Commonwealth v. Beers & Smith

35 Pa. D. & C.3d 171, 1984 Pa. Dist. & Cnty. Dec. LEXIS 156
CourtPennsylvania Court of Common Pleas, Monroe County
DecidedJune 7, 1984
Docketnos. 95, 105, 96, 104 of 1984
StatusPublished

This text of 35 Pa. D. & C.3d 171 (Commonwealth v. Beers & Smith) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Monroe County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Beers & Smith, 35 Pa. D. & C.3d 171, 1984 Pa. Dist. & Cnty. Dec. LEXIS 156 (Pa. Super. Ct. 1984).

Opinion

WILLIAMS, S.J.,

This matter is before us on petitions of defendants to grant either a change of venue or a change of venire. The four cases captioned above, all deal with the same incident. Defendants seek the change of venue or venire on the assertion that presumptive prejudice exists due to the inculpatory nature of the pre-trial publicity and for the additional reason that the pretrial publicity has been sustained, extensive and pervasive.

FINDINGS OF FACT

1. The 1980 census shows a county population of 69,409.

2. The 1983 records of the Pocono Record, published in Monroe County, shows that Monroe County has 28,800 occupied households.

3. The morning circulation of said newspaper from Monday to Saturday in the year 1983 was 16,158. The Sunday circulation in Monroe County of said paper was 17,253.

4. The Pocono Record is the only newspaper published in Monroe County and is widely read by residents of the county.

5. The Call-Chronicle, published in Allentown, Pa., in 1984 has a circulation in Monroe County of 3,506.

6. The Easton Express published in Easton, Pa., has a circulation of 1,813 in Monroe County.

7. In addition to coverage of the incidents here involved, there has been extensive and sustained coverage by television station, Channel 16, of Scranton, Pa.

8. A headline in large type published in the Pocono Record edition of May 18, 1984 reads: “Kidnap Suspect Recalls Confession.” The accompanying [173]*173article refers to testimony by defendant Beers that he had made the confession after he was told by police he could be imprisoned for 40 years and it would be easier on him if he confessed.

9. The headline in the Call-Chronicle of the same date, reads: “Kidnapping Suspect Says He Confessed To Go Home.”

10. Both headlines are factually correct.

11. A headline in the Pocono Record edition of January 19, 1984, reads: “Two Men Charged in Monroe Kidnapping.” The accompanying article states: “District Attorney James F. Marsh said the kidnapping and murder plots were meant to extract ransom from families that Smith and Beers believed to be wealthy.” The article quotes the district attorney as saying: “My understanding is they were preparing to ask in the vicinity of $100,000 in the Laky case.” “Marsh said, ‘I’m not sure what it was in the other case. Smith and Beers had obtained passports awhile ago Marsh said, and were planning to leave the country after receiving the ransom and murdering the girl.’ ”

12. The January 20, 1984, edition of the Pocono Record attributes the following statement to the district attorney, “There is evidence that Smith and Beers were preparing to flee the country when state police from the Fern Ridge Barracks and Lehigh ton Barracks took them in custody Wednesday afternoon.” This article further states, “In fact, I understand they were going to leave today, Thursday or tomorrow, for England and that they were going to go some place from England, Marsh said. Noting that both men possessed passports.”

. The article states that the district attorney stated their ultimate destination was Saudia Arabia, where defendants were believed to have worked on construction projects in the past. He said the police [174]*174were checking to see if they obtained airplane tickets.

13. The January 20, 1984, edition of the Call-Chronicle quotes the district attorney as saying: “Monroe County District Attorney James F. Marsh said that Smith and Beers had obtained passports with intention of leaving the country after receiving the ransom and murdering the Laky girl.”

14. In addition to the press coverage, there has been sustained and pervasive publicity by both radio and television stations located in the Scranton/ Wilkes-Barre area and the Lehigh Valley area, all of which reach the homes of Monroe County residents.

15. While we find that the publicity has been objective, not sensational and not demanding conviction, the publicity has been sustained, pervasive and contains inculpatory admissions by defendant Beers which inculpate both Beers and Smith.

16. The publicity has reached the homes of most of the persons who will be summoned as members of the panel from which the jurors to try the case will be selected.

DISCUSSION

Defendants seek a change of venue or venire based on the assertion that the nature of pre-trial publicity in the press, radio and television has so prejudiced the defense, that a fair trial is not obtainable, if the jury is selected from residents of Monroe County.

Pre-trial publicity is either presumptive or actual. The defense asserts the presence of presumptive prejudice in the present case.

Defendants are charged with the kidnapping of Cassandra Laky, age eight, of attempting to murder [175]*175her and with robbery, theft and assault. It appears from the evidence taken at the preliminary hearing that Cassandra Laky was kidnapped by two masked men. That they transported her to a location on Dorshimer Road in Brodheadsville. That one of the kidnappers forced her body through the seat of an abandoned privy. She was left in the bottom of the privy. Her face was bruised and cut when she was forced through the seat of the privy. She escaped, walked bare-foot through snow until picked up by a passing motorist. The atrocious nature of the crime has undoubtedly attracted wide public attention and indignation.

The law applicable to the issue before us is well established in Pennsylvania. A comprehensive review of the appellate court cases which have dealt with the issue are found in Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978). There the court said:

“Normally, one who claims that he has been denied a fair trial because of prejudicial pre-trial publicity must show actual prejudice in the enpaneling of the jury. See Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); Commonwealth v. Rolison, supra; Commonwealth v. Hoss, 469 Pa. 195, 201, 364 A.2d 1335 (1976); Commonwealth v. Pierce, 451 Pa. 190, 195, 303 A.2d 209, cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed.2d 124 (1973). But this rule is subject to an important exception. In certain cases there ‘can be pretrial publicity so sustained, so pervasive, so inflammatory, and so inculpatory as 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 [176]*176likelihood 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; Commonwealth v. Dobrolenski, 460 Pa. 630, 334 A.2d 268

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rideau v. Louisiana
373 U.S. 723 (Supreme Court, 1963)
Murphy v. Florida
421 U.S. 794 (Supreme Court, 1975)
Jerolamon v. Fairleigh Dickinson University
488 A.2d 1064 (New Jersey Superior Court App Division, 1985)
Commonwealth v. Frazier
369 A.2d 1224 (Supreme Court of Pennsylvania, 1977)
Commonwealth v. Keeler
448 A.2d 1064 (Supreme Court of Pennsylvania, 1982)
Commonwealth v. Casper
392 A.2d 287 (Supreme Court of Pennsylvania, 1978)
Commonwealth v. Pierce
303 A.2d 209 (Supreme Court of Pennsylvania, 1973)
Commonwealth v. Dobrolenski
334 A.2d 268 (Supreme Court of Pennsylvania, 1975)
Commonwealth v. Hoss
364 A.2d 1335 (Supreme Court of Pennsylvania, 1976)

Cite This Page — Counsel Stack

Bluebook (online)
35 Pa. D. & C.3d 171, 1984 Pa. Dist. & Cnty. Dec. LEXIS 156, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-beers-smith-pactcomplmonroe-1984.