Commonwealth v. KeelerCommonwealth v. Keeler
Thе matter before us involves two separate appeals which by stipulation were consolidated.
On July 16,1979, appellant was arrested and charged with aggravated assault, criminal attempt to commit rape, and simple assault. During the time appellant was awaiting trial on these charges in the Mercer County jail he was involved in an incident with a guard and on October 9,1979, he was charged with aggravated assault and assault by a prisoner.
Appellant was convicted by a jury of criminal attempt to commit rape and indеcent assault. The jury found him not guilty on the charge of aggravated assault and his demurrer to the charge of indecent assault was sustained by the trial judge, the Honorable Albert E. Acker. Thereafter, appellant’s motion for a new trial and in arrest of judgment was denied and Judge Acker sentenced him to five (5) to ten (10) years on the attempted rape and one (1) to two (2) years for simple assault, the sentence to be served concurrently but consecutively to any sentence he was then serving.
Following his conviction before Judgе Acker, by way of plea bargain, he pled guilty to the charge of simple assault by a prisoner before the Hon. John Q. Stranahan. After he had been sentenced by Judge Acker, Judge Stranahan sentenced him to two and one-half (2V2) years to five (5) years to be served at the conclusion of Judge Acker’s sentence.
We shall first address appellant’s appeal from his plea of guilty to assault by a prisoner. Appellant does not challenge the legality of the sentence imposed by Judge Stranahan nor does he challenge the propriety of, the sentencing procedure. He would have us reverse on the ground that his sentence of
We have examined the entire record and find that the sentence imposed by Judge Stranahan was within the statutory limits and was not so manifestly excessive as to inflict too severe a punishment.
Commonwealth v. Straw,
Turning next to appellant’s appeal from his jury conviction of attempted rape and simple assault, appellant assigns as error the denial of his motion for a change of venue, the denial of his mоtion for a mistrial and that the evidence was insufficient to sustain a verdict of guilty of attempted rape. We shall consider his claims seriatim.
On July 17, 1979, the day following appellant’s arrest for attempted rape, two newspapers of general circulation in Mercer County where the crime was committed reported the crime.
We have repeatedly held that an application for 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.
Commonwealth v. Smith,
In certain cases there, “can be prеtrial publicity so sustained, so pervasive, so inflammatory, and so inculpatoryas to demand a change of venue without putting the defendant to any burden of establishing a nexus between the publicity and actual jury prejudice,” Commonwealth v. Frazier, 471 Pa. 121 , 127,369 A.2d 1224 , 1227 (1977), because the circumstances make it apparent that there is a substantial likelihood that a fair trial cannot be had. See Rideau v. Louisiana,373 U.S. 723 ,83 S.Ct. 1417 ,10 L.Ed.2d 663 (1963); Commonwealth v. Rolison, supra [473 Pa. 261 ,374 A.2d 509 ]; Commonwealth v. Dobrolenski,460 Pa. 630 ,334 A.2d 268 (1975), citing American Bar Association Standards Relating to Fair Trial and Free Press § 3.2 (Approved Draft, 1968); Commonwealth v. Pierce, supra [451 Pa. 190 ,303 A.2d 209 ].6 It is this exception that we must discuss here. It is trite but true to note that a presumptiоn of prejudice pursuant to this exception requires the presence of exceptional circumstances. Similarly, generalizations in this area are difficult because “each case must turn on its special facts.” Commonwealth v. Pierce, supra,451 Pa. at 198 n.3,303 A.2d at 213 n.3, quoting Marshall v. United States,360 U.S. 310 , 312,79 S.Ct. 1171 , 1172,3 L.Ed.2d 1250 , 1252 (1959). Nonetheless, there are certain factors which this Court has identified as relevant to a determination of whether prejudice should be presumed.
Id.,
Clearly then, the mere existence of pre-trial publicity does not warrant a presumption of prejudice. Instead, the court will consider thе following factors in assessing whether a trial judge abused his discretion in denying a change of venue motion based on pre-trial publicity: “(1) the length of time between the publicity and the trial; (2) the nature and extent of the publicity (whether inflammatory or basically factual and how pervasively the information has been disseminated); (3) the degree to which the information is attributable to police or prosecution sources; (4) the community atmosphere; (5) the trial court’s efforts to insulate the jury against and/or diminish the impact of the publicity; and (6) the probable efficacy of a change of
Here the appellee concedes that the two newspaper articles were inflammatory, that they revealed the appellant’s criminal record and that the news content was obtained from the police and the prosecuting officer. Even so, unless the publicity has been so extensive, sustained and pervasive, without sufficient time between publication and trial for the prejudice to dissipate, so that the “community must be deemed to hаve been saturated with it,” we will not find an abuse of discretion in a denial of a motion to change venue. Commonwealth v. Casper, supra.
