Commonwealth v. Frazier

369 A.2d 1224, 471 Pa. 121, 1977 Pa. LEXIS 579

• Court: Supreme Court of Pennsylvania
• Decided: February 28, 1977
• Docket: 148
• Status: Published

Opinions

OPINION OF THE COURT

MANDERINO, Justice.

At approximately 8:00 a. m., Friday, November 9, 1973, Jennifer Gross, a sixth grade student and safety patrol member from Lebanon, Pennsylvania, left her home and headed for her safety patrol station a short distance away. She reached neither her station nor the school. Later that day, in a wooded area north of Lebanon, fire fighters engaged in extinguishing a brush fire discovered her body, partially covered with debris, lying on a small trash dump. Death was caused by multiple stab wounds to the neck, and inhalation of fumes from the fire.

The next day, police were told by two men, who had been in the vicinity of the victim’s route to her patrol station on the previous morning, that at approximately 8:00 a. m., they had heard a girl screaming, and saw a child and an adult scuffling. They testified that the child was forced into a black Buick automobile. The witnesses moved closer, ascertained that the adult was “short and stocky,” and recorded the license number of the automobile, OC3181.

Police investigation revealed that appellant owned a black Buick automobile, that his build was short and stocky, and that the license number of appellant’s car was 03C181, the same as the number earlier recorded except that the order of the number “3” and the letter “C” were reversed. The two witnesses to the scuffle were •shown appellant’s car; they stated they believed it was the same car into which the child had been forced the day before.

From this information, three search warrants were issued : one for appellant’s car, one for appellant’s person and clothing, and one for appellant’s residence.

At 10:15 p. m., Saturday, November 10, 1973, twelve to fifteen police, armed with the search warrants, proceeded to appellant’s home. He was found next door at a neighbor’s house, and was escorted back to his own home. The neighbor and close friend, who was also a guard at the Lebanon County Prison, accompanied appellant and the police to appellant’s home. Appellant’s Miranda rights were read to him by the police, he indicated understanding, and asked his friend what to do. The friend told appellant to tell the truth. Appellant initially denied any part in the homicide. When another policeman entered the room where appellant was seated, carrying pants apparently stained with blood however, appellant made certain incriminating statements. Immediately thereafter, at 11:40 p. m., appellant was taken to the district attorney’s office and, again, Miranda warnings were read to him. At this point appellant requested an attorney, and all further questioning ceased.

Appellant was tried and convicted by a jury of murder in the first degree on March 20, 1974, and on November 6, 1974, was sentenced to life imprisonment. Post-verdict motions were denied, and this appeal followed.

Appellant’s appeal rests on five contentions: he first argues that the trial court erred in denying his request for a change of venue on the basis of inflammatory pretrial publicity; secondly, he argues that the trial court erred in denying his request to suppress evidence obtained through search warrants allegedly issued without probable cause; thirdly, he contends that the trial court erred in denying his request to suppress certain statements made by him because these statements were given to police involuntarily, having been obtained through fraud and trickery; fourthly, he argues that the trial court erred in permitting two of appellant’s friends to testify as to certain conversations they had with him after the murder and before his arrest; and lastly, appellant argues that the trial court erred in refusing appellant’s motion for a mistrial based on the allegedly emotional conduct of the victim’s family during the trial. We agree with appellant’s contention that the trial court abused its discretion in refusing to grant appellant’s request for a change of venue. We therefore reverse the judgment of sentence and remand the matter for further proceedings consistent with this opinion. In light of this disposition, we will not now discuss the other issues raised.

The Jennifer Gross homicide occurred in Lebanon County, a largely rural area with a population, according to the latest census, of approximately 100,000. From the moment the news of the homicide became public, the community was emotionally stirred. The story aroused the interests of virtually all citizens of the community. The victim’s body was discovered on Friday, November 9, 1973. That discovery was reported by the local newspapers in their headlines the following day. On Monday, November 12, 1973, the Lebanon Daily News, in bold, red print headlines measuring over one-half inch in height, and extending the entire width of the first page, announced : “Arrest Suspect In Murder Of Girl.” Immediately beneath these headlines, in three-eighths inch high type, two columns wide, the subheadline stated: “Jail Former Penitentiary Prisoner, 26.” Accompanying these headlines was a large photograph of appellant. The companion story related that appellant had previously been tried and convicted on a morals charge and had spent two and one-half years at Rockview State Penitentiary from which he had been released just two months prior to the homicide. In addition, the report indicated that appellant had spent approximately eighteen months at another state institution. The article also stated that a member of appellant’s own family described him as “mentally ill.”

