Petition — Cohen v. Pennsylvania

Supreme Court, U.S.

FILE

1)

1980

IN THE —_ PRIGHAEL RoDAK, JR., CLERK

Supreme Court of the United States

OcTOBER TERM, 1979

No ZO -2000

Stuart RicHArD COHEN,

Petttioner,

VS.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

Wa trer H. FLEISCHER

1730 K Street, N.W.

Washington, D.C. 20006

EMMANUEL H. DimitTRIoU

522-24 Court Street

Post Office Box 677

Reading, Pennsylvania 19601

Counsel for Petitioner

Of Counsel:

Cole and Groner, P.C.

1730 K Street, N.W.

Washington, D.C. 20006

Press or Byron S. ADAMS PRINTING, INC., WASHINGTON, D. C.

TABLE OF CONTENTS

Page

a ne rr rE eo rs 1

PP UNOTUE ios hh deck oe eo eee ee 2

Bg rrr Pe 2

No o5 ck cecueesakcascedasaeebas eee 2

REASONS FOR GRANTING THE WRIT ...........00e008+ 11

Be ee ree eee Tee re eae eye em 16

Appendix A—Judgment of the Supreme Court of

i ree pr ety ees eee la

Appendix B—Opinion of the Supreme Court of

PO INOID S6ankk ska Va eae ccads tana 2a

ps Tee ree 25a

Appendix D—Order Denying Posttrial Motions ...... 26a

Appendix E—Opinion of the Court of Common Pleas

of Berks County, Pennsylvania ................ 27a

TABLE OF AUTHORITIES

CASES: Page

Arizona v. Washington, 434 U.S. 497 (1978) ......... 14

Benton v. Maryland, 395 U.S. 784 (1969) ............ 14

Berger v. United States, 295 U.S. 78 (1935) .......... 13

Brown v. Mississippi, 297 U.S. 278 (1936) ........... 11

Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492

bey eet ere epee, 1S ete 13

Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757

CRED cw cal dvakansues ounce ices eee eee 8

Coppolino v. Helpern, 266 F. Supp. (S.D.N.Y. 1967) .. 12

il Table of Authorities Continued

Page

Greenberg v. United States, 280 F.2d 472 (1st Cir.

ADU PCRT SICA Wars bedVes vv seo cnblesdeviededee 12, 13

Gregory v. United States, 369 F.2d 185 (D.C. Cir.

1966), cert. denied, 396 U.S. 865 (1969)........... 12

Lee v. United States, 432 U.S. 23 (1977) ............ 14

Lewis v. Court of Common Pleas of Lebanon County,

436 Pa. 296, 260 A.2d 184 (1969) ................ 12

Olmstead v. United States, 277 U.S. 438 (1928) ...... 16

Palko v. Connecticut, 302 U.S. 319 (19387) ............ 11

Payne v. Arkansas, 356 U.S. 560 (1958) ............. 13

Rochin v. California, 342 U.S. 165 (1952) ............ 14

Steele v. United States, 222 F.2d 628 (5th Cir. 1955),

cert. dented, 355 U.S. 828 (1957) ............00- 13

United States v. Banks, 383 F. Supp. 389 (D.S.D.

1974), appeal dismissed sub nom., United States v.

Means, 513 F.2d 1329 (8th Cir. 1975) ............ 14

United States v. Butler, 567 F.2d 885 (9th Cir. 1978)

eA SG wevecdsecceveeeee 14

United States v. Dinitz, 424 U.S. 600 (1976) ......... 14

United States v. Garza, 603 F.2d 578 (5th Cir. 1979) .. 14

United States v. Grunberger, 431 F.2d 1062 (2d Cir.

eed. es bud ev vores ences eeess 16

United States v. Jorn, 400 U.S. 470 (1971) ........... 14

United States v. LaBarbera, 581 F.2d 107 (5th Cir.

eae 13

United States v. Ludwig, 508 F.2d 140 (10th Cir.

oer Us phbcecesésnsavcsescsoee 12

United States v. McCord, 509 F.2d 334 (D.C. Cir.

