No. 1717 PHILADELPHIA, 1982, Appeal from the Judgment of Sentence in the Court of Common Pleas, Criminal Division, of Bradford County, No. 80-1026 A and B, C.A.
Lawrence J. Hracho, Reading, for appellant.
Leonard J. Frawley, Jr., District Attorney, Towanda, for Com., appellee.
Rowley, Hester and Roberts, JJ.
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Jane Marie Moran, a then recent graduate of the respiratory therapy program at Robert Packer Hospital in Bradford County, Pennsylvania, met Phillip Evans, a security guard at the hospital, at 11:00 p.m. on May 14, 1979. Miss Moran was a resident in the nurse's dormitory located next to the hospital. Mr. Evans was completing his workshift
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when he met Miss Moran at the guard's station. The couple had planned a date.
Evans and Moran departed in Evan's automobile and drove to a convenience store in Waverly, Pennsylvania. Following their purchase of a six-pack of beer, the couple proceeded to the "Sheshequin Narrows" in Sheshequin Township, Bradford County. The "Narrows" is that section of Legislative Route 08077 which cuts into a steep hillside on the east side of the Susquehanna River at a point where the Chemung and Susquehanna Rivers merge. At one particular place on the river side of the "Narrows" exists a twelve-foot gravel shoulder. Evans parked his vehicle on this shoulder so that he and Miss Moran could enjoy the view of the rivers two hundred feet below. They drank beer and listened to music as they sat in the automobile.
Sometime after midnight on May 15, 1979, while Evans and Moran remained in the parked vehicle at the "Narrows", the driver's door was abruptly and unexpectedly opened by appellant, Dale Richard Arnold. Appellant pulled Evans from the vehicle, shot him several times with a sawed-off .22 caliber rifle, dragged him across the shoulder of the road and pushed him over the embankment. Evan's body was discovered later that day lying a few feet from the river. An autopsy disclosed gunshot wounds in his neck, right chest wall, left arm, left lower leg, left knee and diaphragm. His neck was also broken at the second cervical vertebra.
Immediately following his disposal of the body, appellant entered Evan's car and drove it a short distance. Moran was lying in the backseat at his direction. Having driven Evan's car for a few moments, appellant stopped and ordered Moran to get out and accompany him. With the sawed-off rifle in hand, he walked with Moran several hundred yards to his two-tone blue, Ford pick-up truck. Both entered the truck, and appellant drove back to Evan's car. As directed, Moran lay across the seat of the truck. Appellant then removed a Pioneer FM radio/cassette tape player from the murder victim's car.
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Appellant re-entered the truck and began a nightlong period of driving on isolated roads. He informed Moran that he was seeking the "boss'" house. If the "boss" were found, appellant would release her to him, at which time she would be injected with narcotics and compelled to join his harem.*fn1 Moran repeatedly expressed her desire to go home.
Following one hour of driving, appellant removed Moran's clothing and compelled her to engage in sexual intercourse in the truck. Thereafter, he drove again, commenting on his inability to find the "boss'" house and the alternative of driving Moran to New York City where she could work as a prostitute. Appellant stopped the truck a second time, again engaging in sexual intercourse against Moran's will.*fn2
As daylight approached on May 15, 1979, appellant promised to drive Moran to Robert Packer Hospital, providing she remained quiet about the evening's events and released her name, address and telephone number to him. He informed her that he had "men" on the Sayre police force and threatened to kill her if she reported what had transpired to authorities. Miss Moran provided the requested information and pledged her confidence. Appellant did in fact release her at the hospital at 8:00 a.m. on May 15, 1979.
Moran reported to law enforcement officials later that day; however, appellant was not arrested until August, 1980, fifteen months following the commission of the crimes. The investigation proved lengthy and complicated as a result of Miss Moran's need of psychiatric counseling.
[ 331 Pa. Super. Page 354]
The night-long episode left her mentally afflicted, which particularly affected her ability to identify appellant as the assailant.
Appellant was charged with murder of the first, second and third degrees, aggravated assault, terroristic threats, kidnapping, robbery, theft by unlawful taking or disposition, crimes committed with firearms and prohibited offensive weapons.
