No. 318 April Term, 1976, Appeal from Order of the Court of Common Pleas of Mercer County, Criminal Division, at No. 6 August Term, 1974.
Scott A. Williams, Williamsport, for appellant.
Allen E. Ertel, District Attorney, Williamsport, submitted a brief for Commonwealth, appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Cercone, J., files a dissenting opinion, in which Hoffman and Van der Voort, JJ., join.
[ 252 Pa. Super. Page 510]
Appellant, formerly the Mayor of Williamsport, Pennsylvania, was convicted by a jury on charges of wiretapping, conspiracy, and false swearing. A motion in arrest of judgment was granted with respect to the false swearing charge. Two other charges were dismissed prior to the verdict. Following a hearing on the matter, appellant was ordered to pay approximately $8,000 costs, a large portion of which were incurred as a result of the change of venue granted appellant. On appeal, appellant argues that it was improper for the lower court to charge him with the costs of the change of venue. We agree, and reverse.
The offenses for which appellant was convicted took place in Lycoming County, at a time when appellant was Mayor of Williamsport. On motion of appellant, the lower court determined that due to excessive publicity, appellant could not be fairly tried in Lycoming County. Venue was changed to Mercer County, approximately 230 miles from Williamsport. Travel, lodging, and miscellaneous expenses of members of the Lycoming County District Attorney's Office and necessary witnesses were charged against appellant by the lower court in the amount of approximately $8,000.00. Appellant argues that imposition of those costs, over and above the normal costs of prosecution, has a chilling effect on the exercise of his constitutional right to seek and receive a fair trial. We agree.
[ 252 Pa. Super. Page 511]
There is no constitutional right to a change of venue in every criminal case, and whether or not such a change is granted rests within the sound discretion of the lower court. Commonwealth v. Stoltzfus, 462 Pa. 43, 337 A.2d 873 (1975). Nevertheless, a criminal defendant is specifically guaranteed the right of a trial before an impartial jury by the Sixth Amendment of the Constitution of the United States and by Article I, Section 9 of the Constitution of this Commonwealth, to say nothing of the more general requirements of due process. See Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977). When as in this case, it has been determined that due to excessive pre-trial publicity a criminal defendant cannot receive a fair trial in the county wherein the charges are filed, then a change of venue is constitutionally mandated, and is in fact elevated to a constitutional right.
Given a situation in which a change of venue is necessary to protect a defendant's constitutional rights, the question becomes whether a defendant's right to seek a fair trial is chilled by the knowledge that if convicted, that fair trial could cost thousands of dollars more than a trial in the county in which he had already been tried and found guilty by the news media. Clearly it seems, the answer is yes. Our inquiry cannot cease, however, until we have determined that the chilling effect is more than incidental and in fact is so strong that it seriously infringes on the exercise of the constitutional right or imposes a penalty therefore. United States v. Jackson, 390 U.S. 570, 88 S.Ct. 1209, 20 L.Ed.2d 138 (1968).
Statutory authority is required to impose costs of prosecution on a defendant. Commonwealth v. Houck, 233 Pa. Super. 512, 335 A.2d 389 (1975). The legislature of this Commonwealth has provided such authority. Act of March 31, 1860, P.L. 427, § 64, 19 P.S. § 1223 (1964).*fn1 While statutes of this type have generally been held to be constitutional,
[ 252 Pa. Super. Page 51220]
C.J.S. Costs § 436 (1940), it is clear that a statute imposing costs on a party, while valid on its face, is invalid insofar as it operates to deny the party due process. Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971).
The lower court relies on Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), to support its conclusion that no chilling effect exists. In that case, however, the primary issue was one of equal protection, not a question of due process as in the case at bar. A case that is more relevant to the question at hand is United States v. Deas, 413 F.2d 1371 (5th Cir. 1969), wherein the court suggested that imposition of costs of a second trial on the defendant ". . . would raise questions of constitutional dimensions concerning the reasonableness of the assessment and its resulting deterrent effect on an accused's exercise of his right to plead not guilty on a subsequent trial. . . ." Id. at 1372 (citations omitted). We find the situation in Deas analogous to the one at bar, inasmuch as the additional cost of a second trial, like the added cost of a change of venue, was necessitated by forces out of the control of the accused.
It has been held that imposition of the normal costs of prosecution on a convicted defendant is constitutional. Appellant stands ready and willing to pay those costs which would have been incurred in Lycoming County, had it been feasible to try him there. We believe that to impose thousands of dollars of additional costs on a defendant in appellant's position would severely deter persons in similar situations from seeking the fair trial which they are constitutionally guaranteed. If a change of venue is nonetheless sought, imposition of the costs would act as a penalty for seeking that to which the defendant was in any event entitled. That is an intolerable and unreasonable infringement on an accused's right to a fair trial.
Our position would of course change if an accused's own tactics had resulted in the publicity. There is no indication that this occurred in the case at bar. Often prejudicial
[ 252 Pa. Super. Page 513]
publicity is a result of improvident statements by police or prosecutors, and more often, from the news media's preoccupation with sensationalism. We do not believe that a defendant should be forced to pay the price for either of the latter indiscretions, which remain totally out of the accused's control. We do not believe that persons in the public eye should be treated as second-class citizens in the event they are charged with a crime. See Commonwealth v. Casper, 249 Pa. Super. 21, 375 A.2d 737 (1977). The public's interest in the possible commission of a crime by its prominent members is fueled by the desire of the media to sell copy. When there is massive nonfactual publicity, ...