No. 71 E.D. Appeal Docket, 1983, Appeal from Judgment of Sentence of the Court of Common Pleas of Lehigh County-Criminal entered January 23, 1981, to Nos. 1368, 1369 of 1978, affirmed by the Superior Court of Pennsylvania on May 6, 1983, to No. 465 Philadelphia, 1981, Pa. Super. ,
Roberts, C.j., and Nix, Larsen, Flaherty, McDermott, Hutchinson and Zappala, JJ. Nix and Zappala, JJ., file dissenting opinions.
On April 12, 1979 Appellant was convicted by a jury in the Court of Common Pleas of Lehigh County of second degree murder, burglary, theft by unlawful taking, receiving stolen property, and criminal conspiracy. Post trial motions were filed and denied, and appellant was sentenced to life imprisonment on the murder conviction and a consecutive term of two to seven years on the other convictions. Appeal was taken to Superior Court, 314 Pa. Super. 279, 460 A.2d 1139, which affirmed, and thereafter, petition for allowance of appeal to this Court was granted. We now affirm.
The facts of the case are that on November 9, 1978, two boys, Joseph Romeri, aged 16, and Michael Reinhard, aged 17, broke into the house of an 80 year old woman, Stella Bremmer. Appellant -- Romeri -- had been Mrs. Bremmer's paper boy and was her neighbor. Appellant's version of what transpired in the house is that after taking a small amount of money, the two discovered Mrs. Bremmer in bed in an upstairs bedroom and that Reinhard held her down while appellant struck her with something. Reinhard's version is that after entering the house, he waited in the kitchen while appellant explored the living room and then the second floor. After hearing muffled sounds upstairs, Reinhard went up to find appellant standing with a pipe in his hand next to Mrs. Bremmer's bed, where her bloody body lay. The two ran from the house and had a snack at a local store, then returned to the house to see if Mrs. Bremmer was dead. She was not, and after covering her body with a sheet -- according to Reinhard, while she continued to moan -- they took more money and left the house. Mrs. Bremmer subsequently died of the beating.
On November 13, 1978 appellant was questioned by police and made a confession implicating Michael Reinhard. Reinhard then made a separate statement placing main responsibility for the murder on appellant. Thereafter, the Commonwealth
accepted Reinhard's plea to third degree murder in return for his testimony against appellant.
On March 20, 1979 pre-trial hearings were held on motions to transfer the Romeri and Reinhard cases to juvenile court, motion to suppress certain evidence, and motion for bail. Although counsel for appellant requested that a single hearing be held on the motions to suppress and transfer, the trial court elected to hold separate hearings on these motions, the hearing on the motion to transfer being public and the hearing on suppression matters being in camera. At the transfer hearing, the Commonwealth produced an inculpatory letter allegedly written by appellant. The letter stated, inter alia: "I have a chance of being found not guilty. That means I can get away with murder."
On March 29, 1979 the court denied both appellant's motion to transfer and the motion to suppress appellant's confession, and the court filed an opinion in the transfer matter. On April 2, 1979 the case was attached for jury trial and on that day a newspaper article appeared which reported on the court's opinion on the transfer motion. In pertinent part, the article stated:
"Statements subsequently made by Romeri and Reinhard indicated it was Romeri who was primarily responsible for the beating which led to Mrs. Bremmer's death," the judge wrote in outlining details of the crime.
"The motive for the beating was apparently theft, as the boys admitted taking a small amount of money from Mrs. Bremmer's home.
"According to Romeri's statement, the boys -- after striking her with a pipe -- left her house because she was 'making funny noises.' But after getting something to eat, they went back into the house in a second burglary of the home."
Other evidence showed Romeri was a poor student, habitual truant and a continual heavy abuser of alcohol and drugs.
Judge Backenstoe said the most favorable points made by the defendant's attorney were his youth and the fact he made a voluntary statement to police several days after the homicide.
But the judge found this greatly neutralized by the fact Romeri wrote his girl friend from prison, attempting to enlist her support to get his mother to say she didn't understand what was going on when she gave her son permission to make a statement.
Judge Backenstoe says Romeri rather candidly states in that letter that his lawyer says "I have a chance of being found not guilty, that means I can get away with murder."
The judge said this is not an appropriate case to transfer to juvenile court . . . [because of] previous contact with law enforcement agencies, his direct roll [sic] in the killing of Mrs. Bremmer as well as his almost complete, callous disregard of the enormity and horror of his actions.
The Morning Call (Monday, April 2, 1979). Beginning on April 3, 1979 prospective jurors were called for voir dire, and on April 9, 1979 after voir dire testimony comprising 970 pages of transcript in which extensive questioning of prospective jurors was carried out, a jury was sworn. Counsel for appellant moved for a change of venue after this newspaper article appeared. The trial court held this motion under advisement until the jury was selected on April 9, and at that time the motion was denied. Appellant's first claim is that it was error for the trial court to deny the motion for a change of venue because the newspaper article excerpted supra was inherently prejudicial*fn1 and
made appellant's constitutional right to a fair trial impossible.
Our statement of the law in this area may be summarized by reference to Commonwealth v. Casper:
Our cases make it clear that an application for a 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. E.g., Commonwealth v. Scott, 469 Pa. 258, 266, 365 A.2d 140 (1976); Commonwealth v. Hoss, 469 Pa. 195, 199, 364 A.2d 1335 (1976); Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282 (1976); Commonwealth v. Powell, 459 Pa. 253, 289, 328 A.2d 507 (1974); Commonwealth v. Russell, 459 Pa. 1, 326 A.2d 303 (1974). "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, supra, 468 Pa. at 274, 361 A.2d at 287. Normally, one who claims that he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the empaneling of the jury. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Commonwealth v. Rolison, supra; Commonwealth v. Hoss, 469 Pa. 195, 201, 364 A.2d 1335 (1976); Commonwealth v. Pierce, 451 Pa. 190, ...