Com. v. Kivlin

• Citation: 267 Pa.Super. 270,406 A.2d 799
• Parties: COMMONWEALTH of Pennsylvania v. Edward T. KIVLIN, III, Appellant.
• Decision Date: 26 October 1979
• Court: Superior Court of Pennsylvania

Page 799

406 A.2d 799

267 Pa.Super. 270

COMMONWEALTH of Pennsylvania v. Edward T. KIVLIN, III, Appellant.

Superior Court of Pennsylvania.

Argued May 7, 1979.

Decided June 22, 1979.

Reargument Denied Oct. 26, 1979.

Malcolm W. Berkowitz, Philadelphia, for appellant.

D. Michael Emuryan, Deputy Dist. Atty., Media, for Commonwealth, appellee.

Before CERCONE, President Judge, and ROBERTS and LIPEZ, JJ. ^*

ROBERTS, Judge:

Appellant, Edward T. Kivlin, III, was charged with shooting to death Ann Mauro a six year old girl, during an exchange of gunfire with Ann's father at the Mauro residence. On August 11, 1976, a jury convicted him of murder of the third degree and crimes with firearms. After denying post-verdict motions, the trial court sentenced appellant to a term of imprisonment of 10 to 20 years on the murder charge, a concurrent term of 21/2 to 5 years on the weapons charge and payment of costs. Appellant raises approximately 75 claims of error. We have examined each, find all without merit and affirm. Only three issues warrant discussion.

I

Appellant asserts that he was subject to double jeopardy in violation of the Sixth Amendment of the Constitution of the United States when he was tried twice on charges arising out of the killing of Ann Mauro. Appellant was tried first in May, 1976. The trial court declared a mistrial when the jury failed to reach a verdict after three days of deliberation. Before his second trial in July and August, 1976, appellant filed a motion, alleging double jeopardy and requesting discharge of the indictments against him. The court denied the motion. ¹ We find no abuse of discretion.

The jury began its deliberations at about 5:00 p. m., Tuesday, May 25, continued until about 9:00 p. m. that night, resumed deliberations on Wednesday and Thursday and still had not reached a verdict on Friday afternoon, May 28. At about 3:00 p. m. that afternoon, the trial court called the jury into the courtroom:

"THE COURT: Mr. Foreman, the jury has been deliberating since about five o'clock on Tuesday afternoon. It is now three o'clock on Friday.

I want to know, if you deliberate any longer do you think you can arrive at a verdict?

THE FOREMAN: No, Your Honor.

THE COURT: Does anyone in the jury disagree with that?

(Responses of the Jury were 'No' or nodding of heads.)

THE COURT: Members of the Jury, under these circumstances we consider that you are a hung jury and we declare this trial ended."

A defendant may be tried twice without violation of his right not to be placed twice in jeopardy if his first trial concluded without a verdict for reasons of "manifest necessity." Commonwealth v. White, 476 Pa. 350, 382 A.2d 1205 (1978). Manifest necessity for retrial exists when there is no reasonable probability that the jury will agree upon a verdict. Id. This determination depends on the number, complexity and gravity of the charges and the volume of evidence presented, and rests largely in the discretion of the trial court. Commonwealth v. Monte, 459 Pa. 495, 329 A.2d 836 (1974).

Although the charges against appellant were not particularly complicated, presentation of the evidence lasted three weeks. It was therefore proper for the trial court to afford the jurors ample time to deliberate. On the other hand, after deliberations so protracted, the court, without waiting for the jurors to report that they were deadlocked, was justified in inquiring whether a verdict could be reached. When the court asked about the possibility of arriving at a verdict, the foreman, without hesitation or equivocation, answered, "No." The court then asked the jurors if they disagreed with the foreman and received a unanimous reply of agreement.

