filed: April 4, 1988.
COMMONWEALTH OF PENNSYLVANIA
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.
John H. Corbett, Jr., Public Defender, Pittsburgh, for appellant.
Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Com., appellee.
Wieand, McEwen and Hoffman, JJ.
[ 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. §§ 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 trial to ensure that the jury was not exposed to any publicity related to the trial, and to ensure that nothing at trial brought back memories of pre-trial publicity. See id. at 1253. On this record, we cannot conclude that the jury empanelled was actually prejudiced against appellant as a result of pre-trial publicity.
Turning to appellant's presumptive prejudice claim, we note preliminarily that the fact of pre-trial publicity alone "does not necessarily preclude a fair trial" in the relevant community. Commonwealth v. Casper, supra, 481 Pa. at 152, 392 A.2d at 292 (quoting Commonwealth v. Powell, 459 Pa. 253, 260-61, 328 A.2d 507, 510 (1974)). See also Commonwealth v. Romeri, supra, 504 Pa. at 132, 470
[ 373 Pa. Super. Page 108]
A.2d at 502. "Instead, once the fact of pre-trial publicity is determined, the inquiry then turns to the nature of the publicity and its effect on the community." Commonwealth v. Romeri, supra. In Commonwealth v. Pursell, supra, our Supreme Court noted that pre-trial prejudice may be 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. [(4)] 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.
508 Pa. at 221, 495 A.2d at 187-88 (citation omitted). See also Commonwealth v. Romeri, supra; Commonwealth v. Bradfield, 352 Pa. Superior Ct. 466, 481-82, 508 A.2d 568, 576 (1986).
This case was originally highly publicized in the Pittsburgh area. The charges stemmed from the August, 1984 slaying of Engin Aydin, a Turkish graduate student attending Point Park College in Pittsburgh, and the shooting and wounding of Suat Erdogan, another Turkish student. Appellant and a second woman, Sara Mae Richardson, were arrested in connection with the attacks. According to appellant, the media coverage attending this case was inherently prejudicial because
the media portrayed the women as "man-haters" and members of an "anti-male cult". "They were members of an all women softball team before." . . . Most importantly, the media reported the fact [that] the chief investigating detective believed it was a case of "pre-meditated murder". He related how the women had attempted to purchase hand gun ammunition on the day of the incident. Such coverage existed on all radio, television, and
[ 373 Pa. Super. Page 109]
newspaper media in Allegheny County. The incident was played as an international incident.
Brief for Appellant at 16.
In the trial court, appellant, in support of her motion to change venue, introduced numerous newspaper articles, transcripts from radio broadcasts, and replays of television broadcasts, all concerning the coverage of the shootings. The trial court, in ruling on appellant's motion, noted that it had the benefit of "replays of all the news media broadcasts from August of 1984 [as well as] radio and newspaper exhibits provided by counsel." Trial Court Opinion at 3. After reviewing this evidence, the court concluded that
There is no doubt in my mind that there has been and was a great amount of publicity at the time this thing occurred.
What I call to counsel's attention is that almost four months have passed since that deluge, you can describe it, of publicity and also it will be three more months before we attempt to get a jury in this case. It has been my experience as a lawyer and on the bench that the general public's memory of what occurs -- with no disrespect to the news media, but what occurs in the news media doesn't last very long. I have sat on cases before where we have had a lot of publicity, and it was astounding when we came to pick the jury how few, if any, people remembered what they had seen or read.
If it becomes apparent between now and March or during the selection of the jury that it is impossible for us to get an unbiased jury, then proper steps can be taken by this Court to ensure it be done . . . .
N.T. December 13, 1984 at 8-10. See also Trial Court Opinion at 3-4. The court then noted that the actual voir dire confirmed its position that the pre-trial publicity was not so extensive and pervasive that its prejudicial effect could not dissipate prior to trial. The court observed that
An examination of the voir dire of the jury showed that only a small number of prospective jurors were aware of
[ 373 Pa. Super. Page 110]
the incident and even fewer remembered anything that could be characterized as prejudicial. In each instance that a juror had heard and recalled any detailed accounts of the killing or revealed a recollection of any prejudicial information, a challenge for cause was granted to the defense. A review of the transcript revealed that of the thirty-seven jurors interviewed, only seven were dismissed as a result of a challenge for cause [relating to pre-trial publicity] . . . .
