Com. v. Cooke

• Decision Date: 04 April 1985
• Citation: 492 A.2d 63,342 Pa.Super. 58
• Parties: COMMONWEALTH of Pennsylvania v. Carl Edward COOKE, Appellant.
• Court: Pennsylvania Superior Court

Page 63

492 A.2d 63

342 Pa.Super. 58

COMMONWEALTH of Pennsylvania v. Carl Edward COOKE, Appellant.

Superior Court of Pennsylvania.

Submitted Oct. 10, 1984.

Decided April 4, 1985.

Robert A. Longo, Lancaster, for appellant.

Edward F. Browne, Jr., Asst. Dist. Atty., Lancaster, for Commonwealth, appellee.

Before ROWLEY, McEWEN and HOFFMAN, JJ.

HOFFMAN, Judge:

Appellant contends that (1) the lower court erred in denying his motion for a change of venue and a mistrial, (2) the evidence was insufficient to support his convictions for attempted robbery and conspiracy, and (3) the mandatory sentence imposed upon him pursuant to 42 Pa.C.S.A. § 9712 was unconstitutional. We vacate the judgment of sentence in part.

On June 12, 1982, appellant and Robert Dixon were arrested and charged with attempted robbery and conspiracy. Appellant filed a pre-trial motion for change of venue which was denied on September 17, 1982. Following a November 15, 1982 jury trial, appellant was found guilty of both charges. On November 18, he filed post-verdict motions which were denied on July 6, 1983. On September 2, 1983, appellant was sentenced to a term of imprisonment of five-to-ten years on the attempted robbery charge, and to a concurrent term of ten years probation on the conspiracy charge. This appeal followed.

Appellant first contends that the lower court erred in denying his motion for a change of venue due to pretrial publicity. Appellant and Robert Dixon were the first defendants to be charged with crimes which would subject them to the mandatory minimum sentence requirements of a new statute. See 42 Pa.C.S.A. § 9712 (five years minimum sentence for committing certain crimes with a gun). As a result, on July 14, 1982, two articles were published in a Lancaster newspaper detailing the Commonwealth's intent to apply the mandatory sentence to appellant and Dixon. On July 16, another article reported the dismissal of the attempted robbery charge against Dixon. On July 21, the newspaper reported that appellant would stand trial on charges of attempted robbery and conspiracy and summarized the testimony at appellant's pretrial hearing. On August 17, the newspaper reported that appellant's parole for a previous crime had been revoked.

An application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of that discretion will not be reversed absent abuse. Commonwealth v. Tolassi, 489 Pa. 41, 50, 413 A.2d 1003, 1007; Commonwealth v. Casper, 481 Pa. 143, 150, 392 A.2d 287, 290-91 (1978); Commonwealth v. Keeler, 302 Pa.Superior Ct. 324, 328, 448 A.2d 1064, 1065-66 (1982). Therefore, this Court's only inquiry is whether any juror formed a fixed opinion of appellant's guilt as a result of the pretrial publicity. Commonwealth v. Casper, supra; Commonwealth v. Kichline, 468 Pa. 265, 273, 361 A.2d 282, 287 (1976). Ordinarily, one who claims that he was denied a fair trial by prejudicial publicity must show actual prejudice in the empaneling of the jury. Commonwealth v. Casper, supra; Commonwealth v. Keeler, supra. However, our Supreme Court has made an exception to that rule for cases in which pretrial publicity is " 'so sustained, so pervasive, so inflammatory, and so inculpatory as to demand a change of venue,' " because circumstances make it apparent that a fair trial cannot be held. Commonwealth v. Casper, supra 481 Pa. at 151, 392 A.2d 291, quoting Commonwealth v. Frazier, 471 Pa. 121, 127, 369 A.2d 1224, 1227 (1977). If the pretrial publicity is not inherently prejudicial, however, this Court will consider the following factors in assessing whether the trial court abused its discretion in denying a change of venue:

(1) the length of time between the publicity and the trial; (2) the nature and extent of the publicity (whether inflammatory or basically factual and how pervasively the information has been disseminated); (3) the degree to which the information is attributable to police or prosecution sources; (4) the community atmosphere; (5) the trial court's efforts to insulate the jury against and/or diminish the impact of the publicity; and (6) the probable efficacy of a change of venue.

Commonwealth v. Richardson, 476 Pa. 571, 586, 383 A.2d 510, 518 (1978), cert. denied, 436 U.S. 910, 98 S.Ct. 2248, 56 L.Ed.2d 410 (1978) (citations omitted); Commonwealth v. Keeler, supra 302 Pa.Super. at 329-30, 448 A.2d at 1066-67.

