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COMMONWEALTH PENNSYLVANIA v. CHARMAINE PFENDER (04/04/88)

filed: April 4, 1988.

COMMONWEALTH OF PENNSYLVANIA
v.
CHARMAINE PFENDER, APPELLANT



Appeal from the Judgment of Sentence of October 25, 1985 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8408550A, 8408537A.

COUNSEL

John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellee.

Wieand, McEwen and Hoffman, JJ.

Author: Hoffman

[ 373 Pa. Super. Page 104]

This appeal is from the judgment of sentence for murder in the first degree, aggravated assault, unlawful restraint, criminal conspiracy, and violation of the Uniform Firearms Act, 18 Pa.C.S.A. ยงยง 6101-6120. Appellant contends that the trial court (1) erred in denying her motion to change venue, and (2) abused its discretion when sentencing her on the non-homicide charges. For the reasons that follow, we affirm the judgment of sentence for murder, we vacate the judgment of sentence for the remaining charges, and we remand the case for resentencing on the non-homicide charges.

In August, 1984, appellant was arrested and charged with the above-stated offenses. On March 27, 1985, following a jury trial, appellant was found guilty of all charges. Post-verdict motions were filed and denied. On October 25, 1985, appellant was sentenced to a life term of imprisonment on the murder charge, to be followed by consecutive terms of five-to-ten years for aggravated assault, two-to-four years for unlawful restraint, two-and-one-half-to-five years for criminal conspiracy, and one-to-five years for violation of the Uniform Firearms Act. Appellant filed a motion to modify sentence, which was denied. This appeal followed.

[ 373 Pa. Super. Page 105]

Appellant first contends that the trial court erred in denying her motion to change venue.*fn1 Appellant argues both that (a) she was actually prejudiced by the pre-trial publicity related to her case, and (b) the publicity in the community was so pervasive and inflammatory that we need not find actual prejudice, but should presume that she was prejudiced.

[ 373 Pa. Super. Page 106]

The decision whether to grant or deny a motion for a change of venue rests within the sound discretion of the trial court. See Commonwealth v. Holcomb, 508 Pa. 425, 442, 498 A.2d 833, 842 (1985) (plurality opinion); Commonwealth v. Pursell, 508 Pa. 212, 220, 495 A.2d 183, 187 (1985); Commonwealth v. Romeri, 504 Pa. 124, 131, 470 A.2d 498, 501 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984); Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 291 (1978). The reason for vesting this decision within the trial court's discretion is that the court "is in the best position to assess the community atmosphere and judge the necessity for a venue change." Commonwealth v. Pursell, supra, 508 Pa. at 220-21, 495 A.2d at 187. We may reverse the trial court's denial of a motion to change venue only when there is an abuse of discretion. Id., 508 Pa. at 221, 495 A.2d at 187. Moreover, "[i]n reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed opinion of appellant's guilt or innocence as a result of the pretrial publicity." Commonwealth v. Kichline, 468 Pa. 265, 274, 361 A.2d 282, 287 (1976).

In Commonwealth v. Casper, supra, our Supreme Court noted that claims deriving from alleged prejudicial pre-trial publicity are of two types.

Normally, one who claims that he [or she] 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.

[ 373 Pa. Super. Page 107481]

Pa. at 150-51, 392 A.2d at 291 (citations omitted). See also Commonwealth v. Holcomb, supra; Commonwealth v. Romeri, supra.

Here, the voir dire covered some two hundred sixty-eight pages of transcript. During the voir dire, the trial court carefully questioned all prospective jurors regarding their awareness of the case. The court mentioned the name of the victim, and the fact that the victim was a student of Turkish origin. The court then asked each juror whether he or she remembered reading or hearing anything about the case in the news media. Compare Commonwealth v. Nahodil, 462 Pa. 301, 307, 341 A.2d 91, 93 (1975). Whenever a prospective juror indicated a familiarity with the case, however vague, the court questioned the juror to determine exactly what he or she remembered about it. The court then asked each juror whether he or she had formed any opinion as to appellant's guilt or innocence. See, e.g., N.T. March 18-19, 1985, at 83, 178, 205-06. No juror was seated who indicated that he or she had formed such an opinion. In addition, in response to further questioning by the court, each juror who was later actually seated assured the court that he or she would decide the case based on the evidence, and not on outside media influences. Moreover, defense counsel was given an opportunity to question each juror. Finally, we note that the court made continuing efforts during the ...


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