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decided: October 4, 1985.


Appeal from Judgment of Sentence of Court of Common Pleas of Beaver County, Pennsylvania (Criminal Division) entered May 25, 1983, at Nos. 114, 115 and 115A of 1982.


John P. Dohanich, Public Defender's Office, Beaver, for appellant.

Edward J. Tocci, Dist. Atty., John Lee Brown, Jr., Asst. Dist. Atty., Beaver, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ. McDermott and Papadakos, JJ., concur in the result. Nix, C.j., files a concurring and dissenting opinion. Larsen, J., files a concurring and dissenting opinion. Zappala, J., files a dissenting opinion.

Author: Hutchinson

[ 508 Pa. Page 433]


This is a direct appeal from a death penalty imposed by Beaver County Common Pleas on a conviction for first-degree murder.*fn1 Additional sentences of imprisonment for convictions of rape,*fn2 kidnapping,*fn3 theft*fn4 and indecent assault*fn5 arising out of the same occurrence are also before us. The jury returned the death penalty for the first-degree murder conviction after the separate sentencing hearing required by our capital punishment act. 42 Pa.C.S. § 9711(a).

Appellant raises expressly on this appeal:

(1) Whether his Miranda rights were violated during questioning;

(2) Whether the arrest was supported by either probable cause or a valid arrest warrant;

(3) Whether the trial court abused its discretion by not granting the motion for change of venue;

(4) Whether certain photographic evidence was improperly admitted;

(5) Whether the evidence as a whole was insufficient to support the convictions;

(6) Whether the trial court's charge on kidnapping was proper;

(7) Whether the Pennsylvania death penalty provisions violated the United States and Pennsylvania Constitutions; and

(8) Whether the evidence supported the imposition of the death penalty in this case.

[ 508 Pa. Page 434]

After a careful review of all of the issues presented, our additional independent review of the record*fn6 and a further proportionality review as required by the death penalty statute, 42 Pa.C.S. § 9711(h)(3)(iii), we affirm the convictions and the sentence imposed. We will address each of these issues in the order presented.


This prosecution arises out of the killing of Sandra Jean Vespaziani in Beaver County on Saturday, January 16, 1982. Mrs. Vespaziani and a friend were on their way home from their jobs in the Beaver Valley Mall. Her friend stopped at an adjacent store, while Mrs. Vespaziani remained in the car. When her companion came out of the store, both the car and Mrs. Vespaziani were missing.

Mrs. Vespaziani's body was found the next day, a half mile from the car in which she had been waiting, and about 12 to 16 miles away from the shopping mall. The interior of the car was burned. Medical tests showed that the victim had been raped.

On Monday, January 18, 1982, the police received information that the appellant had appeared between 8:00 and 8:30 P.M. on Saturday at a house, the Tice residence, about

[ 508 Pa. Page 435]

    one mile from where the body had been found. By sheer happenstance one of the persons at this house knew and recognized appellant. Learning of the victim's discovery from the public media and hearing the police request for help from anyone with relevant knowledge, the witnesses from the farmhouse came forward to identify appellant. They stated that the appellant had come to the house on foot suffering from the elements on one of the coldest nights of the year, with temperatures around -18 degrees F. and a wind chill factor of -50 degrees F. One of these witnesses also testified that appellant asked if there were any scratches or blood on him. After a time in the house, appellant was driven to a convenience store some miles beyond the mall at which Mrs. Vespaziani had last been seen alive. From that store appellant called a relative who drove him back to the mall to pick up his car.

Based on this information, the police chief sent some officers out to look for appellant. When they found him, they asked him to come to the police station. He did so freely, even though the police had not told him why they wanted to talk to him. At the station, appellant was interviewed from 4:30 to 8:30 p.m. on Monday, January 16. The police asked if he knew why they wanted to speak with him. Appellant said that he thought the questioning concerned his whereabouts on Sunday, when he was involved in a fight at a bar. The police stated they were really interested in where he was on Saturday. At that time, appellant said that he was in a bar all day, from 11:00 a.m. to 11:00 p.m. The police told him there were reports that he had been seen elsewhere. At that point, they read him his Miranda rights. He signed a waiver form, and was then told exactly what they were investigating.

