Com. v. Kichline

• Court: United States State Supreme Court of Pennsylvania
• Writing for the Court: ROBERTS; JONES; NIX; EAGEN; EAGEN
• Citation: 361 A.2d 282,468 Pa. 265
• Parties: COMMONWEALTH of Pennsylvania v. James Preston KICHLINE, Appellant.
• Decision Date: 06 July 1976

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361 A.2d 282 468 Pa. 265 COMMONWEALTH of Pennsylvania
v.
James Preston KICHLINE, Appellant. Supreme Court of Pennsylvania. Argued Nov. 20, 1975.
Decided July 6, 1976.

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[468 Pa. 270] Donald F. Spang, Brett A. Huckabee, Reading, for appellant.

Grant E. Wesner, Deputy Dist. Atty., Reading, for appellee.

Before EAGEN, O'BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.

OPINION OF THE COURT

ROBERTS, Justice.

On December 7, 1973, appellant James Preston Kichline was convicted after a jury trial of murder in the [468 Pa. 271] first degree. The trial court denied post-verdict motions and imposed judgment of sentence of life imprisonment. On this direct appeal, ¹ appellant contends that he is entitled to a new trial because of numerous pretrial and trial errors. Finding none of his arguments persuasive, we affirm the judgment of sentence.

I. SUFFICIENCY OF THE EVIDENCE

This Court is required to review the sufficiency of the evidence to sustain a conviction in every case of murder in the first degree. Act of February 15, 1870, P.L. 15, § 2, 19 P.,S. § 1187 (1964). We have often stated the test to be applied:

'(W)hether, viewing all of the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences favorable to the

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Commonwealth, there is sufficient evidence to enable the trier of fact to find every element of the crime beyond a reasonable doubt.'

Commonwealth v. Bastone, --- Pa. ---, ---, 353 A.2d 827, 829 (1976); see Commonwealth v. Green, 464 Pa. 557, ---, 347 A.2d 682, 686 (1975); Commonwealth v. McFadden, 448 Pa. 277, 281, 292 A.2d 324, 326 (1972).

In the late afternoon of April 22, 1973, a gas station in Lehigh County was robbed and the gas station attendant abducted. Police discovered spent cartridges at the scene of the robbery. The following day, the attendant's body was found covered with a blanket in a deserted area of Berks County. Medical examiners established that gunshot wounds were the cause of death. Appellant surrendered to police on April 25, 1973, and confessed to the robbery-murder. He stated that he had driven his father's car and had used a blanket found in the trunk of the car to cover the body, that he shot the victim shortly [468 Pa. 272] after abducting him, and that he had used his brother's gun, which he later hid in a hotel room. Police verified the details of appellant's confession and located the weapon. A ballastics expert testified that both the fatal bullets and the cartridges found at the gas station had been fired from the gun found in the hotel room.

The statute applicable to this case defines murder in the first degree as follows:

'All murder which shall be perpetrated by means of . . . willful, deliberate and premeditated killing, or which shall be committed in the perpetration of, or attempting to perpetrate any . . . robbery . . . shall be murder in the first degree.'

Act of June 24, 1939, P.L. 872, § 701, as amended (formerly codified as 18 P.S. § 4701. ² The evidence here is sufficient for the jury to conclude beyond a reasonable doubt that appellant killed decedent in the perpetration of a robbery.

Appellant argues that the facts of this case preclude a conviction of felony-murder because, according to appellant, he had already completed the robbery and fled the scene of the crime before the homicide was committed. The trial judge refused appellant's point for charge which incorporated this theory.

In order for the felony-murder rule to apply, there must be "such actual legal relationship between the killing and the crime committed or attempted, that the killing can be said to have occurred as a part of the perpetration of the crime, or in furtherance of an attempt or purpose to commit it." Commonwealth v. Kelly, 333 Pa. 280, 285--86, 4 A.2d 805, 807 (1939) (quoting 13 R.C.L. § 148); accord Commonwealth v. Robinson, 450 Pa. 145, 147--48, 299 A.2d 220, 222 (1973). Thus, appellant may be found guilty of felony-murder if there [468 Pa. 273] was 'no break in the chain of events' between the killing and the robbery such that the homicide 'had an ultimate relation (to) and close connection with the felony.' Commonwealth v. Carey, 368 Pa. 157, 162, 82 A.2d 240, 242 (1951). Accord Commonwealth v. Alston,--- Pa. ---, 317 A.2d 229, 232 (1974); Commonwealth v. Kelly, supra at 280, 4 A.2d at 805. As Professor Perkins stated:

'Under the prevailing view if the killing resulted from the perpetration of the design it falls within the rule even if the felony itself had been completed before the fatal blow was struck.'

