Com. v. Nicoletti, R. ( 2024 )

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2024 PA Super 259COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
RICHARD P. NICOLETTI : No. 2228 EDA 2023
Appeal from the Order Entered August 14, 2023
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0009325-2021
BEFORE: BOWES, J., NICHOLS, J., and SULLIVAN, J.
OPINION BY BOWES, J.: FILED NOVEMBER 6, 2024
The Commonwealth of Pennsylvania appeals from the order granting the
request of Richard P. Nicoletti (“Appellee”) to change the venue of his
prosecution based upon pretrial publicity. Upon review, we affirm.
We provide the following background. On June 1, 2020, several
thousand people gathered in Philadelphia to protest the police killing of George
Floyd. Appellee was dispatched as a SWAT officer with the Philadelphia police
to manage the protest. As the demonstrators marched on Interstate 676,
officers began to release tear gas to clear the highway. Amid the dispersal,
Diamonik Hough, Katherine Miller-Walsh, and Christina Sorensen sat down on
the highway. Appellee sprayed each of the three demonstrators in the face,
in turn, with oleoresin capsicum (“OC”) spray, commonly known as pepper
spray. He then ordered them to vacate the highway, which they did. Notably,
video captured the spraying incident. The Commonwealth ultimately charged
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Appellee with one count of possession of an instrument of crime and three
counts each of simple assault, official oppression, and recklessly endangering
another person.
Appellee proceeded to jury selection on May 1, 2023. At approximately
11:00 a.m. that day, the communications director for the District Attorney’s
Office released media guidance regarding the trial and included hyperlinks to
two news articles as a way of “[d]ropping background for [the media’s]
convenience[.]”1 Order, 8/14/23, at Exhibit A (“Media Guidance: SWAT
officer trial”). The text of the release provided:
Opening arguments could begin as early as today for
Commonwealth v. Richard Nicoletti, a former Philadelphia
SWAT officer who was arrested and charged for tear-gassing
protesters on I-676 during the 2020 racial injustice uprisings. The
D[istrict Attorney]’s Special Investigations Unit prosecution team
is awaiting a courtroom assignment, so when we do get a judge
and a jury, I will let you all know.
Id. Based upon this release, the trial court issued a gag order covering the
Commonwealth, Appellee, and their attorneys. A jury was picked, the
Commonwealth’s case presented, and, after several unsuccessful days of
deliberating, the jury was unable to reach a consensus. Therefore, the court
declared a mistrial.
The Commonwealth filed multiple motions in anticipation of a retrial,
and Appellee filed the operative motion requesting a change of venue.
According to Appellee, coverage of the incident, specifically, and the Black
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1 One of the links was to a New York Times video investigation, which we
discuss in depth in the body of this opinion.
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Lives Matter protests, more generally, has “fueled an avalanche of
inflammatory media attention which has severely prejudiced the opportunity
for [Appellee] to select a fair and impartial jury in Philadelphia County.”
Motion for a Change of Venue and/or Venire, 8/1/23, at ¶ 9. The court held
a hearing on the litany of pending motions and ruled on each from the bench.
As to Appellee’s venue motion, the court held as follows: “Based upon the
[first jury] pool, the environment, the myriad articles, [and] the necessity of
the gag order, the [c]ourt grants the change of venue motion.” N.T. Hearing,
8/9/23, at 30.
The court subsequently entered a written order granting the motion to
change venue. Although the order was dated August 9, 2023, the same day
as the hearing, it was not docketed and served on the parties until August 14,
2023. Thereafter, the Commonwealth filed reconsideration motions and
another motion in limine, before initiating the instant appeal on August 23,
2023. The Commonwealth complied with the trial court’s request to file a
Pa.R.A.P. 1925(b) statement. The trial court authored a Rule 1925(a) opinion,
opining preliminarily that the Commonwealth’s appeal was untimely filed from
the court’s pronouncement on August 9, 2023.
The Commonwealth presents the following issues for our consideration:
1. Did the trial court err by finding that the Commonwealth
untimely filed its appeal?
2. Did the trial court err by granting [Appellee]’s motion to change
venue where [Appellee] failed to prove, and the record did not
show, that pretrial publicity caused [Appellee] to suffer actual
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or presumed prejudice, preventing the empaneling of an
impartial jury in Philadelphia County?