Appellant remained in the police station, undergoing questioning. He gave several different versions of where he had been on Saturday. During the questioning, appellant suggested that the police take a picture of him to show around the bars he had been. The police did this while appellant remained at the station. No one verified any of

[ 508 Pa. Page 436]

    appellant's stories. During the interview, appellant also suggested the police search his mother's car for a jacket they were seeking. His mother consented to the search, and police found a penknife and most of a case of beer. These items were not taken until the police had obtained a search warrant. The testimony at trial indicated that none of the people named by appellant could vouch for his actions during the crucial hours between about 6:00 p.m. until about 10:00 p.m. Saturday evening.

During questioning, appellant was told at several times that he was free to go. He nevertheless stayed and answered more questions. He was unguarded while the police left from time to time during the interview to check his story. When he left the station after the interview he had not yet been placed under arrest.

An arrest warrant was issued for appellant on Wednesday, January 20, 1982. When the police could not find him, they told his mother about the warrant and asked that he contact them immediately. Later that afternoon, appellant called the police and gave himself up.

In a jury trial June 15-22, 1982, appellant was found guilty of first-degree murder, rape, kidnapping, indecent assault, and theft by unlawful taking. A separate sentencing hearing was conducted on the murder conviction, as required by 42 Pa.C.S. § 9711(a)(1). The jury, after hearing evidence on aggravating and mitigating circumstances, imposed the death penalty. This direct appeal followed.


Appellant claims that his Miranda rights were violated when he was initially questioned by the police. He argues that he should have received Miranda warnings because he was the focus of the investigation when the police asked him to come in for questioning. See Escobedo v. Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964), explained by Beckwith v. United States, 425 U.S. 341, 96 S.Ct. 1612, 48 L.Ed.2d 1 (1976). Appellant nevertheless asks this Court to continue to follow Escobedo and suppress all statements

[ 508 Pa. Page 437]

    made in the police station, including his suggestions to show the photographs and to search his mother's car.

The "focus of the investigation" test comes from Escobedo, supra. Escobedo held that the police must inform the defendant of his rights when "the investigation is no longer a general inquiry into an unsolved crime but has begun to focus on a particular suspect." Id. 378 U.S. at 490, 84 S.Ct. at 1765. Subsequently, in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), the United States Supreme Court determined that the defendant needed a warning regarding his rights during "custodial interrogation." The Miranda Court stated that this was what was meant by "focus" in Escobedo. 384 U.S. at 444, n. 4, 86 S.Ct. at 1612, n. 4.

Some two years later, this Court, in Commonwealth v. Feldman, 432 Pa. 428, 248 A.2d 1 (1968), set forth its interpretation of a defendant's rights under Miranda and Escobedo:

From reading Escobedo and Miranda together it becomes clear that whenever an individual is questioned while in custody or while the object of an investigation of which he is the focus, before any questioning begins the individual must be given the warnings established in Miranda.

Id., 432 Pa. at 432, 248 A.2d at 3 (emphasis in original). This language has been cited as the conclusively established statement of a defendant's rights under Miranda. See, e.g., Commonwealth v. O'Shea, 456 Pa. 288, 318 A.2d 713, cert. denied, 419 U.S. 1092, 95 S.Ct. 686, 42 L.Ed.2d 685 (1974); Commonwealth v. D'Nicuola, 448 Pa. 54, 292 A.2d 333 (1972).

In 1976, the United States Supreme Court clarified its definition of "custodial interrogation" in Beckwith, supra. Beckwith held that Miranda only protects the defendant during actual custodial interrogation, rejecting Beckwith's claim that the government should have informed him of his rights while he was the focus of a criminal tax investigation. The Beckwith Court stated that " Miranda was grounded squarely in that Court's explicit and detailed

[ 508 Pa. Page 438]

    assessment of the peculiar 'nature and setting of . . . in-custody interrogation.'" 425 U.S. at 346, 96 S.Ct. at 1616. The Beckwith decision thus effectively repudiated the inference that the Escobedo focus test was still necessary under the federal constitution.

This change in federal constitutional requirements was not, however, followed by an immediate change in this Court's interpretation of the Miranda line of cases. The first reassessment of Feldman was in Commonwealth v. McLaughlin, 475 Pa. 97, 379 A.2d 1056 (1977):

Although by our placing of "object of an investigation" in the disjunctive with the custodial requirement, it might appear as though the Pennsylvania interpretation of when Miranda warnings are required was broader than the United States Supreme Court's interpretation, an examination of the facts taken with the language of Pennsylvania cases indicates those cases may be interpreted as being harmonious with Beckwith.

