Commonwealth v. Smith
| Decision Date | 14 August 1981 |
| Parties | COMMONWEALTH of Pennsylvania, v. Jay C. SMITH, Appellant. |
| Court | Pennsylvania Superior Court |
Argued Sept. 9, 1980. [Copyrighted Material Omitted]
John J. O'Brien, West Chester, for appellant.
Stanton M. Lacks, Asst. Dist. Atty Doylestown, for Commonwealth, appellee.
Before SPAETH, HESTER and CAVANAUGH, JJ.
On December 17, 1977, a man later identified as Jay C. Smith, the appellant herein, went to the cashier's office on the second floor of the Sears and Roebucks Store at the Neshaminey Mall, Bensalem, Bucks County. He was wearing a dark blue uniform and hat of the type worn by security personnel. The Armored Motor Service Company regularly picked up cash receipts at the Neshaminey branch of the Sears Store and the appellant indicated that he had come to pick up the daily receipts. The appellant had a plastic identification card bearing his photograph and the signature purportedly of a guard by the name of Albert Wharton who was an employee of Armored Motor Service. The assistant head cashier has a list of authorized personnel from the Armored Motor Service and the list also bore the signatures of the various security personnel who were authorized to receive cash. The cashier checked the signature on her list which carried the name of Albert J. Wharton. However, the signature on the cashier's list was different than that appearing on the identification card in the appellant's possession. Because of this discrepancy the cashier became suspicious and called the store security office. In the meantime the man representing himself to be Mr. Wharton became increasingly nervous. Finally, he demanded entry to the cashier's office. When he was told that he could not go back to where the cashier was he leaped over a barrier and grabbed the card from the desk where the cashier had placed it. In his hurry to leave he bumped into another employee in the office. He then proceeded down the escalator and was observed by a salesman on the first floor as he pushed people aside to make good his escape. Appellant was not arrested for this crime until September of 1978.
Appellant was tried before Garb, J. and a jury and found guilty of attempted theft by deception. His motion for a new trial was dismissed and he was sentenced to two to four years imprisonment.
Appellant's first contention is that he was denied protective measures which would have afforded him a trial by a fair and impartial jury. His first argument under this concept is that his motion for change of venue should have been granted. Appellant, at the time of the offense involved in this case was the principal of the Upper Merion Senior High School, located in Montgomery County. [1] In July and August of 1978 the appellant was arrested for various crimes which he allegedly committed in Chester, Delaware and Montgomery Counties. A change of venue was granted with respect to alleged crimes committed in the counties other than Bucks County and trial was held in Dauphin County as to those charges.
At the time of the appellant's arrest in July and August 1978, for offenses other than those involved in this case, there was considerable press and television coverage given to the appellant. Many articles appeared in The Philadelphia Inquirer and Philadelphia Bulletin as well as in the Philadelphia Journal, the Philadelphia Daily News, the Daily Intelligencer which is published in Doylestown, Pennsylvania, and the Quakertown Free Press. These articles appeared mainly at the end of August and beginning of September, 1978. Appellant was not tried in the court below until February, 1979.
The court below was concerned particularly with a series of television news broadcasts. In this regard the court stated in its opinion:
We viewed 6 separate news broadcasts by KYW-TV of their news coverage of the defendant's various arrests. The televised coverage was quite graphic in displaying the guns that were taken from the defendant and from his car, together with an oil filter type of silencer, these photographs were obviously made in police headquarters, mug shots, suggestions of other crimes by policemen on camera, photographs of the defendant's home, comments by a neighbor and a student in the high school at which he was principal, a comment about stolen school property and an apparent photograph of someone carrying an allegedly stolen school picture, comments by the school superintendent on camera, pictures of the defendant being led in handcuffs from a hearing to a police car, composite pictures, and policemen interviews. Although we believe these went quite far, we still do not believe that they necessitated a change of venue without a determination of whether a fair jury can be impaneled by voir dire considering that there were only six of these presented and that they occur over five months prior to the time of trial.
