conrad B. Capuzzi, District Attorney, Uniontown, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., concurs in the result.
[ 247 Pa. Super. Page 247]
The instant appeal raises two important questions: (1) whether the lower court erred in granting the Commonwealth's
[ 247 Pa. Super. Page 248]
petition to extend the period in which to try appellants; see Rule 1100(c), Pa.R.Crim.P., 19 P.S. Appendix; and (2) whether the court erred in denying appellants' motion for a change of venue.*fn1
In 1975, the Fayette County district attorney submitted to the grand jury over 300 charges of burglary, robbery, arson and conspiracy, involving eleven defendants, several of whom had been members of the Connellsville Police Department when the crimes were committed. The appellants are two of the eleven people arrested at that time. Their trial on charges arising out of an October 22, 1973 burglary of the Connellsville Sons of Italy Hall commenced on December 8, 1975. On December 17, a jury returned a verdict of guilty on charges of burglary and conspiracy. The lower court thereafter denied appellants' post-trial motions and sentenced appellants to concurrent five to ten year terms of imprisonment and to make restitution. This appeal followed.
The facts relating to appellants' Rule 1100 claim are as follows: On April 29, 1975, the prosecutor filed a complaint
[ 247 Pa. Super. Page 249]
charging appellant Dominic Mancuso with burglary. On May 14, an additional complaint was filed in which he was charged with conspiracy to commit burglary. This complaint named appellant Joseph Mancuso as one of Dominic Mancuso's co-conspirators; the complaint against appellant Joseph Mancuso was not filed until June 26, 1975. These complaints were not filed in time for consideration by the April Grand Jury. The next grand jury did not convene until August, at which time the appellants were indicted as charged in the complaints. The Commonwealth had until October 26, 1975, 180 days from the date of the complaint, to bring appellant Dominic Mancuso to trial on the original charge, unless the period was extended under Rule 1100(c) or (d), Rule 1100(a)(2).*fn2 The one-hundred and eightieth day from the complaint against Joseph Mancuso was December 23.
On August 19, all of those accused in the "Connellsville Police cases" filed an application for a change of venue. See Rule 313, Pa.R.Crim.P. That motion was denied after a hearing was held on August 29. All of the cases were scheduled for trial during the September Term which consisted of the weeks beginning on September 2, September 8, September 29, and October 6, 1975. Prior to commencement of the term, appellants petitioned for a one week continuance. On September 8, the court granted the prosecutor a
[ 247 Pa. Super. Page 250]
one week continuance for all of the Connellsville Police cases when the prosecutor learned that the Commonwealth's lead witness, Marvin Wedge, was in the hospital. During the final two weeks of the September Term, the first of the cases was brought to trial. That case, known as the "Foodland" case, did not involve the appellants; however, appellants' attorney represented one of the defendants on trial in that case.
At some point prior to the expiration of the 180 day period, it became apparent to the prosecutor that his office and the courts would not be able to try the remaining Connellsville Police cases within that period. Therefore, on October 14, prior to the end of the period, the prosecutor petitioned the court for an extension pursuant to Rule 1100(c). On October 27, the lower court conducted a hearing on the petition, but did not grant the petition until November 25, when the court granted an extension until the December Term, the next available trial date.*fn3 On October 28, appellants' counsel withdrew from the case. On November 21, present counsel entered his appearance and, prior to trial, filed a new motion for a change of venue.*fn4 On
[ 247 Pa. Super. Page 251]
December 1, counsel requested additional time to prepare that motion. The court held a hearing on December 5, and denied the motion. Trial commenced on December 8.
Appellants contend that the lower court erred in granting the Commonwealth's petition to extend. In their brief, filed before our Supreme Court's recent decisions in Commonwealth v. Mayfield, 469 Pa. 214, 364 A.2d 1345 (1976), and Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976), appellants argue that the lower court erred in granting the extension because the Commonwealth's request was premised on court backlog. See Commonwealth v. Mayfield, 239 Pa. Super. 279, 362 A.2d 994 (1976); Commonwealth v. Shelton, 239 Pa. Super. 195, 361 A.2d 873 (1976). Subsequently, appellants filed a supplementary brief in which they discussed the impact of the Supreme Court's decisions in Mayfield and Shelton. More specifically, they contend that the Commonwealth failed to prove that it exercised due diligence in bringing them to trial.*fn5
In Mayfield, the Supreme Court rejected the view of a majority of this Court that delays caused by court administration could never justify an extension under Rule 1100(c).*fn6
[ 247 Pa. Super. Page 252]
At the same time, the Court made clear that the judiciary as well as the prosecutor must exercise due diligence:
"This Court is aware that, despite diligent efforts by the trial courts, cases may arise when a trial of a defendant cannot be held within the prescribed period. In such circumstances, the policies which prompted the adoption of rule 1100 would not be served by disallowing a reasonable, limited extension specifying 'the date or period within which trial shall be commenced.' Pa.R.Crim.P. 1100(c). The rule recognized that 'due diligence' is the most that should be demanded from the prosecutor and that if despite such efforts, he cannot prepare for trial within the prescribed period, an extension is permissible. No more rigid result under our present rule is justified when the inability of a trial court to proceed within the prescribed period is at issue . . . .