Id., 475 Pa. at 101-02, 379 A.2d at 1058. McLaughlin noted further that in each case where the court had found that the defendant had been the "focus" of an investigation, he had been sufficiently deprived of liberty to invoke the Miranda protections. Feldman and McLaughlin thus show this Court's resolve to fully conform to all federal constitutional requirements, but not to extend greater protection to defendants under Pennsylvania Constitution Art. I, § 9.

Later cases from this Court did not clearly reflect the McLaughlin view that the focus test could not stand on its own. Commonwealth v. Patterson, 488 Pa. 227, 412 A.2d 481 (1980), merely cited Commonwealth v. O'Shea, supra, for its statement of the Feldman test. We analyzed the relevant facts using both prongs of the Feldman test ("In the instant case, appellant was neither in custody nor the focus of the investigation." 488 Pa. at 235, 412 A.2d at 484). In Commonwealth v. Meyer, 488 Pa. 297, 412 A.2d 517 (1980), we expressly refused to rule on whether the "focus" test was still valid, although we did cite the quoted

[ 508 Pa. Page 439]

    language from McLaughlin, supra, at 438. The Meyer opinion thus left open the possibility that an independent focus test should be applied despite McLaughlin. That impression may have been strengthened by Commonwealth v. Horner, 497 Pa. 565, 442 A.2d 682 (1982), which, like Patterson, merely cited O'Shea in a footnote and analyzed the facts using both the focus and the custodial interrogation test. ("In light of these facts, the trial court was correct in concluding that appellant was neither in custody nor the focus of any investigation at the time . . . ." Horner, 497 Pa. at 575, 442 A.2d at 687).

Not long after McLaughlin, Superior Court set forth its understanding of this area of the law in Commonwealth v. Anderson, 253 Pa. Superior Ct. 334, 385 A.2d 365 (1978). In Anderson, widely cited with approval by subsequent panels of the Superior Court in analyzing Miranda,*fn7 that court concluded that McLaughlin had overruled the independent focus test saying:

"[Therein], the Supreme Court . . . decided that the status of primary focus of an investigation alone did not require the administration of Miranda warnings . . . ."

Id., 253 Pa. Superior Ct. at 346, 385 A.2d at 371. The Anderson Court did, however, retain the focus test as an aid in determining whether a suspect was in custody for Miranda purposes.

Since McLaughlin, we have not had occasion to concisely summarize our case law on this subject. With the issue now squarely before us we conclude that the interpretation of McLaughlin Superior Court set out in Anderson is correct. When Commonwealth v. Feldman, supra, first described the use of the focus test in this Commonwealth, it

[ 508 Pa. Page 440]

    did so only to fully comply with the federal constitutional requirements Miranda imposed. In Feldman we sought to provide the same protections in our state system. We did not intend to afford defendants a greater degree of protection under the Pennsylvania Constitution. Feldman's reading of Miranda and Escobedo seemed entirely proper at the time. Beckwith teaches us that the Feldman version of Miranda is no longer required. We do not believe our own Constitution should be more broadly interpreted. Thus, we now state that Miranda warnings are necessary only when a suspect is undergoing actual custodial interrogation, with the issue of the focus of the investigation only a relevant factor in determining custody.

The appellant here has conceded that when he was brought to the police station he was not "in custody" under the standards of Miranda.*fn8 The facts bear this out. He went to the station voluntarily, he cooperated with the police, and was told several times that he was free to leave. This fact situation is very similar to that in Oregon v. Mathiason, 429 U.S. 492, 97 S.Ct. 711, 50 L.Ed.2d 714 (1977). In that case, defendant "came voluntarily to the police station, where he was immediately informed that he was not under arrest. At the close of a half hour interview respondent did in fact leave the police station without hindrance. It is clear from these facts that Mathiason was not in custody 'or otherwise deprived of his freedom of action in any significant way.'" 429 U.S. at 495, 97 S.Ct. at 714. In the instant case as in Mathiason, Miranda warnings were not necessary.*fn9

[ 508 Pa. Page 441]

This appellant was not subjected to the "custodial interrogation" which requires Miranda warnings, although the police gave him those warnings when his answers contradicted other information they had independently obtained. These warnings seemed to have been given to protect against the focus test. However, appellant was not then placed under arrest. He was still free to leave at any time. Therefore, under our reasoning no warnings were necessary and any argument that appellant's waiver of the Miranda rights was not voluntary and intelligent need not be addressed. Since Miranda warnings were not required, the evidence acquired during this questioning was properly admitted.


