Com. v. Smith, B.

J-A26019-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BRENDA SUE SMITH
Appellant No. 1452 MDA 2012
Appeal from the Judgment of Sentence February 9, 2012
In the Court of Common Pleas of Juniata County
Criminal Division at No(s): CP-34-CR-0000190-2010
BEFORE: BOWES, J., MUNDY, J., and JENKINS, J.
MEMORANDUM BY MUNDY, J.: FILED DECEMBER 15, 2014
Appellant, Brenda Sue Smith, appeals from the February 9, 2012
judgment of sentence, imposing life imprisonment without possibility of
parole after a jury found her guilty of the first-degree murder of her son-in-
law (Victim).1 After careful review, we affirm.
The trial court summarized the factual history of this case as follows.
Appellant was related to [V]ictim through her
daughter, Carolyn Hockenberry. Carolyn and
[V]ictim were married [and] had three children.
Their relationship, according to Appellant, was quite
turbulent and [V]ictim often abused Carolyn.
At the time of the murder, the Hockenberrys
lived in Juniata County, Pennsylvania, and Appellant
lived in the American South-West. Prior to a
scheduled visit, Appellant’s husband purchased the
murder weapon and performed an internet search to
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1
18 Pa.C.S.A. § 2502(a).
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learn how to properly transport a weapon on an
airplane. Ultimately, Appellant brought the weapon
to Pennsylvania and kept it hidden in her suitcase.
On the night of the murder, [September 15,
2010,] Appellant, Victim, Carolyn and the kids were
all at home. Appellant and Victim got into a verbal
altercation. Carolyn took the kids into the back
bedroom where she sat with them and attempted to
drown out the shouting by turning up the volume on
the television set. During this altercation, Victim
may have hit Appellant with a TV tray. Appellant
retrieved her gun and loaded it, then instructed
Carolyn to take the kids outside and get into the
family’s automobile. Appellant covered the gun with
a towel, approached [V]ictim, and put a bullet in his
head.
Appellant wiped the gun clean, and put both
the towel and gun in [V]ictim’s lap. She then joined
Carolyn and the kids in the van and drove to the
local Pennsylvania State Police barracks[, arriving at
8:15 p.m.,] to report the alleged earlier violence
Victim inflicted upon Appellant, that is, the alleged
assault with the TV tray. Appellant was taken to
Lewistown Hospital so that she may have a bruise on
her arm treated. It was while Appellant was at the
hospital that Troopers investigated and found
[V]ictim dead.
Appellant and Carolyn were informed of the
Troopers discovery prior to leaving the hospital. As
is standard in any death investigation, because
Appellant and Carolyn admitted to seeing Victim last,
Troopers asked them to come to the barracks to be
interviewed. Appellant [accepted a] ride with the
Troopers[]. She was not searched nor was she
handcuffed, and upon arrival, she sat in the public
lobby.
Appellant was asked to accompany a Trooper
to an interview room. She was not guarded, and the
door remained open. First, she explained that she
and [V]ictim struggled for the gun and it accidentally
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discharged. The Trooper asked Appellant to
elaborate, and she was unable to do so. She then
admitted to walking up behind [V]ictim and shooting
him in the head.
At this point the interview was terminated and
the Trooper left the room. He soon returned, and
read Appellant her Miranda rights. She
acknowledged that she understood her rights, and
signed a waiver form. It was then that she provided
a written statement admitting to the recent purchase
of the weapon, her intention to shoot [V]ictim so
that he would “leave [her] daughter alone,” and
covering the weapon with the towel so that he would
not see it. She further explains in her statement
that [Victim] was sitting in a computer chair when
she shot him, but says that she pulled the trigger
only because “I startled him and he startled me.”
Trial Court Opinion, 1/4/13, at 1-3.