1974), cert. denied, 421 U.S. 930 (1975) ......... 14

United States v. Morrison, 602 F.2d 529 (3d Cir. 1979) 14

United States v. Russell, 411 U.S. 423 (1973) ....... 13-14

United States v. Russo, Crim. No. 9373 (C.D.Cal. 1973) 14

Table of Authorities Continued iil

Page

United States v. Willis, 606 F.2d 391 (3d Cir. 1979) .. 10

Virgin Islands v. Toto, 529 F.2d 278 (3d Cir. 1976) ... 13

Constitutions, StaTuTES AND RuLEs:

United States Constitution

SE NE. 6 cis wad aa ok'nb es O46 MOR eae 14

ENS 5. ovo 6460 O40R6 Orbe Rae ETERS 14

EE SUE so We AN PANGS 4a Kd bls Db WA 008 DRESS 1

United States Supreme Court

NT GS BEDE Cor Ee te CaS ee AN OE I De 1

MIScELLAN EOUS:

ABA Code of Professional Responsibility

Pe SUR UG NG a cuatea 4 opal ecabnada nee aunea cee 12

ABA Project on Standards for Criminal Justice,

Standards Relating to the Prosecution Function

and the Defense Function § 5.8 (1971) .......... 12

ALI Model Penal Code, Tentative Draft No. 10 (1960) 9

IN THE

Supreme Cot of the United States

OctToBER TERM, 1979

No.

Stuart RicHARD COHEN,

Petitioner,

vs.

COMMONWEALTH OF PENNSYLVANIA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF PENNSYLVANIA

Stuart Richard Cohen petitions for a writ of cer-

tiorari to review the judgment of the Supreme Court

of Pennsylvania entered in this case on April 30, 1980,

insofar as it holds that he is subject to retrial.

OPINIONS BELOW

The opinion of the Supreme Court of Pennsylvania

(App. B., infra, p. 2a) is reported at 413 A.2d 1066.

The opinion of the Court of Common Pleas (App. E.

infra, pp. 29a-71a) is not reported.

2

JURISDICTION

The judgment of the Supreme Court of Pennsyl-

vania was entered on April 30, 1980 (App. A., infra, p.

la). The jurisdiction of this Court is invoked under 28

U.S.C. § 1257(3). The Petition is filed within the pe-

riod permitted by Rule 22(1) of this Court.

QUESTION PRESENTED

Whether a reprosecution is barred as a matter of

Due Process of Law or the Double Jeopardy Clause,

when a reversed conviction has been obtained by

egregious prosecutorial misconduct, including in-

timidation of witnesses by deseribing ‘‘in lurid detail’’

the electric chair and the smell of burning flesh to

them, wilful interference with defense access to wit-

nesses, and deliberate and repeated violation of well-

settled canons of prosecutorial conduct by vouching for

the credibility of prosecution witnesses, claiming that

the prosecutor was not an advocate but instead repre-

sented the jurors, and introducing inflammatory evi-

dence and statements concerning uncharged crimes

and defendant’s wealth.

STATEMENT

This proceeding arises from a prosecution for mur-

der and conspiracy to murder brought against Peti-

tioner Stuart Richard Cohen in the Court of Common

Pleas, Berks County, Pennsylvania. Cohen, then an 18

year old of diminutive stature (less than five feet tall),

and wealthy parentage, was accused of hiring certain

other persons to kill one Steven Warunek, who report-

edly had threatened to kill Petitioner. As appears from

the opinion of the Supreme Court of Pennsylvania re-

3

versing Petitioner’s conviction for third degree mur-

der and conspiracy to murder, on the ground that Due

Process had required granting Petitioner a change of

venue, the case immediately became a media event in

the Reading, Pennsylvania area. The coverage was

massive and included reportage of statements in public

places by the District Attorney or his assistants that

he would be standing beside Mr. Cohen when they

pulled the switch and characterizing the case as in-

volving a ‘‘contract killing’? (Venue Exh. 23, pp. 647,

650, 731).’

The prosecution, at all stages from investigation

through final argument at trial, also was marked by

severe misconduct. The evidence of this misconduct

consists not of defense testimony, but rather of testi-

mony of the Police Prosecutor (the detective in charge

of the investigation for the Commonwealth) and the

President Judge of the Court of Common Pleas, the

indisputable transcript of what took place at trial, and

the confession of error in the Supreme Court of Penn-

sylvania by the successor District Attorney that (Br.

in Pennsylvania Sup. Ct., p. 5):

‘‘A careful examination indicates that the rec-

ord is replete with varying and recurring in-

stances of improper conduct on the part of the

prosecutorial staff of the prior administration.

