No. 1391 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Luzerne County, Criminal Division, at Nos. 1340, 1340-A and 1340-B of 1976
Norma Chase, Pittsburgh, for appellant.
Chester B. Muroski, District Attorney, Wilkes-Barre, submitted a brief on behalf of Commonwealth, appellee.
Spaeth, Brosky and Van der Voort, JJ. Van der Voort, J., concurs. Spaeth, J., files dissenting opinion.
[ 285 Pa. Super. Page 528]
Appellant was convicted by jury of attempted murder, aggravated assault and burglary. He was sentenced to five to ten years on the attempted murder charge and ten to twenty years on the burglary charge. All sentences were to run consecutively with a sentence appellant was already serving. Sandutch was ordered to pay costs of prosecution and compensate the victim for injuries. Posttrial motions were filed and denied. This appeal followed. The lower court denied defendant's motion in arrest of judgment. We affirm.
John R. Aufiero awoke when a burglar alarm connected from his restaurant called the "Pizza Shack" to his home began to ring. Aufiero, who had gone to his business to wait for the police to arrive, could see three men exiting his restaurant. When Aufiero attempted to stop one of the men, he was shot.
Seven days later, Aufiero was unable to identify his assailant. The trial court reasoned Aufiero's inability stemmed from his debilitated state as he continued to be in intensive care at the hospital.
Several weeks after the incident, police were able to make a composite drawing of the alleged attacker from information provided by Aufiero. Three months later, Aufiero was able to make a positive identification from a newspaper
[ 285 Pa. Super. Page 529]
picture he had seen. As a result of this identification, Sandutch was convicted.
Appellant presents four questions for answers. First, he charges trial counsel was ineffective because he failed to supplement the record when a motion for change of venue was argued. Second, he claims his trial was prejudiced by testimonial references to known criminals alleging they were associates of the appellant. Third, he asserts the Commonwealth was improperly allowed to impeach its witness by a showing of prior inconsistent statements. Fourth, he remonstrates that a former District Attorney's testimony was improperly admitted.
Sandutch was involved in numerous criminal proceedings before and during the time of the instant trial. His association with other alleged and convicted criminals brought him acclaim in the local press. In response to appellant's notoriety, he filed a motion for change of venue, alleging he would be unable to receive a fair trial in the county in which he was charged. Appellant claims his attorney was ineffective because he failed to introduce evidence of the extended publicity when a hearing was held on the motion. Sandutch states these actions could not have had any reasonable basis related "to his representation." Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
The decision of a trial court to order a change of venue is one within its discretion. Commonwealth v. Coder, 252 Pa. Super. 508, 382 A.2d 131 (1977). The factors to be considered by the trial court are established in Commonwealth v. Richey, 249 Pa. Super. 365, 378 A.2d 338 (1977). We are satisfied that the lower court properly applied relevant consideration. Clearly, the underlying claim upon which appellant alleges ineffectiveness is without merit. We believe trial counsel was effective.
Appellant claims his trial was prejudiced by testimonial references to criminals which associated him with them. The relationship between Sandutch and these known criminals ...