On September 16, 2010, the police charged Appellant with criminal
homicide. After a preliminary hearing held October 14, 2010, the case was
bound over to the Court of Common Pleas of Juniata County. On November
30, 2010, Appellant filed an omnibus pretrial motion, including a motion to
suppress and a motion for change of venue or venire. In her motion to
suppress, Appellant sought to exclude inculpatory statements made by her,
allegedly obtained in violation of her constitutional rights. Appellant’s
Omnibus Pretrial Motion, 11/30/10, at 1-2. In her motion for change of
venue or venire, Appellant averred that local media coverage of the case
precluded the possibility of obtaining a fair and impartial jury in Juniata
County. Id. at 2-3. A hearing on Appellant’s omnibus pretrial motion was
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held on January 11, 2011.2 Following the hearing, the trial court issued an
order taking the motion for change of venue or venire under advisement in
anticipation of “stipulations concerning exposure of the stories, as well as
the content of the stories.” Trial Court Order, 1/11/11, at 1. In a separate
order that same day, the trial court deferred a decision on the suppression
motion pending its review of the preliminary hearing transcript.3
On February 8, 2011, the trial court filed an order and memorandum,
denying Appellant’s suppression motion. Also on February 8, 2011, the trial
court related the following in its memorandum accompanying its order
denying Appellant’s motion for change of venue or venire.
[W]e are not satisfied that, on the basis of the
information brought to our attention during the
course of the Pre-Trial Hearing and also on the basis
of information brought to our attention by attempted
stipulation concerning circulation of newsprint and
radio media in Juniata County area, that an Order
changing venue, at this time would be appropriate.
Obviously, the issue of venue change is always
deemed continuing and can be addressed pretrial
upon further information being developed or,
certainly, at a time when difficulty in empanelling a
jury is encountered.
Trial Court Memorandum, 2/8/11, at 1.
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2
No transcript of this proceeding is contained in the certified record or in
Appellant’s reproduced record.
3
The preliminary hearing transcript is not included in the certified record or
Appellant’s reproduced record.
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The matter proceeded to jury selection on January 23, 2012, with trial
held on January 30, 2012 to February 3, 2012.4 At the conclusion of the
trial, the jury found Appellant guilty of first-degree murder. On February 9,
2012, the trial court sentenced Appellant to life in prison. On February 21,
2012, Appellant filed an omnibus post-sentence motion raising several
issues, including those now on appeal.5 On May 17, 2012, the trial court
granted Appellant’s oral motion for a 30-day extension for decision on the
post-trial motions. See Pa.R.Crim.P. 720(B)(3)(b). On July 20, 2012, the
Juniata County Clerk of Courts entered an order notifying Appellant of the
denial of her post-sentence motions by operation of law. See Pa.R.Crim.P.
720(B)(3)(c). On August 9, 2012, Appellant filed a timely notice of appeal.6
On appeal, Appellant raises the following issues for our consideration.
1. [Appellant] made both oral and written
statements to police during a custodial interrogation
without being advised of her rights under Miranda
v. Arizona[, 384 U.S. 436 (1966)] and the
Pennsylvania and United States Constitutions. The
statements were also made involuntarily as
[Appellant] was so emotionally and psychologically
distraught that the confession could not have been
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4
No transcript of the jury selection is contained in the certified record or in
Appellant’s reproduced record.
5
We note that February 19, 2012 was a Sunday, and February 20, 2012 was
a court holiday. When calculating a filing period, weekends and holidays are
excluded from this computation. 1 Pa.C.S.A. § 1908. Therefore, Appellant
had until February 21, 2012 to timely file any post-trial motion.
6
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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voluntary. Did the trial court commit an error of
law in failing to suppress these statements and
allowing their presentation at trial?
2. On September 17, 2010, [Appellant’s] husband
visited her at the Mifflin County Correctional Facility.
Their conversation was recorded and the recording
was admitted as evidence and played for the jury at
trial in violation of spousal privilege. Did the trial
court commit an error of law in allowing the
admission of this extremely prejudicial and protected
evidence?
3. The alleged crime occurred in a small, rural
town in Pennsylvania and received extensive press
coverage. Did the trial court commit an error of law
in denying [Appellant’s] request for Change of
Venue?
Appellant’s Brief at 5-6.
Appellant first contests the trial court’s refusal to suppress her
inculpatory oral and written statements that she claims were the product of
custodial interrogation by the police, performed in violation of her Fifth and
Fourteenth Amendment rights. Id. at 26. When reviewing a challenge to a
trial court’s denial of a suppression motion, we observe the following
principles.