These instances go far beyond the bounds of ad-

voeacy or zeal in prosecution .... Before the trial

itself, the District Attorney made such statements

referring to ‘burning flesh in the electric chair,’

wanting to be in the same room ‘when the switch

was pulled,’ and a threat to a witness that he

could receive the electric chair unless he testified.

‘**Venue Exh.’’ refers to the transcript of the hearing on re-

duction of bail.

4

These tend to show a pattern of overzealousness

and smack of improper persuasion.”’

Specifically, the evidence of misconduct from such

sources included the following:

The police prosecutor, Detective John Halstead, as

well as the Commonwealth’s own witnesses, testified

that the District Attorney and one of his assistants had

elicited statements implicating Cohen by threatening

the witnesses with the electric chair and describing it

and the smell of burning flesh to them ‘‘in lurid detail.”’

At least seven witnesses were subjected to this mode of

questioning (R. 35a, 37a, 40a-44a, 52a-53a, 404a-405a,

434a, 4430-444a, 458a-459, 462a).° The principal gov-

ernment witness, Jack Geisler, broke down and cried

during his interrogation, in which the Assistant Dis-

trict Attorney John J. Murphy, Jr., was shouting as

well as describing the electric chair (R. 40a, 458a-

459a). Another key witness, Anthony Reynolds, was

told that every effort would be made to see that he went

to the electric chair unless he testified against Richard

Cohen (R. 44a); witness Richard Wamsher was told

that he would be knocked ‘‘on his ass’’ if he did not

talk (R. 32a, 455a). Robert L. VanHoove, the District

Attorney, remarked to a room full of people that he

would be standing beside Mr. Cohen when they pulled

the switch (R. 38a-34a, 456a).

In addition to threatening prospective witnesses, the

Commonwealth Attorneys at times made unusual

promises or showed unusual leniency. For example,

they promised Reynolds that they would confer with

the Judge ‘‘to determine what could be done for Mr.

2**R.’’ refers to the Reproduced Record (i.e., appendix) filed

in the Supreme Court of Pennsylvania.

5

Reynolds” (R. 35a). When Geisler became ill in prison

Assistant District Attorney Murphy obtained his re-

lease without bond by signing personally as surety, an

action which was “highly improper and contrary to

the rules of procedure and rules of law,’’ according to

President Judge W. Richard Eshelman, who ordered

Geisler back to prison as soon as the matter was

brought to his attention (R. 55a-56a, 57a, 58a, 477a).

Although Geisler admitted to having lied repeatedly

under oath in pretrial proceedings (¢.g., R. 366a, 368a,

370a-371a, 375a, 396a), he was never charged with per-

jury (R. 5la).

This coercion had its expectable effect: witnesses

who had not implicated Cohen in any way in their ini-

tial statements to the authorities began to do so; and

ultimately they became the key prosecution witnesses.*

*In particular, Geisler did not implicate Mr. Cohen in his state-

ments of November 18 and 19, 1974 (Trial Tr. 201, 202, 205), nor

in his testimony one month later at a preliminary hearing in the

ease against George Arms, who was alleged to have done the

shooting of Warunek (Trial Tr. 206-207, 213). As late as January

24, 1975, he testified that the purpose of the alleged agreement

with Cohen was ‘‘messing up,’’ but not killing, Warunek (Trial

Tr. 240).

That testimony was most unsatisfactory to the prosecutors, for

it tended to support a principal defense theory that the idea of

killing Warunek was arrived at by Messrs. Geisler, Reynolds and

Arms, because of an animus towards Warunek that one or more

of them had for reasons unrelated to Mr. Cohen. Thus the defense

was that, even though Cohen may have wished Warunek frightened

off from his threats to Cohen, he did not wish or conspire to kill

him. This defense theory was strongly supported at trial by evi-

dense that Arms and other persons possibly implicated in Waru-

nek’s death had previously been involved in a violent shooting

episode in front of Warunek’s house, that had no connection at

all with Mr. Cohen (R. 473a, 480-48la). As will appear in the

text, the jury, despite its adverse verdict, indicated in a note to

the Court that it did not believe that Cohen intended to have

Warunek killed (R. 514a, 541a).