The trial judge wrote a comprehensive and accurate analysis of appellant’s change of venue claim. The trial judge pointed out that during the selection of the jury, individual voir dire examination was used. Twenty-seven (27) names were drawn from the jury selection box in the selecting of the twelve (12) jurors. Further, out of an abundance of caution, the jurors were sequestered throughout the entire trial until the jury returned its verdict. Each juror was inquired of as to whether he had knowledge from any source concerning the case. Those few who read or heard of the case previously were asked if they could set aside an information previously obtained. All prospective jurors that either appellant or appellee wanted removed were in fact excused.
We agree with the lower court that the statements contained in the two newspaper articles, although regrettable, did not result in a presumption of prejudicе, nor was there a showing that the jury was unable to render a fair and impartial verdict based solely on the evidence introduced during the trial.
We hold that there was no evidence of actual prejudice, nor was the pre-trial publicity so extensive, pervasive and sustained so as to justify a presumption of prejudice. Accordingly, there was no error in denying appellant’s motion for a change of venue.
On September 7, 1979, appellant sought certain items of discovery from the Commonwealth. Pursuant to
Any statements of the defendant given to any agent of the Commonwealth in connection with the subject matter of this case; and, whether or not the Commonwealth presently intends to call that agent at trial and whether or not the statement is oral or written.
If, prior to or during trial, either party discovers additional evidence or material previously requested or ordered to be disclosed by it, which is subject to discovery or inspection under this rule, or the identity of an additional witness or witnesses, such party shall promptly notify the opposing party or the court of the additional evidence, material or witness.
If at any time during the course of the proceedings it is brought to the attention of the court that a party has failed to comply with this rule, the court may order such party to permit discovery or inspection, may grant a continuance, or may prohibit such party from introducing evidence not disclosed, other than testimony of the defendant, or it may enter such other order as it deems just under the circumstances.
The testimony of the Commonwealth’s witness, Patrolman Paul Michaеl Zarecky, on direct examination, which gave rise to this claim of error, was as follows:
Q. Now did you inquire of him as to any wearing apparel that he might be missing?
A. Yes at the scene we read his rights and back again at the station we read his rights and I was with Officer Shelfont and he acknowledged the understanding of his rights and we asked if he would talk to us and he said, “I might as well” or something to that affect [sic], okay.
Q. All right and did you notice anything—did you ask him about anything as far as wearing apparel that he might be missing?
A. Yes the watch there, the exhibit there was returned to our stаtion and it was found at the same exact location where the glasses, the broken glasses of Mrs. Cooper were laying.
Q. All right.
A. And I asked him, I said, “Do you have a watch?” and he said, “Yea I have a watch” and then for a minute he went like this and then he said, “No I don’t have a watch.”
At this point appellant’s counsel asked for permission to approach the bench; permission was given and the following sidebar conference took place:
(SIDEBAR CONFERENCE)
MR. WHERRY: May we have an offer? Your Honor sometime ago we filed a petition tо compel disclosure of all evidence favorable to the defendant and one of the matters was any and all statements made by the defendant and this was not offered at the preliminary hearing nor was it offered by the Commonwealth at anytime any statement that that man made.
THE COURT: Did they tell you he didn’t make any statements?
MR. WHERRY: They didn’t tell us anything about the statement one way or the other.
THE COURT: All right.
MR. WHERRY: I don’t think. ..
THE COURT: What else if [sic] he going to say if anything.
MR. KARSON: That’s it.
THE COURT: No other statements?
MR. KARSON: No.
THE COURT: Let’s look here.
MR. KARSON: I think Mr. Wherry can inquire of the fact that this is not in the report of this patrolman that was available to you. It wasn’t in a report and I found out about it today.
MR. WHERRY: Okay.
THE COURT: So you’re saying that really wasn’t a statеment in the sense it was.. .
MR. KARSON: I don’t think it’s particularly a statement in terms of what the nature of that is required.
MR. WHERRY: Let me get this straight. Is this something that was in no report and you found out from Zarecky. He told you today?
MR. KARSON: That’s exactly right.
MR. WHERRY: Because we certainly weren’t furnished any statement and Zarecky never hit the stand at preliminary or any other time.
THE COURT: All right what is to be done then?
MR. KARSON: I might just continue for your sake of disclosure that I believe that my understanding is that the Officer will continue to testify that he did look at the wrist of Mr. Keeler and he noted like a suntan, you know how it leaves a suntan around a watch.