Our standard of review in addressing a
challenge to the denial of a suppression motion is
limited to determining whether the suppression
court’s factual findings are supported by the record
and whether the legal conclusions drawn from those
facts are correct. Because the Commonwealth
prevailed before the suppression court, we may
consider only the evidence of the Commonwealth
and so much of the evidence for the defense as
remains uncontradicted when read in the context of
the record as a whole. Where the suppression
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court’s factual findings are supported by the record,
we are bound by these findings and may reverse
only if the court’s legal conclusions are erroneous.
The suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to
determine if the suppression court properly applied
the law to the facts. Thus, the conclusions of law of
the courts below are subject to our plenary review.
Commonwealth v. Ranson, --- A.3d ---, 2014 WL 5018477 at *2 (Pa.
Super. 2014), quoting Commonwealth v. Jones, 988 A.2d 649, 654 (Pa.
2010), cert. denied, 131 S. Ct. 110, 178 (2010) (citations, quotations and
ellipses omitted).7
Preliminarily, we note that the certified record does not contain a
transcript of the January 11, 2011 hearing on Appellant’s omnibus pre-trial
motion, including Appellant’s motion to suppress. “Our law is unequivocal
that the responsibility rests upon the appellant to ensure that the record
certified on appeal is complete in the sense that it contains all of the
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7
Our Supreme Court has recently clarified our scope of review when
considering a challenge to a trial court’s suppression ruling as it relates to
“the extent of the record that the appellate court consults when conducting
that review.” In re L.J., 79 A.3d 1073, 1080, (Pa. 2013). The Supreme
Court held that such review is limited to the suppression hearing record, and
“it is inappropriate to consider trial evidence as a matter of course, because
it is simply not part of the suppression record, absent a finding that such
evidence was unavailable during the suppression hearing.” Id. at 1085.
Because prior cases held that a reviewing court could consider the trial
record in addition to the suppression record, the Supreme Court determined
that the more limited scope announced in In re L.J. would apply
prospectively to cases where the suppression hearing occurred after October
30, 2013. Id. at 1088-1089. Instantly, the subject suppression hearing
was held on January 11, 2011. Accordingly, our scope of review includes the
trial testimony in this case.
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materials necessary for the reviewing court to perform its duty.”
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006) (en banc)
(citation omitted), appeal denied, 916 A.2d 632 (Pa. 2007). The transcript
is not included in the clerk of courts’ list of record documents supplied to the
parties. See Pa.R.A.P. 1911, 1931(d). Appellant has made no effort to
assure inclusion of the missing transcript. See id. at 1926(b). “When the
appellant … fails to conform to the requirements of Rule 1911, any claims
that cannot be resolved in the absence of the necessary transcript or
transcripts must be deemed waived for the purpose of appellate review.”
Preston, supra. Because our scope of review for Appellant’s suppression
issue in this case includes the trial transcript, which is extensively cited by
the parties, we decline to find waiver on this issue.
Appellant specifically contends the police subjected her to a custodial
interrogation without first providing her with Miranda warnings.
Appellant’s Brief at 29. Appellant concedes that she was Mirandized prior
to giving her written statement but claims the original taint precludes
admission of the written statement as well. Id. The trial court determined
that Appellant was not subjected to custodial interrogation “until after she
admitted to walking up behind [V]ictim and shooting him in the head,” after
which she was advised of her Miranda rights. Trial Court Opinion, 1/4/13,
at 10.
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“In Miranda [], the United States Supreme Court declared that an
accused has a Fifth and Fourteenth Amendment right to have counsel
present during custodial interrogation, so as to ensure that the defendant’s
right against compulsory self-incrimination is protected.” Commonwealth
v. Martin, --- A.3d ---, 2014 WL 4745782, *14 (Pa. 2014).