Appellant was afforded a preliminary hearing on Monday, November 19, 1973. On the following day, Tuesday, November 20, 1973, the Lebanon Daily News, again in a front-page story, recited some of the key testimony produced at that hearing, including admissions made by appellant during his interrogation by police. This story, consisting of a large photograph of appellant leaving the County Jail to attend his hearing, a three column wide headline stating “Frazier Held For Murder Following His Hearing,” and text occupied almost one-third of the total front page. The text of the report began,

“James E. Frazier, Jr., went Christmas shopping after he allegedly murdered an 11-year-old school girl the morning of November 9, a district magistrate was told here Monday afternoon.

[This] comment concerning the shopping trip was made by State Police Sgt. Elwood Krause, one of three Commonwealth witnesses . . . .”

Later, this article quoted Sergeant Krause as saying that he asked appellant if he had planned the murder and of receiving the answer: “No, it was just something that happened.” The article continued,

“Sgt. Krause said he then asked, ‘Did you stab her with a knife?’ To which Frazier replied, ‘No, I used a piece of glass.’

Another question which Sgt. Krause said he asked Frazier concerned the place where the child’s death occurred. T asked him if it happened in the car or the woods and he said in the woods,’ the policeman related.”

On Wednesday, November 21, 1973, and on Friday, November 23, 1973, in the “Public Forum” section of the Lebanon Daily News, letters to the editor concerning the offense for which appellant was charged were printed. One of the letters was entitled “Death to Child Killers.” That letter, calling for the appellant’s death, also complained that he had been previously jailed on morals charges involving youths, and was now paroled. The other letter complained that the photograph published on Tuesday, November 20, (and referred to above as showing appellant leaving the County Jail), showed that appellant was not handcuffed:

“ ‘. . . is the murder suspect being escorted from the Municipal Building without being handcuffed to an officer, or are my eyes deceiving me? There is no further comment necessary on the nature of the alleged crime, but as a parent, I cannot begin to believe what I saw in that picture.’

(Editor’s Note: You are right. There were no handcuffs.)”

According to the record, the Lebanon Daily News is delivered to approximately 30,000 homes in Lebanon County daily. The total number of households in Lebanon County as of 1970 was 31,074. It is thus clear that the articles published in the Lebanon Daily News reached nearly every household in the county, exposing practically every potential juror to the above news coverage. Furthermore, the fact that in 1973 there were only two homicides reported in Lebanon County (Pennsylvania State Police, “Crime in Pennsylvania, Uniform Crime Report”), served to intensify the already highly emotional public reaction to the killing of a young girl.

In Commonwealth v. Price, 463 Pa. 200, 344 A.2d 493 (1975), and in Commonwealth v. Harkins, 459 Pa. 196, 328 A.2d 156 (1974), we reversed and remanded for new trials having concluded such a result was required in each case because of the potential for prejudice which resulted from the jurors’ exposure to evidence outside the judicial process. As we said in Harkins, due process considerations require that an accused be afforded a fair trial “by a panel of impartial and ‘indifferent’ jurors.” We continued, saying:

“Impartiality is not a technical conception. It is a state of mind. For the ascertainment of this mental attitude of appropriate indifference, the Constitution lays down no particular tests and procedure is not chained to any ancient and artificial formula.” United States v. Wood, 299 U.S. 123, 145-146, 57 S.Ct. 177, 185, 81 L.Ed. 78, 88 (1936). ‘The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.’ Patterson v. Colorado, 205 U.S. 454, 462, 27 S.Ct. 556, 558, 51 L.Ed. 879, 881 (1907).”

Id. at 199, 328 A.2d at 157.

In Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973), cert. denied, 414 U.S. 878, 94 S.Ct. 164, 38 L.Ed. 2d 124 (1973), we held that 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. See also Commonwealth v. Brado, 470 Pa. 306, 368 A.2d 643 (1977). In Pierce, we found that the pretrial publicity itself constituted a denial of due process; the denial of due process was inherent in the publicity. The nature of the pretrial publicity in Pierce was summarized as follows:

