No. 273 Special Transfer Docket, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Lebanon County, at No. 437 of 1973.
John E. Feather, Jr., Assistant Public Defender, Lebanon, for appellant.
Thomas S. Long, Assistant District Attorney, Lebanon, for Commonwealth, appellee.
Wieand, Nix and Wekselman, JJ.*fn*
[ 269 Pa. Super. Page 531]
On November 9, 1973, eleven-year-old Jennifer Gross, while walking to school along her accustomed route, was abducted by appellant and taken by automobile to an isolated wooded area in Lebanon County. There appellant stabbed her in the neck several times with a piece of glass. He then set fire to a pile of refuse and placed the victim's body on or near the fire. He returned home, changed clothes and went shopping with his friends, the Raiger brothers. Firefighters, engaged in extinguishing a brush fire later that day, discovered the victim's body. Death was caused by multiple wounds and inhalation of smoke and fumes. Appellant was arrested the next day.
At his first trial, on May 20, 1974, appellant was found guilty of murder in the first degree and sentenced to life imprisonment. The Supreme Court granted appellant a new trial on the grounds that the trial court had abused its discretion in refusing appellant's motion for a change of venue because of extensive pre-trial publicity. Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977). At his second trial, which began May 2, 1977, appellant again was convicted of first degree murder and sentenced to life imprisonment. Appellant now appeals from the denial of motions for new trial and in arrest of judgment. We affirm.
After the Supreme Court had granted appellant a new trial, he again applied for a change of venue. His
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application was denied. Appellant argues that this was error, that he failed to receive a fair trial in Lebanon County because of prejudicial publicity. The standard to be applied in determining whether pre-trial publicity denies an accused his right to be tried by an impartial jury was articulated by the Supreme Court in deciding appellant's prior appeal. If the nature of the content of the publicity is prejudicial and a significant number of prospective jurors are exposed to such publicity, then a trial court would abuse its discretion by refusing a request for a change of venue unless a sufficiently long period of time had passed between the time of the publicity and the application for a change of venue for the court to conclude that any prejudice which may have been initially created by the publicity had been dissipated. Commonwealth v. Frazier, supra, 471 Pa. at 131-32, 369 A.2d at 1229-30. See also: Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124. Instantly, the second trial did not begin until almost three and one-half years after the killing. The trial court found that potential prejudice caused by pervasive publicity surrounding the first trial had been dissipated by the time of the second trial. The record supports this finding.
The only media references to the remand order of the Supreme Court were a local newspaper article published March 7, 1977, and an editorial comment broadcast by a local radio station on March 17, 1977. Trial did not begin until May 2, 1977, one and one-half months later. The newspaper article was a factual reporting of the Supreme Court's opinion. The radio editorial, although critical of the Court's opinion, was broadcast to a potential listening audience of no more than 6,500 people in an eight county area of more than 1,175,000 residents. Thus, the likelihood that a significant number of prospective jurors had been influenced by recent pre-trial publicity was minimal.
Furthermore, appellant questioned prospective jurors at voir dire as to their exposure to ...