Bernard J. Brown, Carbondale, for appellant.
Robert J. Conway, Dist. Atty., Nicholas A. Barna, Stephen G. Bresset, Asst. Dist. Attys., Honesdale, for appellee.
Jones, C. J., and Eagen, O'Brien, Roberts, Pomeroy, Nix and Manderino, JJ. Former Chief Justice Jones took no part in the consideration or decision of this case. Eagen, C. J., and Nix, J., concur in the result. Manderino, J., files a dissenting opinion in which Roberts, J., joins.
Appellant, Glen Rolison, Jr., was tried by a judge and jury and found guilty of murder in the first degree and conspiracy. Post-verdict motions were denied and appellant was sentenced to concurrent prison terms of life imprisonment for the murder conviction and ten-to-twenty years for the conspiracy conviction. This appeal followed.*fn1
The facts are as follows. On August 11, 1973, the remains of Senen Garcia were discovered in a burnt automobile in Wayne County. An investigation revealed that the victim had been killed before the car caught fire. Police subsequently arrested appellant and three co-defendants:
Irma Garcia, wife of the victim; Cathy Brooks, daughter of Mrs. Garcia by a previous marriage; and David Lamberton. Ms. Brooks and Lamberton, both of whom pled guilty to murder and conspiracy, were prosecution witnesses in the separate trials of appellant and Mrs. Garcia, whose trial preceded appellant's by one month.
Appellant first argues that the trial court erred in denying his motion for a change of venue. During Mrs. Garcia's trial, appellant was named as the actual killer of the victim and this fact was reported in the local newspapers. Appellant moved for a change of venue and an evidentiary hearing was held on September 9, 1974. Appellant presented evidence that Mrs. Garcia's trial was the first murder trial to be held in Wayne County in twenty years. Wayne County has a population of approximately 30,000 people. Furthermore, appellant presented numerous articles from the four newspapers circulated in the county which had a combined circulation of 24,000 copies. Appellant produced witnesses who testified that a widespread belief existed that appellant was guilty. Following the hearing, the court denied appellant's motion without prejudice to renew the motion at trial.
Trial commenced on September 16, 1974, at which time appellant renewed his application for a change of venue. During the jury selection, appellant, on several occasions, renewed his request, which the court denied each time. We believe the trial court was correct in denying appellant's applications for a change of venue.
We have stated on many occasions that the disposition of an application for a change of venue is within the sound discretion of the trial court. Commonwealth v. Martinolich, 456 Pa. 136, 318 A.2d 680 (1974). A court, however, may not abuse its discretion so that a denial of a change of venue amounts to a violation of a defendant's due process rights. As this court stated in
of the voir dire; rather they should constitute independent remedies designed to assure fair trial when news coverage has raised substantial doubts about the effectiveness of the voir dire standing alone."
On pretrial applications for change of venue, we must first determine if potentially prejudicial material was, in fact, disseminated. In Commonwealth v. Frazier, 471 Pa. 120, 369 A.2d 1224 (filed February 28, 1977), this court defined three types of inherently prejudicial material:
1. References to a defendant's prior criminal record. Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973).
2. References to information received from police that a defendant had confessed. Commonwealth v. Pierce, supra.
3. Reports that go beyond objective reporting and become emotional and inflammatory. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966).
Other instances held to be inherently prejudicial were the televising of a defendant's confession, Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), and the televising of the entire criminal proceedings. Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). None of these types of material existed in the instant case. The pretrial publicity here had been "limited to factual accounts of the [earlier] trial [of a co-conspirator] and contained no inflammatory material . . ." Commonwealth v. Pass, 468 Pa. 36, 360 A.2d 167, 170 (1976); Commonwealth v. Martin, 465 Pa. 134, 348 A.2d 391 (1975); cert. den. 428 U.S. 923, 96 S.Ct. 3234, 49 L.Ed.2d 1226 (1976); Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971). The court was thus correct in denying appellant's application for a
change of venue, for a fair trial was still possible absent a change of venue.*fn2
Once a defendant has proceeded to voir dire examination of potential jurors, the scope of the analysis changes. A defendant may have venue changed only if he can show actual prejudice in the empanelling of the jury. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975). Commonwealth v. Pierce, supra. The Standards Relating to Fair Trial and Free Press, § 3.4(b) (approved draft, 1968), provide:
"Both the degree of exposure and the prospective juror's testimony as to his state of mind are relevant to the determination of acceptability. A prospective juror who states that he will be unable to overcome his preconceptions shall be subject to challenge for cause no matter how slight his exposure. If he has seen or heard and remembers information that will be developed in the course of trial, or that may be inadmissible but is not so prejudicial as to create a substantial risk that his judgment will be affected, his acceptability shall turn on whether his testimony as to impartiality is believed. If he admits to having formed an opinion, he shall be subject to challenge for cause unless the examination shows unequivocally that he can be impartial. A prospective juror who has been exposed to and remembers reports of highly significant information, such as the existence or contents of a confession, or
other incriminating matters that may be inadmissible in evidence, or substantial amounts of inflammatory material, shall be subject to challenge for cause without regard to his testimony as to his state of mind."
The comments further provide:
"Subsection (b) states the standard of acceptability. It does not propose that any knowledge of the case should disqualify, since under such a standard there would undoubtedly be many cases in which no jury could be impaneled. And in any event knowledge and bias are not synonymous. Nor does it propose that any admission of opinion on the merits of a case must necessarily disqualify, although application of such a standard would certainly not be undesirable whenever it appears feasible. Rather it recommends, as noted above, that both the juror's statements with respect to his state of mind and the nature and degree of his exposure should be considered. If he admits to an opinion which he claims he will be able to lay aside, the court should first consider the basis of the opinion. Is it derived from information that is certain to be developed during the course of the trial or that is not incriminating and would be excluded only on grounds of irrelevance? . . . If so, the court should still be reluctant to accept the juror, because of the probable effect of any preconception on the juror's deliberations, . . . and should sustain a challenge unless satisfied unequivocally that the juror can be impartial. It is essential that doubts be resolved against acceptability. And if the prospective juror has been exposed to and remembers reports of highly significant information (such as the existence or contents of a confession), or other incriminating matters that may be inadmissible in evidence, or particularly inflammatory material, he should be subject to challenge for cause whether or not he admits to an opinion. Such a standard
appears to be not only desirable but constitutionally necessary if an ...