Trial Court Opinion at 4.*fn2
We have carefully reviewed the voir dire transcript, and we find that the responses of the individual venirepersons fully support the trial court's conclusion that whatever prejudicial pre-trial publicity existed in August, 1984 had dissipated by the time of trial some seven months later. Compare Commonwealth v. Holcomb, supra; Commonwealth v. Bradfield, supra. Accordingly, on this record, we cannot say that the August publicity was so sustained or pervasive as to require a change of venue based on a presumptive prejudice theory. See Commonwealth v. Holcomb, supra. We thus hold that the trial court did not abuse its discretion in refusing appellant's motion.
Appellant next contends that the trial court abused its discretion in sentencing her on the non-homicide charges.*fn3 Appellant notes that the trial court stated that it imposed sentences of incarceration consecutive to appellant's mandatory life sentence because the court erroneously
[ 373 Pa. Super. Page 111]
believed that appellant otherwise would be eligible for parole within fifteen to twenty years. See N.T. Sentencing, October 25, 1985, at 15. Appellant further maintains that the trial court erroneously focused only upon the circumstances of the crime and the seriousness of the offense; appellant argues that the court failed to consider other relevant sentencing factors, such as appellant's remorse, and the fact that she had been subjected to "family abuse".*fn4 Appellant concludes that both the court's erroneous understanding of the effect of a life sentence, as well as its failure to consider all relevant sentencing factors, renders the consecutive sentences it imposed an abuse of discretion.*fn5 We agree.
[ 373 Pa. Super. Page 112]
The imposition of a proper sentence is a matter vested in the sound discretion of the trial court, and a trial court's judgment of sentence will not be disturbed on appeal unless an abuse of discretion is shown. Commonwealth v. Meo, 362 Pa. Superior Ct. 328, 332, 524 A.2d 902, 904 (1987); Commonwealth v. Peters, 358 Pa. Superior Ct. 94, 96, 516 A.2d 1197, 1198 (1986); Commonwealth v. Rooney, 296 Pa. Superior Ct. 288, 292, 442 A.2d 773, 774 (1982). However, "a sentencing court must consider the history, character, and condition of the defendant and not only the nature and circumstances of the crime" in imposing a sentence of total confinement on the defendant. Commonwealth v. Peters, supra, 358 Pa. Superior Ct. at 96, 516 A.2d at 1198-99; Commonwealth v. Arent, 352 Pa. Superior Ct. 520, 523, 508 A.2d 596, 597 (1986); 42 Pa.C.S.A. § 9725. Additionally, as a general rule, the sentencing court is required by statute to consider the rehabilitative needs of the defendant and the need for the protection of the public, in addition to the gravity of the offense. 42 Pa.C.S.A. § 9721(b). See also Commonwealth v. Peters, supra, 358 Pa. Superior Ct. at 96-97, 516 A.2d at 1199; Commonwealth v. McCall, 320 Pa. Superior Ct. 473, 480, 467 A.2d 631, 634 (1983). Moreover, "the evidence upon which a sentencing court relies must be accurate. If the court relies on improper considerations or information, the sentence imposed is illegal and new sentencing is required." Commonwealth v. Cowan, 275 Pa. Superior Ct. 341, 343, 418 A.2d 753, 753 (1980). See also Commonwealth v. Gaskin, 325 Pa. Superior Ct. 349, 353, 472 A.2d 1154, 1156 (1984) (if it appears that
[ 373 Pa. Super. Page 113]
trial court relied in whole or in part on impermissible factor, sentence may be rendered invalid). "This is so because the court violates the defendant's right to due process if, in deciding upon the sentence, it considers unreliable information." Commonwealth v. Karash, 306 Pa. Superior Ct. 229, 231, 452 A.2d 528, 528 (1982). Finally, we note that "[a] statement by a sentencing court in its opinion that it considered all of the appropriate factors does not cure its failure to do so during sentencing." Commonwealth v. Peters, supra, 358 Pa. Superior Ct. at 97, 516 A.2d at 1199. See also Commonwealth v. Holler, 326 Pa. Superior Ct. 304, 308, 473 A.2d 1103, 1106 (1984).