"[W]e recognize the need to insure that trial courts exercise due diligence in implementing the objectives of rule 1100. We do not expect and will not permit the rule to be circumvented by unwarranted grants of extensions." Commonwealth v. Mayfield, 469 Pa. at 221, 364 A.2d at 1349. The requirement of due diligence protects the defendant's and the public's "overriding interest" in providing prompt disposition of criminal charges. See ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Speedy Trial, § 1.1 (Approved Draft, 1972). Thus, Mayfield reaffirmed the policy underlying Rule 1100, as originally formulated in Commonwealth v. Hamilton, 449 Pa. 297, 308, 297 A.2d 127, 133 (1972): "[A] mandatory time requirement will act as a stimulant to those entrusted with the responsibility of managing court calendars." The Court announced the following, prospective, standards to provide guidance for our courts:
"Henceforth, the trial court may grant an extension under rule 1100(c) only upon a record showing: (1) the 'due diligence'
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of the prosecution, and (2) certification that trial is scheduled for the earliest date consistent with the court's business; provided that if the delay is due to the court's inability to try the defendant within the prescribed period, the record must also show the causes of the court delay and the reasons why the delay cannot be avoided." 469 Pa. at 469, 364 A.2d at 1349-50.
In the instant case, the Commonwealth filed its petition to extend pursuant to Rule 1100(c) on October 14, 168 days after the initial complaint was filed. Therefore, the petition was timely. Cf. Commonwealth v. Shelton, supra; Commonwealth v. O'Shea, 465 Pa. 491, 350 A.2d 872 (1976); Commonwealth v. Woods, 461 Pa. 255, 336 A.2d 273 (1975); Commonwealth v. Cutillo, 235 Pa. Super. 131, 339 A.2d 123 (1975). Further, while we cannot expect the record to include a "certification that trial [was] scheduled for the earliest date consistent with the court's business . . .", the court apparently complied with that requirement. When it became obvious that the court would not reach the case during the September Term, it relisted the case for the December Term, the next scheduled term of court. Once that term began, trial commenced as soon as the court had disposed of all pretrial matters. See Comment to Rule 1100. In addition, the court's opinion recites the causes of delay: the extraordinary number of indictments filed against the eleven Connellsville Police case defendants; the multiple representation of those defendants by appellants' trial counsel; the continuance requested by the Commonwealth necessitated by hospitalization of its key witness; a one week continuance requested by counsel which effectively prevented trial during the September Term. While the rule is clear that a continuance for less than 30 days does not extend the period under Rule 1100(d), Commonwealth v. Shields, 247 Pa. Super. 74, 371 A.2d 1333 (filed March 31, 1977), defense requested continuances may realistically obstruct diligent efforts by the Commonwealth to try an accused and may,
[ 247 Pa. Super. Page 254]
therefore, justify an extension under Rule 1100(c).*fn7 The lower court's finding of due diligence is amply supported by the record; therefore, the court properly extended the trial period.
Appellants contend that the lower court erred in denying their motion for a change of venue.*fn8
Appellants originally petitioned the court for a change of venue on August 19, 1975. The motion was denied after an August 27 hearing. A second motion was filed on October
[ 247 Pa. Super. Page 25522]
, but the court did not act on that petition. After the appellants' counsel withdrew and appellants retained new counsel, they filed another motion on November 20. On December 1, the court commenced a hearing, but continued it until December 5, because counsel was not prepared at that time. At the December 5 hearing, the appellants presented the testimony of witnesses chosen at random from the community. Further, they offered the testimony of a Mr. John Mihalic, engaged by appellants to gauge public awareness of the impending Connellsville Police cases. He testified as follows:
"Q. What was the general reaction to this type of a survey?
"A. Well, the majority of the people we talked to felt that they were probably guilty, but some of them didn't really want to come out and say this because they felt that it is really up to the Courts to decide and not really them.
"Q. When you say 'they' you are talking about the fifty people you interviewed?
"Q. How many of these fifty people would give you their name and address?
"Q. You gave me the names of four; is there some reason why you didn't give me the name of the fifth person?
"A. The fifth person did give me his name and address but felt that he really had nothing or any idea what was happening with this case and he felt that there was no reason for me to even ask him the questions but he was at least kind enough to at least let us give him an interview.
"Q. I asked you to get an opinion from everyone who gave you his name and address, is that correct?
"A. I felt -- according to what my boss, Mr. Hassinger, told me, that I should give subpoenas to the people that had the most knowledge about the case or at least seemed to have the most knowledge of the case.
