finding abuse of discretion in failure to grant a change of venue where pre-trial opinion poll demonstrated 57% of prospective jurors believed the accused was guilty and 53% of jurors were excused on the ground they had a fixed, irrevocable belief that the accused was guilty
How later courts described this case
- finding abuse of discretion in failure to grant a change of venue where pre-trial opinion poll demonstrated 57% of prospective jurors believed the accused was guilty and 53% of jurors were excused on the ground they had a fixed, irrevocable belief that the accused was guilty
- vacating Cohen’s judgment of sentence and remanding for a new trial and change of venue because the trial court abused its discretion in refusing to grant a change in venue based upon pretrial publicity
- change of venue required where 53% of prospective jurors questioned were excused because of prejudgment, i.e., a “fixed and irrevocable opinion on guilt”
Written by the judges who cited it.
The opinion
NIX, Justice,
concurring and dissenting.
I am in substantial agreement with the reasoning of the majority in reaching the conclusion that appellant was not *188 entitled to be discharged and that further prosecution for these offenses should not be barred. I also share the position that the prevailing climate in Berks County at the time of appellant’s trial precluded the possibility that he could receive a trial by an impartial jury. To remedy this error a new trial must be granted. But the decision of the majority, at this time, to also provide for a retrial outside of Berks County is totally unwarranted.
The trial in this case occurred between September 22 and October 3, 1975. To conclude that the climate remains unchanged today, without the least support for such a judgment, cannot be supported. 1 The appropriate resolution would permit the Berks County court to determine, at least in the first instance, whether at this time appellant could be given a fair trial within that county. I, therefore, dissent to that portion of the mandate of this Court directing a change of venue sua sponte.
. The record before us contains only information concerning the climate prevailing in Berks Comity in 1975. Five years have passed since the trial and without any information concerning the climate today, the majority is ordering a change of venue. Perhaps the climate in 1980 is the same as in 1975, or it is possible that the citizenry’s prejudices may be rekindled by a retrial of the appellant. Nonetheless, we have consistently held that “it is blackletter law an appellate court cannot consider anything which is not part of the record in the case,” Saint John the Baptist Greek Catholic Church v. Musko, 448 Pa. 132, 162 , 291 A.2d 89 (1972), and “[ojnly the facts that appear in this record may be considered by the appellate court.” Commonwealth v. Young, 456 Pa. 102, 115 , 317 A.2d 258, 264 (1974). Based upon the record, it is inappropriate and premature for us to conclude that a change of venue is warranted. See, e. g., Commonwealth v. Douglas, 461 Pa. 749, 753 , 337 A.2d 860, 862 (1975). Moreover, at this juncture we do not know whether appellant still desires a change of venue.