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COMMONWEALTH PENNSYLVANIA v. HENRY T. REEVES (04/28/78)

decided: April 28, 1978.

COMMONWEALTH OF PENNSYLVANIA
v.
HENRY T. REEVES, CARLTON BROWN, ROBERT MANGINI, MICHAEL MOFFO, FRANK MAWHINNEY, JOSEPH C. FORD, CARL K. HENRY, APPELLANTS (TWO CASES)



Nos. 1579-1585 October Term 1975, Appeal from Judgments of Sentence of the Court of Common Pleas, Criminal, Montgomery County at Nos. 190 and 663 October Terms, 1972.

COUNSEL

Robert F. Simone, Philadelphia, for appellants.

William T. Nicholas, First Assistant District Attorney, Norristown, for Com., appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion. Price, J., files a dissenting opinion in which Jacobs, President Judge, joins. Watkins, former President Judge, did not participate in the consideration or decision of this case.

Author: Cercone

[ 255 Pa. Super. Page 412]

The instant appeal arises from the conviction of the seven appellants, after a jury trial, of various charges ranging from riot, riotous destruction of property, and malicious destruction of fences, to conspiracy and assault. The trial itself, which began on January 21, 1974 and ended on April 10, 1974 established the following facts, generally.

Prior to June 5, 1972, Altemose Construction Company had won the bid on a construction project, a complex of buildings in Upper Merion, Montgomery County, Pennsylvania, the principal building of which was to be a hotel. It was a large project, especially for a construction company such as Altemose which operates as an "open-shop" with an overwhelming majority of non-union employees. Indeed, the success of Altemose Construction Company had long been a matter of considerable concern to the Philadelphia Building and Trades Council (BTC), which had taken the position that Altemose's cost-cutting employment of non-union labor was destroying the prevailing wage standards in the Philadelphia area. Thus it was, on June 5, 1972, that workingmen affiliated with the BTC came in busloads and carloads, almost 1,000 strong, to the Upper Merion jobsite, ostensibly to picket.

Although most of the men peacefully picketed on the perimeter of the jobsite while wearing placards declaring their grievance against Altemose, hundreds of others set out immediately to destroy the completed preliminary work, and the equipment which was on the site, much of which belonged to A. J. Volpi Construction Company, a subcontractor for Altemose. By their sheer weight they trampled down thousands of feet of cyclone fencing. Temporary office

[ 255 Pa. Super. Page 413]

    modules of fiberglass, trailers and heavy equipment were set afire and demolished. Security personnel and the police chief of Upper Merion Township and others were stoned. In all, some $300,000 worth of damage was done in little more than an hour's time. When the violence was done, and the project lay smoldering and completely destroyed, the perpetrators rejoined those picketing peacefully around the perimeter of the site.

Although the number of the people involved in both the peaceful and violent activity and the fact that virtually all were strangers in Upper Merion combined to make identification of those responsible for the damage difficult, eventually twenty-three men were sufficiently identified to lead to their arrest and trial. It is from the trial of nine of the twenty-three that the instant appeal arises.*fn1 Two of the nine defendants, Donald Offner and Clinton Holmes, were acquitted by the jury, and all of the men tried herein were members of Local 30, Roofers Union, an affiliate of the BTC.

First, two of the appellants in the instant case, Carl Henry and Henry Reeves, argue that the evidence at trial was insufficient to sustain the verdicts of guilty against them for riot, malicious destruction of fences, and conspiracy. Of course, as has been frequently stated, the scope of appellate review concerning the sufficiency of evidence is indeed limited:

"The scope of review of an appellate court determining the sufficiency of the evidence is limited to deciding whether, accepting as true all evidence, direct or circumstantial, and all reasonable inferences arising therefrom upon which the trier of fact could have properly based the verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Miller, 234 Pa. Super. 146, 339 A.2d 573 (1975).

[ 255 Pa. Super. Page 414]

Nevertheless, with respect to appellants Henry and Reeves, we agree that the evidence was not sufficient to sustain the jury's verdict.

There is no need to expound at length on the elements of malicious destruction of fences and conspiracy because, given the nature of the Commonwealth's evidence and its strategy, if it failed to prove riot against Henry and Reeves, a fortiori, it failed to prove the other offenses.

