Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Northampton County, No. 232-1985.
Joanne Kelhart, Bethlehem, for appellant.
Daniel G. Spengler, Assistant District Attorney, Bath, for Com., appellee.
Cavanaugh, Wieand and Del Sole, JJ.
[ 378 Pa. Super. Page 341]
Robert Stein was tried by jury and was found guilty of kidnapping, attempted homicide, aggravated assault, robbery, and various lesser offenses committed upon the person of Nazir Ishak during the late evening of January 28 and the early morning of January 29, 1985. From the judgment of sentence thereafter imposed, Stein appeals. He argues that the trial court committed numerous trial errors and that the trial court also erred when, on motion of the Commonwealth, it reconsidered and imposed a second, more severe sentence. We find no merit in Stein's contentions and affirm the judgment of sentence.
The evidence established that on the evening of January 28, 1985, Tina Jezick, her husband, Michael, her sister-in-law, Michelle, and Stein devised a plan by which Tina and Michelle would pose as prostitutes in order to lure a man to their house, where Michael Jezick and Robert Stein would be waiting to rob him. Pursuant to this plan, Michelle was able to enter a vehicle driven by Nazir Ishak, after which she directed him to the Jezick home on Oak Street in the
[ 378 Pa. Super. Page 342]
City of Allentown. Tina, meanwhile, had alerted the male conspirators that Michelle and a man were on their way. When Ishak arrived at the Jezick home, he was frisked and taken at rifle point to the basement. There he was beaten by Michael Jezick and Robert Stein. The women remained upstairs but heard Ishak being beaten and pleading for help. Jezick and Stein removed Ishak's wallet and watch and then went for a ride in his car. While they were gone, Michelle went into the basement where she observed Ishak lying on a mattress. His hands and feet were bound, and he was bleeding from wounds to his head and hands. When Stein and Michael Jezick returned several hours later, they wrapped Ishak in a blanket, placed a pillow case over his head, and put him in the trunk of his car. Ishak was then driven into Northampton County, where the men intended to leave him. En route, when Ishak was heard to be groaning, the men stopped the car, opened the trunk and cut Ishak's throat. He was thereafter thrown into a fifteen foot deep, dry canal, where he was found approximately twelve hours later. Ishak survived.
Later the same morning, Jezick and Stein picked up Robin Burian and took her for a ride in Ishak's car. While she was with them, Jezick changed the license plate with that of another car. They also went to an automatic bank machine where Jezick unsuccessfully attempted to obtain cash by using a card found in Ishak's wallet. At this time, Jezick told Robin Burian that she was riding in a "dead man's car" and related to her the events of the prior evening and early morning hours.
Several days later, Jezick and Stein appeared at a welding shop and gas station where they attempted to sell tools which had been removed from the trunk of Ishak's car. The car was later abandoned in Allentown.
At trial, appellant denied that he had been involved in the kidnapping and assault of Ishak. He testified that on the early evening of January 28, he had visited Michael Jezick, had drunk a beer and smoked marijuana, and had departed. He said that he had fortuitously met Jezick several days
[ 378 Pa. Super. Page 343]
later while Jezick was driving Ishak's car. He went with Jezick, he said, when Jezick attempted to sell some tools that were in the trunk of the car. Jezick also testified as a defense witness and confirmed that Stein had not been involved in the beating of Ishak. However, his testimony was impeached by a prior inconsistent statement which he had made to police following his arrest. In that statement, he had implicated appellant in the several offenses committed against Ishak.
Appellant argues that the trial court erred when it denied a pre-trial motion for change of venue. Whether to grant a motion for change of venue is within the sound discretion of the trial court. Commonwealth v. Cohen, 489 Pa. 167, 178, 413 A.2d 1066, 1072 (1980); Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 291 (1978). Ordinarily, to be successful on a motion for change of venue, a criminal defendant must demonstrate that pre-trial publicity resulted in actual prejudice in empaneling a jury. Commonwealth v. Howard, 358 Pa. Super. 259, 267, 517 A.2d 192, 195-196 (1986). "In some instances, however, 'there can be pre-trial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue without putting on the defendant any burden of establishing a nexus between the publicity and actual jury prejudice.'" Id., 358 Pa. Superior Ct. at 267, 517 A.2d at 196, quoting Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977). To determine whether pre-trial publicity has been so pervasive as to relieve a defendant of the burden of proving actual prejudice, a trial court, in exercising its discretion, must consider:
"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,' United States v. Sawyers, 423 F.2d 1335, 1343 (4th Cir.1970); 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
[ 378 Pa. Super. Page 344]
such information is the product of reports by the police and ...