Commonwealth v. Karmendi , 328 Pa. 321 ( 1937 )

I agree with the conclusion reached in the majority opinion. To me it is quite clear that defendant is entitled to a new trial, with a change of venue.

That the local newspapers carried highly infllammatory accounts of the crime and of the subsequent conduct of the accused is admitted. The shocking details revealed upon the first trial were published in full throughout the county. If an intense feeling of opposition among the citizens generally had not been completely and successfully kindled prior to the first trial such was certainly the aftermath. Moreover, one of our reasons for reversing the first conviction was the probable prejudice resulting from the charge of the court. This aroused public sentiment and animosity persisted when defendant was called for trial the second time. Public opinion had become so fixed that the regular panel of jurors was exhausted before a jury was obtained.¹

Under the circumstances, defendant's application for a change of venue should have been granted. The first section of the Act of March 18, 1875, P. L. 30,² conferred that right; in my opinion, the fourth paragraph of that section in specific language made it mandatory. It is true that a majority of this court held in Com. v. Cleary, 148 Pa. 26, and the same is now being done here, that the latter paragraph was merely discretionary with the trial court. With this interpretation I cannot agree. If necessary I would overrule the case on that point for the unanswerable reasons given by Mr. Justice STERRETT in his dissenting opinion. It seems to me that where the requirements of that paragraph are present, as they are here, the need for a change of venue cannot be doubted, and the legislature has said that it should be granted as a matter of course. The first paragraph is undoubtedly mandatory; I think the fourth paragraph equally so.

Even if the view of the majority is to be accepted and the fourth paragraph is to be held to be merely permissive, as the second (Com. v. Buccieri, 153 Pa. 535; Com. v. March, 248 Pa. 434; Com. v. White, 271 Pa. 584; Com. v. Skawinski, 313 Pa. 453) and third (Com. v. Allen, 135 Pa. 483) have been held to be and undoubtedly are, leaving the matter to the discretion of the trial court, I think that discretion was palpably abused in the present case. When a defendant is about to be put on trial for life in a locality with a background such as was here present, any discretion vested in the trial court to grant a change of venue should be quickly and courageously exercised. It should not be forgotten that only a few months ago in Com.v. Reilly, 326 Pa. 56, the circumstances of which were quite similar to the present, this court ordered a change of venue under the fourth paragraph.

The right of one challenged to defend her life to a fair and impartial jury is fundamental. It is a right secured by our Declaration of Rights, in the safeguarding of which any doubt should be resolved in favor of the accused.

This disposition, however, does not make necessary a consideration of the evidence to determine whether or not it will support a conviction of first degree murder. Such a determination is as irrelevant now as it would have been when the case was here upon appeal from the earlier conviction. We have never, when reversing for reasons other than inadequacy of evidence, made such a determination.³ In the present situation I think it not only contrary to precedent, but highly prejudicial to the accused, to pass upon the evidence. To do so, it seems to me, is to pre-judge the evidence upon which she will be retried. It is a distinct prejudice to say now that that evidence is sufficient to convict her of first degree murder. This is a departure from what has been done in the past under similar circumstances, it is unwarranted by the Act of February 15, 1870, P. L. 15, and I do not approve it.

¹ Of the thirty-nine prospective jurors on the regular panel, eleven were excused because they had formed opinions which they could not change. Of forty-one talesmen who were examined before the jury was completed, thirteen were excused for the same reason. Approximately one-third of the jurors called to try defendant stood up in open court and said they had fixed opinions derived from reading the newspapers and hearing the case discussed which they could not and would not change. The examination of the testimony taken on voir dire reveals a remarkable fixity of opinion; the crystallization of public sentiment is apparent.

² That section is as follows: Be it enacted, c., That in criminal prosecutions the venue may be changed, on application of the defendant or defendants, in the following cases:

First. When the judge, who by law is required to try the same, is a near relative of the prosecutor, or of the defendant, or of the person injured, or has knowledge of facts which make it necessary that he should be a witness in the case.

Second. When, upon the application of a defendant in a felony, it is made to appear to the satisfaction of the court, that from undue excitement against the prisoner, in the county where the offense was committed, a fair trial cannot be had, or that there exists in that county so great a prejudice against him that he cannot obtain a fair trial, or that there is a combination against him, instigated by influential persons, by reason of which he cannot obtain a fair trial.