“Because of the nature of the crimes and the fact that one of the victims was a seminarian and the other a practicing lawyer in Delaware County, the incident received wide coverage in the newspapers, and on radio and television. WMle much of the publicity was routine, factual, and wholly lacking in inflammatory content, a great deal of publicity about Pierce was emotionally charged and inflammatory, and clearly pointed to his guilt. A brief review of some of the inflammatory news coverage will show the quality of the publicity. In one story the police were quoted as stating Pierce had been arrested, and he verbally confessed to the double shooting. The story read: ‘[Police] He’s the triggerman ... He admitted he did it and now he’s crying and weeping.’ The story went on to state: ‘Police said Pierce’s record dates to 1968 and includes arrests for car theft, assault and battery and carrying a concealed deadly weapon . . . He reportedly served time in the state juvenile center in Dallas, Pa.’ Another story was entitled, ‘Two Youths Re-enact Media Street Attack.’ This story reported a staged re-enactment of the crime and read: ‘Speaking softly, Pierce who Police say has confessed to being the “triggerman” described how the three youths encountered the victims and then indicated where the victims fell after the attack.’ Accompanying this story was a large picture of Pierce flanked by a policeman with a caption which read: ‘Alan Pierce indicates for C. I. D. Detective Edward Smith where one of the victims fell.’ Another article was titled, ‘Third Youth Held in Media, Chester Man, 20 Admits Being Gunman, Chief says.’ ” (Emphasis added.)

Id. at 192-93, 303 A.2d at 211.

On the basis of this evidence we concluded that the publicity was so pervasive and inflammatory that this Court would assume that the jury had been biased. See also ABA Project on Minimum Standards for Criminal Justice, Standards Relating to Fair Trial and Free Press, Section 342(c) (1956). For this reason we reversed and remanded the trial court’s refusal to grant the requested change of venue in Pierce.

In Commonwealth v. Kichline, 468 Pa. 265, 361 A.2d 282 (1976), on the other hand, we affirmed the trial court’s denial of a motion for change of venue. In Kichline, supra, although we acknowledged that pretrial publicity of appellant’s alleged confession and of his prior criminal offenses was prejudicial, we concluded that in the circumstances of that case the publicity was not so “inherently prejudicial” as to deny appellant a fair trial. In so concluding we noted that several distinctions existed between Pierce and Kichline. In Pierce, we summarized the pretrial publicity as “emotionally charged and inflammatory,” and “excessive.” In Kichline, however, we concluded that the pretrial publicity was neither inflammatory or excessive, and that furthermore, a “lengthy delay” of six months between the complaint of publicity and the trial, “was [sufficient] time for the effect of these news articles to fade from the minds of prospective jurors.” In Pierce, the period of time elapsing between the occurrence of the complained of publicity and the trial was more than nine months.

The pretrial publicity in the instant case immediately and directly implicated appellant as the confessed killer of a young local girl. Additionally, his past criminal record became a subject of public knowledge. Here, as in Price, Harkins, and Pierce, appellant’s right to be tried by an impartial jury, as guaranteed by the Sixth Amendment to the United States Constitution and by Article I, Section 9 of the Constitution of this Commonwealth, was violated because the nature of the pretrial publicity was such that one exposed to it would be unable to serve as an impartial juror, and because the extent of that pretrial publicity was such that virtually every prospective juror in the county was exposed to it.

The news articles at issue here, while not of the excessively emotional type dealt with in Pierce, nevertheless exposed potential jurors first to appellant’s prior criminal record, and second, to statements made by him admitting that he committed the killing. In the past, we have not hesitated to order new trials in cases where the jury was told, without proper safeguards, of an ac-. cused’s prior criminal record. See Commonwealth v. Allen, 448 Pa. 177, 292 A.2d 373 (1972); see also Commonwealth v. Fortune, 464 Pa. 367, 346 A.2d 783 (1975), and cases cited therein. The danger of allowing the jury to know of such facts is obvious and need not be repeated here. See Commonwealth v. Burdell, 380 Pa. 43, 110 A.2d 193 (1955). Furthermore, we have built an elaborate system of pretrial procedures to assure that a jury is not exposed to an accused’s confession unless strict safeguards are complied with to assure that the confession has been knowingly, intelligently, and voluntarily tendered. See Jackson v. Denno, 378 U.S. 368, 12 L.Ed.2d 908, 84 S.Ct. 1774 (1964); Commonwealth ex rel. Butler v. Rundle, 429 Pa. 141, 239 A.2d 426 (1968), and that all other rules established by this Court concerning the admissibility of confessions, have been observed. See, e. g., Commonwealth v. Futch, 447 Pa. 389, 290 A.2d 417 (1972).