The principles surrounding Miranda warnings are []
well settled. The prosecution may not use
statements stemming from a custodial interrogation
of a defendant unless it demonstrates that he was
apprised of his right against self-incrimination and
his right to counsel. Thus, Miranda warnings are
necessary any time a defendant is subject to a
custodial interrogation. As the United States
Supreme Court explained, the Miranda safeguards
come into play whenever a person in custody is
subjected to either express questioning or its
functional equivalent. Moreover, in evaluating
whether Miranda warnings were necessary, a court
must consider the totality of the circumstances.
Commonwealth v. Gaul, 912 A.2d 252, 255 (Pa. 2006) (internal quotation
marks and citations omitted), cert. denied, 552 U.S. 939 (2007).
The law is clear that Miranda is not implicated
unless the individual is in custody and subjected to
interrogation.
Police detentions only become custodial when,
under the totality of the circumstances, the
conditions and/or duration of the detention become
so coercive as to constitute the functional equivalent
of formal arrest … [T]he test focuses on whether the
individual being interrogated reasonably believes his
freedom of action is being restricted.
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Commonwealth v. Snyder, 60 A.3d 165, 170 (Pa. Super. 2013) (internal
quotation marks and citations omitted, emphasis in original), appeal denied,
70 A.3d 811 (Pa. 2013).
The factors a court utilizes to determine, under
the totality of the circumstances, whether a
detention has become so coercive as to constitute
the functional equivalent of arrest include: the basis
for the detention; its length; its location; whether
the suspect was transported against his or her will,
how far, and why; whether restraints were used;
whether the law enforcement officer showed,
threatened or used force; and the investigative
methods employed to confirm or dispel suspicions.
The fact that a police investigation has focused on a
particular individual does not automatically trigger
“custody,” thus requiring Miranda warnings.
Commonwealth v. Baker, 24 A.3d 1006, 1019-1020 (Pa. Super. 2011),
quoting Commonwealth v. Mannion, 725 A.2d 196, 200 (Pa. Super. 1999)
(citations omitted), affirmed, 78 A.3d 1044 (Pa. 2013).
Instantly, contrary to the trial court’s finding, Appellant asserts the
totality of the circumstances reveal she was subjected to a custodial
interrogation. Appellant’s Brief at 28.
Appellant was clearly the object of an investigation
which she was the focus. The officers wanted to
question her because she was the last person to see
[Victim] alive. There was nobody else that they
were investigating. The investigation into how
[Victim] died (suicide vs. homicide) focused on only
two people: Carolyn and [Appellant]. The police
never considered Carolyn a suspect; that only leaves
one other person to investigate – [Appellant].
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Id. Appellant further argues the following additional facts warrant a legal
conclusion that Appellant’s encounter with the police was custodial and
coercive. Appellant was advised of Victim’s death while she was leaving the
hospital where she had been examined for injuries she attributed to an
attack from Victim. Id. The police transported Appellant to the police
station in a police vehicle. Id. at 28-29. The police refused her request to
speak with her daughter before giving a statement. Id. at 28.
If Appellant was led to believe that she couldn’t even
speak to her own daughter until providing a
statement to police, had nowhere else to go, was
asked to come to the police station even before
leaving the hospital where she was receiving
treatment for her injuries, and was transported to
the police station in the back of a police cruiser
rather than in the pastor’s car with her daughter, it
reasonably follows that Appellant would believe that
she was not free to leave until providing a statement
and therefore was the object of a custodial
interrogation.
Appellant’s Brief at 29. We disagree.
Initially, we note that “[b]eing the ‘focus’ of an investigation does not
have talismanic qualities requiring the rendition of Miranda warnings.
Rather, it is but one factor in deciding whether one is ‘in custody.’” In re
V.H., 788 A.2d 976, 981 (Pa. Super. 2001), appeal denied, 808 A.2d 573
(Pa. 2002) (citations omitted), see also Baker, supra. Additionally, we
conclude the facts support the trial court’s determination that Appellant was
not in custody at the time she made her initial inculpatory statement.