The Commonwealth's proof of riot against Henry was largely based upon a photograph taken at the scene of the rioting which depicts Henry running along side of the fence which was being trampled down. Coupled with Henry's membership in the Roofers Local, the Commonwealth argues that it has adequately demonstrated Henry's opportunity, disposition and motive to commit riot to sustain the jury's verdict. In particular, the Commonwealth argues that the jury could infer that Henry had been alternately jumping onto and from the fence, and that the cameraman happened to take the picture while Henry was only running beside the fence. This argument is so patently conjectural, we are surprised the Commonwealth thinks it persuasive. Insofar as the evidence against Henry is concerned, one could also conjecture that he was running along the fence urging his comrades to dismount it and stop breaking the law. In any event, this is precisely the kind of guesswork or conjecture which the law prohibits a jury from engaging. "[S]uspicion is never accepted in a court of justice as a substitute for proof." Commonwealth v. New, 354 Pa. 188, 193, 47 A.2d 450, 457 (1946). Especially in light of the fact that many of the men at the scene of the destruction were not involved in violence, and were picketing peacefully, surmising from Henry's presence at the scene that he was a participant in the violence, simply because he was a member of the Roofers Local, is impermissible.

It is true that there is language in some cases which suggests that a person's mere presence at the scene of a riot, if he is not engaged in suppressing it, is sufficient to sustain a verdict of guilty for rioting. For example, by way

[ 255 Pa. Super. Page 415]

    of dictum in Commonwealth v. Hayes, 205 Pa. Super. 338, 343, 209 A.2d 38, 40 (1965), this court stated: "In fact, all persons who are voluntarily present and not assisting in the suppression of a riot, where their presence tends to encourage the rioters, shall be prima facie inferred to be participants." However, the reported case law in Pennsylvania demonstrates that more than mere presence is needed to prove riot beyond a reasonable doubt. Commonwealth v. Hayes, itself, involved a man who had been threatening police and giving directions to the rioters. In Commonwealth v. Abney, 195 Pa. Super. 317, 171 A.2d 595 (1961) the defendants were caught in the acts of violence which constituted the riot. In Commonwealth v. Safis, 122 Pa. Super. 33 (1936), the defendants were proven to have verbally incited the crowd to violence. Thus, obiter dicta aside, the cases indicate that more than presence at the scene is required to prove riot. We conclude that the better view is that expressed by this court in Commonwealth v. Merrick, 65 Pa. Super. 482, 489 (1917): mere presence without proof of encouragement is not sufficient to prove riot. See also 2 Wharton's Criminal Law & Procedure § 865 (Anderson ed. 1957). Insofar as Mr. Henry was concerned, without conjecture or guesswork, one cannot conclude beyond a reasonable doubt that he was engaged in riot. See Commonwealth v. Long, 470 Pa. 204, 368 A.2d 265 (1977).

Similarly, the evidence against Mr. Reeves was insufficient. The pictures demonstrating his presence at the scene were taken after the destruction was complete and do not depict him as engaged in any act of violence or encouragement. Hence, there being no proof that Reeves either engaged in or encouraged the violence, the jury's verdict of guilty cannot stand.

Among numerous issues raised on this appeal, the remaining appellants contend that the lower court erred in denying their motion for sequestration of the jury because the court did not fully appreciate the nature and character of the prejudicial implications of the publicity reported in newspapers and over radio and television stations prior to and

[ 255 Pa. Super. Page 416]

    during the trial. Furthermore, appellants complain that, absent sequestration, the trial court did not sufficiently and adequately inquire of the jury as to whether or not they had heard, read or listened to news, and if so, to inquire as to what influence this news would have on their impartiality. We agree and order a new trial.*fn2

There was a considerable flow of publicity about this case, to say the least, over radio, television and more than one hundred newspaper accounts continuing for a period of almost 22 months from the time of the incident on June 5, 1972, through the trial which began on January 21, 1974 and ended on April 10, 1974.*fn3 Indeed, photocopies of newspaper articles alone, many of which were partisan and vitriolic, filled more than one volume of this exceedingly lengthy record. As trial approached, typical headline stories in various newspapers covering the Philadelphia, Montgomery and adjoining county areas ran as follows:

