Com. v. Bailey, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DENNY SCOTT BAILEY :
:
Appellant : No. 1034 WDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Clearfield County Criminal Division at
No(s): CP-17-CR-0000371-2018
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY BOWES, J.: FILED: October 6, 2023
Denny Scott Bailey appeals from the judgment of sentence imposed
after he was convicted of, inter alia, first-degree murder. We affirm.
The trial court set forth the following background and procedural history
of this matter:
On April 3, 2018, a criminal complaint was filed charging
[Appellant] . . . with the murder of Chase Anderson. . . . The
charges stemmed from an incident that occurred on the evening
of August 12, 2017 into the morning of August 13, 2017. During
the incident, [Appellant] and his co-defendant, Kenja Tew, lured
. . . Anderson to a secluded area in the woods, and assaulted,
stabbed, and slit the throat of . . . Anderson. [Appellant] and Tew
then attempted to burn Anderson’s body. After the killing,
[Appellant], Tew, and another co-defendant, Chantell Demi,
cleaned the blood off of their bodies, burned the clothing they
were wearing during the attack, and buried the weapons used.
The case proceeded through the normal pre-trial
procedures[,] with each side filing numerous pre-trial motions.
One of the pre-trial motions filed by [Appellant] was the second
amended omnibus pretrial motions. The omnibus motions
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included a motion for change of venue, which asserted that there
was extensive media coverage of the case, and [Appellant] could
not receive a fair and impartial jury in Clearfield County. A hearing
on [Appellant]’s pretrial motions was held on June 20, 2019, and
the motion for change of venue was ultimately denied by an . . .
opinion and order dated January 23, 2020.
Jury selection was held on August 12, 2021. Twelve jurors
and six alternates were empaneled as the jury for the case. On
October 26, 2021, [Appellant]’s eight-day jury trial commenced.
Upon conclusion of the jury trial, the jury entered a verdict of
guilty for all counts on the information,[1] including murder in the
first degree.
Trial Court Opinion, 12/1/22, at 1-2.
On December 13, 2021, the trial court sentenced Appellant to life
without possibility of parole for the murder conviction and imposed various
consecutive and concurrent periods of incarceration as to the remaining
charges that did not merge for sentencing purposes. Id. at 2. The sentencing
order was amended several days later and included a no contact provision
concerning several of the victims and their families. See Amended Sentence
Order, 12/16/21, at unnumbered 2.
Appellant filed a timely post-sentence motion, arguing as one of his
claims that the sentence was illegal because the court had no authority to
impose conditions on a state sentence. After a hearing and consideration of
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1 The charges included criminal homicide, aggravated assault, kidnapping,
various counts of criminal conspiracy, tampering with evidence, abuse of
corpse, simple assault, and recklessly endangering another person.
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briefs, the court granted the motion in part as to this issue on August 9, 2022.2
Accordingly, the court issued an amended sentencing order, which was
entered on August 10, 2022. Appellant filed a timely notice of appeal on
September 9, 2022.3
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant presents a single issue on appeal: “Whether the lower court erred
in denying Appellant’s motion for change of venue.” Appellant’s brief at 8
(cleaned up).
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2 We note that the court’s order was entered more than 120 days from the
date the motion was filed. Generally, if a court does not decide a post-
sentence motion within 120 days, it shall be deemed denied by operation of
law. See Pa.R.Crim.P. 720(B)(3)(a). In that event, “the clerk of courts shall
forthwith enter an order on behalf of the court . . . that the post-sentence
motion is deemed denied.” Pa.R.Crim.P. 720(B)(3)(c). Here, although the
court granted the motion after the 120-day period, the clerk of courts did not
enter any order deeming the motion denied. We have held that under similar
circumstances, this constitutes a “breakdown in the court system.”
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa.Super. 2003).
Accordingly, in the interest of judicial economy, we exercise our power under
Pa.R.A.P. 105(a) to disregard these technical errors and consider the appeal
as properly filed.
3 On December 19, 2022, this Court directed Appellant to show cause as to
why the appeal should not be quashed as untimely since, among other things,
the notice of appeal was filed thirty-one days from the date indicated on the
court’s amended sentence order. Appellant submitted a timely response, and
we discharged the rule, advising that the issue may be revisited by this panel.
Based on our review of the certified record, there is no indication that the
amended sentence, dated September 9, 2022, was imposed in open court.
Rather, it appears to have been issued by the court in conjunction with the
decision to grant in part Appellant’s post-sentence motion and was not
docketed until September 10, 2022. We consequently determine that
Appellant’s appeal, filed exactly thirty days from the date the amended
sentence was entered on the docket, is timely.
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Our standard of review relating to the trial court’s denial of a motion for
a change of venue “is whether there has been an abuse of discretion on the
part of the trial judge.” Commonwealth v. Devries, 112 A.3d 663, 666
(Pa.Super. 2015). It is axiomatic that “[v]enue or venire may be changed by
that court when it is determined after hearing that a fair and impartial trial
cannot otherwise be had in the county where the case is currently pending.”
Pa.R.Crim.P. 584(A). Our High Court has stated that “the trial court is in the
best position to assess the atmosphere of the community and to judge the
necessity of any requested change.” Commonwealth v. Briggs, 12 A.3d
291, 313 (Pa. 2011).
