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COMMONWEALTH PENNSYLVANIA v. JOSEPH H. JACKSON (12/14/84)

filed: December 14, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH H. JACKSON, APPELLANT



No. 01344 Philadelphia 1983, APPEAL FROM THE JUDGMENT OF SENTENCE AUGUST 23, 1977 IN THE COURT OF COMMON PLEAS OF CHESTER COUNTY, CRIMINAL NO. 231 C OF 1975

COUNSEL

Norman L. Goldberg, Media, for appellant.

Francis J. Capaldo, Assistant District Attorney, West Chester, for Commonwealth, appellee.

Cirillo, Olszewski and Montgomery, JJ.

Author: Cirillo

[ 336 Pa. Super. Page 613]

This is an appeal by appellant Joseph H. Jackson, from the judgment of sentence entered by the Court of Common Pleas of Chester County. Following a trial by jury, appellant was convicted of murder in the first-degree, robbery, possession of an instrument of crime, and possession of prohibited offensive weapons. Post-trial motions were denied, and appellant was sentenced to life imprisonment on the charge of murder, not less than five nor more than ten years imprisonment to begin at the expiration of the life sentence for the charge of robbery, and to pay the costs of prosecution on the remaining charges.

On direct appeal, appellant raised the following issues as grounds for granting a new trial: 1) refusal of the trial court to grant a request for change of venue; 2) the lack of an impartial jury through exclusion of a select class of persons; 3) the trial court's exclusion of psychiatric testimony to negate the element of specific intent; 4) a denial of effective assistance of counsel; 5) a ruling on a matter of cross-examination; 6) the hearing court's refusal to stay proceedings so that appellant could call witnesses at the preliminary hearing; 7) a denial of a demurrer to the charge of possessing prohibited weapons; 8) insufficiency of the evidence to support a conviction of first-degree murder; 9) erroneous sentencing procedures. Pursuant to an order of this Court, the case was remanded to the trial court for an evidentiary hearing on the issue of incompetency of counsel, an issue raised for the first time on appeal. Commonwealth v. Jackson, 267 Pa. Super. 63, 64-65, 405 A.2d 1304, 1305 (1979). Following the trial court's determination that appellant was not denied effective assistance of counsel, a supplemental appeal was filed and argued before this panel

[ 336 Pa. Super. Page 614]

    on September 6, 1984. We affirm in part and reverse in part.

The case at bar involves a long and complicated factual and procedural history. Accordingly, a detailed account of the events preceding this appeal is necessary.

I.

On December 14, 1974, the body of Eric Waltz was found on the floor of his place of employment; the cause of death was a gunshot wound to the head. Appellant and Daniel Brisbon were subsequently arrested and charged with the murder as well as robbery, theft, possession of an instrument of crime, possession of prohibited offensive weapons, and theft by unlawful taking.

On February 7, 1975, appellant waived extradition from the State of Delaware, and was returned to Chester County. A preliminary hearing was held, and at the conclusion of the Commonwealth's testimony, trial counsel for appellant requested a continuance of the hearing in order to subpoena witnesses. This motion was denied.

Subsequent pre-trial motions were filed and denied. Among these was a motion for a change of venue. At the hearing on this motion, a representative selection of news articles was presented to the court. The hearing judge concluded that the news accounts could fairly be "characterized as pretrial publicity lacking in inflammatory content." The motion was accordingly denied.

On June 19, 1975, Daniel Brisbon was tried before a jury and acquitted. Selection of a jury for appellant's trial began on July 7, 1975. After the voir-dire examination began, trial counsel moved for a dismissal of the jury panel, alleging that since appellant was black, and the panel in the courtroom contained only two members of the black race, the jury selection process was tainted. The court denied the motion.

Appellant's trial began on July 9, 1975. The following day, the court sustained demurrers to several charges, but

[ 336 Pa. Super. Page 615]

    denied demurrers to the rest. Several witnesses were called to testify at trial, among them Daniel Brisbon. He testified that appellant fired the fatal shot. Appellant took the stand on his own behalf and testified that Brisbon had done the killing, and appellant raised his possible indulgence in alcohol on the date of the incident. Trial counsel then made an offer of proof to present psychiatric testimony to negate the element of specific intent required for conviction of first-degree murder, theft, and robbery. The offer was refused by the court.

The jury returned a verdict of guilty on all charges and a verdict finding aggravating circumstances. Motions for a new trial and in arrest of judgment were denied by the court en banc. On August 23, 1977 judgment of sentenced was entered.

II.

Appellant, represented by new counsel, appealed, raising ineffective assistance of his trial counsel. However, as we noted earlier, in 1979, the case was remanded for evidentiary hearings on this issue. Commonwealth v. Jackson, supra. Hearings were held before the Honorable Leonard Sugerman, who found no merit to any of appellant's claims of ineffectiveness. After carefully reviewing Judge Sugerman's thorough and well-reasoned opinion, we conclude that the trial court adequately addressed the ineffectiveness claims.

We address appellant's remaining claims seriatim.

III.

Appellant argues that he was denied the right to be tried by an impartial jury when his request for a change of venue was denied. Specifically, he claims that the nature of the pre-trial publicity surrounding this case was so inherently prejudicial that virtually every prospective juror in the county was exposed to it.

[ 336 Pa. Super. Page 616]

"Whether to grant a change of venue is a matter committed to the sound discretion of the trial court, and its discretion will not be disturbed absent an abuse of that discretion." Commonwealth v. Hamm, 325 Pa. Super. 401, 418, 473 A.2d 128, 137 (1984) (allocatur denied). Accord Commonwealth v. Roberts, 496 Pa. 428, 437 A.2d 948 (1981); Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Keeler, 302 Pa. Super. 324, 448 A.2d 1064 (1982). In Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978), the Supreme Court set out the analysis to be employed in reviewing a trial court's denial of a request for a change of venue:

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, [473 Pa. 261, 374 A.2d 509 (1977)]; Commonwealth v. Hoss, 469 Pa. 195, 201, 364 A.2d 1335 (1976); Commonwealth v. Pierce, 451 Pa. 190, 195, 303 A.2d 209, cert denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973). But this rule is subject to an important exception. In certain cases there "can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory 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 . . . .

It is clear that the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Similarly, a

[ 336 Pa. Super. Page 617]

    possibility that prospective jurors will have formed an opinion based on news ...


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