"Security Tightened For Trial of Unionists"

This was a headline to a November 27, 1973 story in "Today's Post," a Montgomery County newspaper, appearing the same day on which pre-trial proceedings began in this case. The story related how Montgomery officials

[ 255 Pa. Super. Page 417]

    would "beef up security measures" throughout the Montgomery County Court House during pre-trial proceedings involving the nine accused in this case of taking part in the riot of June 5, 1972, on the King of Prussia construction site. In the story, Sheriff Jeremiah P. Delaney of Montgomery County, was quoted as saying that he didn't expect a large crowd "but we'll be ready just in case." The Sheriff also pointed out that he would not allow pickets to remain outside the court house because that would be against the law and it would be obvious that the pickets would be "attempting to influence the judge or the jury." There was no information whatsoever in the story that any demonstration of any kind had been planned or by whom it was being planned.

"9 Men Charged In Labor Strife Go On Trial"

This headline in the Times Herald, Norristown Times or Norristown Daily Herald (these three names apply to the same paper), appeared on November 27, 1973, also on the first day of the pre-trial proceedings. This story tells of two newspaper photographers' cameras being smashed on that day when the photographers attempted to take pictures of people walking into the Montgomery County Court House. There was no evidence in the story that there was any connection between the event described in the story and the defendants who were about to go on trial.

Another prejudicial headline published in "Today's Post" on March 15, 1974 read:

"TELEPHONE SCARE HALTS ALTEMOSE LABOR TRIAL"

This headline also demonstrates the supercharged atmosphere surrounding the trial to which the jury was repeatedly exposed.

On January 22, 1974, on the second day of the trial, appellants' counsel pointed out to the trial court that the Philadelphia Inquirer newspaper carried a statement by the district attorney for Camden County, New Jersey, which accused the Roofers Union Local 30, the union to which defendants belonged, as being linked to the Mafia.

[ 255 Pa. Super. Page 418]

Throughout the trial there were radio broadcasts and newspaper items concerning various aspects of the trial. For example, on January 31, 1974 the District Attorney proposed that a suppression hearing that had been heard prior to the trial be reopened to allow a Culvirt Quitman to testify. The trial court granted the motion and suspended the trial for several days in order to hear what was proposed to be Quitman's testimony on the identification of one of the defendants. Defense counsel objected and moved to have the jury sequestered (a motion in which all defendants ultimately joined) on the grounds, first, that interrupting the trial would unduly focus attention on Quitman's testimony and, second, would inevitably lead to prejudicial publicity and the exposure of the jury thereto. Although defense counsel's objections were overruled, their prediction of prejudicial publicity proved true. Prior to the court's ruling on the Quitman testimony, and during the time fixed for his testimony, highly prejudicial and inflammatory publicity over radio and in newspaper accounts was brought to the attention of the court by defense counsel by their virtually continuous motions for sequestration of the jury. During many of the days when publicity was being disseminated in the newspapers and over radio and television stations, the trial court failed to admonish the jury concerning its duty not to read or listen to the news and failed to conduct an inquiry into what, if anything, the jurors might have heard concerning publicity which might affect their impartiality.

The central theme of many news stories appears to be that what occurred at the Altemose site on June 5, 1972 sparked a wide-spread and even multi-state conflagration of union violence and destruction, and that whoever participated in the June 5 riot should be held accountable for these occurrences. Since it was these nine defendants who were on trial during all the publicity, the attention of the public, drawn as it was to those stories of violence and destruction, converged on these particular nine defendants. While, certainly, the despicable and revolting conduct of men who destroyed the property on the Altemose site is not to be

[ 255 Pa. Super. Page 419]

    condoned or underestimated, insofar as the appellants are concerned (in an incident involving 1,000 participants), their guilt or innocence was a matter to be decided at trial and not in the news media prior to or during the trial.

Although the news media must be given a wide latitude in reporting material about criminal trials, since the foundation of our society rests on freedom of thought and discussion, the publication of news accounts cannot interfere with the orderly administration of criminal justice. Mr. Justice Holmes stated seventy years ago the following in Patterson v. Colorado, 205 U.S. 454, 27 S.Ct. 556, 51 L.Ed. 879 (1907):

"The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print."

