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COMMONWEALTH PENNSYLVANIA v. GEORGE H. SIRBAUGH (10/25/85)

filed: October 25, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
GEORGE H. SIRBAUGH, APPELLANT



APPEAL FROM THE JUDGMENT OF SENTENCE MAY 11, 1983 IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, CRIMINAL NOS. 1980-0059, 0061, A,B,C; 0062 A,B,C; 0082 A,B,C; 0083, A,B,C; 0085, A,B,C; 0095, A,B,C,D; 0170, A,B,C; 0057, A,B,C; 0060, A,B,C; 0081, 0084, A,B,C; 0086, A,B,C; 0096, A,B,C,D; 0184, A,B,C,D; 0185, A,B,C,D.

COUNSEL

Robert P. Petyak, Ebensburg, for appellant.

Ralph F. Kraft, Assistant District Attorney, Johnstown, for Commonwealth, appellee.

Cirillo, Tamilia and Montgomery, JJ.

Author: Cirillo

[ 347 Pa. Super. Page 159]

This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Cambria County. We affirm.

On January 17, 1980 appellant was arrested by the Johnstown police pursuant to an arrest warrant. The warrant was issued as a result of the department's investigation of numerous burglaries that were committed in the Johnstown area. Following a waiver of his right to an attorney, appellant voluntarily made statements concerning fifty-five sites that he and his accomplice had burglarized. Consequently, appellant was charged and tried on multiple counts of burglary, theft, receiving stolen goods, criminal attempt, and conspiracy.

Prior to trial, the court deleted portions of many of the statements made by appellant during his time in police custody. Appellant objected to receiving the statements in their deleted form and petitioned for complete transcripts. The trial court denied these requests as well as appellant's request for a change of venue before consolidating the charges against appellant and his co-defendants into three groups and holding jury trials for each.

Appellant was convicted of sixteen counts of burglary, six counts of theft, nine counts of theft by unlawful taking, fifteen counts of receiving stolen property, one count of attempted burglary, and four counts of criminal conspiracy. Following his conviction, appellant filed timely motions for

[ 347 Pa. Super. Page 160]

    a new trial and arrest of judgment. The trial court denied these motions.

The following issues are raised on this appeal: 1) did the trial court err by denying appellant's motion for change of venue due to pre-trial publicity; 2) did the trial court improperly delete materials from statements made by appellant and co-defendants prior to releasing those statements to defense counsel for inspection; 3) did the trial court err in failing to suppress the confession of the appellant; 4) did the trial court improperly consolidate the charges and the several defendants for trial; 5) did the trial judge err in failing to disqualify himself from trying the case after appellant's motion for recusal; 6) did the trial court err by failing to instruct the jury properly on the insanity defense; 7) did the trial court err in refusing appellant's request to charge the jury that after a return of a verdict of not guilty by reason of insanity, there is a possibility of psychiatric treatment and commitment of the appellant; 8) did the trial court err by failing to charge the jury on corroboration of the testimony of accomplices as requested by appellant; 9) did the trial court err in refusing to permit the jury to determine from the evidence that appellant was insane at the time of the crimes; 10) did the trial court err by striking psychiatric testimony concerning circumstances which might have affected the voluntariness of appellant's confession; and 11) was the sentence imposed by the trial court excessive.

Before we begin our analysis of the substantive issues presented in this appeal, we must note our disapproval of the length of appellant's brief which is in excess of sixty pages. Appellant presents fourteen separate issues covering nearly three pages, thereby violating Pa.R.A.P. 2116(a). We call attention to the remarks of Aldisert, J., quoted in the case of United States v. Hart, 693 F.2d 286, 287 n. 1 (3rd Cir. 1982).

With a decade and a half of federal appellate court experience behind me, I can say that even when we reverse a trial court it is rare that a brief successfully

[ 347 Pa. Super. Page 161]

    demonstrates that the trial court committed more than one or two errors. I have said in open court that when I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.

See also Commonwealth v. Klinger, 323 Pa. Super. 181, 470 A.2d 540 (1983).

I

Appellant alleges that various pre-trial media references to himself and his co-defendants as the "pillow-case" gang created a hostile community atmosphere and made the impanelling of an impartial jury impossible. Appellant asserts that his motion for a change of venue should have been granted under these circumstances.

The mere existence of pre-trial publicity does not warrant a presumption of prejudice. Commonwealth v. Keeler, 302 Pa. Super. 324, 448 A.2d 1064 (1982). Similarly, a possibility that prospective jurors will have formed an opinion based on news accounts will not suffice. Commonwealth v. Jackson, 336 Pa. Super. 609, 486 A.2d 431 (1984); see also Commonwealth v. Arnold, 331 Pa. Super. 345, 480 A.2d 1066 (1984). The burden is on the moving party to show actual and unyielding prejudice among jurors. Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973); Commonwealth v. Arnold, supra. It is a matter committed to the sound discretion of the trial court to grant a motion for change of venue and its decision will not be disturbed absent an abuse of that discretion. Commonwealth v. Jackson, supra; Commonwealth v. Hamm, 325 Pa. Super. 401, 473 A.2d 128 (1984) (allocatur denied). See also Commonwealth v. Keeler, 302 Pa. Super. 324, 448 A.2d 1064 (1982). In reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed

[ 347 Pa. Super. Page 162]

    opinion of the defendant's guilt or innocence as a result of the pre-trial publicity. Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976); Commonwealth v. Jackson, supra.

Appellant argues that the mere volume of publicity and its "slanted nature" rendered it impossible to assemble an impartial jury. This case involved lengthy pre-trial hearings concerning publicity during which the trial court conducted its own voir dire examination. The jury members indicated that they were not familiar with the terms used by the media. Publicity will only necessitate a change of venue when it is so overwhelming that it saturates the community and is so close in time to the trial that the possible prejudice to prospective jurors could not have dissipated. Short of such prejudice, we will not find an abuse of discretion in denying a motion for a change of venue. Commonwealth v. Casper, 481 Pa. 143, 392 ...


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