Com. v. Pursell

Decision Date24 September 1985
Citation508 Pa. 212,495 A.2d 183
PartiesCOMMONWEALTH of Pennsylvania, Appellee, v. Alan Lee PURSELL, Appellant. 15 W.D. 1984
CourtPennsylvania Supreme Court

Dennis V. Williams, Erie, for appellant.

Michael J. Vechecco, Dist. Atty., Shad Connelly, Erie, for appellee.

Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, HUTCHINSON, ZAPPALA and PAPADAKOS, JJ.

OPINION OF THE COURT

PAPADAKOS, Justice.

I. INTRODUCTION

We are presently required to review the conviction of murder of the first degree and the death sentence of Alan Lee Pursell (Appellant) pursuant to 42 Pa.C.S. § 9711(h). 1 Appellant was arrested on July 28, 1981, and charged with criminal homicide for the death of a thirteen-year-old boy, Christopher Brine, whose body was found in a wooded section of Lawrence Park Township, Erie County, Pennsylvania. The corpse was nude, battered, and bloody.

Appellant was tried to a jury with the Honorable Jess S. Jiuliante of the Erie County Court of Common Pleas presiding and, on January 26, 1982, the jury returned its verdict of murder of the first degree. Immediately thereafter, a separate sentencing proceeding was conducted, following which the same jury determined that Appellant be sentenced to death. Post-verdict motions were argued before a court en banc which denied same, triggering this automatic appeal.

Appellant first argues that insufficient evidence exists to support a conviction of murder of the first degree. Our independent review of the entire record, giving all reasonable inferences to the Commonwealth, discloses sufficient evidence to support the conviction of murder of the first degree based upon the facts we have gleaned from the record.

On July 24, 1981, in a secluded wooded area of Lawrence Park Township, James Feeney found the victim's nude body, its face drenched with blood. A twenty-five foot tree branch lay across the throat which was wrapped in shirt material. After viewing the corpse, the County Coroner estimated that the victim had been dead for twelve to fifteen hours, placing the time of death between midnight and three o'clock, a.m., on July 24, 1981. An autopsy revealed that prior to death, the victim had sustained fifteen blows to the head with a jagged, blunt object, and had suffered various bruises, a broken nose, internal hemorrhaging in the neck, swollen eyes, and a crushed windpipe. The crushed windpipe was determined to be the cause of death. After the victim's death, his body was subjected to burns on parts of the torso, and trauma to the chest and scrotum, part of which was crushed.

A blood-covered jagged rock was found near the body. The blood was similar to the victim's; the lacerations and punctures on the victim's head were caused by this rock. The nearest rocks were two hundred feet from the body and were similar to the rock used to strike the victim. A pair of glasses found near the body was identified as those made and sold to Appellant by his optometrist, Dr. Perry. On July 25, 1981, the day following the death, Appellant returned to Dr. Perry and ordered another, identical pair of glasses.

Blood found on Appellant's shoes was consistent with that of the victim's. Blood was also found on other items of clothing worn by Appellant on July 24, 1981. This blood could not be accurately examined because the clothes had been washed.

Appellant's mother testified that Appellant came home on July 23, 1981, at 10:30 p.m. She recalled that he was covered with blood and asked her to say that he had come home early. Mrs. Pursell also testified that she was extremely upset when she heard about the murder on the evening news (July 24, 1981)--so much so that she required medication to calm down--and that Appellant was aware of her reaction upon hearing of the victim's death.

Finally, on July 27, 1981, while listening to a newscast reporting developments in this case, Appellant turned to his girlfriend, with whom he was watching the seven o'clock newscast, and asked whether she thought a person could be traced through his glasses. No mention had been made in any report that glasses had been found at the scene.

Taking all of these circumstances together, a jury could conclude beyond a reasonable doubt that young Christopher Brine's death was a homicide. From the nature of the injuries, a jury could further infer that the homicide was intentional and malicious. Since the victim was assaulted with a rock carried two hundred feet from its natural resting place, the jury could conclude that the killing was premeditated. Finally, the jury could conclude that Appellant committed the crime since his glasses were found at the scene and since the blood found on his shoes matched that of the victim's. Accordingly, we are satisfied that sufficient evidence exists in this record to support the jury's verdict of murder of the first degree, and dismiss Appellant's sufficiency challenge.

