Com. v. Hoss

• Citation: 283 A.2d 58,445 Pa. 98
• Court: United States State Supreme Court of Pennsylvania
• Decision Date: 12 October 1971
• Parties: COMMONWEALTH of Pennsylvania v. Stanley Barton HOSS, Appellant.

Page 58

283 A.2d 58

445 Pa. 98

COMMONWEALTH of Pennsylvania v. Stanley Barton HOSS, Appellant.

Supreme Court of Pennsylvania.

Oct. 12, 1971.

Rehearing Denied Nov. 10, 1971.

Fred E. Baxter, Jr., Edgar M. Snyder, Pittsburgh, for appellant.

Robert W. Duggan, Dist. Atty., Carol Mary Los, Donald P. Minahan, Asst. Dist. Attys., Pittsburgh, for appellee.

Before BELL, C.J., and JONES, EAGEN, O'BRIEN, ROBERTS, POMEROY and BARBIERI, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

This direct appeal follows a conviction of first degree murder and the imposition of the death penalty in a trial by jury in Allegheny County for the killing of a Verona Township policeman on September 19, 1969. Appellant, Stanley Hoss, was tried under the Split Verdict Act ¹ which provides a two phase trial on the questions of guilt and sentence. He here asserts numerous trial errors including the prejudicial effect of pretrial publicity and the denial of a change of venue, the limits on the scope of questioning at the voir dire, and the admission of certain evidence at the guilt and penalty phases of the trial. ² Upon review of the record and consideration of these contentions, we affirm the conviction, but conclude that appellant must be afforded a new sentencing hearing because of evidence improperly admitted at the penalty phase of the trial. The facts, viewed in the light most favorable to the Commonwealth, are as follows.

Appellant was incarcerated in the Allegheny County Workhouse pending sentencing on a felonious rape conviction when he escaped on the night of September 9, 1969. Police departments throughout the county were promptly notified of the escape but their immediate efforts to recapture appellant failed.

Hoss was first seen by one Fred Mangol on September 19, 1969. Mangol, who had known appellant for eleven years and was aware of his recent escape from prison, immediately notified the Pittsburgh Police Department that appellant had just left a restaurant and was driving a yellow Chevrolet in the direction of Allegheny River Boulevard. This information was relayed by the Pittsburgh Police to the Oakmount Police who in turn notified the Penn Hills and Verona Police Departments. Shortly thereafter, Officer Joseph Zanella of the Verona Police Department spotted a Chevrolet with Ohio license plates. Believing the occupant was the appellant, Officer Zanella had him pull his car over to the side of the road on Plum Street in Oakmont. After giving appropriate warnings, he approached appellant's car with his revolver drawn. Two shots rang out, one of which proved fatal to Officer Zanella. Appellant immediately fled, hitching a ride in the direction of Tarentum, Pennsylvania. Two days later, he abducted Karen Malgott at gunpoint in Lower Burrel, Pennsylvania and forced her to drive him through sections of Maryland and West Virginia. During the 18 hour abduction appellant stated that he had shot a 'Verona cop.' Appellant was finally captured by the local police in Waterloo, Iowa on October 4, 1969 and immediately arraigned before a United States Commissioner for various federal charges including interstate flight from prosecution which was based on appellant's escape from prison pending sentencing on the rape charge.

Appellant was questioned for several days after his arrest by special agents of the FBI. During the course of interrogation, he confessed the killing of Officer Zanella, the kidnapping of Karen Malgott, and identified the gun used to kill Zanella as belonging to one Dennis Falconer. Hoss was returned to Pittsburgh on October 9 and the next day was sentenced on the rape charge for which he had been convicted before his escape.

Numerous pretrial motions were filed and orders issued. Trial was had before a jury from March 2 to March 10, 1970, and appellant was found guilty of first degree murder and sentenced to death. Post trial motions were denied by the court en banc. This appeal followed.

I--Finding of Guilt

Pretrial Publicity

Prior to trial, appellant filed a motion requesting a change of venue which was denied. He now contends that the death of the Verona policeman, Officer Zanella, and the events surrounding appellant's escape, arrest, and pending trial generated so much inflammatory publicity that he could not receive a fair trial in Allegheny County. This claim raises two questions: (1) whether the pretrial publicity was so prejudicial that only a change of venue could guarantee appellant a fair trial; (2) whether the precautions taken by the trial court and the conduct of the voir dire were sufficient to provide appellant a fair trial.

