*1 369 A.2d Pennsylvania COMMONWEALTH Appellant. FRAZIER, Jr., James E. Pennsylvania.
Supreme Court of Argued Nov. 1975. Feb. 1977.
Decided *2 Allen Krause, Lebanon, H. Feather, Jr., John E. Ann- appellant. ville, for
George Christianson, E. Brightbill, Atty., Dist. David Lebanon, appellee. for EAGEN,
Before O’BRIEN, ROBERTS, POMEROY, NIX and MANDERINO, JJ.
OPINION OF THE COURT MANDERINO, Justice.
At approximately 8:00 m., Friday, a. November Gross, grade safety Jennifer a sixth student and patrol member Lebanon, Pennsylvania, from left her home and safety patrol headed for her station a short away. distance She reached neither her station nor the school. day, Later that in a wooded north of area Leba- non, fighters engaged fire extinguishing fire a brush body, her partially discovered debris, lying covered with dump. on small multiple trash Death was caused stab wounds to the neck, and inhalation of fumes from the fire. day, police
The next men, were told two who vicinity been in the patrol of the victim’s route to her previous morning, approximately station on the that at m., they girl 8:00 screaming, a. had heard and saw a scuffling. child They and an adult testified that child was forced into a black Buick automobile. The wit- closer, nesses moved ascertained that adult was stocky,” “short and and recorded license number of automobile, OC3181. investigation Police appellant revealed that owned a automobile, Buick black his build was short and stocky, and that the license appellant’s number of car 03C181, same as the number earlier recorded ex- cept that the order of the number “3” and the letter “C” were reversed. The two witnesses scuffle were appellant’s car; they (cid:127)shown they stated it was believed the same car into which the child had been forced the day before.
From information, this three search warrants were is- appellant’s sued : appellant’s one for car, person one for clothing, appellant’s one residence. p. At m., 10:15 Saturday, 10, 1973, November twelve police, to fifteen warrants, pro- armed with the search ceeded to appellant’s He was home. next door at a found neighbor’s house, and was escorted back his own *3 neighbor The friend, home. and close who was also a guard the County Prison, accompanied at appel- Lebanon police appellant’s lant the Appellant’s and to home. Mi- rights police, randa were read to him the he indicated understanding, and asked his friend The what to do. appellant Appellant initially friend told to tell the truth. any part police- denied in the homicide. another When appellant man seated, carry- entered the room where ing pants apparently appel- however, stained with blood incriminating lant made certain Immediate- statements. ly thereafter, p. m., appellant at 11:40 was taken to the attorney’s warnings district and, office again, Miranda point read appellant requested to him. At this attorney, questioning all and further ceased.
Appellant by jury was tried and convicted of murder degree in the first on and on November March 6, imprisonment. was sentenced to life Post-ver- dict denied, appeal motions were and this followed.
Appellant’s appeal rests on five contentions: he first argues denying request the trial court erred his change inflammatory pre- of venue on the basis of publicity; secondly, argues
trial he trial court request suppress denying erred to his evidence ob- through allegedly issued tained search warrants without cause; probable thirdly, he court contends that trial suppress denying request erred in his certain state- given these statements were ments made him because police having through involuntarily, been obtained argues trickery; fourthly, he trial fraud appellant’s permitting court friends erred two they testify with him aft- to certain conversations appel- arrest; lastly, er the murder and before his refusing appel- argues lant that the trial court erred in allegedly on emo- lant’s motion for a mistrial based family during trial. tional of the victim’s conduct agree appellant’s court We with contention that trial grant refusing appellant’s re- discretion in abused its reverse the quest therefore for a of venue. We judgment further of sentence remand matter for light opinion. proceedings this with this consistent issues disposition, we discuss other will now raised. in Lebanon homicide occurred
The Jennifer Gross according population, largely County, rural area with 100,000. approximately From census, to the latest public, became the homicide moment news of story emotionally The aroused community stirred. community. virtually all citizens of the the interests Friday, on November body was discovered victim’s news- discovery reported by the local *4 was 1973. That Monday, following day. On papers their headlines in News, bold, red Daily 12, 1973, the Lebanon November height, measuring inch print one-half over headlines page, an- first extending entire width Immedi- Suspect In Murder Of Girl.” “Arrest nounced : high three-eighths inch headlines, ately these beneath “Jail wide, stated: type, the subheadline columns two Accompanying Prisoner, Penitentiary 26.” Former appellant. large photograph was a these headlines companion The story appellant previous- related that had ly been tried and charge convicted on a morals and had spent years two and one-half at Rockview State Peniten- tiary from which he just had been released two months prior to the addition, report homicide. indicated appellant spent approximately eighteen months at another state institution. article also stated that appellant’s member of family own him described “mentally ill.”
