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COMMONWEALTH PENNSYLVANIA v. JAY C. SMITH (08/14/81)

filed: August 14, 1981.

COMMONWEALTH OF PENNSYLVANIA,
v.
JAY C. SMITH, APPELLANT



No. 160 Philadelphia, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Bucks County, at No. 2258 of 1978.

COUNSEL

John J. O'Brien, West Chester, for appellant.

Stanton M. Lacks, Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, Hester and Cavanaugh, JJ. Spaeth, J., concurs in the result.

Author: Cavanaugh

[ 290 Pa. Super. Page 37]

On December 17, 1977, a man later identified as Jay C. Smith, the appellant herein, went to the cashier's office on the second floor of the Sears and Roebucks Store at the Neshaminey Mall, Bensalem, Bucks County. He was wearing a dark blue uniform and hat of the type worn by security personnel. The Armored Motor Service Company regularly picked up cash receipts at the Neshaminey branch of the Sears Store and the appellant indicated that he had come to pick up the daily receipts. The appellant had a plastic identification card bearing his photograph and the signature purportedly of a guard by the name of Albert Wharton who was an employee of Armored Motor Service. The assistant head cashier has a list of authorized personnel from the Armored Motor Service and the list also bore the signatures of the various security personnel who were authorized to receive cash. The cashier checked the signature on her list which carried the name of Albert J. Wharton. However, the signature on the cashier's list was different than that appearing on the identification card in the appellant's possession. Because of this discrepancy the cashier became suspicious and called the store security office. In the meantime the man representing himself to be Mr. Wharton became increasingly nervous. Finally, he demanded entry to the cashier's office. When he was told that he could not go back to where the cashier was he leaped over a barrier and grabbed the card from the desk where the cashier had placed it. In his hurry to leave he bumped into another employee in the office. He then proceeded down the escalator and was observed by a salesman on the first floor as he pushed people aside to make good his escape. Appellant was not arrested for this crime until September of 1978.

[ 290 Pa. Super. Page 38]

Appellant was tried before Garb, J. and a jury and found guilty of attempted theft by deception. His motion for a new trial was dismissed and he was sentenced to two to four years imprisonment.

Appellant's first contention is that he was denied protective measures which would have afforded him a trial by a fair and impartial jury. His first argument under this concept is that his motion for change of venue should have been granted. Appellant, at the time of the offense involved in this case, was the principal of the Upper Merion Senior High School, located in Montgomery County.*fn1 In July and August of 1978 the appellant was arrested for various crimes which he allegedly committed in Chester, Delaware and Montgomery Counties. A change of venue was granted with respect to alleged crimes committed in the counties other than Bucks County and trial was held in Dauphin County as to those charges.

At the time of the appellant's arrest in July and August 1978, for offenses other than those involved in this case, there was considerable press and television coverage given to the appellant. Many articles appeared in The Philadelphia Inquirer and Philadelphia Bulletin as well as in the Philadelphia Journal, the Philadelphia Daily News, the Daily Intelligencer which is published in Doylestown, Pennsylvania, and the Quakertown Free Press. These articles appeared mainly at the end of August and beginning of September, 1978. Appellant was not tried in the court below until February, 1979.

The court below was concerned particularly with a series of television news broadcasts. In this regard the court stated in its opinion:

We viewed 6 separate news broadcasts by KYW-TV of their news coverage of the defendant's various arrests. The televised coverage was quite graphic in displaying the

[ 290 Pa. Super. Page 39]

    guns that were taken from the defendant and from his car, together with an oil filter type of silencer, these photographs were obviously made in police headquarters, mug shots, suggestions of other crimes by policemen on camera, photographs of the defendant's home, comments by a neighbor and a student in the high school at which he was principal, a comment about stolen school property and an apparent photograph of someone carrying an allegedly stolen school picture, comments by the school superintendent on camera, pictures of the defendant being led in handcuffs from a hearing to a police car, composite pictures, and policemen interviews. Although we believe these went quite far, we still do not believe that they necessitated a change of venue without a determination of whether a fair jury can be impaneled by voir dire considering that there were only six of these presented and that they occur over five months prior to the time of trial.

The court was also concerned with a publication appearing in the Philadelphia Journal on September 1, 1978, which contained a composite drawing suggesting that the appellant might have been involved in a murder with which he had not been charged. The court was satisfied, however, that this adverse publicity was contained in a publication of relatively small circulation in Philadelphia and of unknown circulation in Bucks County and that it did not deny the appellant a fair trial. An application for change of venue is addressed to the sound discretion of the court, and its exercise of that discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980). As this court stated in Commonwealth v. Heath, 275 Pa. Super. 478, 419 A.2d 1 (1980) at 275 Pa. Super. 487, 419 A.2d 5:

In cases where prejudicial pretrial publicity is alleged, the trial court should consider: whether the pretrial publicity revealed the existence of the accused's prior criminal record; whether the publicity referred to confession, admissions or reenactments of the crime by ...


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