The day after appellant's escape and the shooting of Officer Zanella, the media reported the events and mentioned Hoss as the individual who had escaped and 'allegedly' shot Officer Zanella. During the next few weeks, the publicity intensified, first after the abducted Karen Malgott was released in West Virginia and identified appellant as the abductor, and second after the media emphasized police suspicions that Hoss had kidnapped a Mrs. Peugeot and her daughter ³ and a nationwide search for appellant had commenced. During this same time period, a television interview was conducted with a Mrs. Thompson, mother of the abducted Mrs. Peugeot. The period of intensive publicity lasted for about six weeks after appellant's escape. ⁴

On October 30, 1969, the trial court issued an order prohibiting any statements by counsel about any aspect of the case and also wrote letters to all the radio and television stations and the newspapers requesting an abatement of publicity so as not to prejudice appellant's right to a fair trial. From the record, it appears that the court's request was honored because the publicity abated and subsequent news reports were limited to a factual account of the procedural development of the case.

Courts have not been reluctant to intervene where inflammatory and prejudicial pretrial publicity has undermined the right of the accused to a fair trial. In Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963), the United States Supreme Court found a denial of due process in a refusal to grant a change of venue where shortly after defendant's arrest a twenty minute film showing portions of defendant's interrogation And his confession was aired over the local televisions stations. The film was broadcast three times in three days and the record indicated that sizeable numbers of the local population of 150,000 people saw the film. Three members of the jury stated on voir dire that they had seen the film but the challenges for cause to exclude them were denied. The Court held that 'due process of law in this case required a trial before a jury drawn from a community of people who had not seen and heard Rideau's televised 'interview. " Id. at 727, 8o S.Ct. at 1420; see Irvin v. Dowd, 366 U.S. 717, 725--727, 81 S.Ct. 1639, 1644--1645, 6 L.Ed.2d 751 (1961); cf. Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1807, 16 L.Ed.2d 600 (1966); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965). See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press § 3.2 (Approved Draft, 1966).

The present case does not approach the dimensions of pretrial publicity found in Rideau and Irvin. In Rideau the entire community was exposed to a live transcription of the accused's confession. In Irvin, the barrage of newspaper accounts not only announced the accused's confession but repeatedly thereafter referred to the accused as the 'confessed slayer' and reported all the details of the accused's offer to plead guilty. In addition, many editorials condemned his remorseless nature. The day before trial, another confession of the accused was reported. The effects of this pervasive publicity were shown by the voir dire; of the 12 jurors selected, 8 believed the accused to be guilty.

In marked contrast, most of the publicity in the present case involved accounts of appellant's escape, descriptions of the crimes which were largely factual in nature, and the reports on the police efforts to apprehend appellant, as well as reports of the procedural developments of the case after appellant's arrest. The most damaging piece of publicity was the news report, which the FBI refused to confirm, that appellant had confessed. No text of the confession ever appeared in print. Another article, headlined 'Smart Guy Hoss Sees His Luck With Law Run Out,' appeared in which a copy of appellant's FBI wanted poster was printed.

The present case is similar to the facts involved in Commonwealth v. Swanson, 432 Pa. 293, 248 A.2d 12 (1968), and Commonwealth v. Lopinson, 427 Pa. 284, 234 A.2d 552 (1967). In Swanson, the arrest for armed robbery was preceded by a barrage of publicity (30 newspaper articles and 45 television newscasts in Cambria County--the scene of the crime) and the accused was even described as a 'punk, arrogant person.' The involvement of the accused in other crimes for which he had not yet been tried was repeatedly referred to by the media. The accused was filmed walking the one and one half blocks from the jail to his preliminary hearing and arraignment. We held in Swanson that because most of the reporting was factual in nature and the only potentially damaging publicity was the speculation by a television station as to the motive for the crime, the denial of change of venue was proper. 432 Pa. 293, 299--300, 248 A.2d 12, 15--16 (1968).

We cannot find that the pretrial publicity in this case so tainted the community of 1 1/3 million people as to make a fair trial impossible. We consider it significant that as in Swanson (9 months) and in Lopinson (7 months), there was a lengthy time period between the arrest and trial of more than five months. Furthermore, because of the court's use of control measures, which will be discussed shortly, the publicity was markedly abated during the interval from ...