Appellant preliminary hearing was afforded a on Mon- day, following November day, Tuesday, 1973. On the 20, 1973, November Daily News, again Lebanon in a front-page story, key testimony pro- recited some of the duced hearing, including at that by ap- admissions made pellant during interrogation by police. his story, This consisting large photograph appellant leaving County Jail to hearing, attend his a three column wide stating headline Following “Frazier Held For Murder His Hearing,” occupied and text almost one-third of the page. total front report began, The text of the “James Jr., E. Frazier, shopping went Christmas allegedly after he 11-year-old girl murdered an school morning magistrate November a district Monday told here afternoon. concerning shopping comment trip
[This] made Sgt. State Police Krause, Elwood one of three Commonwealth . witnesses . . .” Later, this quoted Sergeant article saying Krause as appellant he asked planned if he had the murder and of receiving “No, just something the answer: it was happened.” continued, The article
“Sgt. you Krause said then her asked, he ‘Did stab with a replied, ‘No, knife?’ To which Frazier I used piece glass.’ question Sgt. Another Krause he said asked place Frazier concerned the the child’s where death *5 happened him if it in the car or the occurred. T asked policeman woods,’ in re- woods and he said lated.” 21, 1973, Friday, Wednesday,
On November and on 23, 1973, Forum” November in the “Public section concerning the Daily the editor Lebanon letters to News, charged printed. appellant offense for which Killers.” One of the letters “Death to Child was entitled letter, calling appellant’s death, That also com- for the plained jailed previously morals that he been on charges involving youths, paroled. now The oth- and was complained photograph published er letter on Tuesday, 20, (and to above as show- November referred ing appellant County ap- leaving Jail), showed that pellant handcuffed:
“ suspect being ‘. . is from . the murder escorted Municipal Building being to an without handcuffed officer, my eyes deceiving or are is no me? There necessary alleged further comment on the nature of the crime, begin parent, but as a I cannot what believe picture.’ I saw in that
(Editor’s right. Note: You are There were no hand- cuffs.)”
According record, Daily to the the Lebanon News approximately 30,000 delivered to in Lebanon homes daily. County The total number of households Leba- County 31,074. non as of It is 1970 was thus clear that published Daily the articles in the Lebanon reached News nearly every county, exposing practical- household ly every potential juror coverage. above news Furthermore, only the fact that in 1973 there were two reported County (Pennsylvania homicides in Lebanon Police, Pennsylvania, State Uniform Crime “Crime Report”), intensify already highly served to emotion- public killing girl. young al reaction to of a Price,
In Commonwealth
463 Pa.
“Impartiality
conception.
It is a
a technical
not
this mental
state of mind.
For the ascertainment
appropriate indifference,
attitude
Constitution
lays
not
particular
procedure is
down no
tests and
any
United
chained to
ancient and artificial formula.”
177,
Wood,
123, 145-146,
States
299
57 S.Ct.
U.S.
system
185,
78,
theory
(1936).
‘The
of our
81 L.Ed.
88
bewill
is that the conclusions to be reached in a case
court,
only by
argument
open
induced
evidence and
by any
private
influence,
outside
whether of
and
public print.’
Colorado,
talk or
Patterson v.
205 U.S.
(1907).”
454, 462, 27
L.Ed.
556, 558,
879,
S.Ct.