3. Did the trial court err by granting [Appellee]’s motion to change
venue based on a finding of presumed prejudice, where the
pretrial publicity was factual and objective, did not include any
reenactments of the crime by [Appellee], did not derive from
official police or prosecutorial reports, and did not saturate the
community, and where there was sufficient time between any
alleged prejudicial publicity and the trial for any prejudice to
dissipate?
4. Did the trial court err by rendering judgment based on facts
outside the record, which the court independently investigated
and discovered?
Commonwealth’s brief at 5.2
We first determine whether the Commonwealth’s appeal was timely.
Pennsylvania Rule of Appellate Procedure 311(a)(3) provides that “[a]n appeal
may be taken as of right” from an order changing venue. Pa.R.A.P. 311(a)(3).
As to the timing of such an appeal, our rules state in pertinent part: “An
appeal from any of the following orders shall be taken within ten days after
the entry of the order from which the appeal is taken: (i) An order changing
venue or venire in a criminal proceeding. See Rule 311(a)(3) (change of
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2 We note that although the Commonwealth listed four issues in its statement
of questions, it included only two sections in its argument, with one addressing
the first issue and another addressing the remaining three together. See
Commonwealth’s brief at 13 (noting in the heading of the second argument
section that it addresses “Commonwealth’s issue 2 and 3), 21 (assailing the
court’s reliance on an article that it found through its own independent
research). In accordance with the Commonwealth’s argument structure, we
will address the issues raised in a like manner. However, we remind the
Commonwealth that, like defendants appealing their judgments of sentence,
it too is bound by our Rules of Appellate Procedure. See Pa.R.A.P. 2119(a)
(“The argument shall be divided into as many parts as there are questions to
be argued[.]”).
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criminal venue or venire).” Pa.R.A.P. 903(c)(1)(i). Rule 108, which governs
the date of entry of orders, provides as follows:
(a) General rule.
(1) [With exceptions not applicable here], in computing any period
of time under these rules involving the date of entry of an order
by a court or other government unit, the day of entry shall be the
day the clerk of the court or the office of the government unit
mails or delivers copies of the order to the parties, or if such
delivery is not otherwise required by law, the day the clerk or
office of the government unit makes such copies public. The day
of entry of an order may be the day of its adoption by the court
or other government unit, or any subsequent day, as required by
the actual circumstances.
....
(d) Criminal Orders.
(1) In determining the date of entry of criminal orders, subdivision
(a)(1) shall apply except as provided in subparagraph (d)(2).
(2) In a criminal case in which no post-sentence motion has been
filed, the date of imposition of sentence in open court shall be
deemed to be the date of entry of the judgment of sentence.
Pa.R.A.P. 108.
Indeed, the timing of a judgment of sentence is unique in that our
Supreme Court has focused not on the date the judgment is entered on the
docket by written order, but “upon the imposition of sentence in open court.”
Pa.R.A.P. 301(a)(2). See Commonwealth v. Green, 862 A.2d 613, 619
(Pa.Super. 2004) (noting the difference in Rule language between the date of
entry of orders and the date of imposition of sentence and observing that
there is “no reason to assume that the Supreme Court Rules Committee does
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not know the difference between the date a sentence is imposed and the date
a sentence is entered on the docket”). In all other circumstances, “no order
of a court shall be appealable until it has been entered upon the appropriate
docket in the trial court. Where under the applicable practice below an order
is entered in two or more dockets, the order has been entered for the purposes
of appeal when it has been entered in the first appropriate docket.” Pa.R.A.P.
301(a)(1). Excepting judgments of sentence, “a direction by the trial court .
. . that a specified judgment, sentence or other order shall be entered,
unaccompanied by actual entry of the specified order in the docket, does not
constitute an appealable order. Any such order shall be docketed before an
appeal is taken.” Pa.R.A.P. 301(c). In sum, “[i]n a criminal case, the date of
entry of an order is the date the clerk of courts enters the order on the docket,
furnishes a copy of the order to the parties, and records the time and manner
of notice on the docket.” Commonwealth v. Jerman, 762 A.2d 366, 368
(Pa.Super. 2000) (cleaned up). Using the date of imposition in open court for
a judgment of sentence is the exception, not the rule.
