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COMMONWEALTH PENNSYLVANIA v. ALAN LEE PURSELL (06/26/85)

decided: June 26, 1985.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
ALAN LEE PURSELL, APPELLANT



No. 15 W.D. Appeal Docket 1984, Appeal from the Judgment of Sentence of the Court of Common Pleas of Erie County, Criminal Division, at No. 1016 of 1981, entered February 1, 1984.

COUNSEL

Dennis V. Williams, Erie, for appellant.

Michael J. Vechecco, Dist. Atty., Shad Connelly, Erie, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. Nix, C.j., and Zappala, J., file dissenting opinions.

Author: Papadakos

[ 508 Pa. Page 217]

Opinion OF THE COURT

I. INTRODUCTION

We are presently required to review the conviction of murder of the first degree and the death sentence of Alan

[ 508 Pa. Page 218]

Lee Pursell (Appellant) pursuant to 42 Pa.C.S. ยง 9711(h).*fn1 Appellant was arrested on July 28, 1981, and charged with criminal homicide for the death of a thirteen-year-old boy, Christopher Brine, whose body was found in a wooded section of Lawrence Park Township, Erie County, Pennsylvania. The corpse was nude, battered, and bloody.

Appellant was tried to a jury with the Honorable Jess S. Jiuliante of the Erie County Court of Common Pleas presiding and, on January 26, 1982, the jury returned its verdict of murder of the first degree. Immediately thereafter, a separate sentencing proceeding was conducted, following which the same jury determined that Appellant be sentenced to death. Post-verdict motions were argued before a court en banc which denied same, triggering this automatic appeal.

Appellant first argues that insufficient evidence exists to support a conviction of murder of the first degree. Our independent review of the entire record, giving all reasonable inferences to the Commonwealth, discloses sufficient evidence to support the conviction of murder of the first degree based upon the facts we have gleaned from the record.

On July 24, 1981, in a secluded wooded area of Lawrence Park Township, James Feeney found the victim's nude

[ 508 Pa. Page 219]

    body, its face drenched with blood. A twenty-five foot tree branch lay across the throat which was wrapped in shirt material. After viewing the corpse, the County Coroner estimated that the victim had been dead for twelve to fifteen hours, placing the time of death between midnight and three o'clock, a.m., on July 24, 1981. An autopsy revealed that prior to death, the victim had sustained fifteen blows to the head with a jagged, blunt object, and had suffered various bruises, a broken nose, internal hemorrhaging in the neck, swollen eyes, and a crushed windpipe. The crushed windpipe was determined to be the cause of death. After the victim's death, his body was subjected to burns on parts of the torso, and trauma to the chest and scrotum, part of which was crushed.

A blood-covered jagged rock was found near the body. The blood was similar to the victim's; the lacerations and punctures on the victim's head were caused by this rock. The nearest rocks were two hundred feet from the body and were similar to the rock used to strike the victim. A pair of glasses found near the body was identified as those made and sold to Appellant by his optometrist, Dr. Perry. On July 25, 1981, the day following the death, Appellant returned to Dr. Perry and ordered another, identical pair of glasses.

Blood found on Appellant's shoes was consistent with that of the victim's. Blood was also found on other items of clothing worn by Appellant on July 24, 1981. This blood could not be accurately examined because the clothes had been washed.

Appellant's mother testified that Appellant came home on July 23, 1981, at 10:30 p.m. She recalled that he was covered with blood and asked her to say that he had come home early. Mrs. Pursell also testified that she was extremely upset when she heard about the murder on the evening news (July 24, 1981) -- so much so that she required medication to calm down -- and that Appellant was aware of her reaction upon hearing of the victim's death.

[ 508 Pa. Page 220]

Finally, on July 27, 1981, while listening to a newscast reporting developments in this case, Appellant turned to his girlfriend, with whom he was watching the seven o'clock newscast, and asked whether she thought a person could be traced through his glasses. No mention had been made in any report that glasses had been found at the scene.

Taking all of these circumstances together, a jury could conclude beyond a reasonable doubt that young Christopher Brine's death was a homicide. From the nature of the injuries, a jury could further infer that the homicide was intentional and malicious. Since the victim was assaulted with a rock carried two hundred feet from its natural resting place, the jury could conclude that the killing was premeditated. Finally, the jury could conclude that Appellant committed the crime since his glasses were found at the scene and since the blood found on his shoes matched that of the victim's. Accordingly, we are satisfied that sufficient evidence exists in this record to support the jury's verdict of murder of the first degree, and dismiss Appellant's sufficiency challenge.