51
881
Id. at
In A.2d 209 Commonwealth v. 303 denied, (1973), cert. L.Ed. S.Ct. (1973), pretrial publici 2d 124 we held that there can be ty sustained, pervasive, in inflammatory, so so so so and put culpatory as venue without demand a ting establishing any the defendant nexus burden jury publicity prejudice. See between actual and Brado, also Commonwealth Pa. 368 A.2d Pierce, pretrial publicity found that we process; itself constituted a denial of due the denial process publicity. due was inherent The nature of pretrial publicity fol in Pierce was summarized as lows:
“Because
of the crimes
the fact
nature
and
of the
other
one
victims was a seminarian
and
practicing lawyer
County,
in Delaware
the incident
coverage
newspapers,
received wide
on
and
radio
and television.
much of the
was rou-
WMle
tine, factual,
wholly lacking
inflammatory
and
con-
tent,
great
deal of
about Pierce was emo-
tionally charged
clearly
inflammatory,
pointed
and
and
guilt.
to his
A brief review of some of the inflamma-
tory
coverage
public-
quality
news
will show
ity.
stating
story
police
quoted
In one
verbally
Pierce
arrested,
had been
he
and
confessed
shooting.
story
the double
The
read:
He’s
‘[Police]
triggerman
it
...
He admitted he did
and
crying
weeping.’
now he’s
story
went on to
state:
‘Police said Pierce’s record dates
and in-
to 1968
cludes
theft,
battery
arrests for car
assault
carrying
deadly weapon
a concealed
.
He re-
.
.
*7
portedly served
juvenile
time in the state
center in
Dallas,
story
entitled,
Pa.’ Another
was
Youths
‘Two
story reported
Re-enact Media Street Attack.’ This
staged
‘Speaking
re-enactment of the crime and read:
say
being
softly, Pierce who Police
has confessed to
“triggerman”
youths
described how the three
en-
countered the victims and then indicated where the
story
Accompanying
victims fell after the attack.’
this
large picture
policeman
was a
of Pierce flanked
caption
with a
‘Alan Pierce
read:
indicates for
C. I. D. Detective Edward
where one of the vic-
Smith
tims fell.’
titled,
Another article was
‘Third Youth
Media,
Man,
Held in
Being Gunman,
Chester
Admits
”
says.’
(Emphasis
Chief
added.)
192-93,
Id. at
On the basis of this evidence we concluded publicity pervasive inflammatory was so and this jury would assume that the had been biased. See Project also ABA on Minimum Standards for Criminal Justice, Relating Press, Standards to Fair Free Trial and 342(c) (1956). Section For this reason we and reversed grant requested remanded the trial court’s refusal to change of venue Pierce. Kichline,
In Commonwealth v. 361 A.2d (1976), hand, on the other we affirmed the trial court’s of denial a motion for of In Kich- venue. line, supra, although pub- acknowledged pretrial we licity appellant’s alleged prior confession and of his prejudicial, criminal offenses we concluded that publicity circumstances of that case the not so “inherently prejudicial” deny appellant trial. as to a fair concluding In so we noted that several distinctions exist- Pierce, ed between Pierce and In summa- Kichline. we pretrial publicity charged rized the “emotionally as and however, inflammatory,” Kichline, and In “excessive.” pretrial publicity we in- concluded that was neither flammatory excessive, furthermore, or and that “lengthy delay” complaint of six months between publicity trial, the ef- “was time for [sufficient] pro- fect of these news articles to fade from the minds spective jurors.” elapsing Pierce, period of time complained between the occurrence of the and the trial was more months. than nine pretrial immediately in the instant case directly implicated appellant killer as the confessed young girl. Additionally, past criminal re- local his subject public knowledge. Here, cord became a Price, Harkins, Pierce, appellant’s right tried to be impartial *8 jury, guaranteed an by Amend- as the Sixth ment by I, to the United Article States Constitution and Commonwealth, Section 9 of the Constitution of this was pretrial violated because the nature of the was exposed such that one an to it would be unable to serve impartial juror, pretrial and because the extent of that virtually prospective juror every was such that county exposed in the was to it. here,
The news articles at issue while not of the exces sively type Pierce, emotional dealt with nevertheless
130 jurors
exposed potential
appellant’s prior
first
crimi
record,
second,
nal
to statements
him
made
ad
mitting
killing.
past,
that he
committed
we
have not hesitated to
new
order
trials in cases where the
jury
told,
proper safeguards,
without
an ac-.
prior
cused’s
criminal
record. See Commonwealth v.
