No. 304 Special Transfer Docket, Appeal from Judgment of Sentence of the Court of Common Pleas of Montgomery County, Criminal Division, No. 149 January Term, 1977.
Jerold S. Berschler, Philadelphia, for appellant.
John T. Salvucci, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Roberts and Lipez, JJ.*fn*
[ 273 Pa. Super. Page 187]
On May 20, 1977, a jury convicted appellant of murder of the first degree. After denial of post-verdict motions, the trial court sentenced appellant to life imprisonment. Appellant contends that (1) the trial court erred in denying his motion for change of venue; (2) police obtained from him an inculpatory statement in violation of Pa.R.Crim.P. 130 and Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972); (3) the trial court erred in denying his request for a continuance before the preliminary hearing; (4) the trial court erred in allowing admission of prejudicial testimony; (5) the trial court did not adequately instruct the jury on the theory of diminished capacity; and (6) a psychiatric examination of appellant conducted without presence of counsel denied him his right to counsel. We affirm.
About 1:00 A.M. on January 4, 1977, appellant, a police officer in the Upper Moreland Police Department in Montgomery County, shot and killed a victim, a female, in the parking lot of a church. When a local resident discovered the body in the morning, he called police. Appellant was the first officer to respond to the call. While appellant guarded the parking lot, other officers examined the body, uncovering beneath one of the legs a name tag bearing appellant's name. When questioned later at the police station, appellant admitted killing the victim.
Appellant argues that the trial court erred in denying his motion for change of venue. Pretrial publicity will be deemed so inherently prejudicial as to require a change of venue only if the articles appearing were either sensational, inflammatory and slanted towards conviction, rather than factual and objective; revealed that the accused had a criminal record; referred to a confession, admissions or reenactments of the crime by the accused; or derived from
[ 273 Pa. Super. Page 188]
reports from the police and prosecuting officers. Even if one or more of these elements exists, a change of venue is required only if the publicity has been so extensive, sustained and pervasive, without sufficient time between publication and trial for the prejudice to dissipate, that "the community must be deemed to have been saturated with it." Commonwealth v. Casper, 481 Pa. 143, 153, 392 A.2d 287, 292-293 (1978); Commonwealth v. Kivlin, 267 Pa. Super. 270, 406 A.2d 799 (1979).
The newspaper reports contained in the record do not meet this standard. In his motion, appellant submitted 66 newspaper reports appearing between the time of the killing on January 4, 1977 and the time of the preliminary hearing on April 15, 1977. Some of the articles did mention that appellant had allegedly confessed, and it is likely that this information, not available to the general public, derived from police or Commonwealth sources. The Commonwealth, however, never confirmed the news reports and the text of the inculpatory statement appellant had given police never appeared in the newspapers. Moreover, many of these articles appeared in Philadelphia newspapers and the rest in various publications serving different parts of Montgomery County. All the reports were factual and dispassionate. Some of the reports were interviews with appellant's trial counsel. Most of the articles appeared before the end of February and the few appearing later were published at the time of the preliminary hearing.
Further, the post-verdict court noted that Montgomery County has a population of about 700,000, that the crime was of special interest only in the township in which it occurred, and that, because the County borders on Philadelphia County, the people of the County frequently hear of murders and would not pay particular attention to the killing for which appellant was tried. At voir dire, the veniremen were carefully questioned for bias arising from publicity about the case. A few expressed doubt about their ...