Reynolds also first gave a statement on January 31, 1975 (R.

6

The District Attorney’s office wilfully impeded de-

fense counsel’s interviews of witnesses by instructing

turnkeys not to permit imprisoned witnesses to speak

with defense counsel and instructing other witnesses

not to speak with defense counsel outside the presence

of the Assistant District Attorney (R. 434a, 461a). For

example, a memorandum on official stationery speci-

fied that (R. 537a, 461a):

‘*No individuals, police personnei or private citi-

zens or attorneys or anyone else shall be permitted

or allowed to have any conversation with Richard

John Abraham unless I personally am present.

‘*Robert L. Van Hoove

District Attorney’”’

Similar letters were promulgated with respect to other

witnesses (R. 461a). Also, the Assistant District At-

torney instructed the police prosecutor not to keep

daily investigation reports, in disregard of the police

department’s standard procedure (R. 459a-460a).

The prosecutorial misconduct continued throughout

Richard Cohen’s trial. In opening argument, the As-

sistant District Attorney personally vouched for his

witnesses’ credibility (R. 326a-327a) :

‘*Needless to say, on behalf of the witnesses which

I introduce ... to you, I am vouching for the truth

of what they are saying. I am putting them on the

stand because I believe them” (R. 326a).

‘**T vouch the truth of the testimony I present .. .”’

(R. 327a).

He elicited evidence from Commonwealth witnesses

that Cohen was engaged in illegal drug supplying (R.

530a), after being subjected to the threats and promises (R. 35a-

36a).

7

337a-338a, 339a-341a, 408a-412a, 414a, 425a-429a, 437a-

438a), a erime with which Cohen was never charged.

He cross-examined Cohen as to other uncharged crimi-

nal activities—illegal drug use (R. 469a, 470a-472a)

and failure to support an illegitimate child (R. 468a).

In closing, he argued to the jury in crude, inflamma-

tory language that Cohen was a purveyor of drugs

(R. 489a-491a, 493a) and much wealthier than the oth-

ers allegedly involved (R. 487a-488a, 490a).* The As-

sistant District Attorney added that he ‘‘would not

knowingly put a liar on the witness stand’”’ (R. 485a-

486a). He appealed for personal sympathy by telling

the jury that he was the youngest assistant district

attorney in Berks County (R. 495a) and evoked the

image of himself as a student in a cramped apartment

(R. 487a-488a). He went on to express his personal

belief that Cohen was guilty (R. 498a). He misrepre-

sented himself as the jurors’ representative :

“TT he roles which Mr. Dimitriou [defense coun-

sel] and I occupy in this proceeding are similar

and yet in many respects fundamentally different.

Mr. Dimitriou is an advocate....

‘*My role is not as an advocate. My role is to

represent the Commonwealth, to represent the

citizens of Berks County. To represent you, each

and every one of of you, and each and every one

of the people outside this building in this county,

and to represent you in the pursuit of justice’”’ (R.

483a).

#« |, pretty soon Richie Cohen rolls up. Richard Cohen comes

down to South Eighth Street in his important sports car to meet

his new friends’’ (R. 490a).

‘Eyes light up around 111 South Eighth Street. Richie Cohen,

who supplied them with some good dope the night before, with

some marijuana, some kind of white powder, PCP, THC, whatever’’

(R. 489-490a).

8

Defense counsel repeatedly objected to the prosecu-

torial misconduct. An Application and Reapplication

to Disqualify the District Attorney, et al., were sup-

ported by written and testimonial evidence of the Com-

monwealth’s threats against witnesses, the improper

release of Geisler from prison, the personal animus of

the District Attorney toward Cohen, and the failure

to initiate prosecutions against key witnesses. The

Trial Court denied the Application and Reapplica-

tion (R. 59a, 136a).

At the end of opening arguments, the defense moved

for a mistrial based upon the prosecutor’s statement

that he vouched for the credibility of his witnesses (R.

328a); this was denied as ‘‘untimely’’ (R. 329a)—

though it came in time for corrective action to be taken

and hence was timely under Pennsylvania precedent.’