II. VENUE CHANGE

Appellant argues that the trial court erred in refusing to grant his motion for a change of venue on the ground of prejudicial pre-trial publicity.*fn2 Appellant contends that the publicity was so pervasive, widespread, inflammatory, and inculpatory from the date of the crime until his trial, that "inherently prejudicial" pre-trial publicity can be presumed. We disagree.

The grant or denial of a change of venue is a matter within the sound discretion of the trial judge, who is in the best position to assess the community atmosphere and

[ 508 Pa. Page 221]

    judge the necessity for a venue change. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978). The trial court's denial of the motion will be reversed only where there is an abuse of discretion.

In Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498, 501-03 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984) (quoting Commonwealth v. Casper, 481 Pa. 143, 150-151, 392 A.2d 287, 291 (1978), we summarized the law in this area by reference to Commonwealth v. Casper as follows:

[A]n 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. (citations omitted) 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.

We have, however, recognized that occasions may arise where the pre-trial publicity is so pervasive and inflammatory that a defendant's normal burden of demonstrating actual juror prejudice is obviated. Pre-trial prejudice is presumed if: (1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused's prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting officer reports. Id.

The publicity must be so extensive, sustained and pervasive without sufficient time between publication and trial for the prejudice to dissipate, that the community must be deemed to have been saturated with it. Id.

Appellant argues before us that sensational reporting occurred [over a three-day period (July 28, 29 and 30,

[ 508 Pa. Page 2221981]

) by the newspapers, radio and television] of the crime in which he was alleged to have been involved. While the texts of those articles are not part of the record, Appellant argues that one newspaper article published Appellant's prior criminal record on its front page; that another mentioned that Appellant had a prior criminal record; and that radio and television reports during July 28-30, 1981, mentioned that Appellant had a prior criminal record.*fn3 Such pre-trial publicity, which reveals an accused's prior unrelated criminal conduct, may establish prejudice if the publicity continues up to the time of trial. Romeri, id. Such is not the case before us, since even if we accept Appellant's analysis of the articles, the record clearly shows that any sensational articles or references to Appellant's prior record were published only for a three-day period in July of 1981. Thereafter, sporadic articles appeared which merely traced the procedural posture of the case until January, 1982, when the trial began. This six-month "cooling off period" was sufficient to dissipate the prejudice, if any, engendered by the July, 1981, publicity.

Additional articles published during the voir dire phase were factual in nature and in no way show that prejudicial material was widely disseminated at the time of trial.

Finally, we have carefully reviewed the nine hundred pages of extensive voir dire examination wherein one hundred and one prospective jurors were questioned. Sixty-six of these prospective jurors were asked if they had heard about this case and to explain in detail what, if anything, they could remember about the case.*fn4 Eight knew nothing

[ 508 Pa. Page 223]

    about the case and of those, two were chosen to serve on the jury. The other fourteen jurors selected (four alternates included) were selected from among the remaining fifty-eight prospective jurors. Fifty-seven of these prospective jurors testified that they had heard about the case in July of 1981, that they had not formed any opinion as to the guilt or innocence of Appellant, that they would be able to reach a verdict based solely on the evidence presented in court, and that the information they had learned outside of the courtroom would not affect their decision in any way.

When specifically asked about knowledge of Appellant's prior criminal conduct, one venireman was not sure (notes of Voir Questioning, Vol. 1, p. 42) and was striken for cause. A second venireman had heard that Appellant had prior offenses, but knew of no details (Vol. 1, p. 191) and was striken for cause. A third had heard in the courtroom halls that Appellant was involved with child molesting (Vol. IV, pp. 222-223) and was similarly stricken for cause. A fourth venireman, chosen as a juror, had heard that Appellant was a neighborhood troublemaker (Vol. III, p. 134) but did not know of any prior criminal conduct and had not learned anything from media reports of the newspaper article which mentioned any prior offenses. The other sixty-two (62) veniremen had no knowledge of Appellant's prior criminal conduct nor recollection of the media reports about that conduct.

Considering the almost unanimous lack of knowledge of Appellant's prior criminal conduct by the veniremen, we cannot presume that the few media accounts mentioning that conduct was prejudicial at all. The reporting was not extensive, sustained, or pervasive and, in view of the veniremen's answers, it is obvious that the community was not saturated with knowledge of Appellant's prior offenses. Clearly, the six-month cooling off period had had its effect and any possible prejudice had been dissipated.