In Commonwealth v. Bruno, 466 Pa. 245, 352 A.2d 40 (1976) our Supreme Court said:

"Procedure to be followed to ensure a fair trial in the face of prejudicial publicity is clearly within the sound discretion of the trial court. Because the choice of procedure involves the balancing of fundamental rights -- the defendant's right to a fair trial before an impartial jury and the rights associated with a free press -- this discretion must be exercised with care."

So, this question of the public right to know what is occurring in the community, as against a person's right to a fair trial, poses a difficult problem to decide as a legal principle. The most that can be said is that each case depends on its facts. The presentation of facts by the news media at the time a crime has occurred usually poses no question of unfairness to a defendant and his right to have a fair trial. But, the presentation of facts and innuendoes repeated many times, and colored with a variety of interpretations and convoluted versions over and over again on television, radio, and in newspaper accounts, prior to and during the trial, may have a drastically adverse effect on a person's right to a fair trial. This is so, since, during a trial, if an accused is presented in the news media as a danger, a

[ 255 Pa. Super. Page 420]

    threat, or a scourge to the community, he may be foreclosed from enjoying a fair trial if the jury learns of these accounts.

In the case of Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), in which it appeared that much of the news publicity covered a street attack which resulted in the killing of one of two victims, the Court said:

"While much of the publicity was routine, factual, and wholly lacking in inflammatory content, a great deal of publicity about Pierce was emotionally charged and inflammatory, and clearly pointed to his guilt."

The court in Pierce reversed the conviction and granted a new trial. Although the defendants in the instant case were not individually mentioned in all of the stories, many of which were factual and many of which were emotionally charged and inflammatory, it would strain credulity to say that it was possible for a reader or listener to separate the individual defendants from their union with respect to the stories reported by the news media.

Therefore, because of the continuous flow of prejudicial publicity during the trial concerning which the court was reluctant to repeatedly interrogate the jury, we find the court abused its discretion in not granting the frequent motions and requests of defense counsel for sequestration of the jury. The flow of news coming over the radio stations and in newspapers dictated a sequestration in order to preserve the impartiality of the jury, if only for the time during which the court itself acknowledged, concentrated publicity would be forthcoming.

In Commonwealth v. Bruno, supra, the trial court, in a five-day trial, instructed the jury four times on its duties not to expose themselves to any publicity concerning the trial, to consider only the evidence presented to them at trial, and to report anything to the court which would affect their ability to continue as jurors. One of the cautionary instructions, following a disclosure to the court by the defense that a newspaper headline announced, "Bruno Trial Jury Seated, Alleged Confession Out," was as follows:

[ 255 Pa. Super. Page 421]

"Members of the jury, remember my admonition about discussing the case among yourselves or anyone else or exposing yourself to anything concerning this case. Read a good book tonight instead of reading the newspaper or watching television and listening to the radio. That's a suggestion. It's a suggestion of how to occupy yourselves, not a suggestion as to what you should not do. I will see you tomorrow morning." (Emphasis added.)

At another point in the trial, after defense counsel informed the court that four newspaper articles alleged that Bruno's confession would not be heard at trial, and that a local radio station had given extensive coverage to the trial procedure, the court said the following to the jury:

"Don't discuss this case among yourselves or with anyone else, members of the jury and remember my admonition about exposing yourselves to anything you should not expose yourselves to in connection with this case."

On two other occasions the court gave similar reminders to the jury. Despite these cautionary instructions on the part of the trial court in the Bruno case, the Supreme Court of our state said:

"At no time prior to the end of the trial on February 4, 1974, were the jurors questioned concerning their exposure to the publicity which occurred during the trial. The jury was not specifically instructed to refrain from looking at newspapers and listening to the radio and television. Instead, they were given a mere 'suggestion' to read a book. They were told only once, before the publicity concerning appellant's confession was brought to the court's attention, that they should report any incident to the court that might affect their judgment. Despite repeated defense motions, the court made no meaningful attempt to ensure the jury was not influenced by the suppressed, but widely publicized, confession."