MR. WHERRY: I think he can testify tо anything he saw the only problem I have is I have a statement that probably had we known that there was a statement we probably would at least put in a motion of some nature to suppress it.
THE COURT: Well I don’t take this to be statement in the popular sense and I think that if you want any and all matters that he may have even though not reduced to writing you would have a right to ask for that but reading the motion it asked for any and all statements. It may be a question of interpretation.
MR. WHERRY: Take a look at No. 7 down here Your Honor.
THE COURT: Any indictment given to any agent or in connection with subject matter. ..
MR. WHERRY: I think if you go to the next side it’s. . . It says whether oral or written.
THE COURT: All right we have a problem. What do you want to do about it?
MR. WHERRY: We move for a motion to strike and we move for a mistrial.
THE COURT: Both denied.
MR. WHERRY: Thank you Your Honor.
(SIDEBAR CONFERENCE CONCLUDED)
Patrolman Zarecky then completed his testimony in chief concerning the watch as follows:
Q. Patrolman Zarecky did you make any personal observations as to the hand or wrist of Mr. Keeler? A. Yes I did.
Q. All right and in looking at his hand or wrist area would you describe to the Court and jury what if anything you saw on his wrist?
A. Okay the wrist in the normal position of where a watch would be worn was of a lighter colоr, a whiter color and the hand around the area was of a suntan or darker skin color and it appeared in my opinion that he recently had been wearing a watch on that hand.
Following the testimony of Patrolman Zarecky, including cross-examination by appellant’s counsel concerning the watch, the court sua sponte asked for a sidebar conference, which was as follows:
(SIDEBAR CONFERENCE)
THE COURT: All right I’m somewhat concerned about the introduction into evidence of the question concerning the watch and the statemеnts made by the defendant and the watch. It would be admissible under certain—merely by the fact it was found and the man had a watch but the statements bother me. Under Pennsylvania Rule of Criminal Procedure 305 dealing with disclosure by the Commonwealth that’s mandatory. It says that any written confession or inculpatory statement or the substance of any oral confession or inculpatory statement is something which is required to be disclosed if there is a demand and it appears that the demand is here. Now the reason it has to be disclosed I presume is sо that the defendant can file a motion to protect himself in the event that it’s improperly obtained and we’re going to cure that or attempt to cure it by having a hearing of suppression tomorrow morning at 9:15 as if it had been filed properly as if notice had been given and under this Rule 305 and as if it is attacked on the grounds of both that warnings were not adequately given and that through some form of compulsion or duress the statement had been obtained and on any other basis that the defendant desires to advance. Do you know of any others at this time?
MR. WHERRY: No Your Honor. I haven’t discussed it with him about any statement.
THE COURT: We’ll have Officer Zarecky present and any other witnesses that the Commonwealth wishes to call on that subject. In addition any witnesses that the defense wishes to call on that subject and we’ll receive the testimony and determine whether or not adequate warnings were given and all the rest and see if the statement can stand. If the statement cannot stand then we have a real problem of what to do about it and we’ll face that when we get to it. The motion for mistrial will stand and the motion to instruct the jury will stand and we’ll see what we’re going to do on that. Is there anything further that the defense attorney desires to have done?
MR. WHERRY: No Your Honor I think the Court’s covered the problem adequately.
MR. KARSON: I would give my apology both to the Court and—I misinterpreted the thing and that was my fault. I bent it very strongly in favor of the Commonwealth.
The Commonwealth conceded that it violated Rule 305B(l)(b).
The statement elicited from Patrolman Zarecky was clearly inculpatory and the Commonwealth concedes that it violated
The threshold question in this assignment of error is whether the court acted properly in conducting a suppression hearing with reference to the statement concerning the watch or whether it committed error in denying appellant’s motion for mistrial or to strike.
“Under Section E of
In this case the jury already heard the inculpatory statement and, therefore, it was not feasible for the court to permit discovеry or inspection or to prohibit the use of the testimony. The appellant never requested a continuance; to the contrary, appellant argues in his brief that the granting of a continuance would not have provided an adequate remedy. With reference to Patrolman Zarecky’s further testimony, appellant’s counsel stated at the first sidebar conference, supra at p. 1068:
I think he can testify to anything he saw the only problem I have is I have a statement that probably had we known that there was a statement we probably would at least put in a motion of some nature to suppress it.
At the conclusion of Patrolman Zarecky’s testimony the lower court at sidebar conference indicated its concern that
Historically, and almost universally, in a criminal prosecution, the accused had no right to discovery.