[ 508 Pa. Page 224]

Accordingly, the trial court did not abuse its discretion in denying Appellant's motion for a venue change.

III. INEFFECTIVENESS CLAIMS

Appellant further argues that his trial counsel was ineffective in four instances during the trial and that his sentence therefore must be vacated and a new trial granted.

The threshold inquiry in ineffectiveness claims is whether the issue/argument/tactic which counsel has foregone and which forms the basis for the assertion of ineffectiveness, is of arguable merit, for counsel cannot be considered to be ineffective for failure to assert a meritless claim. Commonwealth v. Stoyko, 504 Pa. 455, 475 A.2d 714 (1984).

First, Appellant points to three comments made by the District Attorney during his closing argument in the sentencing hearing which he argues were so prejudicial to him that his trial counsel must be found ineffective for failing to object.*fn5

Early in his summation, the District Attorney explained to the jury:

The Commonwealth alleges that under the law that the circumstances of the killing make it a torture/murder and therefore if you so find beyond a reasonable doubt, such as an aggravating circumstance, and it outweighs the mitigating circumstances the defense counsel has presented to you, you will not be asked to make an emotional decision. You will not be asked to decide based on some pictures. You will be told that under your duty as jurors under the laws of this Commonwealth and as representatives of the people of this community you must -- you must -- impose the death penalty. You have taken a sworn oath now to follow those laws and impose them

[ 508 Pa. Page 225]

    and you represent the people of this community in this community. January 26, 1982, pp. 138-139.

Appellant argues that the jury was misled into believing that it had no choice but to impose the death penalty as representative of the community, and that the prosecutor's insistence that the death penalty be imposed was an improper expression of his opinion, forbidden by us in Commonwealth v. Pfaff, 477 Pa. 461, 384 A.2d 1179 (1978).

Appellant also objects to the end of the District Attorney's summation where he concludes:

There are aggravating circumstances sufficient here for us as a community under the law to require that we must now impose the death penalty. Ladies and gentlemen, defense counsel says you must weigh the aggravating against the mitigating, and he is correct, but it is not a question of number. The Commonwealth must prove beyond a reasonable doubt that this crime was especially heinous and atrocious and that the defendant's mind was one manifesting exceptional depravity and that the defendant during the course of this killing had the intent to cause great pain or great suffering. It is the Commonwealth's position that the evidence clearly shows that could be so and that the aggravating circumstance is of such a gravity and such a nature that standing next to it the fact that this defendant had no significant prior criminal record -- he does have two thefts that were entered into evidence; that this defendant is a young man -- those things standing next to him clearly -- clearly cannot outweigh what this defendant has done to thirteen-year-old Christopher Brine. Ladies and gentlemen, under these circumstances, it is your duty -- your sworn duty -- to represent the people of this Commonwealth and to impose the death penalty on the defendant, Alan Lee Pursell. Were it not so, had these circumstances not existed, you would not be required to do so, but now you find these circumstances to be true and that they have been shown to you and this death is one which qualifies as a torture/murder under the law because of the way it

[ 508 Pa. Page 226]

    occurred, you must -- you must -- return a verdict against the defendant of death because of the way Christopher Brine died and because of the laws of this Commonwealth. January 26, 1982, pp. 144-145.

Here, Appellant argues that the prosecutor's use of the first person plural ("we" must now impose the death penalty) confused the jury and represents an unwarranted invasion of the jury's function of determining the sentence. Appellant also finds objectionable the prosecutor's additional reference to the jury's role as representative of the people, and his final insistence that the jury had no choice but to impose death. These arguments are meritless.

It is well-settled that comments by a district attorney do not constitute reversible error unless "the unavoidable effect of such comments would be to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict." Commonwealth v. Beasley, 504 Pa. 485, 475 A.2d 730 (1984); Commonwealth v. Tabron, 502 Pa. 154, 465 A.2d 637 (1983); Commonwealth v. Anderson, 501 Pa. 275, 461 A.2d 208 (1983). Viewed in this context, the subject comments could not have so prejudiced the jury as to have interfered with its rendering of a true sentence.

Those comments which referred to the jury's role as representative of the community only served to remind the jury of the effect of its sentence on the community, a consideration which any jury would consider ...


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