In the instant case, on the first morning of trial, January 21, 1974, and before the noon recess, the trial court gave these cautionary instructions to the jury:

[ 255 Pa. Super. Page 422]

"In the meantime, you will recall my instructions to you just before you left the stand here when you were voir dired and has also been mentioned by counsel, you must avoid talking about the case with anyone; you must avoid reading about it; try to keep your minds just as clear as they can be so that you can do justice in this case on the basis of the evidence that you will hear in this courtroom and that alone."

On the next day of the trial, January 22, 1974, defense counsel pointed out to the lower court that the Philadelphia Inquirer newspaper carried a statement by the District Attorney for Camden County, New Jersey, accusing the Roofers Union Local 30, the union to which defendants belonged, as being linked to the Mafia. This story, of course, was a serious indictment of the Roofers Union Local and its members, and the jury's reading it would have been extremely prejudicial to the rights of the nine defendants to have a fair trial. The minimal standards of constitutional due process guarantees to the criminally accused a fair trial by a panel of impartial and "indifferent" jurors. Commonwealth v. Stewart, 449 Pa. 50, 52, 295 A.2d 303 (1972), cert. denied, 417 U.S. 949, 94 S.Ct. 3078, 41 L.Ed.2d 670 (1974). If the defendants in this case had been able to show that this "Mafia" story had reached the jury, its highly prejudicial nature could, per se, have been grounds for a new trial. Cf. Commonwealth v. Hawkins, 459 Pa. 196, 328 A.2d 156 (1974). Thus, upon the basis of defense counsel's motion for mistrial, the court had a particular duty not only to admonish the jury against the listening, reading or looking at news reports, but also to take precautions to conduct a careful inquiry of the jury to determine if any news concerning the Mafia story had been received by the jury and, if so, what effect it had upon their impartiality. Instead, the court in a most general and ambiguous manner interrogated the jury as to whether they had read anything in the papers concerning Roofers Local 30, or anything about either the Altemose Construction Company or J. Leon Altemose. Although one juror raised her hand saying that she had read a story about

[ 255 Pa. Super. Page 423]

    her selection as a juror, the other members of the jury did not indicate that they had read anything. The very fact that one juror read in the newspaper that she had been selected as a juror, was proof that the court's earlier admonition had not been effective, and that a more careful inquiry of all the jurors was called for.

The exact procedure of inquiry which a trial court should pursue to determine the impartiality of a jury in face of inflammatory publicity is set forth in Commonwealth v. Bruno, supra, in which the court stated:

"The court gave an inadequate precautionary instruction to the jury and took no direct action to ensure that they were not exposed to such highly prejudicial information. In such circumstances, the trial court should have questioned each juror as appellant's counsel frequently requested to ensure that the publicity had not in fact reached the jury. The failure to do so denied appellant any chance to show actual prejudice. Such a procedure is required, upon the request of either party, under the ABA Standards Relating to Fair Trial and Free Press § 3.5(f):

'If it is determined that material disseminated during the trial raises serious questions of possible prejudice, the court may on its own motion or shall on motion of either party question each juror, out of the presence of the others, about his exposure to that material . . . .'"

The American Bar Association's Standards for Fair Trial and Freedom of the Press, regarding questioning jurors about the exposure to potentially prejudicial material in the course of the trial, Standard for Excusing a Juror, § 3.4(a), adopted in Commonwealth v. Bruno, supra, provides:

"An accurate record of this examination shall be kept, by a court reporter or tape recording whenever possible. The questioning shall be conducted for the purpose of determining what the prospective juror has read and heard about the case and how his exposure has affected his attitude toward the trial, not to convince him that he would be derelict in his duty if he could not cast aside any preconceptions he might have."

[ 255 Pa. Super. Page 424]

This precaution of course could apply equally well to the questioning of a juror during a trial. In the instant case, at the end of the day during which the Mafia story was revealed, the trial court dismissed the jury without any admonition and without any specific inquiry being conducted.