[ 247 Pa. Super. Page 256]
"[Appellant's attorney]: At this time, your Honors, Judge Adams specifically, I would apologize because I indicated that anybody that gave their name and address should be subpoenaed. Apparently, we are only losing one witness because of this. At any rate, I do apologize because I indicated earlier that everyone should be subpoenaed. Now, you say that you talked to approximately fifty people and your reaction was that most of them felt they were guilty, is that correct?
"Q. But some of them indicated that even though they felt they were guilty, it was up to the Court to decide?
"Q. You did not go into any discussion that the Court in fact were the people who were on the jury, is that correct?
"Q. You just asked them to say whatever they wanted to say and handed them a subpoena?
On cross-examination, he stated that he was unfamiliar with Fayette County and limited his inquiry to Connellsville and Uniontown. Appellants also called representatives of the area news media in which the Connellsville Police cases were reported. The media representatives testified that the cases had received more extensive coverage than many other criminal cases originating in the area. Although counsel intended to call additional witness not available at the time of the hearing, he decided not to request a continuance of the trial date so that further testimony might be taken. Appellants also offered into evidence numerous articles that appeared in local papers and that dealt with the Connellsville Police cases. Those articles have been made a part of the record for our review.
Voir dire commenced on December 8, and continued through December 12. The court granted twenty peremptory challenges as requested by appellants. Further, the court permitted individual examination of each venireman out of
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the hearing of the rest of the panel. The court initially examined each venireman and then permitted the district attorney and defense counsel to ask additional questions. The parties exhausted an entire jury panel and part of a second panel before they completed jury selection. During the lengthy proceeding, the lower court, as noted in its opinion, liberally granted challenges for cause. The court also ordered the jury sequestered during the entire trial.
Appellants' request for a change of venue was made pursuant to Rule 313(a), Pa.R.Crim.P., which provides:
"All applications for a change of venue shall be made to the court of the county in which the complaint was filed. Such application may be made on behalf of the defendant or the Commonwealth, or venue may be changed by the court, of its own motion, when it is determined after hearing that a fair and impartial trial cannot be had in the county in which the complaint was filed." The court must consider several factors to determine whether the defendant can receive a fair and impartial trial: First, the court must inquire into the extent of pretrial publicity. 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); Commonwealth v. Nahodil, 462 Pa. 301, 341 A.2d 91 (1975); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971). Publicity may be so extensive and inflammatory that it permeates the community in which the trial is scheduled and makes a fair trial unlikely: ". . . 'the burden of showing essential unfairness . . . as demonstrable reality,' Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed. 268 (1942), need not be undertaken when television has exposed the community 'repeatedly and in depth to the spectacle of [the accused] personally confessing in detail to the crimes with which he was later to be charged.' Rideau v. State of Louisiana [supra 373 U.S. 723, at 726, 83 S.Ct. 1417, 1419] . . . .
"'[A]t times a procedure employed by the State involves such a probability that prejudice will result that it is deemed inherently lacking in due process.' [citing Estes v. Texas,
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U.S. 532, 542-43, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965)]." Sheppard v. Maxwell, supra at 351-52, 86 S.Ct. at 1516-1517. See also, Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973). Second, the court must determine how long prior to trial reports were made in the mass media. Commonwealth v. Nahodil, supra; Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967); Commonwealth v. Mervin, 230 Pa. Super. 552, 326 A.2d 602 (1974). Obviously, the need to transfer the case to another jurisdiction diminishes over time if publicity similarly diminishes. Third, the court must assess the quality of the reporting. The change of venue become more compelling as the media coverage becomes more inflammatory and as the "editorial artillery" takes aim at the accused. Sheppard v. Maxwell, supra; Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970). In a close case, a trial court can further protect the defendant's due process right to a fair and impartial trial during voir dire. Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98 (1962). For example, Rule 1106(e)(1)(A), Pa.R.Crim.P., requires the court to conduct voir dire of prospective jurors individually and permits voir dire to be taken out of the presence of other panel members. See Commonwealth v. Johnson, supra. The court can permit extensive examination of veniremen to determine the extent of their familiarity with the case and the intensity of their opinion concerning the defendant's guilt or innocence.*fn9 Commonwealth v. Nahodil, supra; Commonwealth v. Lopinson, supra.
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The lower court in the instant case made a proper inquiry into the extent and quality of pretrial publicity. The court found that the publicity was not so continuous, unfair or inflammatory to require a change of venue. The evidence of public opinion was extremely limited; the reporting was not distorted or inflammatory. Further, the court permitted exhaustive voir dire and excused a large number of veniremen for cause. Cf. Commonwealth v. Yount, 455 Pa. 303,
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A.2d 242 (1974). The lower court did not abuse its discretion in denying appellants' motion. See Commonwealth v. Johnson, supra.
Because the lower court properly granted the Commonwealth an extension in which to bring appellants to trial and because the court properly denied their request for a change of venue we affirm the judgments of sentence.