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Those facts, viewed in the light most favorable to the Commonwealth,
demonstrate that it was Appellant who first made contact with the police,
claiming she was the victim of an assault by her son-in-law. N.T., 1/30/12,
at 64-65. Appellant also acknowledged to the police that she heard shots
fired when leaving her daughter’s residence after the alleged assault. Id. at
67-68. Appellant was then taken in an ambulance to the hospital for
assessment of her injuries from the assault, where police later located her
and her daughter to notify them of Victim’s death. Id. at 67, 82. The police
advised Appellant and her daughter that they would like them to talk with
the investigating officers at the police station.8 Id. at 97-98. Appellant
agreed but indicated she was not comfortable driving herself due to her
unfamiliarity with the area. Id. at 98. She then accepted an offer by the
police to drive her. It was 11:00 p.m. when she accepted the ride.9 Id. at
83. No questioning took place while Appellant was in the police vehicle, and
she was not restrained in any way. Id. at 83-84. Upon arriving at the
police station, Appellant waited unattended and unconstrained in the public
lobby. Id. at 84. At 12:02 a.m., Trooper Henderson took Appellant into the
interview room to talk with her. Id. at 267. During the interview, the door
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8
The officers at the hospital were not involved in the investigation of
Appellant’s assault allegation or of Victim’s death. They were merely
performing the death notice to Victim’s next of kin. N.T., 1/30/12, at 82.
9
Appellant’s daughter, with her children, waited for her pastor to arrive to
drive them to the police station. N.T., 1/30/12, at 98.
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to the room remained open, and Appellant was free to leave at any time.
Id.
Initially, Appellant conceded her account of events, given at the time
she made her complaint, was not accurate. She then provided a second
version of events, describing an accidental shooting during her struggle to
retrieve the gun from Victim, who had taken it from her luggage. Id. at
270-271. When asked about inconsistencies with the physical conditions
found at the scene, Appellant gave a third version, describing an accidental
shooting when Appellant tried to get the gun away from her when she
brought it into the room where he sat at the computer. Id. at 271-272.
When asked if this version was the truth, Appellant paused and then
provided a fourth version, admitting to intentionally shooting Victim while he
was seated at the computer. Id. at 272. At this point, it was 1:40 a.m.,
and Trooper Henderson stopped the interview, advised Appellant she was
under arrest, and presented her with oral and written Miranda warnings.
Id. at 273. Appellant executed a written waiver of those rights and
proceeded to supply Officer Henderson with a written statement. Id.,
Commonwealth Exhibit 19.
These facts do not portray anything close to coerciveness reaching the
functional equivalent of an arrest. See Snyder, supra. Appellant initiated
contact with the police, was not transported against her will, and was not
subjected to displays of force, coercion, or aggressive investigative
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techniques. See Baker, supra, see also Commonwealth v. Schwing,
964 A.2d 8, 12 (Pa. Super. 2008) (holding that interview at police station
where door to interview room was open, defendant was free to leave
unaccompanied, and in the absence of other indicia of coercive police
detention, defendant was not subjected to custodial interrogation) appeal
denied, 989 A.2d 916 (Pa. 2009). Accordingly, we discern no error by the
trial court in denying Appellant’s motion to suppress.10
In her second issue, Appellant challenges the trial court’s evidentiary
ruling, permitting the Commonwealth to introduce into evidence a taped
recording of a conversation she had with her husband on September 17,
2010, while he visited her in the Mifflin County prison after her arrest.
Appellant’s Brief at 33. We review a trial court’s evidentiary rulings in
accordance with the following standard.
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10
Appellant advances an alternative argument that even if she was not
subject to custodial interrogation, her statements should nevertheless have
been suppressed “as [they] were made involuntarily.” Appellant’s Brief at
30. We deem this issue waived. Appellant’s Rule 1925(b) statement
addressed her challenge to the trial court’s suppression ruling as follows.
“The [t]rial [c]ourt committed an error of law when it admitted statements
obtained from Appellant in violation of the requirements under Miranda [].”
Appellant’s Rule 1925(b) Concise Statement of Errors Complained of on
Appeal, 9/28/12, at 3, ¶ 5.e. Nowhere in her Rule 1925(b) statement does
Appellant raise this alternative theory for suppression. Pennsylvania Rule of
Appellate Procedure 1925(b) by its text requires that statements “identify
each ruling or error that the appellant intends to challenge with sufficient
detail to identify all pertinent issues for the judge.” Pa.R.A.P. 1925(b)(4)(ii).
