No. 02431 PHL 83, Appeal from the Judgment of Sentence of September 2, 1983 in the Court of Common Pleas of Lancaster County, Criminal Division, at No. 1266 of 1982.
Robert A. Longo, Lancaster, for appellant.
Edward F. Browne, Jr., Assistant District Attorney, Lancaster, for Commonwealth, appellee.
Rowley, McEwen and Hoffman, JJ.
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Appellant contends that (1) the lower court erred in denying his motion for a change of venue and a mistrial, (2) the evidence was insufficient to support his convictions for attempted robbery and conspiracy, and (3) the mandatory sentence imposed upon him pursuant to 42 Pa.C.S.A. § 9712 was unconstitutional. We vacate the judgment of sentence in part.
On June 12, 1982, appellant and Robert Dixon were arrested and charged with attempted robbery and conspiracy. Appellant filed a pre-trial motion for change of venue which was denied on September 17, 1982. Following a November 15, 1982 jury trial, appellant was found guilty of both charges. On November 18, he filed post-verdict motions which were denied on July 6, 1983. On September 2, 1983, appellant was sentenced to a term of imprisonment of five-to-ten years on the attempted robbery charge, and to a concurrent term of ten years probation on the conspiracy charge. This appeal followed.
Appellant first contends that the lower court erred in denying his motion for a change of venue due to pretrial publicity. Appellant and Robert Dixon were the first defendants
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to be charged with crimes which would subject them to the mandatory minimum sentence requirements of a new statute. See 42 Pa.C.S.A. § 9712 (five years minimum sentence for committing certain crimes with a gun). As a result, on July 14, 1982, two articles were published in a Lancaster newspaper detailing the Commonwealth's intent to apply the mandatory sentence to appellant and Dixon. On July 16, another article reported the dismissal of the attempted robbery charge against Dixon. On July 21, the newspaper reported that appellant would stand trial on charges of attempted robbery and conspiracy and summarized the testimony at appellant's pretrial hearing. On August 17, the newspaper reported that appellant's parole for a previous crime had been revoked.
An application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of that discretion will not be reversed absent abuse. Commonwealth v. Tolassi, 489 Pa. 41, 50, 413 A.2d 1003, 1007; Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 290-91 (1978); Commonwealth v. Keeler, 302 Pa. Superior Ct. 324, 328, 448 A.2d 1064, 1065-66 (1982). Therefore, this Court's only inquiry is whether any juror formed a fixed opinion of appellant's guilt as a result of the pretrial publicity. Commonwealth v. Casper, supra; Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282, 287 (1976). Ordinarily, one who claims that he was denied a fair trial by prejudicial publicity must show actual prejudice in the empaneling of the jury. Commonwealth v. Casper, supra; Commonwealth v. Keeler, supra. However, our Supreme Court has made an exception to that rule for cases in which pretrial publicity is "'so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue,'" because circumstances make it apparent that a fair trial cannot be held. Commonwealth v. Casper, supra 481 Pa. at 151, 392 A.2d 291, quoting Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977). If the pretrial publicity is not inherently prejudicial, however, this Court will consider the following factors in assessing
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whether the trial court abused its discretion in denying a change of venue:
(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 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); Commonwealth v. Keeler, ...