Here, appellant alleges that the pretrial publicity was prejudicial and inflammatory because it (1) stressed the applicability of the new mandatory sentencing statute, (2) quoted a police captain's statement that appellant and Dixon would get "no deals", (3) noted that Dixon had given police a statement implicating appellant, and (4) reported the revocation of appellant's parole on a prior criminal charge. We do not believe that the four articles cited by appellant constitute publicity so sustained and inflammatory as to be inherently prejudicial and deny him a fair trial. We base our conclusion on the following factors: the reporting was basically factual, the four articles could not constitute "pervasive dissemination" of the information, and three months elapsed between the last of the four articles and the beginning of appellant's trial. See Commonwealth v. Galloway, 495 Pa. 535, 434 A.2d 1220 (1981) (five-and-one-half months "cooling-off period" sufficient); Commonwealth v. Casper, supra (two-and-one-half months sufficient); Commonwealth v. Kivlin, 267 Pa.Superior Ct. 270, 406 A.2d 799 (1979) (two months sufficient). Appellant has also failed to allege or show that there was actual prejudice in the empaneling of the jury. Under these circumstances, we find that the trial court did not abuse its discretion in denying appellant's motion for a change of venue.

Appellant argues next that the trial court should have granted a mistrial when a police officer allegedly testified to prior criminal conduct by appellant as follows:

[Commonwealth Attorney]: What caused you to say Mr. Cooke had the gun?

[Police Officer]: I really don't know. I just--it just slipped my mind for a moment but I do--I do remember that I had Mr. Cooke at the vehicle because I knew Mr. Cooke from speaking to him before.

(N.T. November 15, 1982 at 44) (emphasis added). At that point, appellant's counsel objected and requested a mistrial and a curative instruction. The trial court refused both requests, stating that a curative instruction would just bring attention to the remark. (Id. at 45).

If testimony indicates to the jury that the accused has been involved in prior criminal activity, a mistrial is warranted. Commonwealth v. Nichols, 485 Pa. 1, 4, 400 A.2d 1281, 1282 (1979); Commonwealth v. Colon, 264 Pa. Superior Ct. 314, 321, 399 A.2d 1068, 1071 (1977). In the instant case, the police officer's remark that he knew appellant "from speaking to him before" cannot reasonably be construed as indicating to the jury that appellant had been involved in prior criminal conduct. See, e.g., Commonwealth v. Starks, 484 Pa. 399, 399 A.2d 353 (1979) (police officer's testimony that he knew defendant's nickname "from other contacts" with him did not imply prior criminal conduct); Commonwealth v. Riggins, 478 Pa. 222, 386 A.2d 520 (1978) (police officer's testimony that he knew where defendant lived did not indicate defendant had prior criminal activity). Moreover, we agree with the trial court that a curative instruction would only have drawn unnecessary attention to the remark. Accordingly, we hold that the court below properly denied appellant's motions for a mistrial and a curative instruction.

Appellant also contends that the evidence presented at his trial was insufficient to sustain his convictions for attempted robbery and conspiracy. The test for the sufficiency of the evidence in a criminal case is whether the evidence admitted at trial is sufficient to prove every element of the crimes charged beyond a reasonable doubt. Commonwealth v. Smith, 502 Pa. 600, 604, 467 A.2d 1120, 1122 (1983). In making this determination, the reviewing court must view the evidence in the light most favorable to the Commonwealth as the verdict winner, and accept as true all evidence and all reasonable inferences therefrom upon which, if believed, the fact finder could properly have based its verdict. Commonwealth v. Davis, 491 Pa. 363, 369, 421 A.2d 179, 182 (1980).

The elements of the crime of attempt are (1) an intent to commit a specific crime and (2) any act constituting a substantial step toward the commission of that crime. Commonwealth v. Chance, 312 Pa.Superior Ct. 435, 441-443, 458 A.2d 1371, 1374 (1983). See also 18 Pa.C.S.A. § 901(a). The elements of the offenses of robbery and conspiracy are as follows:

(1) A person is guilty of robbery if, in the course of committing a theft, he:

* * *

(ii) threatens another with or intentionally puts him in fear of immediate serious bodily injury;

(iii) commits or threatens immediately to commit any felony of the first or second degree;

....

(2) An act shall be deemed "in the course of committing a theft" if it occurs in an attempt to commit theft or in flight after the attempt or commission.

18 Pa.C.S.A. § 3701(a).

(a) Definition of conspiracy.--A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S.A. § 903(a). However, because an express agreement to commit a crime can seldom be proved by direct evidence, circumstantial evidence may be used to establish the conspiracy. Commonwealth v. Kennedy, 499 Pa. 389, 395, 453 A.2d 927,...