Any issues not raised in accordance with Rule 1925(b)(4) will be deemed
waived. Id. at 1925(b)(4)(vii). Our Supreme Court has held that Rule 1925
is a bright-line rule. Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
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The standard of review for a trial court’s
evidentiary rulings is narrow. The admissibility of
evidence is solely within the discretion of the trial
court and will be reversed only if the trial court has
abused its discretion. An 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. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation
omitted), appeal denied, 87 A.3d 319 (Pa. 2014).
Instantly Appellant asserts the trial court erred in permitting the
admission of a privileged communication between spouses in the absence of
a valid waiver of the privilege.11 Appellant’s Brief at 33-34. We conclude
Appellant misconstrues the privilege. The privilege for confidential marital
communications is codified and provides as follows.
§ 5914. Confidential communications between
spouses
Except as otherwise provided in this subchapter, in a
criminal proceeding neither husband nor wife shall
be competent or permitted to testify to confidential
communications made by one to the other, unless
this privilege is waived upon the trial.
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11
At trial and in her Rule 1925(b) statement, Appellant raised other grounds
for her objection to the admission of the subject recording, including lack of
discovery, and violation of the Wiretapping and Electronic Surveillance
Control Act, 18 Pa.C.S.A. § 5701. N.T., 1/30/12, at 18, 21, 235; Appellant’s
Rule 1925(b) Concise Statement of Errors Complained of on Appeal,
9/28/12, at 3, ¶¶ 5.b., 5.c. Appellant does not pursue those claims on
appeal.
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42 Pa.C.S.A. § 5914. The purpose behind the privilege has long been
recognized by our Courts as grounded in the marital relationship.
The spousal confidential communications privilege
has its roots in common law and is based upon
considerations of public policy, as in the case of
husband and wife to preserve the peace, harmony
and confidence in their relations. The Section 5914
privilege encompasses any communications which
were confidential when made and which were made
during the marital relationship. The determination of
what constitutes a confidential communication
depends upon whether the defendant has a
reasonable expectation that the communication will
remain confidential. As a general matter, the
presence of third parties at the time the
communication is made negates the confidential
nature of the communication.
Commonwealth v. Mattison, 82 A.3d 386, 394 (Pa. 2013) (internal
quotation marks and citations omitted), cert. denied, 135 S. Ct. 221 (2014).
“Historically, the privilege was enacted to preserve marital harmony by
encouraging free marital communication, allowing spouses to confide freely,
and protecting the privacy of marriage.” Commonwealth v. Hunter, 60
A.3d 156, 159 (Pa. Super. 2013).
While communications between spouses are
presumed to be confidential under section 5914, it
has long been recognized that whether a particular
communication is privileged depends upon its nature
and character and the circumstances under which it
was said. It is essential that the communication be
made in confidence and with the intention that it not
be divulged. Moreover, it is the burden of the party
opposing the privilege to overcome the presumption
of confidentiality.
Id. at 159-160 (citations and footnote omitted).
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Instantly, the Commonwealth did not call Appellant’s husband as a
witness. Therefore, his competency as a witness under Section 5914 is not
at issue. Playing the audio recording of Appellant’s conversation with her
husband does not implicate “the peace, harmony and confidence” of her
marital relationship, because the information is not being disclosed by her
spouse. See Mattison, supra. Section 5914 only addresses the
competency of a spouse to disclose privileged marital communications made
to that spouse. See 42 Pa.C.S.A. § 5914. Further, the trial court
determined that Appellant had been advised that her communications in the
prison were subject to recordation, which negated the confidential nature of
her conversation with her husband. Trial Court Opinion, 1/4/13, at 4; see
Mattison, supra. Accordingly, we conclude Appellant’s second issue is
devoid of merit.
In her final issue, Appellant alleges the trial court erred in refusing to
grant her motion for change of venue or venire. Appellant’s Brief at 36.
