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. ...