In Janko v. United States, 366 U.S. 716, 81 S.Ct. 1662, 6 L.Ed.2d 846 (1960), the Supreme Court reversed the Eighth Circuit Court of Appeals when the circuit court found that the district court trial judge had not erred in refusing a defense motion for mistrial based on grounds that a prejudicial newspaper article appeared during the two-day trial. On the second day in the Janko trial, defense counsel presented to the court a story printed in an evening newspaper of the preceding day. The headline read:

"J. W. Janko on trial on income tax case"

In the body of the story were references to the defendant as "a former employe of East Side Rackets Boss Frank (Buster) Wortman," and as a "former convict." In another story on the page, appeared the language, "Gang Boss Frank (Buster) Wortman." In Janko, too, the court made a general inquiry concerning the jury's knowledge of the newspaper story which was found to be insufficient by the Supreme Court.

With respect to Culvirt Quitman's purported identification testimony, during the court's consideration of defense counsel's motions for mistrial or sequestration of the jury, Mr. Peruto, one of the defense counsel, said to the court:

". . . and specifically with regard to Quitman in particular the radio has been saying over and over that the Commonwealth has produced a series of witnesses none of whom could identify any of the defendants." "And the broadcast seems to point out -- they question Mr. Nicholas*fn4 about what's happening, when is somebody going to be identified. And they quote Mr. Nicholas as saying -- and I don't mean to say Mr. Nicholas made this

[ 255 Pa. Super. Page 425]

    quote, I'm just pointing to the prejudicial effect of the broadcast itself -- that they quote Mr. Nicholas as saying that it was necessary to proceed in this fashion but that it's a two-phased prosecution and that this phase that they are now entering will be the phase where there will be positive identification. Now the point is that the press has been repeating the story of no identification over and over, to where they have built it to the point where there will be almost certain explosive prejudicial publicity when they finally get to an identification witness such as Quitman."

Nevertheless, the trial court refused to sequester the jury and granted a reopening of the suppression hearing in order to hear Mr. Quitman outside the hearing of the jury. Furthermore, on the morning of February 4, 1974, defense counsel pointed out to the court that the radio and news broadcasts, especially radio station KYW which was broadcasting the story every fifteen minutes, stated that the trial judge would be ruling on whether or not a "surprise witness" would be allowed to testify and identify one of the defendants. Mr. Peruto said to the court:

"The import of the broadcast was clearly that there is an identification witness, his name was Quitman and gave the impression that the jury had been recessed for two days for the defense to attempt to keep his testimony out of the case."

Mr. Peruto further stated:

"[A]s has been announced by Stanford Shmuckler, the attorney for Mr. Quitman, it is his intention to plead the Fifth Amendment, that we will be getting broadcasts of a similar nature, I'm afraid, and then the defendant will be prejudiced no matter which way it goes."

After this information the court again failed to give proper cautionary instructions to the jury when it was excused for the duration of the Quitman inquiry.

The case of United States v. Powell, 171 F.Supp. 202 (M.D.Cal.1959) speaks pointedly on this issue.

[ 255 Pa. Super. Page 426]

"There is a further and even stronger reason for the granting of a motion for mistrial. Courts, particularly in criminal cases, are zealous in protecting the rights of a defendant against the possibility of a jury being influenced by non-evidentiary matters. Consequently, it has been traditional to excuse the jury, and to keep from their ears arguments on legal matters such as the admission of evidence. This we did in this case. Nevertheless, the press, in disregard of the worthy purpose above stated, published and disseminated that which the court had kept from the ears of the jury. In this respect even those newspaper accounts which in whole or in part accurately reported the discussion between Court and counsel in the absence of the jury in respect to the admissibility of the proposed testimony created a danger of an improper and prejudicial influence upon the jury."

After a week-end press coverage on the Quitman matter, defense counsel again moved for a mistrial or sequestration of the jury. After that week-end press coverage, on February 4, 1974, a Monday, the following colloquy occurred:

"THE COURT: Can we agree that there is likely to be some additional publicity?

MR. PERUTO: Yes, sir.

THE COURT: I don't see any point now this morning in trying to make any inquiry at all because there is going to be more.

MR. SIMONE: Finally, your honor, in honor of your honor's own statement that we are all in agreement that there is going to be additional publicity in question with this matter, I renew my motion to sequester the jury.