The defense objected at the outset to Geisler’s testi-

mony, based on the prosecutor’s coercion of the wit-

ness (R. 335a) and moved to strike Reynolds’ testi-

mony for the same reason (R. 423a); both objections

were denied (R. 336a, 424a). The defense demurred to

the Commonwealth’s case based on the Common-

wealth’s knowing use of perjured and coerced testi-

mony and abuse of the prosecutorial prerogative in

violation of Defendant’s right to due process; the De-

murrer was refused by the Court (R. 449a).

The defense’s Motion For Directed Verdict restated

these reasons and also raised the prosecution’s obstruc-

tion of defense access to witnesses; it, too, was denied.

The defense requested the Trial Judge to instruct the

jury on prosecutorial misconduct (R. 554a); this re-

5 Commonwealth v. Smith, 464 Pa. 314, 346 A.2d 757, 758-759

(1975).

9

quest was refused and the defense objected (R. 510a-

Slla). Defendant’s Motion and Supplemental Motion

for Arrest of Judgment and for a New Trial, and the

accompanying Memorandum, again contended that the

prosecution’s misconduct required not only vacation

of the conviction but dismissal of the indictment ( Post-

trial Memorandum, pp. 26-41). The Trial Court re-

jected these arguments (App. E., pp. 55a-65a).

The jury after indicating in a note that it disbelieved

the prosecution testimony that Cohen had intended the

killing of the decedent, and believed instead that the

death had been unintentional, returned a verdict of

guilty of murder in the third degree and conspiracy to

murder.’ The trial judge denied all posttrial motions,

including those based upon the refusal to grant Peti-

tioner a change of venue, and upon prosecutorial mis-

conduct (App. E., p. 71a).

At Cohen’s sentencing, the successor District Attor-

ney, Michael Morrissey, acknowledged (R. 580a) that

“to me, there are questions of prosecutorial miscon-

duct and the fact that one of the witnesses, who took a

plea to third dcgree murder, obviously perjured him-

self four or five times under oath’’ (R. 580a). At the

* A few minutes before returning its verdict, the jury made the

following written inquiry to the Court:

‘*Does the conspiracy to frighten or beat become a conspiracy

to commit murder with the death of the victim, even though

the death was unintentional?’’ (R. 514a, 54la).

In Petitioner’s view, the proper answer to this question was

simply ‘‘no,’’ see Comments to ALI Model Penal Code, Tenative

Draft No. 10 at 109-10 (1960) (incorporated in official draft),

and his conspiracy conviction was produced by a convoluted and

erroneous instruction in response to the jury’s question. In view

of the vacation of the conviction, that issue, however, is now moot.

10

subsequent trial of alleged co-conspirator, George

Arms, Assistant District Attorney James R. Hevalow

stated that prosecutor Murphy’s actions “are not pleas-

ant to me as a lawyer’’ and were ‘‘an over-involvement

that should not have happened.”’

In the Supreme Court of Pennsylvania, the District

Attorney confessed error as noted above.’ That Court

held that Mr. Cohen’s right to a trial by an impartial

jury had been violated by the refusal of the Trial

Court to transfer venue (App. B., p. 22a). It noted,

inter alia, the massive prejudicial publicity, contrib-

uted to by the remarks of the District Attorney, and

the fact that more than half the venire had to be ex-

cused for cause because of fixed opinions as to guilt.

However, the Pennsylvania Supreme Court refused

to ‘‘aecept appellant’s claim that a new trial is not a

sufficient remedy for the asserted prosecutorial mis-

conduct.’’ It incorrectly characterized Cohen’s position

as being based wholly upon ‘‘an unsupportable as-

sumption that a fair trial cannot be had in the fu-

ture.’’ In actuality, Cohen contended not only that the

As recounted in the opinion below (App. B., pp. 8a-9a n.8), after

argument and the District Attorney’s confession of error, local

authorities persuaded the Pennsylvania Attorney General’s Office

to attempt to supersede the District Attorney, who obviously had

acted in accordance with the highest standards of professional

responsibility of his office, see United States v, Will*s, 606 F.2d

391 (3d Cir. 1979). Supersession was not allowed bui the repre-

sentative of State Attorney General's office was permitted to appear

as an amicus curiae, urging affirmance.

