Nos. 561 & 582 January Term, 1977, Appeals from the Judgments of Sentence Imposed July 15, 1977 by the Court of Common Pleas of Berks County, Criminal Division, at Nos. 213 and 213(a) of 1975.
Emmanuel H. Dimitriou, Reading, Isaac N. Groner, Walter H. Fleischer, Robert S. Steinbaum, Madeline Nesse, Washington, D. C., for appellant.
J. Michael Morrissey, Dist. Atty., Charles M. Guthrie, Jr., Asst. Dist. Atty., Ross Weiss, Berks County, Sp. Asst. Atty. Gen., Montgomery County, for appellee.
Eagen, C. J., and O'Brien, Roberts, Nix, Larsen and Flaherty, JJ. Nix, J., files an opinion concurring in part and dissenting in part.
"No right is more fundamental to the American system of justice" than the constitutionally-guaranteed right of an accused to trial by an impartial jury. Philadelphia Newspapers, Inc. v. Jerome, 478 Pa. 484, 504, 387 A.2d 425, 435 (1978), appeal dismissed, 443 U.S. 913, 99 S.Ct. 3104, 61 L.Ed.2d 877 (1979). See U.S.Const. Amends. VI & XIV; Pa.Const. art. I, § 9. At issue on these appeals is whether pre-trial publicity in Berks County denied appellant Stuart Richard Cohen this fundamental right. Unlike the Court of Common Pleas of Berks County, we conclude that the pretrial publicity did prevent appellant from selecting an impartial jury. Accordingly, we vacate the judgments of sentence and remand for a new trial with a change of venue.
On November 14, 1974, a man walking along a fire trail in Reading's Egelman Park discovered the body of Steven Warunek, a sixteen year-old Reading youth. Warunek had been shot to death. On November 18, police arrested three eighteen year-old suspects, Anthony Reynolds, George Arms, and appellant, and charged all three with murder. Police also charged appellant with conspiracy to commit murder. Police investigation revealed that appellant hired the other two to kill Warunek in retaliation for threats Warunek made on appellant's life. Warunek allegedly told his fiance, Kerry Young, he would kill appellant, Young's former boyfriend.
The three suspects were committed to the Berks County prison in lieu of $250,000 bail. Soon after arrest, appellant
was released when his father posted certificates of deposit and a bank account with the district justice. Neither Arms nor Reynolds, however, was able to post the necessary security and both remained in prison.
At the same time appellant sought a reduction of bail. In mid-December, at the hearing on appellant's request, Assistant District Attorney Murphy objected on the ground that "Mr. Cohen is accused of premeditated contract killing, and there is a distinct possibility that the district attorney's office will be requesting the death penalty in this case. . . ."*fn1 Appellant's request for a reduction of bail was denied.
A preliminary hearing on the charges against appellant was held late in January, 1975. Testifying against appellant was Jack Geisler, a "witness" to the killing who, in "sobbing" testimony, both admitted his own involvement and claimed appellant had hired Arms and Reynolds to kill the victim. After two days of testimony, appellant was held for action by the grand jury. On March 5, appellant moved to stay grand jury action against him on the ground that he was prejudiced by media publicity concerning recently-charged Jack Geisler.*fn2 Judge Edenharter, presiding judge in appellant's case, denied appellant's request. The next day the grand jury indicted appellant and later that month
appellant entered a plea of not guilty. Trial was set for April 14.
On April 7, appellant filed a number of pre-trial applications, including an application to disqualify the District Attorney and his staff and one for a change of venue. The court continued the trial date and on April 28 began a hearing on the application to disqualify the District Attorney and his staff.*fn3
Appellant based his motion to disqualify on the ground that the District Attorney and his staff were behaving like "persecutors and not prosecutors." City Detective John Halstead testified that during periods of interrogation either District Attorney VanHoove or Assistant District Attorney Murphy threatened Commonwealth witness Jack Geisler as well as appellant's co-defendant Reynolds that they would "burn" or would have the opportunity to smell "burning flesh" if they did not provide details of the killing. Police Lieutenant Thomas Hess testified that District Attorney VanHoove expressed his desire to stand beside appellant when the "switch was pulled."
The trial court denied the application to disqualify and from May 1 to May 9 held a hearing on appellant's application for a change of venue. At the hearing, appellant presented copies of Berks County newspaper articles and transcripts of local radio broadcasts which discussed appellant's case.*fn4 Appellant also presented Dr. Jay Schulman, a professor at Columbia University and member of the National Jury Project, who is an expert on the impact of publicized criminal proceedings on public opinion.*fn5 Dr.
Schulman testified on the results of a public opinion poll he conducted which tested Berks County residents' views on appellant's guilt. Dr. Schulman, four other expert witnesses, and six lay witnesses all expressed an opinion that appellant could not receive a fair trial in Berks County. The Commonwealth opposed the application for a change of venue, but offered no evidence. The court denied appellant's application without opinion or other explanation of record.
Appellant then petitioned this Court for a writ of prohibition or mandamus, "direct[ing] a change of venue . . ., or in the alternative, prohibit[ing] the enforcement of the order denying the change of venue."*fn6 Simultaneously, appellant requested the court to continue trial. It did so, setting a tentative trial date of July 14, 1975. This Court denied appellant's application for extraordinary relief on July 2. Appellant then applied for and obtained another continuance, the court setting trial for the September, 1975 Term.
On September 2, 1975, before the scheduled date of trial, appellant filed a "Re-Application For Change of Venue." In support of his "Re-Application," appellant presented the results of a second public opinion survey. This survey was conducted on August 22 and 23 by Dr. Robert Buckhout,
another member of the National Jury Project. Once again, the Commonwealth, opposing the motion, presented no contrary evidence. The court denied appellant's "Re-Application," again without explanation. Appellant immediately applied for ...