Allen,
177,
(1972);
Pa.
see
448
Pierce and Kichline illustrate the examination by request to be made court trial faced with a charging pretrial publicity of venue will deny right impartial jury, the accused’s to be tried publici- is to first look at the nature content ty. prior it Does contain references to the re- accused’s convictions, any? expose po- cord of criminal if Does it jurors guilt any tential confessions or admissions of allegedly point made accused? Does it ac- guilt go beyond objective
cused’s in terms that news re- *10 porting and enter the realm of the emotional and of the inflammatory? any If the court ques- answers of these affirmative, analysis proceed tions its must to significant determination of the likelihood that a number prospective jurors of the county were, fact, in the ex- posed publicity. to such “yes” If the trial court answers any to of the questions concerning three above the con- pretrial tent of the publicity, if and the record shows significant portion that there is a likelihood that a of the population exposed publicity nature, of that refus- grant al to change of venue would be an of abuse dis- cretion sufficiently unless the record also indicates that a long period passed of time has between the time of the publicity application and the time change of the for a venue for the any prejudice court conclude that may initially by have been publicity created been has dissipated. Pierce, we pretrial concluded that the content of the
publicity was extremely of an emotional and inflamma- tory nature, frequency repeated that the of the news articles, pervasiveness combined coverage with the throughout county, newspapers in the and on radio television, was such as to create a likelihood that a significant percentage potential jurors had been ex- posed Therefore, to it. we concluded that the accused specifically need not demonstrate a nexus bétween the pretrial publicity jurors actually and those interviewed. Nothing in Pierce prejudice by indicated that the created publicity this dissipated by had application the time the presented. of venue was In Kichline, on hand, the other we concluded that the grant requested refusal change of venue was not though abuse of pretriai discretion even publicity contained appellant’s references both prior criminal record guilt and to allegedly admissions of he made to police, because the record contained sufficient evidence for us to conclude in the six months between the time of the trial, initial the effect prospective jurors’ news stories had from faded minds. case,
In the instant pretrial publici- examination of the ty appellant’s prior reveals the existence of references to record, criminal quotations and also contains of admis- guilt allegedly police. sions made him to Further- more, the record shows that these news stories reached practically potential the homes every juror county. Furthermore, fails to record demonstrate effect created this faded from prospective jurors minds in the four months *11 intervening between the time of the the homicide and fact, high proportion trial. In the record shows that a prospective jurors during the interviewed the voir dire reading potential such for articles. The remembered prejudice such therefore remained created great request at time the for of venue was made, and the trial court abused its discretion in refus- ing request. that
Judgment grant- reversed and a trial sentence new ed.
JONES, J., participate C. not did consideration or decision of this case.
O’BRIEN, J., concurs in the result. NIX, J., dissenting opinion. a filed NIX, Justice, dissenting. majority today departed has sub silentio from the judgment precedent reverses the
clear in this area and ruling unquestionably in ac- sentence for a trial that was prevailing the time it made. In cord with the law at reaching result, grants appellant, its which a new trial majority ignored dastardly crime1 nature disregarded overwhelming appel- evidence of guilt. compelled register my
lant’s I therefore am dis- sent. process
I am
a
trial
well aware that due
mandates
fair
regardless of the
or
malevolence of
crime
strength
Dowd,
Irvin
of the case
the accused.
against
(1961).
366 U.S.
6 L.Ed.2d
S.Ct.
process
However,
clause, applicable
the due
to the States
through
Amendment,
require
Fourteenth
does
today.
Supreme
result reached
The United States
Court
has
fair
right
stated that a claimed violation of the
to a
prejudicial
trial
allegedly
pre-trial
because
only
showing
can be
there
sustained
of actual
where
prejudice
degree
impossi
to a
rendered
fair trial
coverage
“inherently prejudicial”
ble or where the
is so
prejudice
Murphy
presumed.