Presently, the Commonwealth did not appeal from a judgment of
sentence, but from an order granting Appellee’s motion to change venue. The
trial court and Appellee insist that the Commonwealth’s appeal was not timely
filed within ten days of the order in question because they calculate the start
day as August 9, the day the court announced its decision in open court and
dated the written order. Contrarily, the Commonwealth insists that the appeal
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period did not begin to run until August 14, the date the order was entered on
the docket.
In conformity with the relevant rules, we agree with the Commonwealth
that the operative date is the day the order was entered on the docket, not
when the court stated or dated its ruling. See Pa.R.A.P. 108(a)(1); Pa.R.A.P.
301(a)(1). Accordingly, no appealable order was entered until August 14,
2023, and the Commonwealth’s notice of appeal filed on August 23, 2023,
was timely filed within ten days of that order. Thus, we may proceed to the
merits of the Commonwealth’s challenges.
The Commonwealth’s substantive claims all concern the trial court’s
order granting Appellee’s motion to change venue. In that regard, our review
is governed by the following principles. We review challenges to venue rulings
for an abuse of discretion because the trial court “is in the best position to
assess the atmosphere of the community and to judge the necessity of the
requested change.” Commonwealth v. Karenbauer, 715 A.2d 1086, 1092
(Pa. 1998) (cleaned up). As explained by this Court, “[a]n abuse of discretion
is not merely an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
the evidence of record.” Commonwealth v. Rogers, 259 A.3d 539, 541
(Pa.Super. 2021) (cleaned up).
The Rules of Criminal Procedure provide that “[v]enue or venire may be
changed by [the trial] court when it is determined after hearing that a fair and
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impartial trial cannot otherwise be had in the county where the case is
currently pending.” Pa.R.Crim.P. 584(A). Here, Appellee sought the venue
change based upon pretrial publicity. Generally, media coverage on its own
does not support a change of venue. Rather, a defendant bears the burden
of establishing that the “publicity resulted in actual prejudice that prevented
the impaneling of an impartial jury.” Commonwealth v. Hawkins 701 A.2d
492, 504 (Pa. 1997) (cleaned up).
Notwithstanding that metric, our courts have not restricted venue
changes to only those cases that involve actual prejudice. See Karenbauer,
715 A.2d at 1092 (noting that presumed prejudice “is an exception to the
requirement that the defendant demonstrate actual prejudice”). Rather,
courts may find prejudice from pretrial publicity to be presumed, pursuant to
the following inquiry:
if the defendant is able to show that the pretrial publicity: (1) was
sensational, inflammatory, and slanted toward conviction, rather
than factual and objective; (2) revealed the defendant’s prior
criminal record, if any, or referred to confessions, admissions or
reenactments of the crime by the defendant; or (3) derived from
official police or prosecutorial reports. Even if the defendant
proves the existence of one or more of these circumstances, a
change of venue is not warranted unless the defendant also
demonstrates that the pretrial publicity was so extensive,
sustained, and pervasive that the community must be deemed to
have been saturated with it, and that there was insufficient time
between the publicity and the trial for any prejudice to have
dissipated.
In testing whether there has been a sufficient cooling period, a
court must investigate what a panel of prospective jurors has said
about its exposure to the publicity in question. This is one
indication of whether the cooling period has been sufficient. Thus,
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in determining the efficacy of the cooling period, a court will
consider the direct effects of publicity, something a defendant
need not allege or prove. Although it is conceivable that pre-trial
publicity could be so extremely damaging that a court might order
a change of venue no matter what the prospective jurors said
about their ability to hear the case fairly and without bias, that
would be a most unusual case. Normally, 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. The discretion of the trial
judge is given wide latitude in this area.
Commonwealth v. Dewald, 317 A.3d 1020, 1042 (Pa.Super. 2024) (cleaned
up).
In the instant matter, the trial court supplied extensive reasoning in
support of its determination that the pretrial publicity in this case resulted in
presumptive prejudice warranting a change in venue. See Trial Court Opinion,
10/11/23, at 7-9. Preliminarily, it outlined the history of jury selection during
the first trial, noting that “inflammatory publicity was disseminated to the
media by the office of the [p]rosecuting attorney during jury selection[.]” Id.
at 7 (cleaned up). The court explained that a change in venue was
inappropriate at that time because jury selection had not yet occurred, but it
issued the above-referenced gag order to stem the flow of publicity from the
parties surrounding the trial. In anticipation of a retrial following the hung
jury, Appellee moved to change venue. At the hearing on August 9, 2023, he
offered exhibits, including, as summarized by the trial court:
a plethora of ongoing articles and news reports from the past
three years, many of which linked this criminal trial to the multi-
million-dollar civil settlement with the City of Philadelphia, the
firing of Appellee from the police department, and connections to
the George Floyd protest and other police incidents. Numerous
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local media - print, radio, television, and social media - reported
the incident referencing “former SWAT officer” or incorrectly
mentioned “tear gas” as the substance used. The visual media
accounts commonly depicted the same photograph of the Appellee
standing above the seated protesters spraying down on them.
