Com. v. Daugherty

• Citation: 493 Pa. 273,426 A.2d 104
• Parties: , 7 Media L. Rep. 1481 COMMONWEALTH of Pennsylvania v. Jeffrey Joseph DAUGHERTY, Appellant.
• Decision Date: 13 March 1981
• Court: United States State Supreme Court of Pennsylvania

Page 104

426 A.2d 104

493 Pa. 273, 7 Media L. Rep. 1481

COMMONWEALTH of Pennsylvania v. Jeffrey Joseph DAUGHERTY, Appellant.

Supreme Court of Pennsylvania.

Argued Oct. 3, 1980.

Decided March 13, 1981.

Norman D. Callan, Asst. Public Defender, John Woodcock, Jr., Public Defender, Hollidaysburg, for appellant.

Thomas G. Peoples, Jr., Dist. Atty., Hollidaysburg, James V. McGough, Altoona, for appellee.

Before O'BRIEN, C. J., and ROBERTS, NIX, LARSEN, FLAHERTY and KAUFFMAN, JJ.

OPINION OF THE COURT

O'BRIEN, Chief Justice.

This is an appeal from an Order imposing judgment of sentence entered in the Court of Common Pleas of Blair County. On January 31, 1977, appellant was convicted by a jury of murder of the first degree, criminal conspiracy (murder), and other lesser offenses. The jury sentenced appellant to death. Post-verdict motions were filed, argued and denied. On January 4, 1980, our decision in Commonwealth v. Moody, 476 Pa. 223, 382 A.2d 442 (1977) having intervened, appellant was sentenced to life imprisonment. The relevant facts are as follows.

On March 11, 1976, during the course of an armed robbery at the Shaw Oil Company, a gasoline station located in Allegheny Township, Blair County, Pennsylvania, at or near the Borough of Duncansville, George Karnes, an eighteen-year-old attendant, was shot five times in the head and killed instantly. At the same time the cash receipts of the station were taken. There were no witnesses to this incident.

The following day, March 12, 1976, appellant, Jeffrey Joseph Daugherty, together with an accomplice and subsequent co-defendant, Bonnie Jean Heath, was apprehended in the Commonwealth of Virginia shortly after an armed robbery in that state. At the time of arrest appellant and his co-defendant were traveling in an automobile which was subsequently identified as having been used in Blair County, and which contained the handgun which was used in the Karnes murder as well as other tangible objects connected with various Blair County crimes.

On December 8, 1976, appellant was convicted by a jury in the Court of Common Pleas of Blair County of murder of the first degree. This conviction was for appellant's participation in an unrelated matter: the robbery-murder of Mrs. Elizabeth Shank.

On December 10, 1976, appellant filed a petition for change of venue in the instant matter. A hearing thereon was held January 7, 1977, and the petition was denied by the trial court on January 10, 1977. Trial on the instant matter commenced January 17, 1977.

Appellant now advances seventeen assignments of error; with two of appellant's claims we agree and, accordingly, reverse. ¹

Among appellant's assertions of error is one which assails the trial court's denial of his petition for change of venue. Neither party to the instant appeal denies that both the Shank murder trial and the trial of the instant case were attended by a significant amount of news media coverage. Indeed the record of the change of venue hearings ² precludes any conclusion but that the publicity surrounding these trials was very extensive. Moreover, there is no allegation in this case that the pre-trial publicity was sensational; appellant apparently concedes the Commonwealth its point that the complained of publicity was largely factual and objective. Nevertheless, appellant claims the publicity was inherently prejudicial.

It is, of course, established that the grant or denial of a change of venue is a matter within the sound discretion of the trial court. Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978). A trial court's ruling on a motion for change of venue will, consequently, be reversed only where there is an abuse of that discretion. Id. However, we reaffirmed in Commonwealth v. Rigler, 448 Pa. 441, 412 A.2d 846 (1980), that there may occasionally be instances where the pre-trial publicity is so pervasive and inflammatory as to be inherently prejudicial. See, Commonwealth v. Rolison, 473 Pa. 261, 374 A.2d 509 (1977); Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977); Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973). In such instances, the normal requirement that a defendant demonstrate actual juror prejudice is obviated. Commonwealth v. Rigler, 448 Pa. 441, 412 A.2d 846 (1980); Rolison, supra.

In Commonwealth v. Kivlin, 267 Pa.Super. 270, 406 A.2d 799 (1979), the Superior Court articulated the law of inherently prejudicial pre-trial publicity.

"Pre-trial publicity will be deemed so inherently prejudicial as to require a change of venue only if the articles appearing were either sensational, inflammatory and slanted toward conviction, rather than factual and objective; revealed the accused has a criminal record; referred to confessions, admissions or reenactments of the crime by the accused; or derived from reports from police and prosecuting officers. Even if one of these elements exists, a change of venue is required only if the publicity has been 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.' " Id.; 406 A.2d at 803 (citation omitted).

The record of the instant case discloses that in the period from November 23, 1976, to January 7, 1977, stories concerning appellant's participation in both Blair County murders were broadcast over the television and radio stations serving Blair County in which appellant's name was mentioned...