Florida,
bewill
1. The who left victim was the question of morning report to her student at Garfield as member in for duties School, Le- patrol. safety school’s She was a compete in the County, banon who cannot school for children subsequently body was normal discovered mutilated school situation. Her had been caused and was that death it ascertained multiple fumes. the of wounds and inhalation of the arrest appeared time at the 2. The of the bulk lat- approximately four months process the selection commenced er. prejudice in instances presumed Supreme also 3. The Court has dig- where, publicity, the inflammatory pre-trial to in the addition
185 grounds holding the on majority predicated its justi- would reflected facts us that the record before that presumed, not- finding prejudice should be fy that the news arti- withstanding that instant the concession type.” The “excessively emotional not of the cles were only veniremen ignored that 32 majority the fact also of complete the selection required to were to be called (including process jurors. The entire selection first 12 only alternates) three consumed of two the selection for panel questioned, were excused 11 Of the hours. challenged by peremptorily only cause and six were defense.4 to establish equally this record fails
It is
clear that
appellant’s
totality
from the
of the circumstances
record
fundamentally
most the
trial was not
At
fair.
jury
panel,
from which
shows that members
to
selected,
exposed
referred
articles that
were
to
guilt.5
appellant’s
prior criminal record and admission
disrupted “to
nity
objectivity
has
ac-
and the
of the trial
been
Florida,
Murphy
public appetite
v.
carnival.”
commodate the
for
799,
794,
2031,
Sheppard v.
421
See also
U.S.
95 S.Ct.
2036.
Maxwell,
1507,
(1966);
(1965).
333,
600
16 L.Ed.2d
384 U.S.
86 S.Ct.
Texas,
Estes
There
L.Ed.2d
S.Ct.
suggestion
is no
record that
the decorum
this
during
any way
courtroom
the trial
inwas
disturbed.
challenging
significant
although appellant
4.
It is
to note
venue,
request
not raised an
the denial of
he has
to
objection
grant his
to
appeal
in this
to the failure of
court
challenge
importance
recognize
for cause.
It is
also
Dowd, supra,
Supreme
Irvin
should
felt relief
where the
Court
given,
be
where
instances
cause,
was there concerned with
jurors
challenged
but
accused had also
peremp-
accept
they
forced
tory
their
had exhausted
them because
remedy
their
challenges
possessed
no other means to
also,
Louisiana,
complaint.
supra.
is difficult
See
Rideau v.
It
juror
acceptance
party
object
understand how a
can
to the
challenges
failed
party possessed peremptory
where that
Shadduck,
Cf.,
Pa.Super.
them.
exercise
Commonwealth v.
(1951).
The Murphy United States supra, observed:
The requires constitutional fairness that of standard panel impartial, a defendant have “a of ‘indifferent’ jurors.” 722, Dowd, Irvin v. at 366 U.S. S.Ct. 81 Qualified 1639, jurors 6 how- not, L.Ed.2d 751. need ever, totally ignorant be in- the and issues facts volved. any precon
“To hold that the existence of mere guilt ceived as to the an ac notion or innocence more, pre cused, without sufficient to rebut the is sumption prospective juror’s impartiality of a would impossible be to It is establish an standard. suffi juror lay impression if or cient the can his aside opinion and on the evidence render verdict based presented Id., 1639, L. in court.” at S.Ct. 6 Ed.2d 751. juror’s he is
At the time, the same assurances dispositive equal the to this cannot task be accused’s open demon- rights, it remains defendant opinion of such “the actual existence strate par- presumption juror will mind raise tiality.” Ibid. testimony derived admission were from which concerned the hearing. during preliminary the Commonwealth offered fac- coverage preliminary hearing primarily was news empha- nature, attempt or to tual in was and there no distort Further, alleged precisely size the same informa- admission. presented jury here is thus The situation tion was to the at trial. States, inapposite U. v. United Marshall 1250 presented case, Su- S. In that 79 S.Ct. L.Ed.2d preme jurors ex- Court set aside a conviction where the posed through not admit- news information that accounts to
ted at trial. is recognize'that While of information which we the disclosure prejudicial that dis- may be where admissible at trial nevertheless safeguards are setting of the trial closure in a where made available, Maxwell, S. supra, not Ct. at Sheppard above, infor- here. was not the case As such stated repetition through simply related mation media which was offered trial. at *14 no such hos dire in this case indicates The voir [1b] by jurors tility petitioner in his trial to who served suggest partiality to a that be laid aside. could vague rob jurors Some of the had a recollection petitioner charged bery and each with which crimes, petitioner’s past knowledge . some (footnote 799-800, at 2036 421 at 95 S.Ct. Id. omitted). distinguished Murphy