Trial Court Opinion, 10/11/23, at 8.
As to whether a sufficient cooling off period had occurred, the court
detailed the pervasiveness of this publicity in Philadelphia County:
The court concluded the media coverage of this trial has been
ongoing and ubiquitous throughout Philadelphia County. The
protests occurred in the City of Philadelphia in June of 2020. Over
three years after the incident, this case remains a top news story,
with every hearing and aspect of the case covered by local media.
Each time the case is referenced in the visual media, it includes a
photograph depicting a reenactment of the incident - the alleged
crime by the accused. Additionally, the Philadelphia Office of the
District Attorney has encouraged additional publicity by issuing
media releases and holding press conferences in anticipation of
trial related events.
Id. at 8-9 (cleaned up). Based upon the foregoing, the court determined that
“the pre-trial and continuous publicity in this matter is so extensive, sustained,
and pervasive that the community of Philadelphia County must be deemed to
have been saturated with it, and that there was insufficient time between the
publicity and the trial for any prejudice to have dissipated.” Id. at 9 (cleaned
up).
The Commonwealth contests the court’s characterization of the articles
and its finding of presumptive prejudice because it insists that “each article
was factual and objective, presenting the issues in a fair and balanced
manner.” Commonwealth’s brief at 16. Moreover, it maintains that the May
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1, 2023 media advisory from the office of the District Attorney was neither
inflammatory nor influential because the articles referenced by Appellee in his
motion did not repeat the erroneous statement that Appellee used tear gas on
the demonstrators. Id. at 23-24. The Commonwealth also rejects the
contention that the pretrial publicity included any reenactments, since the
referenced photograph of Appellee spraying the demonstrators merely showed
the act itself. Id. at 21-22. Further, it assails the court’s reliance on an
August 9, 2023 article, which the court found through its own research and
was dehors the record. Id. at 21. Finally, the Commonwealth relies upon the
ability of the court “to empanel a fair and impartial jury with relative ease”
during the first trial as evidence that a sufficient cooling-off period has
occurred. Id. at 25.
Preliminarily, we note that the August 9, 2023 article referenced in the
trial court’s August 14, 2023 order cannot have had any bearing on its decision
to grant Appellee’s motion to change venue because it was disseminated
“within hours of [that day]’s hearing” and was specifically reporting on the
court’s ruling from the bench to grant the motion. See Order, 8/14/23, at 3;
see also Trial Court Opinion, 10/11/23, at 8 (mentioning article entitled
“Former SWAT Officer who pepper sprayed protesters will be tried outside of
Philadelphia” along with the drove of media in the weeks following its ruling).
Rather, our review of the certified record confirms the trial court’s
findings. Appellee introduced a sample of articles ranging from the time of
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the incident through May 25, 2023. The articles generally fell into four
categories. The first included brief and benign references to the status of the
case in a general news roundup format.
The second batch focused solely on the June 1, 2020 incident and
Appellee’s trial, detailing the underlying events and linking to the New York
Times video investigation of Appellee pepper spraying the demonstrators.
One article in this collection included the following quote from the District
Attorney, Larry Krasner, regarding reinstatement of the charges: “‘I am
grateful today that a Common Pleas judge watched the same video millions of
us watched last summer and agreed that this matter should be pursued and
resolved in a court of law.’” Jordan Levy, “Mistrial declared: What you need
to know about the former Philly SWAT officer seen pepper-spraying protestors
-A hung jury ended the trial, the first of a Philadelphia law enforcement officer
involved in police operations during the 2020 protests.”, Billy Penn (online), 8
May 2023, https://infoweb.newsbank.com/apps/news/document-view?p=AW
NB&docref=news/191687D22488E3D8.