THE COURT: I do not consider the situation of that magnitude, so the motion's denied.

MR. MOORE: Subsequent events have proved it necessary for sequestration.

THE COURT: In the judgment of the defense counsel, I understand that to be so."

[ 255 Pa. Super. Page 427]

As it turned out the trial court sustained Quitman's exercise of his Fifth Amendment right not to incriminate himself; and on February 5th, what was acknowledged the day before by the trial court concerning publicity, unfortunately became a reality. On that day defense counsel called to the attention of the court that again the news broadcasts over radio had "been blaring intermittently and never missing an hour, constantly referring to the Quitman testimony and the plea of the Fifth Amendment and the refusal to testify." On that same day defense counsel offered into evidence Exhibit "P-14" which was a front-page story from a Montgomery County edition of "Today's Post" referring to Quitman's pleading the Fifth Amendment. This story was typical of the news broadcasts and newspaper stories regarding this matter. The headline read:

"Bus Driver Pleads Fifth"

"State's Key Witness Refuses to Testify"

The story narrated the following. "A bus driver undercut the prosecution in the Altemose trial, Monday afternoon, by invoking the Fifth Amendment and refusing to testify against one of the nine defendants. The text of the story was consistent with the damaging import of its headline. This story, the defense alleged, indicated that for one reason or another, the defense didn't want Quitman to testify, and, perhaps, intimidated him into pleading the Fifth Amendment. Whether this view was meritorious or not, the story was sufficiently important to bring to the attention of the trial court again the seriousness of the continuing publicity of the trial. Especially considering that the Quitman episode occurred while the trial was suspended and the jury excused, it is our opinion that the trial judge failed to exercise sound discretion in not, at the very least, admonishing the jury concerning its duty to avoid publicity of the case and in failing to conduct an adequate inquiry into what news, if any, the jury had heard.

On February 18, 1974, one defense counsel addressed the court as follows:

[ 255 Pa. Super. Page 428]

"MR. SIMONE: Your honor, on Friday morning I was aware of a newspaper article that appeared in the Philadelphia Inquirer on Thursday night, Friday morning, which I will get a copy of and make an exhibit, which indirectly spoke of this trial. But directly, the headline was that the union roofers beat up non-union roofers over in Jersey, in Camden. And then it went on to say that the members of Local 30 are on trial for the same type of activity."

On the basis of this report defense counsel reiterated its request for sequestration which was again denied. And, on March 14, 1974, the court house was evacuated due to a "bomb" threat. The following day, the headlines in "Today's Post" read: "Telephone Scare Halts Altemose Labor Trial." During most of these events the trial court failed to advise the jury as frequently as we are of the opinion it was necessary to do to avoid contact with any publicity and not to discuss the case with anyone and to report any information it received to the court. In Smith v. State, 317 A.2d 20 (Del.1974), the Delaware Supreme Court stated:

"In our view, for the integrity of the trial and in the interests of justice, the Trial Judge should, at the end of each day, caution the trial jury collectively about avoiding accounts of the proceeding which may appear in the news media, including newspapers, radio and television. At the commencement of each new trial date, the court should inquire of the jury, collectively, as to whether any member has in any way been exposed to such accounts."

It is difficult to deny that this case was of such notoriety and the issues were of such a nature that, in the absence of sequestration, highly prejudicial matters were likely to come to the attention of the jurors, thereby depriving these appellants of a fair trial. Without adequate admonition and without adequate inquiry into the possible influence of adverse publicity, the potential is too great that the jury had come into contact with some of the news that was prevalent and which was continuously being disseminated during the trial throughout the community. On that basis, circumstances

[ 255 Pa. Super. Page 429]

    dictated a sequestration of the jury in order to insure an impartial jury.

Pa.R.Crim.P. 1111 provides the guidelines for determining the sequestration issue.

"The trial judge may, in his discretion, order sequestration of trial jurors in the interest of justice.

(b) When sequestration is ordered, each juror, including any alternates, shall be sequestered from the time of acceptance as a juror until discharged.

(c) Nothing in Subsection (b) shall prevent a trial judge from ordering sequestration, or vacating his order of sequestration, at any time during a trial ...


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