A request for a change of venue or venire is
addressed to the sound discretion of the trial
court, which is in the best position to assess
the atmosphere of the community and to judge
the necessity of the requested change. Absent
an abuse of discretion, the trial court’s decision
will not be disturbed.
A change of venue becomes necessary when
the trial court determines that a fair and
impartial jury cannot be selected in the county
in which the crime occurred. … Ordinarily[] a
defendant is not entitled to a change of venue
unless he or she can show that pre-trial
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publicity resulted in actual prejudice that
prevented the impaneling of an impartial jury.
The mere existence of pre-trial publicity does
not warrant a presumption of prejudice.
There is an exception to the requirement that
the defendant demonstrate actual prejudice.
Pre-trial publicity will be presumed to have
been prejudicial if the defendant is able to
prove that the publicity was sensational,
inflammatory, and slanted toward conviction,
rather than factual or objective; that such
publicity revealed the defendant’s prior
criminal record, if any, or referred to
confessions, admissions, or reenactments of
the crime by the defendant; or that it was
derived from official police and prosecutorial
reports. Even if the defendant proves the
existence of one or more of these
circumstances, a change of venue or venire is
not warranted unless he or she also shows that
the pre-trial 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.
Commonwealth v. Karenbauer, 552 Pa. 420, 715
A.2d 1086, 1092 (1998) (citations omitted); see
also Commonwealth v. Briggs, 608 Pa. 430, 12
A.3d 291, 314 (2011) (“[T]he pivotal question in
determining whether an impartial jury may be
selected is not whether prospective jurors have
knowledge of the crime being tried, or have even
formed an initial opinion based on the news coverage
they had been exposed to, but, rather, whether it is
possible for those jurors to set aside their
impressions or preliminary opinions and render a
verdict solely based on the evidence presented to
them at trial.”).
Commonwealth v. Chmiel, 30 A.3d 1111, 1152-1153 (Pa. 2011).
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We are constrained to find this issue waived. As noted in footnote two
above, the transcript of the hearing on Appellant’s omnibus pretrial motion is
not contained in the certified record. Also, as noted, the trial court in
denying Appellant’s motion for change of venue or venire, as contained in
her omnibus pretrial motion, recognized that the motion was “deemed
continuing and can be addressed pretrial upon further information being
developed or, certainly, at a time when difficulty in empanelling a jury is
encountered.” Trial Court Memorandum, 2/8/11, at 1. In her post-trial
motion, Appellant asserts, “counsel for [Appellant] renewed their motion
made pretrial for [c]hange of [v]enue/[c]hange of [v]enire.” Appellant’s
Post-Trial Motion, 2/21/12, at 12, ¶ 50. Appellant indicates additional
evidence was presented at that time. Id. at 12, ¶¶ 49, 51. Again, however,
we note that no written renewal motion appears in the record and no
transcript of the hearing on Appellant’s motion is contained in the certified
record or Appellant’s reproduced record. Additionally there is no transcript
of jury selection in the record.
Absent these critical materials, it is impossible for this Court to review
the trial court’s decision on this issue. The only materials before us are the
articles attached to Appellant’s Omnibus pretrial motion, which are dated
over a year before trial. There is no basis upon which to evaluate the trial
court’s determination that the publicity was “not so extensive, sustained and
persuasive without sufficient time between publication and trial for the
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prejudice to dissipate[,] … [or] so pervasive that [] the community has been
saturated with it.” Trial Court Opinion, 1/4/13, at 11 (internal quotation
marks and citation omitted). Further we cannot evaluate the prejudicial
impact, if any, on jury selection. See Chmiel, supra.
As noted above, “[o]ur law is unequivocal that the responsibility rests
upon the appellant to ensure that the record certified on appeal is complete
in the sense that it contains all of the materials necessary for the reviewing
court to perform its duty.” Preston, supra. We conclude Appellant’s failure
to do so in this instance results in waiver of her challenge to the trial court’s
denial of her motions for change of venue or venire. See id.
Having determined all of Appellant’s issues are either meritless or
waived, we discern no error or abuse of discretion by the trial court in its
disputed rulings. Accordingly, we affirm the February 9, 2012 judgment of
sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2014
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