NO. 625 & 907 PITTSBURGH, 1980, Appeal from the order and judgments of sentence of the Court of Common Pleas, Criminal Division, of Mercer County, 305 Criminal 1979, and Order of the Court of Common Pleas, Criminal Division, of Mercer County, 416 Criminal 1979
Robert G. Kochems, Mercer, for appellant.
Charles S. Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Price, Brosky and Montemuro, JJ.
[ 302 Pa. Super. Page 327]
The matter before us involves two separate appeals which by stipulation were consolidated.
On July 16, 1979, appellant was arrested and charged with aggravated assault, criminal attempt to commit rape, and simple assault. During the time appellant was awaiting trial on these charges in the Mercer County jail he was involved in an incident with a guard and on October 9, 1979, he was charged with aggravated assault and assault by a prisoner.
Appellant was convicted by a jury of criminal attempt to commit rape and indecent assault. The jury found him not guilty on the charge of aggravated assault and his demurrer to the charge of indecent assault was sustained by the trial judge, the Honorable Albert E. Acker. Thereafter, appellant's motion for a new trial and in arrest of judgment was denied and Judge Acker sentenced him to five (5) to ten (10) years on the attempted rape and one (1) to two (2) years for simple assault, the sentence to be served concurrently but consecutively to any sentence he was then serving.
Following his conviction before Judge Acker, by way of plea bargain, he pled guilty to the charge of simple assault by a prisoner before the Hon. John Q. Stranahan. After he had been sentenced by Judge Acker, Judge Stranahan sentenced him to two and one-half (2 1/2) years to five (5) years to be served at the conclusion of Judge Acker's sentence.
We shall first address appellant's appeal from his plea of guilty to assault by a prisoner. Appellant does not challenge the legality of the sentence imposed by Judge Stranahan nor does he challenge the propriety of the sentencing procedure. He would have us reverse on the ground that his sentence of
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two and one-half (2 1/2) years to five (5) years was excessive. We do not agree.
We have examined the entire record and find that the sentence imposed by Judge Stranahan was within the statutory limits and was not so manifestly excessive as to inflict too severe a punishment. Commonwealth v. Straw, 238 Pa. Super. 535, 361 A.2d 427 (1976). We affirm.
Turning next to appellant's appeal from his jury conviction of attempted rape and simple assault, appellant assigns as error the denial of his motion for a change of venue, the denial of his motion for a mistrial and that the evidence was insufficient to sustain a verdict of guilty of attempted rape. We shall consider his claims seriatim.
On July 17, 1979, the day following appellant's arrest for attempted rape, two newspapers of general circulation in Mercer County where the crime was committed reported the crime.
We have repeatedly held that an application for change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Smith, 290 Pa. Super. 33, 434 A.2d 115 (1981); Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). "In reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant's] guilt or innocence as a result of the pre-trial publicity." Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282, 287 (1976). In Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973) our Supreme Court held that one who claims that he was denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empanelling of the jury. However, this rule is subject to an important exception. In Commonwealth v. Casper, supra, the court decided that:
In certain cases there "can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory
[ 302 Pa. Super. Page 329]
as to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice," Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977), because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had. See Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963); Commonwealth v. Rolison, supra [473 Pa. 261, 374 A.2d 509]; Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975), citing American Bar Association Standards Relating to Fair Trial and Free Press § 3.2 (Approved Draft, 1968); Commonwealth v. Pierce, supra [451 Pa. 190, 303 A.2d 209]. It is this exception that we must discuss here. It is trite but true to note that a presumption of prejudice pursuant to this exception requires the presence of exceptional circumstances. Similarly, generalizations in this area are difficult because "each case must turn on its special facts." Commonwealth v. Pierce, supra, 451 Pa. at 198 n.3, 303 A.2d at 213 n.3, quoting Marshall v. United States, 360 U.S. 310, 312, 79 S.Ct. 1171, 1172, 3 L.Ed.2d 1250, 1252 (1959). Nonetheless, there are certain factors which this Court has identified as relevant to a determination of whether prejudice should be presumed.
Id., 481 Pa. at 151, 392 A.2d at 291.
Clearly then, the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Instead, the court will consider the following factors in assessing whether a trial judge abused his discretion in denying a change of venue motion based on pre-trial publicity: "(1) the length of time between the publicity and the trial; (2) the nature and extent of the publicity (whether inflammatory or basically factual and how pervasively the information has been disseminated); (3) the degree to which the information is attributable to police or prosecution sources; (4) the community atmosphere; (5) the trial court's efforts to insulate the jury against and/or diminish the impact of the publicity; and (6) the probable efficacy of a change of
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venue." Commonwealth v. Richardson, 476 Pa. 571, 586, 383 A.2d 510, 518 (1978), cert. denied, 436 U.S. 910, 98 S.Ct. 2248, 56 L.Ed.2d 410 (1978) (Citations omitted.)
Here the appellee concedes that the two newspaper articles were inflammatory, that they revealed the appellant's criminal record and that the news content was obtained from the police and the prosecuting officer. Even so, unless the publicity has been so extensive, sustained and pervasive, without sufficient time between publication and trial for the prejudice to dissipate, so that the "community must be deemed to have been saturated with it," we will not find an abuse of discretion in a denial of a motion to change venue. Commonwealth v. Casper, supra.
The trial judge wrote a comprehensive and accurate analysis of appellant's change of venue claim. The trial judge pointed out that during the selection of the jury, individual voir dire examination was used. Twenty-seven (27) names were drawn from the jury selection box in the selecting of the twelve (12) jurors. Further, out of an abundance of caution, the jurors were sequestered throughout the entire trial until the jury returned its verdict. Each juror was inquired of as to whether he had knowledge from any source concerning the case. Those few who read or heard of the case previously were asked if they could set aside an information previously obtained. All prospective jurors that either appellant or appellee wanted removed were in fact excused.
We agree with the lower court that the statements contained in the two newspaper articles, although regrettable, did not result in a presumption of prejudice, nor was there a showing that the jury was unable to render a fair and impartial verdict based solely on the evidence introduced during the trial.
We hold that there was no evidence of actual prejudice, nor was the pre-trial publicity so extensive, pervasive and sustained so as to justify a presumption of prejudice. Accordingly, there was no error in denying appellant's motion for a change of venue.
[ 302 Pa. Super. Page 331]
Next, appellant contends that when the appellee elicited from a police officer testimony concerning an inculpatory statement made by appellant, which was not made available to appellee until the day of trial, but which was never made available to appellant despite an agreement by the prosecutor to make all such statements available, the lower court erred in not granting appellant's motion for mistrial or to strike the elicited testimony.
On September 7, 1979, appellant sought certain items of discovery from the Commonwealth. Pursuant to Pa.R.Crim.P. 305B(1)(b), appellant requested:
Any statements of the defendant given to any agent of the Commonwealth in connection with the subject matter of this case; and, whether or not the Commonwealth presently intends to call that agent at trial and whether or not the statement is oral or written.
Pa.R.Crim.P. 305 D provides:
If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.
Pa.R.Crim.P. 305 E provides:
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.
The testimony of the Commonwealth's witness, Patrolman Paul Michael Zarecky, on direct examination, which gave rise to this ...