Further, between Court System Mar- prescribed them for the Federal rule 1171, States, 310, L.3 79 S.Ct. shall v. 360 U.S. United requirements (1959) the constitutional Ed.2d 1250 Florida, Murphy binding upon v. the States. which are Although supra 421 2031. 797-98, U.S. at S.Ct. 95 news persons learned from Marshall, that who have held pre- prior are record a defendant’s criminal sources of Murphy it clear prejudiced, made to sumed be super- represented exercise of its an that this restriction applicable to the States. visory powers was not the defendant remains whether standard constitutional jurors. indifferent by panel impartial, was tried a ability to jurors to their testified as case the instant may appellant’s guilt, which put any opinion toas aside exposure pretrial a result of the have been formed as is There solely on the evidence. render a based verdict rea- transcript would nothing that in the entire voir dire sincerity their ca- question or sonably to their cause one Hence, there impartially. the cause pacity to decide of due support claim for a violation to no foundation process Federal Constitution. under the the trial equally
Turning it clear law is State change not vio- venue request court’s denial of Pennsylvania I, Section 9 of the Consti- of Article lative prior tution, contrary It well set- case is now or law. who claims “that the accused tled in this Commonwealth request de- of venue has that the denial right demonstrate fair trial must him nied his prejudice grant been the failure to has created 201, Hoss, v. request.” Commonwealth 469 Pa. (1976). v. also, 364 A.2d See Commonwealth Pierce, 209, A.2d showing prejudice.is requirement This identifiable part only in extreme situations. For most relieved guidelines deter- out followed federal decisions have may appropriately be mining prejudice situations where Hoss, Com- presumed.6 supra; See, Commonwealth Kichline, Pa. 361 A.2d monwealth v. Pierce, supra. (1976); Commonwealth position support majority In an effort its at- *15 tempts parallel find sit- to between the instant factual presented cursory uation in and that Even a Pierce. that consideration of the two forces the conclusion cases comparable. the In the two matters are Pierce Court presence inherently only was of concerned not with the prejudicial importantly publicity the of but more source publicity. analysis A close of Pierce reveals that the partici- determinative in factor the decision the was pation police prosecutor of the and in the dissemination inflammatory prejudicial publicity. of the in- and In the police prosecutor way stant the case and the in no con- appearing pre-trial tributed the to information ar- ticles. conclusively The record con- establishes that independent tents of the articles were based on re- representatives media, press search of of the news cover- age preliminary of hearing, supplied and information by appellant’s family. members of
Another crucial distinction between the two con- cases nature, cerns quality pre-trial and extent of the news coverage. In was, there in Pierce report- addition to the ing printed media, extensive radio and television coverage of the incident and subsequent arrest of the majority attempts 6. upon to base its theory decision of presumed prejudice. obviously This tact was motivated its recognition support finding the record fails to of actual prejudice.
139 great “a deal noted that defendant. We inflammatory, emotionally charged Pierce about 192, A. clearly pointed guilt.” at Pa. to his suggestive of the re- nature Typical of the 2d 211. at entitled, Youths “Two porting in article Pierce large Attack,” included Re-enact Media Street crime, photograph at the the defendant scene custody “pointing” police, where the victims’ contrast, bodies fell. In the nature of suggestive be instant case not so emotional or comparable Pierce, far and it thus falls short clearly being “inherently prejudicial.” It defies rea- us, “presume”, son to on the basis the record before jury that the was biased. coverage in this my pre-trial judgment, news inflammatory pervasive, even less
case was
less
by this
prejudicial
therefore less
than that discussed
supra;
Kichline,
Common-
v.
in Commonwealth
supra;
Powell,
Hoss,
wealth
Commonwealth
Mar-
(1974); and Commonwealth v.
Finally, apparent is it that the Federal holding adopt rule of the Marshall its may Assuming be System there for this Commonwealth. persons who embracing per se rule some merit in prior a defendant’s have learned from news sources of presumed prejudiced, be activity criminal should be accomplished by it to a applying should not be result ruling denying requested venue court prior was made princi- to the announcement of the new ple. my judgment, practice in the event such a is to embraced, accomplished be it should be either rule or application in a prospective. decision where its is made Accordingly, judgment I dissent and would affirm of sentence.
Supreme Argued 1974. Jan. 28, 1977.
Decided Jan.