Nos. 171 & 202 March Term, 1977, Appeal from the order of May 7, 1977, Denying Post Conviction Relief at Nos. 35 February Term and 26 March Term, 1974 in the Court of Common Pleas of Mercer County, Criminal Division.
H. David Rothman, Pittsburgh, for appellant.
David B. Douds, Asst. Dist. Atty., Mercer, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Manderino, J., filed a concurring opinion.
Roy J. O'Searo, appellant, was tried and convicted by a jury of murder of the first degree for the shooting of Francis Gadola on December 29, 1973. On direct appeal, this Court affirmed the judgment of sentence. Commonwealth v. O'Searo, 466 Pa. 224, 352 A.2d 30 (1976). Appellant subsequently sought relief under the Post Conviction Hearing Act, 1966, Jan. 25, P.L. (1965) 1580, § 1 et seq., 19 P.S. § 1180-1 et seq. (Supp.1978-79) (PCHA), which was denied by the hearing court. We are now called upon to review the propriety of that order denying relief.
In support of the request for post conviction relief, appellant alleges numerous instances of ineffectiveness on the part of his trial counsel. After a careful review of all of his allegations,*fn1 we are satisfied that trial counsel was not ineffective and that the hearing court properly denied the request for post conviction relief.
Appellant contends that trial counsel was ineffective for failing to request a change of venue. In making this argument, appellant expressly concedes that the county in which the trial was heard (Mercer) was not saturated by media coverage of the case. Given this concession, which is supported by the record, appellant is precluded from relying upon cases wherein the pre-trial publicity has been so pervasive and inflammatory that the existence of actual prejudice may properly be presumed. See, e. g., Commonwealth v. Brado, 470 Pa. 306, 368 A.2d 643 (1977); Commonwealth v. Pierce, 451 Pa. 190, 195, 303 A.2d 209, 212, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973). See generally Ranney, Remedies for Prejudicial Publicity, 21 Vill.L.Rev.
, 820-21 (1975-76). Therefore in order to show that a motion for change in venue would have been of arguable merit, appellant must demonstrate that the pre-trial publicity did in fact create a fixed opinion as to guilt or innocence in the minds of the prospective jurors, which opinion could not be readily set aside. See Commonwealth v. Hoss, 469 Pa. 195, 204, 364 A.2d 1335, 1340 (1976).
In the instant case, the record on post conviction hearing simply does not support appellant's implicit contention that the jurors held unalterable preconceived opinions as to his guilt. At the PCHA hearing appellant offered the affidavit of one Mrs. Mattson wherein she stated that another woman, a Mrs. Waite, had told her (Mattson) that several fellow employees of the man ultimately selected as jury foreman had told her (Mrs. Waite) that prior to his being summoned for jury service, the foreman had expressed his belief that appellant was guilty. Noting correctly that the affidavit contained triple hearsay, the PCHA court ruled the affidavit inadmissible. The only other evidence even remotely relevant to a showing of actual jury prejudice was the equivocal testimony of one courtroom observer to the effect that he thought he saw prospective jurors mingling in courthouse corridors with witnesses and the victim's family. Appellant has not provided any evidence showing that his trial counsel was aware of the purported statement made by the jury foreman, nor has appellant shown that if there was intermingling of jurors, witnesses, and relatives of the victim, counsel was cognizant of that fact. In fact, at the PCHA hearing appellant's trial counsel testified that he was not aware of any such objectionable juror exposure. Nor is there any showing that his lack of awareness of these allegations was as a result of his failure to ...