Appellant further argues that his arrest was invalid because the warrant was not accompanied by the required statement of probable cause. See Pa.R.Crim.P. 119. We need not address the validity of the warrant, however, since the facts known to the police were sufficient to justify a warrantless arrest. Commonwealth v. Irving, 485 Pa. 596, 403 A.2d 549 (1979), cert. denied, 444 U.S. 1020, 100 S.Ct. 676, 62 L.Ed.2d 651 (1980) (arrest made pursuant to defective warrant is proper if supported by sufficient, independent probable cause).*fn10

A warrantless arrest on a felony is legal if the police have probable cause to believe that the person arrested actually committed the felony. Commonwealth v. Lovette, 498 Pa. 665, 450 A.2d 975 (1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1025 (1983). This Court has defined probable cause as:

[ 508 Pa. Page 442]

    facts and circumstances known to the police or about which they have reasonably trustworthy information at the time of the arrest . . . sufficient to warrant a person of reasonable caution in believing the suspect has committed or is committing a crime.

Commonwealth v. Bartlett, 486 Pa. 396, 400, 406 A.2d 340, 341 (1979). The record establishes that such probable cause existed in this case. Appellant had been seen in the immediate area of the abduction at about the time it occurred. Shortly after the estimated time of death, he was in the area where the body was found. His concern whether there were scratches or blood on him indicated that he had recently been in some struggle. In addition, by the time of his arrest, he had already given inconsistent statements to the police about his activities at the time the crime took place. Based on these facts, the warrantless arrest was proper.


Appellant asks this Court to remand his case to the trial court because it refused to grant a motion for change of venue.*fn11 While the record does contain evidence suggesting that a change of venue could have been properly ordered, it does not show that the trial court abused its discretion in refusing to do so. The applicable standards for granting a change of venue are well established:

[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 . . . . "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

[ 508 Pa. Page 443]

    publicity." . . . 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 . . . . 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," . . . because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had.

Commonwealth v. Romeri, 504 Pa. 124, 131-32, 470 A.2d 498, 501-02 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984) (quoting Commonwealth v. Casper, 481 Pa. 143, 150-51, 392 A.2d 287, 291 [1978]). See also Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977); Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 478, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973).

Romeri goes on to state that even where there is prejudicial publicity, a fair trial may sometimes still be had in that community. We listed several factors relevant to this issue:

     whether the pre-trial publicity was, on the one hand, factual and objective, or, on the other hand, consisted of sensational, inflammatory and "slanted articles demanding conviction" . . .; whether the pre-trial publicity revealed the existence of the accused's prior criminal record; whether it referred to confessions, admissions or reenactments of the crime by the defendant; and whether such information is the product of reports by the police and prosecutorial officers.

Commonwealth v. Romeri, 504 Pa. at 132, 470 A.2d at 502 (quoting Commonwealth v. Casper, 481 Pa. at 152-53, 392 A.2d at 292) (footnotes and citations omitted).

[ 508 Pa. Page 444]

This case was originally highly publicized in its vicinity by local as well as Pittsburgh media. There were many articles in the Beaver County Times, the Pittsburgh Post-Gazette and the Pittsburgh Press. The three major Pittsburgh television stations covered the crime itself on local news broadcasts. Beaver County and Pittsburgh radio stations reported news of it regularly. While this coverage was extensive, we cannot say that it was "so sustained, so pervasive, so inflammatory, and so inculpatory" as to require a venue change. The voir dire in this case took three days, generating 600 pages of transcripts. Those veniremen who showed that they had already formed a fixed opinion about guilt or innocence were excluded for cause. The jurors and alternates ultimately selected were found satisfactory by both prosecution and defense counsel. Therefore, no claim of actual prejudice can be sustained here.

The most serious problem with the media coverage of this case is the mention of appellant's prior conviction for rape. Numerous articles in all papers set forth appellant's prior record as a rapist. It was mentioned in all three newspapers the day after appellant was arrested. The Pittsburgh papers stated it in their headlines. It was referred to in the nightly news broadcasts of two of the three area television stations; and, in addition, it was mentioned repeatedly by several radio stations.*fn12 While the information given was generally factual and objective, the media did reveal the existence of a prior criminal record which would be inherently prejudicial to the appellant, if not dissipated by time.