Third, several articles connected the pepper spraying incident to the
protests that summer and the general police response, including the use of
tear gas and rubber bullets. See e.g., Claudia Lauer, “Philadelphia officer
charged with pepper spraying kneeling protesters,” Morning Call, The: Web
Edition Articles (online), 22 Jul 2020, https://infoweb.newsbank.com/apps/ne
ws/document-view?p=AWNB&docref=news/17(6813EDBAE9BEO (“A video of
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[Appellee] dressed in riot gear approaching three protesters kneeling on
Interstate 676 on June 1, pulling down at least one protester's mask or
goggles, then pepper-spraying them was circulated widely on social media and
has been included in several news stories about the national police response
to demonstrators.”).
Finally, the last group of features concerned unchecked and excessive
use of force by police in general, citing Appellee as an example based upon
unrelated shootings from 2018 and 2012, which were not prosecuted. Most
of the reporting in all categories note that Appellee was fired as a result of his
conduct on June 1, 2020.
Critically, the New York Times link included in the media advisory sent
by the District Attorney’s Office during jury selection and referenced in several
articles is a ten-minute video investigation of the events occurring on June 1,
2020. Although it does not specifically mention Appellee’s name, it included
a timeline of what happened that day, including the overall police response
and the subject pepper spraying episode. To compile this video investigation,
the New York Times utilized a mixture of digital reenactments, live footage,
and interviews by attendees. Notably, Mr. Hough, one of the alleged victims
in the underlying case against Appellee, provides his accounting of the pepper
spraying and narrates over a video capturing the incident. There is also a
demonstrative exhibit of the Philadelphia Police Department’s guidelines
regarding use of pepper spray. The video concludes by stating that within
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hours of publishing the video investigation on June 25, 2020, “Philadelphia
officials announced a moratorium on the use of tear gas in the city” and “a
SWAT officer involved in the response was expected to be put on a 30-day
suspension ‘with intent to dismiss.’” Christopher Koettl, Nilo Tabrizy, Muyi
Xiao, Natalie Reneau and Drew Jordan, “How the Philadelphia Police Tear-
Gassed a Group of Trapped Protestors,” The New York Times, 25 June 2020,
https://www.nytimes.com/video/us/100000007174941/philadelphia-tear-
gas-george-floyd-protests.html.
During the individual voir dire conducted over two days preceding
Appellee’s first trial, many members of the jury pool indicated that they had
heard about the incident on social media, local news, and national news. See
N.T. Voir Dire, 5/1/23, at 12 (noting there were “many people that raised
[their] hand and indicated that [they] had heard something about this incident
prior to coming to court today”). According to several venirepersons, the
protests that day were “all over the news.” Id. at 16, 95, 27 (“a lot of TV
coverage”), 12 (“of course I seen it on TV”). The coverage of the protest
seemed particularly prevalent to those living near where the demonstrations
occurred in the city and county of Philadelphia, and the pool of jurors
questioned about their media exposure even included three individuals with
personal connections to the protests that day. Id. at 6-7 (juror who lived
downtown was “very aware” of the “protests and riots” and “[t]he city was a
mess”), 53 (juror “followed the riots pretty closely. It affected my
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neighborhood. . . . I was watching the news about it almost every day”); N.T.
Voir Dire, 5/2/23, at 19 (juror heard about it “on the news” and “obviously
living here”).
Eight potential jurors recalled reading about or seeing specific coverage
of the underlying incident, and six indicated that the media coverage
negatively impacted them or that they were unsure whether they could be
unbiased. Three jurors explicitly expressed significant bias against Appellee
based upon what they witnessed in the media. As summed up by one juror,
“[t]here was a lot on the news, but that the police had pepper-sprayed the
protestors, and that it was excessive and they were harmed. . . . I feel like it
was at a time when it was just like a lot of stuff going on with the cops and it
seemed like it was on the news all the time.” N.T. Voir Dire, 5/1/23, at 63-
64; see also 73-74 (“What I saw was a defenseless person being assaulted.
What I saw was somebody abusing their power.”), 86 (explaining that it was
“disturbing to [the juror] to see” video of “an officer walking up to a woman
and pulling her hands down to spray her in the face”).