Initially the District Attorney, in confessing error, took the posi-

tion that Petitioner should only be granted a new trial. At oral

argument in the Supreme Court of Pennsylvania, he stated that

on further thorough review of the record and reflection, he had

concluded that the misconduct was the worst encountered in his

substantial professional experience, and that Petitioner could not

obtain a fair trial.

11

testimony of witnesses so coerced as the principal

Commonwealth witnesses could never be ‘‘uncoereed”’

so as to ensure a future fair trial, but that considera-

tions of due process and double jeopardy barred repro-

secution in the face of such egregious misconduct.

REASONS FOR GRANTING THE WRIT

The holding of the Supreme Court of Pennsylvania

that a new trial is adequate relief for prosecutorial

conduct outside the restraints of ‘‘the very essence of

a scheme of ordered liberty,’’ Palko v. Connecticut,

302 U.S. 319, 325 (1937), and indeed as extreme as any

in recent legal literature, presents important issues of

Due Process and Double Jeopardy, which go to the

very integrity of the judicial process. It conflicts with

controlling authority of this Court and other appellate

courts. This case is an appropriate occasion for this

Court to address the circumstances and standards un-

der which the dismissal of an indictment may be re-

quired in response to flagrant governmental miscon-

duct.

1. Some forty-four years ago this Court definitively

and unanimously settled, in Brown v. Mississippi, 297

U.S. 278, 286 (1936), that a State may not rely upon

evidence obtained by violence, and that:

“*Tt would be difficult to conceive of methods more

revolting to the sense of justice than those taken

to procure the confessions of these petitioners, and

the use of the confessions thus obtained as the

basis for conviction and sentence was a clear de-

nial of due process.”’

Yoerecing witnesses by lurid descriptions of burning

flesh and the electric chair and unusual, illegal prom-

12

ises of lenity, may be distinguished only in that the

egregious, shocking coercion is in the form of threats

of violence, rather than their ultimate physical con-

summation—a distinction the law hardly could en-

dorse. Considering how clearly and how long abhor-

rence to coercion of witnesses has been a settled part

of concepts of Due Process of Law, Petitioner submits

that such violations of accepted standards of civilized

conduct, even standing alone, required a dismissal of

the indictment, and not merely giving a second chance

to the prosecutor.

The other misconduct as well as the direct coercion,

was repeated and wilful, and represented obvious vio-

lations of long-settled standards applicable to prose-

cutorial conduct in every respect. Each of the improper

activities was one condemned by settled judicial prece-

dent or canons of the legal profession—vouching for

the truthfulness of witnesses," interfering with defense

access to witnesses,’ eliciting evidence of and comment-

ing in argument upon, uncharged crimes and otherwise

*E.g., American Bar Association Code of Professional Respon-

sibility, DR 7-106(c)(4) (‘‘In appearing in his professional eca-

pacity before a tribunal, a lawyer shall not... [a]ssert his per-

sonal opinion . . . as to the credibility of a witness ... or as to

the guilt or innocence of an accused’’) ; ABA Project on Standards

for Criminal Justice, Standards Relating To the Prosecution Fune-

tion and the Defense Function § 5.8(b) (1971):

‘Tt is unprofessional conduct for the prosecutor to express

his personal belief or opinion as to the truth or falsity of any

testimony or the guilt of the defendant.’’

Greenberg v. United States, 280 F.2d 472, 475 (1st Cir. 1960) ;

United States v. Ludwig, 508 F.2d 140, 142-143 (10th Cir. 1974).

°E.g., Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir.

1966), cert. denicd, 396 U.S. 865 (1969); Coppolino v. Helpern,

266 F. Supp. 930, 935 (S.D.N.Y. 1967) ; Lewis v. Court of Common

Pleas of Lebanon County, 436 Pa. 296, 260 A.2d 184 (1969).

13

inflaming the passions of the jury,” and falsely por-

traying himself as a neutral who represented the ju-

rors.'' There was here a wholesale departure from the

due process limitation that the prosecutor, as ‘‘the

servant of the law ... while he may strike hard blows,

he is not at liberty to strike foul ones.” Berger v.

Umited States, 295 U.S. 78, 88 (1935).