However, even publicity which is inherently prejudicial will not require a change of venue if the effect of that publicity was sufficiently dissipated before the time of the trial to allow a defendant to receive a fair trial. In Romeri, we stated that "[t]he critical factor in the finding of presumptive prejudice . . . is the recent and pervasive presence of 'inherently prejudicial' publicity." 504 Pa. at 134, 470 A.2d at 503

[ 508 Pa. Page 445]

(emphasis added) (quoting Commonwealth v. Casper, supra, 481 Pa. at 154, 392 A.2d at 293).

In Romeri we tested for pervasiveness by looking at the number of prospective jurors who had formed a fixed opinion regarding the guilt or innocence of the defendant. While that is one indicator, it is not the only one. We are concerned not only with those who have prejudged a case from its media coverage but also with those who have heard or seen prejudicial information, which would taint the judgment process of those ultimately selected to hear the case. Those who say beforehand that they have formed a fixed opinion will be dismissed for cause. The problem comes with those who say they can set aside their prior knowledge. While not discrediting everyone who makes this statement, it cannot be denied that the information, once heard, might be recalled at some later point and then have some effect. Knowledge of prior unrelated criminal conduct, unrecollected at voir dire, may thus put the defendant in an unfair position. The task of resolving that issue is one peculiarly appropriate for the discretion of a trial judge who knows his community and can observe the potential jurors' interaction with counsel and the court during voir dire.

In this case, only 14 of the 63 veniremen not excused for personal reasons had formed a fixed opinion. All of them were dismissed for cause. An overwhelming majority, 60 of those 63, had either read the newspaper articles or heard the television and radio newscasts that mentioned appellant's criminal record. While all members were asked if they remembered any facts about the appellant, only one person specifically recalled the existence of the prior criminal record. Still, the fact that such a large number of the panel heard the prejudicial publicity may render it pervasive under Romeri and Casper and, if so, unless its effect were dissipated, venue would have had to be changed.

Thus, the critical issue in this case is dissipation of the initial prejudicial effect. The lapse of time between publication of the prejudicial information and trial has been

[ 508 Pa. Page 446]

    found relevant in many cases. Here, there was a "cooling-off" period. Little if any information was broadcast between January (when appellant was arrested) and June (when the jury was empaneled). There was some publicity immediately preceding the trial when the appellant moved for a change of venue. However, it was not in the "pervasive" category of the earlier series. None of the later articles in the Beaver County Times mentioned the prior convictions, and only two articles in the Pittsburgh Post-Gazette mentioned them, one while the voir dire was conducted. On these facts, we cannot say the June publicity was so sustained or pervasive as to require a change of venue. Neither can we find an abuse of discretion on the part of the trial judge. To do so would ignore the effect of the cooling-off period, and substitute our own judgment for that of the lower court. Therefore, on this record, we affirm the order denying the motion for change of venue as one within the trial court's discretion.


Appellant also argues that the trial court erred by admitting two pictures of the victim's body as it was found at the scene of the murder. That ruling, too, is reviewed only for abuse of discretion. Commonwealth v. McCutchen, 499 Pa. 597, 454 A.2d 547 (1982); Commonwealth v. Hudson, 489 Pa. 620, 414 A.2d 1381 (1980). The pictures were of the body as it was found lying in the snow, with much of the clothing ripped off and with the genitalia exposed. The appellant claims the photographs should not have been admitted because such evidence was inflammatory and the information gleaned from the pictures was available from police testimony.

This Court has adopted a two-part test for determining whether to admit potentially inflammatory photographs:

To determine whether such photographs are admissible, we have utilized a two-tiered analysis. The trial judge must initially decide whether the photographs possess inflammatory characteristics. If they do not, the photographs

[ 508 Pa. Page 447]

    are admissible as are any evidentiary items, subject to the qualification of relevance . . . . If the photographs are deemed inflammatory, then the trial judge must decide whether the photographs are of such essential evidentiary value that their need clearly outweighs the likelihood of their inflaming the passions of the jurors.

Commonwealth v. Hudson, 489 Pa. at 630, 414 A.2d at 1386 (1980). The photographs in this case, however, are not inflammatory and are therefore properly admissible. The pictures were taken from a distance and were in black and white. Little, if any, blood is seen in them. In addition, they show the amount of force the killer used, which is relevant to the proof of both ...

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