Of the thirty-five prospective jurors interviewed during the voir dire examination in the present case, thirty-two were asked if they recalled hearing or reading of the homicide for which appellant was now on trial. The other three were dismissed for cause on grounds that they were acquainted with one or more of the attorneys or prosecuting officers involved in the case. The voir dire interview examination occurred less than four months after the homicide. Of the thirty-two who were asked about their recollections, twenty-eight stated that they recalled hearing or reading of the murder. Of the fourteen jurors who were eventually seated (twelve jurors plus two alternates) eleven recalled having heard or read of the murder, two had no recollection, and only one stated that he had not read of the incident at issue. The defendant was granted eleven challenges for cause, the majority of these challenges being granted because the prospective juror involved stated that he or she had either formed a fixed opinion of appellant’s guilt based on recollection of the newspaper articles — an opinion which could not be put aside — or because the prospective juror stated that he or she specifically recalled having read newspaper articles of appellant’s prior criminal record. Five of appellant’s challenges for cause (based on a juror’s statement that he or she had formed an opinion as to defendant’s guilt as a result of recollection of the newspaper articles) were refused by the trial court, and appellant was required to use peremptory challenges to keep those prospective jurors from being seated. Examination of the voir dire interviews thus clearly indicates that the news coverage which occurred at the time of and shortly after the homicide was still in the minds of the prospective jurors at the time of trial. The potential of prejudice resulting from the close proximity of such news articles publicizing appellant’s prior criminal record, and his admissions of guilt, was therefore extremely great. This potential for prejudice exists despite the statements by the prospective jurors that they could put aside any opinion as to appellant’s guilt which they had formed after reading the newspaper articles. Commonwealth v. Price, supra; Commonwealth v. Harkins, supra.

Pierce and Kichline illustrate the proper examination to be made by the trial court faced with a request for a change of venue charging that pretrial publicity will deny the accused’s right to be tried by an impartial jury, is to first look at the nature of the content of the publicity. Does it contain references to the accused’s prior record of criminal convictions, if any? Does it expose potential jurors to any confessions or admissions of guilt allegedly made by the accused? Does it point to the accused’s guilt in terms that go beyond objective news reporting and enter the realm of the emotional and of the inflammatory? If the court answers any of these questions in the affirmative, its analysis must proceed to a determination of the likelihood that a significant number of the prospective jurors in the county were, in fact, exposed to such publicity. If the trial court answers “yes” to any of the above three questions concerning the content of the pretrial publicity, and if the record shows that there is a likelihood that a significant portion of the population was exposed to publicity of that nature, refusal to grant a change of venue would be an abuse of discretion unless the record also indicates that a sufficiently long period of time has passed between the time of the publicity and the time of the application for a change of venue for the court to conclude that any prejudice which may have been initially created by the publicity has been dissipated.

In Pierce, we concluded that the content of the pretrial publicity was of an extremely emotional and inflammatory nature, and that the frequency of the repeated news articles, combined with the pervasiveness of the coverage throughout the county, in the newspapers and on radio and television, was such as to create a likelihood that a significant percentage of potential jurors had been exposed to it. Therefore, we concluded that the accused need not specifically demonstrate a nexus bétween the pretrial publicity and those jurors actually interviewed. Nothing in Pierce indicated that the prejudice created by this publicity had dissipated by the time the application for change of venue was presented.

In Kichline, on the other hand, we concluded that the refusal to grant the requested change of venue was not an abuse of discretion even though the pretriai publicity contained references both to appellant’s prior criminal record and to admissions of guilt he allegedly made to police, because the record contained sufficient evidence for us to conclude that in the six months between the time of the initial publicity and trial, the effect of the news stories had faded from the prospective jurors’ minds.

In the instant case, examination of the pretrial publicity reveals the existence of references to appellant’s prior criminal record, and also contains quotations of admissions of guilt allegedly made by him to police. Furthermore, the record shows that these news stories reached the homes of practically every potential juror in the county. Furthermore, the record fails to demonstrate that the effect created by this publicity had faded from the minds of the prospective jurors in the four months intervening between the time of the homicide and the trial. In fact, the record shows that a high proportion of the prospective jurors interviewed during the voir dire remembered reading such articles. The potential for prejudice created by such publicity therefore remained great at the time the request for change of venue was made, and the trial court abused its discretion in refusing that request.

Judgment of sentence reversed and a new trial granted.

JONES, C. J., did not participate in the consideration or decision of this case. O’BRIEN, J., concurs in the result. NIX, J., filed a dissenting opinion.