Here, because appellant was found guilty of murder in the first degree, the court was required to impose a life sentence on the homicide charge. See 18 Pa.C.S.A. § 1102(a). The issue presented at the sentencing hearing, then, was whether appellant should receive additional sentences on the non-homicide charges, and whether those sentences should run consecutive to the life sentence. A review of the transcript of the sentencing hearing reveals that appellant had no prior criminal record, that she expressed remorse for her acts, and that there had been problems in her home environment, involving abuse and sexual advances made by her father. See N.T. October 25, 1985 at 4-5, 7-8, 10-11, 12. After hearing evidence related to the above, as well as argument from the Commonwealth and appellant's counsel, the court then stated the following reasons for the consecutive sentences it was about to impose:
THE COURT: Well, this Court intends to treat the homicide and the aggravated assault as two separate and distinct crimes, and it is obvious from the testimony in this case that was heard by the jury that this is what was thought by them by nature of the verdicts that they reached. This was a cold, calculated killing of an individual with absolutely no rhyme or reason for it, and no necessity for it. The Court is very upset by the circumstances
[ 373 Pa. Super. Page 114]
of that night, particularly the things that happened thereafter, and the Court can't fail to take that into consideration at the time we are imposing this sentence.
The fact that this man was shot and killed, these two women then tried to bury him, and then chased the other man through the woods, trying to kill him, like a wild animal. The Court can't overlook that.
If a life sentence in this state was a life sentence, then I would impose that and I'd stop there. But you know and I know that a life sentence in this state is not a life sentence, but that she would become eligible for parole within -- what my experience has been -- 15 to 20 years, they would be thinking of paroling them.
This was a wanton killing that arouses no signs of mercy from this Court.
Id. at 14-15 (emphasis supplied). The court then imposed the mandatory life sentence on the murder charge, and consecutive sentences on the aggravated assault (five-to-ten years), unlawful restraint (two-to-four years), criminal conspiracy (two-and-one-half-to-five years), and violation of the Uniform Firearms Act (one-to-five years) charges. Id. at 15-18.
Our review of the sentencing hearing leads us to agree with appellant that the trial court abused its discretion in formulating the consecutive sentences. First, despite being made aware of circumstances related to the history, character, and condition of appellant, the court improperly focused entirely upon the nature and circumstances of the offense. See Commonwealth v. Peters, supra. Second, and more importantly, it appears from the language emphasized above that the only reason offered by the court for ordering that the non-homicide charges be served consecutively to the life sentence was the court's belief that appellant would otherwise be eligible for parole in fifteen to twenty years. The court's belief regarding the availability of parole for a person under a sentence of life
[ 373 Pa. Super. Page 115]
imprisonment was clearly erroneous, as the court later recognized in its opinion.*fn6 See 61 Pa.S.A. § 331.21 (Pennsylvania Board of Probation and Parole is authorized "to release on parole any convict confined in any penal institution in this Commonwealth as to whom power to parole is herein granted to said board, except convicts condemned to death or serving life imprisonment. . . .") (emphasis supplied). Because the information regarding the availability of parole was inaccurate, and because the court expressly relied upon this inaccurate information in formulating the consecutive sentences, we must conclude that appellant's sentence may have been based on impermissible factors. See Commonwealth v. Cowan, supra. See also Commonwealth v. Gaskin, supra; Commonwealth v. Karash, supra. Accordingly, for both reasons stated above, we conclude that the trial court abused its discretion in sentencing appellant on the non-homicide charges; accordingly, appellant's sentence on those charges must be vacated and the case remanded for resentencing. We emphasize that our conclusion regarding appellant's sentence on the non-homicide charges in no way implicates the validity of the mandatory life sentence for murder.
For the foregoing reasons, we affirm the judgment of sentence for murder; we vacate the judgment of sentence for aggravated assault, unlawful restraint, criminal conspiracy, and violation of the Uniform Firearms Act; and we remand the case for resentencing on the non-homicide charges. Jurisdiction is not retained.
Judgment of sentence for murder affirmed. Judgment of sentence for remaining charges vacated and case remanded for resentencing. Jurisdiction is not retained.