Two separate considerations compel a dismissal on

due process grounds: First, coerced evidence is “‘illu-

sory and deceptive evidence.’’ Payne v. Arkansas, 356

U.S. 560, 568 n. 15 (1958). A trial is not a search for

truth if such evidence may be used. Contrary to the

view of the court below, it is too much to believe that

the same witnesses could ever be free of the impact

of tc prosecutor’s description of burning flesh to

them, and of their own prior tainted testimony which

the coercion produced. Second, the stream of justice

has been polluted, and the remedy of the court below

is inadequate to eradicate that pollution and to enforce

minimal standards of civilized conduct.

The ruling below conflicts with decisions in numer-

ous other jurisdictions, including the Federal appellate

court which sits in Pennsylvania, which have found

severe, wilful prosecutorial misconduct to require dis-

missal of criminal proceedings. Those decisions, in con-

trast to the ruling below, give effect to this Court’s

recognition in United States v. Russell, 411 U.S. 423,

” E.g., Virgin Islands v. Toto, 529 F.2d 278, 283 (3d Cir. 1976) ;

United States v. LaBarbera, 581 F.2d 107, 109 (5th Cir. 1978) ;

Commonwealth v. Collins, 462 Pa. 495, 341 A.2d 492 (1975).

™ Steele v. United States, 222 F.2d 628, 631 (5th Cir, 1955),

cert. denied, 355 U.S. 828 (1957) (prosecuting attorney purported

to link himself and jury on same side of case); Greenberg v.

United States, 280 F.2d 472, 474 (1st Cir. 1960).

14

431-32 (1973), that situations may arise ‘‘in which the

conduct of law enforcement agents is so outrageous

that due process principles would absolutely bar the

government from invoking judicial processes to obtain

a conviction, ef. Rochin v. California, 342 U.S. 165

(1952) ....’’ Seg, e.g., United States v. Morrison, 602

F.2d 529, 533 (38 Cir. 1979) (‘thoroughly unjustified

and wrongly motivated interference [of government

agents] with the attorney-client relationship’’ requires

dismissal as ‘‘the only appropriate relief’’); United

States v. McCord, 509 F.2d 334, 349 (D.C. Cir. 1974),

cert. denied, 421 U.S. 930 (1975); United States v.

Butler, 567 F.2d 885, 892-893 (9th Cir. 1978) (concur-

ring opinion) ; United States v. Banks, 383 F. Supp.

389, 392, 397 (D.S.D. 1974), appeal dismissed sub nom.,

United States v. Means, 513 F.2d 1329 (8th Cir. 1975) ;

United States v. Russo, Crim. No. 9373 (C.D. Cal. 1973)

(not officially reported) (indictments of Ellsberg and

Russo dismissed because government agents burglar-

ized office of Ellsberg’s psychiatrist).

2. This Court has declared repeatedly that the Dou-

ble Jeopardy Clause bars retrials after a reversed con-

viction occasioned by prosecutorial bad faith or hay,

rassment of the defendant. Arizona v. Washington, 434

U.S. 497, 508-509 (1978); Lee v. United States, 432

U.S. 238, 33 (1977); United States v. Dinitz, 424 U.S.

600, 611 (1976) ; United States v. Jorn, 400 U.S. 470,

484-485 (1971); see also United States v. Garza, 603

F.2d 578, 580 (5th Cir. 1979)."* This Court has not pre-

viously had occasion, in a concrete context, to define

‘The standards of the Double Jeopardy Clause of the Fifth

Amendment are of course applied to a State Court proceeding

through the Due Process Clause of the Fourteenth Amendment.

Benton v. Maryland, 395 U.S. 784, 793-796 (1969).

15

the scope of that rule or to identity the kinds of con-

duct that fall with it. The case at bar presents an ap-

propriate and, Petitioner submits, compelling occasion

to give the rule substance and integrity.

The only response of the Supreme Court of Pennsy]-

vania to Petitioner’s contention that reprosecution was

barred by double jeopardy was incorrectly to suggest

(App. B., pp. 10a-lla) that no timely motion for a

mistrial had been made. As set forth above in the

Statement, the objections to various incidents of mis-

conduct were made in virtually every conceivable form:

applications to disqualify the prosecutor, motions to

preclude or strike coerced testimony, and for a mistrial

(at the end of the opening statement) ; by demurrer,

seeking dismissal; by motion for directed verdict; and

by post-trial motions covering the gamut of miscon-

duct. The mistrial motion was timely under prior Penn-

sylvania Supreme Court precedent, see n. 5, supra.

