Nos. 345 & 346 SPECIAL TRANSFER DOCKET, Appeal from the Judgment of Sentences on September 27, 1978, of the Court of Common Pleas, Criminal, Chester County, Nos. 1264, 1264A, 1265, 1266 of 1976.
Thomas G. Gavin, West Chester, for appellant.
Alan J. Jarvis, Assistant District Attorney, West Chester, for Commonwealth, appellee.
Hoffman, Eagen and Hess, JJ.*fn*
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Appellant contends, inter alia, that (1) his trial counsel was ineffective for failure vigorously to pursue a change of venue motion;*fn1 (2) the trial court erred in denying
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his motion for a mistrial;*fn2 and (3) the trial court erred in imposing an excessive sentence. We agree with appellant's final contention and, accordingly, vacate the judgment of sentence and remand for resentencing.
On August 2, 1976, appellant and his brother, James Weakland, robbed a Chester County service station-general store owned by Cecil and Florence Rash. During the course of the robbery, James shot and killed Mr. Rash and forced another man to help him escape from the scene of the crime. Both James Weakland and appellant were apprehended near the service station shortly after the crime occurred.
On November 30, 1976, James Weakland entered a plea of nolo contendere to certain of the charges arising from this incident. Articles appearing in local newspapers on December 1 and 2, and a local radio station broadcast on December
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, 1976, reported James Weakland's plea and mentioned that he was appellant's brother. Appellant's case was called for trial on January 4, 1977. At that time appellant's counsel orally pursued a motion for change of venue, which he had previously filed with the court, on the grounds of prejudicial pre-trial publicity.*fn3 Trial counsel told the trial judge, however, that his original motion for change of venue had been based upon anticipated extensive publicity that did not materialize. The court denied the motion. Although some veniremen indicated at the voir dire that they knew of the incident, all of the jurors selected stated that they did not have a preconceived notion regarding appellant's guilt or innocence.
At trial, a state police officer testified that he had found some marijuana, a marijuana pipe, and two roach clips in appellant's car along with the items stolen from the Rash establishment. Appellant was convicted of second degree murder, robbery, kidnapping, aggravated assault, theft, and criminal conspiracy. Although he was represented by the Public Defenders Office at trial, new counsel was appointed prior to the argument on post-trial motions. Post-trial counsel alleged in the brief and at the argument on post-verdict motions ineffectiveness of trial counsel. The court imposed the mandatory life sentence on the second degree murder conviction, followed by consecutive sentences aggregating 33 1/2 to ...