Further, in addressing this type of claim, this Court has observed as
follows:
For pre-trial publicity to be presumptively prejudicial, a
defendant must prove, inter alia, that the publicity was so
extensive, sustained, and pervasive without sufficient time
between publication and trial for the prejudice to dissipate, that
the community must be deemed to have been saturated. The
publicity must be . . . inflammatory and slanted toward conviction
rather than factual and objective. Finally, even if there has been
inherently prejudicial publicity which has saturated the
community, no change of venue is warranted if the passage of
time has sufficiently dissipated the prejudicial effects of the
publicity.
Commonwealth v. Tanner, 205 A.3d 388, 393 (Pa.Super. 2019) (cleaned
up).
Appellant argues that the court erred in denying his motion because pre-
trial coverage from the media was “extensive, sustained, and pervasive.”
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Appellant’s brief at 16. He highlights that ten of out fifty-eight prospective
jurors from the pool had familiarity with the case. Id. at 15. He also notes
that one selected juror was excused after making comments indicating that
she decided Appellant’s guilt before the presentation of all evidence. Id. He
believes that this fact, combined with a statement made by that juror after
being dismissed, demonstrated the pervasive nature of the coverage.4 Id.
In rejecting Appellant’s claim, the trial court noted that Appellant and
the Commonwealth were able to select a full jury with six alternatives, and
thus there was no basis in which to find actual prejudice. See Trial Court
Opinion, 12/1/22, at 4. It also stated that while some potential jurors likely
had awareness of the case due to media coverage, all that were empaneled
stated that they had the ability to set aside what they knew and make a fair
decision. Id. Further, the court emphasized that at the end of jury selection
and before each break during trial, the jury was instructed not to investigate
the case or discuss it with others. Id. As such, the court concluded that
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4 The remark in question, which was made immediately after the court
excused the juror and requested that she not discuss the matter with anyone
else, was made in the following exchange:
Juror: I feel better this way anyway, just because –
The court: These are not easy things to do.
Juror: Well, no. And I raised my hand several times that I’ve
known how many people in recollection [sic] to this case.
N.T. Trial, 11/2/21, at 18.
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Appellant could not meet his burden of showing either a presumption of pre-
trial prejudice or actual prejudice. Id. at 3.
For its part, the Commonwealth contends that any pre-trial publicity in
this matter “was not inherently prejudicial” since media coverage was mostly
factual and objective, which is evidenced by the news articles Appellant
attached to his motion for change of venue and also appended to his brief to
this Court. Commonwealth’s brief at 6. It cites Commonwealth v.
Karenbauer, 715 A.2d 1086 (Pa. 1998), for the proposition that bald or
boilerplate allegations of sensationalism, like those asserted by Appellant
here, are insufficient. Id. at 6-7. It further maintains that it was nearly four
years to the day between the incident and the beginning of trial, which
constituted enough “cooling off time between the publicity and jury selection.”
Id. at 10.
Upon review of the certified record and the applicable law, we discern
no abuse of discretion with the trial court’s decision to deny the motion for
change of venue. As Appellant acknowledges in his own brief, his claim is
difficult to prove in light of the fact that a full jury, with six alternatives, was
chosen in this case. See Appellant’s brief at 14. Appellant offered no evidence
that any of the empaneled jurors who rendered the verdict were partial, and
thus he has not proven actual prejudice. See Briggs, supra at 313 (stating
that to be entitled to relief, a defendant must generally show “actual prejudice
by preventing the empaneling of an impartial jury”).
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Moreover, this is not a case where pretrial attention was so significant
as to create a presumption of prejudice. Appellant advances no compelling
argument that any of the media coverage was “inflammatory and slanted
toward conviction rather than factual and objective.”5 Tanner, supra at 393.
The statement from the excused juror about knowing “many people in
recollection to this case” merely iterated, at most, that the community had
been exposed to the background of the case.
Finally, even if we were to presume, arguendo, that there was pervasive
pre-trial coverage, we find that four years was an adequate passage of time
to dissipate any prejudicial effects of the publicity. Our Supreme Court has
held that, in considering whether the cooling off period was sufficient, a court
must “investigate what a panel of prospective jurors has said about its
exposure to the publicity in question” and that “what prospective jurors tell us
about their ability to be impartial will be a reliable guide to whether the
publicity is still so fresh in their minds that it has removed their ability to be
objective.” See Briggs, supra at 314. As the trial court aptly summarized,
extensive voir dire was conducted as to the potential jurors, and only those
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5 We note that Appendix “D” to Appellant’s brief includes various news articles
from differing sources concerning the investigation and prosecution of
Appellant and the other co-defendants in this matter. Our review confirms
that these were the same pieces attached as exhibits to Appellant’s underlying
pre-trial motion to change venue. See Second Amended Omnibus Pretrial
Motions, 1/28/19 (Exhibits A-C). However, Appellant does not discuss how
these items support his contention that the attention surrounding this case
was sensational or lacking in objectiveness, or that the community “must be
deemed to have been saturated.” Commonwealth v. Tanner, 205 A.3d 388,
393 (Pa.Super. 2019).
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that represented their ability to fairly and impartially decide the case were
empaneled. See Trial Court Opinion, 12/1/22, at 4. Accordingly, Appellant
was not entitled to a change of venue for his trial.
Since Appellant presents no meritorious issues on appeal, we do not
have cause to disturb his judgment of sentence.
Judgment of sentence affirmed.
DATE: 10/6/2023
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