Appellant argues that the court should have questioned the jurors to learn their opinions. There is no requirement that the court do so. See, e. g., Commonwealth v. White, supra; Commonwealth v. Monte, supra. Appellant emphasizes that, because Friday, May 28 was the beginning of the Memorial Day weekend, the court, in inquiring about and declaring a mistrial, and the jurors, in announcing they were deadlocked, were likely motivated by the desire to avoid further deliberations. This assertion is speculation; the record, from which all reasonable inferences favorable to the Commonwealth must be drawn, e. g., Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976), provides adequate grounds for the court's decision. Similarly, appellant asserts that the "nodding of heads" reflected in the record signalled disagreement with the foreman's statement that a verdict could not be reached. Since the court, upon observing the jurors' reactions to his inquiry, understood the "nodding" to mean "no," and appellant, present with counsel during the colloquy, did not object to this interpretation, the only reasonable inference the record provides is that the jurors were unanimous. Appellant also contends that the court's questioning in itself coerced the jurors into agreeing with the foreman. Again, the record gives no support to this view.

Finally, appellant, listing 21 alleged errors committed at the first trial, argues that he is entitled to discharge because the court and the prosecuting attorney engaged in intentional misconduct designed to induce declaration of a mistrial to afford a more favorable opportunity to convict, or were at least grossly negligent in conducting the trial. See Commonwealth v. Bolden, 472 Pa. 602, 373 A.2d 90 (1977). We have examined each asserted error and find no judicial or prosecutorial misconduct justifying discharge. See Commonwealth v. Hogan, 482 Pa. 333, 393 A.2d 1133 (1978) (plurality opinion of Roberts, J., joined by O'Brien and Pomeroy, JJ.).

II

Appellant next argues that the trial court erred in denying his pretrial motion for change of venue. According to appellant, the jurors at his second trial, in July and August, 1976, must have been influenced by the wide publicity during and after his first trial in May, 1976, which, he asserts, portrayed him as a member of a wicked motorcycle gang, who had killed a young girl and deserved to be found guilty and punished for his crime.

Our Supreme Court recently reviewed the principles governing motions for change of venue. See Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). Pretrial 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 towards conviction, rather than factual and objective; revealed that the accused had a criminal record; referred to confessions, admissions or reenactments of the crime by the accused; or derived from reports from the 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. at 153, 392 A.2d at 292-293.

The newspaper, magazine, radio and television reports contained in the record do not meet this standard of inherent prejudice. They were factual and objective, free of any information objectionable under Casper and the cases cited therein. Much of the publicity occurred in October and November, 1975, following the incident and appellant's arrest. Even those articles appearing in May, 1976, at the time of the first trial, were two months old by the time of the second. See Commonwealth v. Casper, supra (no inherent prejudice where period between publication and trial was 21/2 months). We therefore conclude that the publicity was not inherently prejudicial.

The circumstances of the incident, the age of the victim and appellant's membership in a well known motorcycle organization linked to other crimes could have created prejudicial opinions in the minds of prospective jurors. In view of our conclusion that the publicity was not inherently prejudicial, however, appellant must demonstrate actual prejudice in selection of the jury. Commonwealth v. Casper, supra. There is no evidence of actual prejudice.

The trial court conducted an extensive voir dire over a period of five days. One hundred and ten prospective jurors were questioned at length. Ninety two prospective jurors were removed by challenges, for cause or by the court. Of the 25 removed for cause by appellant, only 15 stated that they had formed an opinion on guilt or innocence as a result of newspaper, radio or television reports. The 10 others said that they feared or disliked motorcycle gangs or had very strong feelings in favor of the death penalty. Thus, only a small percentage of the prospective jurors indicated that they held fixed opinions concerning appellant's guilt, and all of them were removed. Every juror at appellant's second trial stated that he had not formed any opinion as to guilt, and appellant does not allege that publicity during the trial tainted an otherwise valid panel. Accordingly, we find that the trial court did not abuse its discretion in refusing appellant's motion for change of venue. See Commonwealth v. Kichline, supra; Commonwealth v. Powell, 459 Pa. 253, 328 A.2d 507 (1974).

III

Before trial, appellant submitted a petition requesting permission to exhume the body of the victim to examine it for evidence allegedly proving that he did not fire the bullet causing death. After a hearing, the court denied the motion. Appellant asserts that the court abused its discretion in denying the motion.

Appellant alleged that during the gunfight, he was in a car about 75 feet away from the victim, while her father stood just a few feet from her. By examining the body for traces of particulate matter and residue that would adhere from discharge of a firearm at close range, he sought to prove that Mauro fired the fatal shot. Further, appellant argued that examination of Ann's body would reveal the...