II. VENUE CHANGE

Appellant argues that the trial court erred in refusing to grant his motion for a change of venue on the ground of prejudicial pre-trial publicity. 2 Appellant contends that the publicity was so pervasive, widespread, inflammatory, and inculpatory from the date of the crime until his trial, that "inherently prejudicial" pre-trial publicity can be presumed. We disagree.

The grant or denial of a change of venue is a matter within the sound discretion of the trial judge, who is in the best position to assess the community atmosphere and judge the necessity for a venue change. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978). The trial court's denial of the motion will be reversed only where there is an abuse of discretion.

In Commonwealth v. Romeri, 504 Pa. 124, 470 A.2d 498, 501-03 (1983), cert. denied, 466 U.S. 942, 104 S.Ct. 1922, 80 L.Ed.2d 469 (1984) (quoting Commonwealth v. Casper, 481 Pa. 143, 150-151, 392 A.2d 287, 291 (1978), we summarized the law in this area by reference to Commonwealth v. Casper as follows:

[A]n application for a change of venue is addressed to the sound discretion of the trial court, and its exercise of discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. (citations omitted) In reviewing the trial court's decision, the only legitimate inquiry is whether any juror formed a fixed opinion of [the defendant's] guilt or innocence as a result of the pre-trial publicity.

We have, however, recognized that occasions may arise where the pre-trial publicity is so pervasive and inflammatory that a defendant's normal burden of demonstrating actual juror prejudice is obviated. Pre-trial prejudice is presumed if: (1) the publicity is sensational, inflammatory, and slanted towards conviction rather than factual and objective; (2) the publicity reveals the accused's prior criminal record, if any, or if it refers to confessions, admissions, or reenactments of the crime by the accused; and (3) the publicity is derived from police and prosecuting officer reports. Id.

The publicity must be 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.

Appellant argues before us that sensational reporting occurred [over a three-day period (July 28, 29 and 30, 1981) by the newspapers, radio and television] of the crime in which he was alleged to have been involved. While the texts of those articles are not part of the record, Appellant argues that one newspaper article published Appellant's prior criminal record on its front page; that another mentioned that Appellant had a prior criminal record; and that radio and television reports during July 28-30, 1981, mentioned that Appellant had a prior criminal record. 3 Such pre-trial publicity, which reveals an accused's prior unrelated criminal conduct, may establish prejudice if the publicity continues up to the time of trial. Romeri, id. Such is not the case before us, since even if we accept Appellant's analysis of the articles, the record clearly shows that any sensational articles or references to Appellant's prior record were published only for a three-day period in July of 1981. Thereafter, sporadic articles appeared which merely traced the procedural posture of the case until January, 1982, when the trial began. This six-month "cooling off period" was sufficient to dissipate the prejudice, if any, engendered by the July, 1981, publicity.

Additional articles published during the voir dire phase were factual in nature and in no way show that prejudicial material was widely disseminated at the time of trial.

Finally, we have carefully reviewed the nine hundred pages of extensive voir dire examination wherein one hundred and one prospective jurors were questioned. Sixty-six of these prospective jurors were asked if they had heard about this case and to explain in detail what, if anything, they could remember about the case. 4 Eight knew nothing about the case and of those, two were chosen to serve on the jury. The other fourteen jurors selected (four alternates included) were selected from among the remaining fifty-eight prospective jurors. Fifty-seven of these prospective jurors testified that they had heard about the case in July of 1981, that they had not formed any opinion as to the guilt or innocence of Appellant, that they would be able to reach a verdict based solely on the evidence presented in court, and that the information they had learned outside of the courtroom would not affect their decision in any way.

When specifically asked about knowledge of Appellant's prior criminal conduct, one venireman was not sure (notes of Voir Questioning, Vol. 1, p. 42) and was striken for cause. A second venireman had heard that Appellant had...

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