No. 209 March Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Erie County, at Nos. 1865, 1865-1 of 1976
William J. Hain, Erie, for appellant.
Shad Connelly, Asst. Dist. Atty., Erie, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Larsen, JJ. Pomeroy, former J., took no part in the decision of this case. Manderino, J., files a dissenting opinion.
Appellant, Edward Earl Hobson, was tried by a judge sitting with a jury in connection with the homicide of Steve Allen Burton. Appellant was found guilty of murder of the third degree. Post-verdict motions were denied and appellant was sentenced to eight to sixteen years' imprisonment. This direct appeal followed.
On November 2, 1978, this court, by per curiam order, remanded the record in this case. The purpose of the remand was:
"The case is remanded to the Court of Common Pleas of Erie County for a prompt determination of whether a motion for a change of venue was filed and disposed of by that court. See Pa.R.A.P.1926. If such a motion was filed, then the record should be supplemented to include: (1) a true and correct verified copy of the motion for change of venue, (2) the transcript of any testimony and/or legal arguments presented in consideration of the motion, and (3) the transcript of any notes of the voir dire examination. If no motion for change of venue was filed, the court of common pleas should determine whether that issue has been waived. This remand shall not be construed to permit a relitigation of the motion for change of venue."
On December 4, 1978, the court below returned the supplemented record and determined that the issue of the change of venue was "waived."
Appellant now argues that the court below erred in failing to grant his motion for a change of venue or to hold a hearing on the motion. We do not agree.
The record reveals the following facts. Appellant was charged with the August 4, 1976, slaying of Steve Allen Burton. On August 9, 1976, Stephen Tetuan, Esquire, was appointed by the court below as defense counsel. On August 23, 1976, Tetuan petitioned the court below for the appointment of co-counsel William J. Hain, Esquire.*fn1 The petition was granted on the above date. Pursuant to our remand order, the supplemented record contains an unsigned, undocketed "motion for change of venue." The "motion" avers that appellant's trial was to commence before Judge Fred P. Anthony on October 18, 1976. The only attorney's name appearing on this "motion" is Stephen Tetuan.*fn2 Pursuant to our November 2, 1978, remand order, the court below made the following determinations:
(1) Appellant's defense counsel, Stephen Tetuan, Esquire, prepared a motion for change of venue. A signed "motion" was never filed in the Erie County Clerk of Courts office. A copy of the "motion" was left on the desk of the secretary to Judge Fred Anthony. Judge Anthony was the judge originally assigned to preside at appellant's trial.
(2) Judge Anthony took no action on the "motion." Subsequently, appellant's trial was reassigned to Judge Dwyer.
(3) The change of venue motion was not renewed nor mentioned to Judge Dwyer upon his assignment to the case.
The court below further determined that defense counsel Tetuan did not pursue the change of venue motion because he was satisfied that the voir dire of the prospective jurors had resolved any problems with the publicity concerning appellant. On the record, as augmented by the determinations of the court below, the issues surrounding the motion for change of venue are precluded from appellate review. The court below found that defense counsel voluntarily withdrew the motion because the voir dire satisfied his judgment concerning the impartiality of the jury. We agree with that determination.
Appellant next argues that the court below erred in permitting the jury to take to the jury room the weapon used by appellant ...