R. Perkins, Criminal Law at 42 (2d ed. 1969); see W. LaFave and A. Scott, Criminal Law § 71 (1972).

The evidence presented here was sufficient for the jury to find that there

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was no break in the chain of events and that the homicide resulted from and was closely connected to appellant's design to perpetrate a robbery. Therefore, the trial court properly refused appellant's point for charge, and appellant could have been found guilty of murder in the first degree based upon a felony-murder theory.

II. CHANGE OF VENUE

Appellant, relying on Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973), claims that he was denied a fair trial because of prejudicial pretrial publicity. We do not agree.

Dispositions of motions for a change of venue are within the sound discretion of the trial court. Commonwealth v. Powell, 459 Pa. 253, 258, 328 A.2d 507, 510 (1974); Commonwealth v. Martinolich, 456 Pa. 136, 141, 318 A.2d 680, 683, appeal dismissed, 419 U.S. 1065, 95 S.Ct. 651, 42 L.Ed.2d 661 (1974); Commonwealth v. Swanson, 432 Pa. 293, 296, 248 A.2d 12, 14 (1968), cert. denied, 394 U.S. 949, 89 S.Ct. 1287, 22 L.Ed.2d 483 [468 Pa. 274] (1969). In 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. Powell, supra; Commonwealth v. Hoss, 445 Pa. 98, 107, 283 A.2d 58, 64 (1971); Commonwealth v. Swanson, supra. In some cases the publicity in the community may be so pervasive and inflammatory that this Court will assume that the jury was biased. Commonwealth v. Pierce, supra; see ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press § 3.2(c) (1966). In any case in which a juror was found or assumed to be prejudiced, the trial court would abuse its discretion if it denied a motion for a change of venue. Commonwealth v. Pierce, supra; see Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963).

Here, the trial court stated that 'the jury selected was completely fair and unbiased and was properly selected.' The record fully supports the trial court's holding. Appellant produced numerous newspaper articles. However, only eight articles published in the Reading Times and the Reading Eagle were circulated in Berks County, where the trial took place. Articles relied on by appellant published in Northampton County newspapers, the county where appellant had been released from prison on a furlough program, and in Lehigh County newspapers, where the alleged robbery took place, had only a limited circulation in Berks County and could not have had a prejudicial effect on a Berks County jury. ³

[468 Pa. 275] The trial court found that the Reading Times and Reading Eagle articles were restrained in their coverage of appellant's case: '(W)e cannot find that any of the items published were inflammatory in nature.' Most of the coverage concerned the ongoing police investigation and the surrender of appellant to police. Athough the reporting was primarily factual in nature, 'unidentified' officials gave appellant's confession to reporters, and it was relied on in three articles to describe appellant's movements during and after the crime. Appellant's criminal record and his participation in the prison furlough program were also referred to in several newspaper articles. In addition, a policeman, the president of the local chapter of the fraternal order of police, who was not

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involved in the investigation of this case, was quoted in one article, criticizing appellant's furlough program.

Although pretrial publicity of an alleged confession and of prior criminal offenses is prejudicial to a defendant, we cannot conclude that, in the circumstances of this case, such publicity was so 'inherently prejudicial' as to deny appellant a fair trial. Compare Sheppard v. Maxwell, supra; Rideau v. Louisiana, supra; Commonwealth v. Pierce, supra. ⁴ The articles were published six [468 Pa. 276] months before trial, and the publicity had ceased after appellant's preliminary arraignment. Because the publicity in Berks County was neither inflammatory nor extensive, this lengthy delay 'was (sufficient) time for the effect of these news stories to fade from the minds of prospective jurors.' Commonwealth v. Powell, supra, 459 Pa. at 260, 328 A.2d at 511 (one year delay); see Commonwealth v. Nahodil, 462 Pa. 313, 341 A.2d 91 (1975) (six month delay); Commonwealth v. Stoltzfus, 462 Pa. 55, 337 A.2d 873 (1975) (one year delay); Commonwealth v. Douglas, 461 Pa. 749, 337 A.2d 860 (1975) (eleven month delay); Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268 (1975) (five month delay); Commonwealth v. Hoss, supra (five month delay).

Appellant argues that these articles disclosed violations of the standards enunciated in Pierce ⁵ and that these violations require a grant of a new trial. He supports his claim by arguing that his confession and his criminal record must have been given to the media by the police and by relying on the publicized criticism of the furlough program by one police officer.

Although there may have been violations of the Pierce guidelines, this showing...