Third. When upon the trial of any criminal case an unsuccessful effort has been made to procure and empanel a jury for the trial of the defendant, and it shall be made to appear to the court by the written affidavit of some credible witness that a fair trial cannot be had.

Fourth. When upon a second trial of any felonious homicide the evidence on the former trial thereof shall have been published within the county in which the same is being tried and the regular panel of jurors shall be exhausted without obtaining a jury.

³ The following is a list of all cases since the passage of the Act of February 15, 1870, P. L. 15, in which first degree convictions were reversed for reasons other than inadequacy of evidence. In none did the court determine whether the essentials of first degree murder had been made out: Com. v.Karmendi, 325 Pa. 63; Com. v. Zukovsky, 324 Pa. 588; Com. v.Clark, 322 Pa. 321; Com. v. Miller, 313 Pa. 567; Com. v. Brown,309 Pa. 515; Com. v. Williams, 309 Pa. 529; Com. v.Williams, 307 Pa. 134; Com. v. Westley, 300 Pa. 16; Com. v.Epps, 298 Pa. 377; Com. v. Madaffer, 291 Pa. 270; Com. v.Thomas, 282 Pa. 20; Com. v. Stallone, 281 Pa. 41; Com. v.Jones, 280 Pa. 368; Com. v. Mazarella, 279 Pa. 465; Com. v.Puglise, 276 Pa. 235; Com. v. Gibson, 275 Pa. 338; Com. v.Valeroso, 273 Pa. 213; Com. v. Ferko, 269 Pa. 39; Com. v.Loomis, 267 Pa. 438; Com. v. Berkenbush, 267 Pa. 455; Com. v.Tompkins, 267 Pa. 541; Com v. Ross, 266 Pa. 580; Com. v.Tompkins, 265 Pa. 97; Com. v. Palome, 263 Pa. 466; Com. v.Divomte, 262 Pa. 504; Com. v. Corsino, 261 Pa. 593; Com. v.Principatti, 260 Pa. 587; Com. v. Haines, 257 Pa. 289; Com. v.Ronello, 251 Pa. 329; Com. v. Vitale, 250 Pa. 548; Com. v.Morgenthau, 249 Pa. 139; Com. v. Croson, 243 Pa. 19; Com. v.Simanowicz, 242 Pa. 402; Com. v. Marcinko, 242 Pa. 388; Com. v.Ronello, 242 Pa. 381; Com. v. Andrews, 234 Pa. 597; Com. v.Green, 233 Pa. 291; Com. v. Watson, 233 Pa. 295; Com. v.Colandro, 231 Pa. 343; Com. v. Molten, 230 Pa. 399; Com. v.Polichinus, 229 Pa. 311; Com. v. Chapler, 228 Pa. 630; Com. v.Greene, 227 Pa. 86; Com. v. Hoover, 227 Pa. 116; Com. v.Fisher, 226 Pa. 189; Com. v. Lee, 226 Pa. 283; Com. v.Fisher, 221 Pa. 538; Com. v. Smith, 221 Pa. 552; Com. v. Cate,220 Pa. 138; Com. v. Curcio, 216 Pa. 380; Com. v. Frucci,216 Pa. 84; Com. v. Ieradi, 216 Pa. 87; Com. v. Johnson, 213 Pa. 607; Com. v. Fellows, 212 Pa. 297; Com. v.Zorambo, 205 Pa. 109; Com. v. Farrell, 187 Pa. 408; Com. v.Wilson, 186 Pa. 1; Com. v. Gerade, 145 Pa. 289; Com. v. Cleary,135 Pa. 64; Com. v. Clark, 130 Pa. 641; Hilands v. Com.,111 Pa. 1; Abernethy v. Com., 101 Pa. 322; Coyle v. Com.,100 Pa. 573; Goersen v. Com., 99 Pa. 388; Zell v. Com., 94 Pa. 258;Pannell v. Com., 86 Pa. 260; Pistorius v. Com., 84 Pa. 158;Meyers v. Com., 83 Pa. 131; Murray v. Com., 79 Pa. 311; Staupv. Com., 74 Pa. 458; Brown v. Com., 73 Pa. 321; Shaffner v.Com., 72 Pa. 60.