No. 264 March Term, 1977, Appeal from the Order of the Superior Court of Pennsylvania at No. 204 April Term, 1976, reversing the Judgments of sentence of the Court of Common Pleas of Butler County, Pennsylvania, Criminal Division at C.A. No. 60 September, 1974, C.A. No. 170 December 1974 and C.A. No. 173 December 1974
Robert F. Hawk, Richard W. Given, Asst. Dist. Attys., Butler, for appellant.
David O'Hanesian, Pittsburgh, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Nix and Manderino, JJ., would grant a new trial for the reasons set forth in the opinion of the Superior Court,
In this case we are asked to review an order of the Superior Court holding that the trial court abused its discretion in denying a pre-trial motion for a change of venue. 249 Pa. Super. 21, 375 A.2d 737 (1977). The Superior Court concluded that the pre-trial publicity in the case at bar was "extreme and extensive," 249 Pa. Super. at 24, 375 A.2d at 739, and that the defendant's status as the chairman of a local political party committee, together with the nature of the charges, made a fair trial impossible and required that
prejudice be presumed. The court further held that "the familiarity of the accused's name with the local populace prior to the time when the charges were brought against him," 249 Pa. Super. at 33, 375 A.2d at 743, is a factor which must be considered by a trial court whenever presented with a pre-trial motion for change of venue. Because this requirement represented a significant change in our law in this area, we allowed an appeal by the Commonwealth.*fn1 We conclude that the change announced by the Superior Court is open to serious question and that in any event its decision to order a change of venue in the instant case was without support in the record. Accordingly, we reverse.
This case had its inception when eight employees of the Pennsylvania Department of Transportation (PennDot) in Butler County reported that they were being forced to make political contributions. An investigation by the state police and the Butler County District Attorney's Office followed, and as a result a criminal complaint was filed on May 16, 1974, charging appellee William Casper with, inter alia, numerous counts of demanding political contributions from public employees, an offense commonly known as "macing." Act of April 6, 1939, P.L. 16, § 1, 25 P.S. § 2374 (1963). Appellee, who had been chairman of the Butler County Democratic Committee for some nine years, was indicted on these charges on September 12, 1974. At this time a special grand jury was empaneled to investigate charges related to the original charges against appellee, and on November 29, 1974, the special grand jury made its presentment recommending that additional indictments for crimes of a similar nature be filed against appellee. Indictments were returned by the regular grand jury on December 16, 1974, based on the recommendations of the special grand jury. The September
and December indictments were consolidated for trial.*fn2
On January 10, 1975, appellee filed an application for a change of venue based on the pre-trial publicity, which motion was denied after hearing on January 24, 1975 by the trial court.*fn3 Trial commenced on February 18, 1975, and thirty-one counts were submitted to the jury.*fn4 The jury returned verdicts of acquittal on nineteen counts, and found Casper guilty of seven counts of "macing," three counts of extortion, and one count each of conspiracy and criminal solicitation. Timely post-trial motions were filed and denied, and Casper was sentenced on the extortion convictions to a term of one to two years. He received probation on the other convictions. Total fines imposed were $11,500.
Casper raised several issues in his appeal to the Superior Court, but the court found it necessary to reach only one, viz., whether it was error for the trial court to refuse to grant a pretrial motion for a change of venue. On this point, as noted above, the court held that the motion should have been granted, and ordered a new trial in another county. This appeal followed.
Appellee did not renew his motion for a change of venue at any time during or at the end of the voir dire examination, and it has not been contended at any time that a prejudiced jury was actually empaneled. See Commonwealth v. Rolison, 473 Pa. 261, 266-71, 374 A.2d 509, 511-13 (1977) (plurality opinion), citing American Bar Association Standards Relating to Fair Trial & Free Press § 3.4(b), and Commentary (Approved Draft, 1968). Rather he contends, and the Superior Court agreed, that it was an abuse of discretion to deny his change of venue motion filed a little more than a month prior to trial.
Our cases make it clear that an application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. E.g., Commonwealth v. Scott, 469 Pa. 258, 266, 365 A.2d 140 (1976); Commonwealth v. Hoss, 469 Pa. 195, 199, 364 A.2d 1335 (1976); Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282 (1976); Commonwealth v. Powell, 459 Pa. 253, 289, 328 A.2d 507 (1974); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974).*fn5 "In reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant's] guilt or innocence as a result of the pre-trial publicity." Commonwealth v. Kichline, supra, 468 Pa. at 274, 361 A.2d at 287. Normally, one who claims that he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empaneling of the jury. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Commonwealth v. Rolison, supra; Commonwealth v. Hoss,
Pa. 195, 201, 364 A.2d 1335 (1976); Commonwealth v. Pierce, 451 Pa. 190, 195, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973). But this rule is subject to an important exception. In certain cases there "can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice," Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977), because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Commonwealth v. Rolison, supra; Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975), citing American Bar Association Standards Relating to Fair Trial and Free Press § 3.2 (Approved Draft, 1968); Commonwealth v. Pierce, supra.*fn6 It is this exception that we must discuss here.
It is trite but true to note that a presumption of prejudice pursuant to this exception requires the presence of exceptional circumstances. Similarly, generalizations in this area are difficult because "each case must turn on its special facts." Commonwealth v. Pierce, supra, 451 Pa. at 198 n.3, 303 A.2d at 213 n.3, quoting Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250, 1252 (1959). Nonetheless, there are certain factors which this Court has identified as relevant to a determination of whether prejudice should be presumed.
It is clear that the mere existence of pre-trial publicity does not warrant a presumption ...