On March 19, 1981, following a jury trial in Bradford County, appellant was found guilty of first degree murder, theft and kidnapping. Motions for a new trial and arrest of judgment were denied. Life imprisonment, concurrent with unrelated sentences, was imposed. This appeal was taken from the judgment of sentence dated May 26, 1982. We address, in particular, four issues raised by appellant. We acknowledge numerous remaining arguments; however, due to the fact that they are clearly meritless and do not carry the significance of the issues hereafter addressed, we summarily dismiss them.*fn3
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Appellant's first assignment of error was the lower court's denial of his request for a change of venue. It is appellant's contention that the empaneling of an impartial jury from Bradford County was barred by the cumulative reporting of three area newspapers, The Daily Review, the Elmira Star Gazette, and The Evening Times. He points out that many articles covering the case were "headline" news, that portions of Jane Moran's pre-trial testimony were published, that his criminal past was reported and that the reports of pre-trial proceedings were exhaustive.
An accused's right to impartial and indifferent jurors is dictated by the constitutional standard of fairness. Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Prospective jurors can qualify, however, despite their exposure to media reports on the crime and pretrial proceedings. Whether veniremen enter voir dire with opinions of guilt or innocence is also not reflective of partiality, providing they can dismiss their externally-induced opinions and produce a verdict reflective solely of the evidence presented at trial. Murphy v. Florida, supra; Irvin v. Dowd, supra.
Therefore, pre-trial publicity alone does not preclude the empaneling of an objective, impartial jury, nor does it create a presumption of prejudice. Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). Moreover, it is the accused's burden to develop a presumption of partiality and to demonstrate actual and unyielding prejudice among jurors. Commonwealth v. Rolison, 473 Pa. 261, 374 A.2d 509 (1977), cert. den., 434 U.S. 871, 98 S.Ct. 215, 54 L.Ed.2d 150 (1977); Commonwealth v. Hoss, 469 Pa. 195, 364 A.2d 1335 (1976). Appellant neither convinces us of the jury's
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actual prejudice nor raises the presumption of partiality. Accordingly, we perceive no abuse of discretion and defer to the judgment exercised by the lower court in refusing a change of venue. See Commonwealth v. Scott, 469 Pa. 258, 365 A.2d 140 (1976); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976).
The three print media covering these proceedings reported extensively, but responsibly and objectively. The cumulative effect of their publications was not "so pervasive, so inflammatory, and so inculpatory" as to raise a presumption of prejudice. Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977).
The Daily Review, serving Sayre, Athens, South Waverly and Towanda, Pennsylvania, and Waverly, N.Y., reported on the proceedings in approximately thirty editions between May 16, 1979 and February 11, 1981. The Evening Times, circulated among the residents of Sayre, Athens and South Waverly, Pennsylvania, and Waverly, N.Y., used thirty-five publications to report on the proceedings between May 18, 1979 and January 15, 1981. Finally, the Elmira Star Gazette, of Elmira, N.Y., reported on thirty-two separate occasions between May 19, 1979 and January 13, 1981. From May, 1979 through November, 1980, the vast majority of articles on this case was published by these newspapers. Reporting during that period was limited to the discovery of Phillip Evan's body and to the procedural developments in the investigations and court proceedings. At no time prior to November, 1980 did the print media report on the substantive nature of the crime.
During the fifteen-month investigation prior to appellant's arrest, state and municipal officers declined to comment on their progress. This policy was due to the delicate condition of Jane Moran's psyche. Shortly after the crimes, she incorrectly identified a Robert Packer Hospital cafeteria employee as the assailant. This man was arrested and detained in jail for two weeks before Moran withdrew her identification. Thereafter, until August, 1980, Jane Moran received psychotherapy, hypnotherapy and psychodiagnostic
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treatment. Her clinical psychologist, Mary Louise Marley, testified that she suffered from acute anxiety which caused her to repress the events and the identification of her assailant. Therefore, law enforcement officials proceeded cautiously and released minimal information to the press in order to protect Miss Moran and to assure a correct second identification. Miss Moran's name was not released to the public until after appellant's arrest.
On August 23, 1980, one day following appellant's arrest, The Daily Review reported:
For almost a year, police have had little to say about the case. A few weeks after the dismissal of charges against Marshall (first man incorrectly accused), there was widespread comment that investigators ...