The court was also concerned with a publication appearing in the Philadelphia Journal on September 1, 1978, which contained a composite drawing suggesting that the appellant might have been involved in a murder with which he had not been charged. The court was satisfied, however, that this adverse publicity was contained in a publication of relatively small circulation in Philadelphia and of unknown circulation in Bucks County and that it did not deny the appellant a fair trial. An application for change of venue is addressed to the sound discretion of the court, and its exercise of that discretion will not be disturbed by an appellate court in the absence of an abuse of discretion. Commonwealth v. Tolassi, 489 Pa. 41, 413 A.2d 1003 (1980). As this court stated in Commonwealth v. Heath, 275 Pa.Super. 478, 419 A.2d 1 (1980) at 275 Pa.Super. ---, 419 A.2d 5:
In cases where prejudicial pretrial publicity is alleged, the trial court should consider: whether the pretrial publicity revealed the existence of the accused's prior criminal record; whether the publicity referred to confession, admissions or reenactments of the crime by the defendant; and whether such information is the product of reports by the police and prosecutorial officers. Commonwealth v. Sutton, supra (485 Pa. 47, 400 A.2d 1305 (1979)); Commonwealth v. Casper, supra (481 Pa. 143, 392 A.2d 287 (1978)). The presence of one of these elements does not, in itself, warrant a presumption of prejudice. Inquiry must be made to determine whether such publicity has been so extensive, sustained and pervasive that the community must be deemed to have saturated with it. 4
Footnote four provides:
4. "In determining whether the community has become saturated with prejudicial pretrial publicity, the trial court should consider the size and character of the area concerned, the pervasiveness of the media coverage in the community, and whether there has been a sufficient cooling off period between the publicity and commencement of trial that the prejudicial effect of the publicity may be deemed to have dissipated. See Commonwealth v. Sutton, supra; Commonwealth v. Casper, supra.
The court below properly considered the appropriate guidelines in determining whether appellant had been prejudiced by pre-trial publicity.
Our Supreme Court has stated: Commonwealth v. Casper, 481 Pa. 143, 151-2, 392 A.2d 287, 291-2 (1978). Even extensive pre-trial publicity within a county does not necessarily preclude a fair trial in that county. If the court is satisfied that an objective, open-minded jury can be selected from the members of the community exposed to the publicity it need not grant a change of venue. Commonwealth v. Powell, 459 Pa. 253, 328 A.2d 507 (1974). We are satisfied in this case that the court below did not abuse its discretion in refusing to grant a change of venue.
Appellant also contends that he could not conduct a meaningful voir dire of the jury since the court would not allow him to question each juror out of the hearing of the other jurors. In support of this position appellant relies on Commonwealth v. Johnson, 440 Pa. 342, 269 A.2d 752 (1970) which involved pre-trial publicity of a highly inflammatory nature with racial overtones. The defendant was tried on charges of assault and battery, burglary and resisting arrest. A page one headline in the Pittsburgh Press (and the alleged offenses occurred in Pittsburgh) read "BLACK MOB BEATS TOP COP KELLY". A headline in the Pittsburgh Post-Gazette stated "BLACKS BEAT ASSISTANT SUPERINTENDENT KELLY". A page one editorial in the Pittsburgh Press depicted assailants as a "vicious mob" and "hoodlums". Another headline stated "KELLY ASSAILANT HELD IN NEW ATTACK." 440 Pa. 344, 345, 269 A.2d 752-4. As pointed out at 440 Pa. 350, 351, 269 A.2d 756-757:
However, the pretrial publicity afforded appellant consisted of much more than the accounts of his encounter with the Assistant Superintendent. First, it included detailed accounts of appellant's prior record, which would, of course, not have been legally admissible at his trial. Second, and particularly prejudicial, because they were so deliberately inflammatory, were remarks by the district attorney, such as his statement that appellant and two other black spokesmen were "false leaders" who "speak for the arsonists, hoodlums and insurgents who would go to any extreme to avoid living under the laws of the Commonwealth." Inflammatory statements like this were hardly calculated to create an atmosphere for trial which would provide the "judicial serenity and calm to which petitioner was entitled."
The Johnson case held that in the...
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