In Commonwealth v. McQuiston, 56 D. & C. 533 (1946), the defendant sought to compel the district attorney to turn over to him for inspection a statement he had made to the district attorney. The court held that since no statute in Pennsylvania covered the question it would have to be decided by the common law. The court then cited Wigmore on Evidence, Vol. 3, § 1859g, for the proposition that in criminal cases: “At common law, no right of inspection of documents before trial was conceded to the accused.” And in 2 Wharton’s Criminal Evidence 1311, 1312, the court stated that it was there set forth that: “The general rule is that the accused has no right of insрection or disclosure before trial of evidence in the possession of the prosecution.”
We might add that under the Act of January 28, 1777, 1 Sm.L. 429, § 2, 46 P.S.Sec. 152, the English common law became the law of this Commonwealth and that we also have neither found nor been referred to any statute which gives to the accused the right to inspection or disclosure before trial of documents or evidence in possession of the prosecutor.
Commonwealth v. Smith, supra
at p. 602. Former Chief Justice Horace Stern cited both
McQuiston
and
Smith
with approval in
Commonwealth v. Wable,
However, a trial court having jurisdiction of an alleged offender possesses discretionary power to permit a defendant, in appropriate circumstances, to examine and inspect in advance of trial physical or documentary evidence in the hands of the prosecution. (Emphasis supplied).
The DiJoseph Petition court reaffirmed the long-held view that an accused was not entitled to disclosure as a matter of right; the trial judge in each case and on each application for disclosure would determine what should be done in the interest of justice and the only question for consideration by an appellate court would be whether the lower court properly exercised its discretion. See Commonwealth v. Hoban et al., 54 Lackawanna Jurist 213, 218 (1952) (not reported in the state reports).
The Supreme Court of the United States relaxed the hard and fast rule of non-disclosure to an accused by its pronouncement in
Brady v. Maryland,
In
Commonwealth ex rel. Specter v. Shiomos,
In 1977 Rule 310 was amended by the promulgation of
As indicated above, instantly the Commonwealth/appellee conceded that it should have informed appellant of the incriminating statement which was elicited from Patrolman Zarecky and that in not doing so it violated
Finally, appellant claims that the evidence was insufficient to sustain a verdict of guilty for attempted rape.
On July 16,1979, Barbara L. Cooper, a young married woman, was wheeling her baby carriage along a secondary road near a field in the Borough of Greenville. She was en route to her sister’s house from her father’s house. Her baby was fourteen months of age. It was in the early evening hours. She passed within ten feet of a person who was drawn to her attention because he was wearing a shirt very similar to one she had recently purchased for her brother-in-law. At this time, she observed his general appearance. Within minutes a shirt was thrown over her head. Thinking it was a joke, she said, “What’s going on?” or words to that effect. The assailant replied, “I’m going to rape you.” He then pushed her to the ground, punched her, and kicked her in thе stomach. During the struggle, her glasses were broken. She screamed and grabbed her assailant on the neck and dug in her fingernails. He immediately jumped up and put the shirt over his face up to his eyes. During all of this the victim was on the ground screaming and yelling. It was broad daylight. The victim noticed the appellant’s clothing consisted of blue jeans and tennis shoes. The stroller with the baby inside was in the middle of the road. The victim was ten to fifteen feet away in the field. She immediately ran screaming to her child and then to her sister’s home. She was met prior to rеaching it by her relatives. The police were on the scene within several minutes, and a police officer saw the appellant within a block or two of the incident. As the appellant saw the officer as they approached each other upon a bridge, the appellant turned to walk away from the officer but the officer stopped him. The appellant had scratch marks on his neck similar to those described by the victim, and his attire matched the victim’s description.
Clearly, on these facts alone, there was sufficient evidence to support the jury’s verdict of guilty of attempted rape.
Notes
. The notes of testimony of the suppression hearing were never transcribed and, consequently, they are not available to us. The suppression motion was denied; however, appellant is not contesting that denial on appeal.
.
All applications of a defendant for pretrial discovery and inspection shall be mаde not less than five days prior to the scheduled date of trial. The court may order the attorney for the Commonwealth to permit the defendant or his attorney, and such persons as are necessary to assist him, to inspect and copy or photograph any written confessions and written statements made by the defendant. No other discovery or inspection shall be ordered except upon proof by the defendant, after hearing, of exceptional circumstances, and compelling reasons. Thе order shall specify the time, place and manner of making discovery or inspection and may prescribe such terms and conditions as are necessary and proper. In no event, however, shall the court order pretrial discovery or inspection of written statements of witnesses in the possession of the Commonwealth. It should be noted that Rule 310 was adopted before the disclosure requirement of all evidence favorable to the accused enunciated in Brady v. Maryland, supra, reached constitutional stature and thus the Rule failed to set forth that requirement.