Of those specifically questioned about their exposure to pre-trial
publicity, nine jurors were struck for cause related to bias or personal
connection to the protests, and one juror was struck based upon involvement
in the civil settlement process. Four individuals were struck by the
Commonwealth and two by the defense, and six were accepted as jurors for
trial after attesting that they could be impartial. One of those individuals
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stricken for cause had discussed the television coverage of the pepper-
spraying incident with others in the jury pool during the lunch break, likening
it to police brutality in the 1960s. Id. at 85-87. Similarly, one juror accepted
as an alternate described the media coverage as showing “protestors who
were grabbed and thrown down and maced.” N.T. Jury Selection, 5/2/23, at
26.
The foregoing supports the trial court’s finding that the media coverage
was skewed towards conviction and invoking strong feelings against Appellee,
revealed a history of violence in Appellee’s position as a police officer, and
included reenactments of the events that day in the New York Times video
investigation, which was specifically sent to news outlets by the District
Attorney’s Office during jury selection.3 Moreover, despite three years
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3 We reiterate the function of the District Attorney’s Officeas a prosecuting
agency: “A prosecutor has the responsibility of a minister of justice and not
simply that of an advocate. This responsibility carries with it specific
obligations to see that the defendant is accorded procedural justice and that
guilt is decided upon the basis of sufficient evidence.” Pa.R.P.C. Rule 3.8,
Explanatory Comment 1. The Supreme Court of the United States explained
long ago that a prosecutor “may prosecute with earnestness and vigor—
indeed, he should do so.” Berger v. United States, 295 U.S. 78, 88 (1935).
However, “while he may strike hard blows, he is not at liberty to strike foul
ones. It is as much his duty to refrain from improper methods calculated to
produce a wrongful conviction as it is to use every legitimate means to bring
about a just one.” Id.Our Supreme Court has taken pains to further proscribe a prosecutor’s
performance regarding pre-trial publicity within Rule 3.8, which governs the
“special responsibilities” of prosecutors. See Pa.R.P.C. 3.8. Specifically, it is
mandated that a prosecutor shall:
(Footnote Continued Next Page)
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passing between the incident and voir dire, the record bears out that the
media coverage “was so extensive, sustained, and pervasive that the
community must be deemed to have been saturated with it, and that there
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(e) except for statements that are necessary to inform the public
of the nature and extent of the prosecutor’s action and that serve
a legitimate law enforcement purpose, refrain from making
extrajudicial comments that have a substantial likelihood of
heightening public condemnation of the accused and exercise
reasonable care to prevent investigators, law enforcement
personnel, employees or other persons assisting or associated
with the prosecutor in a criminal case from making an extrajudicial
statement that the prosecutor would be prohibited from making
under Rule 3.6 or this Rule.
Pa.R.P.C. 3.8(e). This subsection addresses the reality that “a prosecutor’s
extrajudicial statement can create the additional problem of increasing public
condemnation of the accused.” Pa.R.P.C. 3.8, Explanatory Comment 4. For
example, while an announcement that a particular person had been indicted
“will necessarily have severe consequences for the accused, a prosecutor can,
and should, avoid comments which have no legitimate law enforcement
purpose and have a substantial likelihood of increasing public opprobrium of
the accused.” Id.Here, the District Attorney’s Office disseminated the New York Times
video investigation to the media during jury selection. Given its special
responsibility in the just prosecution of criminal cases, the office does not have
the luxury of acting as a casual social media participant reposting content
unchecked. Moreover, we express serious concern over the District Attorney
himself being quoted in news articles as expressing gratitude “that a Common
Pleas judge watched the same video millions of us watched last summer” in
permitting the charges to proceed to court. See e.g., Jordan Levy, “Mistrial
declared: What you need to know about the former Philly SWAT officer seen
pepper-spraying protestors -A hung jury ended the trial, the first of a
Philadelphia law enforcement officer involved in police operations during the
2020 protests.”, Billy Penn (online), 8 May 2023. The conduct of the District
Attorney’s Office in this case was calculated to churn up community support
for charging Appellee, encouraged the sensationalized reporting surrounding
Appellee’s prosecution, and justified the trial court’s proper exercise of
discretion in finding prejudicial pre-trial publicity warranted a change in venue.
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was insufficient time between the publicity and the trial for any prejudice to
have dissipated.” Dewald, 317 A.3d at 1042 (cleaned up). Accordingly, we
discern no abuse of discretion in the trial court’s determination that a venue
change was proper in this case based upon the presumptive prejudice against
Appellee resulting from the pre-trial publicity. Thus, we affirm the order
granting his request to change venue.
Order affirmed.
Date: 11/06/2024
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