The demurrer and motion for directed verdict squarely

raised the contention that the proceeding had to be

aborted because“of prosecutorial misconduct, the touch-

stone for application of the Double Jeopardy Clause.”

’ Among the principal instances of misconduct were ones not

strictly within the category of trial error calling for a mistrial

motion. Thus, the pretrial coercion of witnesses very appropriately

was raised here, first by two pretrial motions, then by efforts to

exclude or strike the testimony, then by demurrer or dispositive

motions. To refuse to apply the Double Jeopardy Clause teachings

of this Court to the four-times raised coercion issue because the

form in which it was raised was not per se a mistrial motion, would

be improper.

Petitioner readily acknowledges that a few of the numbing array

of improper actions by the prosecutor now attacked were not ob-

jected to at trial. These included the eliciting of evidence of crimes

not charged and repetition of vouching for witnesses (the first

instance of which was objected to strenuously but to no avail).

But such concerted misconduct puts defense counsel in an impos-

16

In all events, a court should not fail to apply the

strongest possible antidote to such misconduct even in

the absence of objection; it was the Court’s duty ‘‘to

maintain respect for law; ... to promote confidence in

the administration of justice; ... [and] to preserve

the judicial process from contamination,’’ Olmstead

v. United Stutes, 277 U.S. 488, 484 (1928) (Brandeis,

J., dissenting).

CONCLUSION

The Petition for a Writ of Certiorari should be

granted.

Respectfully submitted,

Watrer H. FLEISCHER

1730 K Street, N.W.

Washington, D.C. 20006

EMMANUEL H. Drmitriov

522-24 Court Street

Post Office Box 677

Reading, Pennsylvania 19601

Counsel for Petitioner

Stuart Richard Cohen

Of Counsel:

Cole and Groner, P.C.

1730 K Street, N.W.

Washington, D.C. 20006

June 1980

sible situation, for repeated objections may only underscore the

prosecutor’s improper actions or remarks in the minds of the

jurors. United States v. Grunberger, 431 F.2d 1062, 1068-1069

(2d Cir. 1970). It must be stressed that most of the misconduct

was objected to loudly and clearly, and it is inappropriate for a

court to put on the blinders to a usurpation of justice for highly

technical reasons. Moreover, the errors were so severe that they

were incurable upon objection. And, when the District Attorney

confessed error to the massive misconduct, any waiver objections

were themselves waived.

APPENDIX

la

APPENDIX A

SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Nos. 561 & 582 January Term, 1977

(C.P. Criminal, Berks County, at Nos. 213 and 213(a)

of 1975)

COMMONWEALTH OF PENNSYLVANIA

V.

Stuart Ricnarp Couen, Appellant

JUDGMENT

On ConsipERATION WHEREOF, it is now here ordered and

adjudged by this Court, pursuant to Pa. Rule of Criminal

Procedure 312(a), venue is changed to the Court of Com-

mon Pleas of Lackawanna County, 45th Judicial District;

judgment of sentence is vacated and case remanded with

instructions.

By THE Court:

/s8/ Satty Mrvos

Sally Mrvos, Esquire

Prothonotary

Dated: April 30, 1980.

2a

APPENDIX B

IN THE SUPPEME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Nos. 561 & 582 January Term, 1977

COMMONWEALTH OF PENNSYLVANIA

v.

Sruart Ricwarp Conen, Appellant

Appeals from the Judgments of Sentence Imposed July 15, 1977 by

the Court of Common Pleas of Berks County, Criminal Division,

at Nos. 213 and 213(a) of 1975.

OPINION OF THE COURT

Filed: April 30, 1980

Roperts, J.

‘‘No right is more fundamental to the American system

of justice’’ than the constitutionally-guaranteed right of

an accused to trial by an impartial jury. Philadelphia

Newspapers, Inc. v. Jerome, 478 Pa. 484, 504, 387 A.2d

425, 435 (1978), appeal dismissed, U.S. ——, 99 S.Ct.

3104 (1979). See U.S. Const. Amends. VI & XIV; Pa.

Const. art. I, § 9. At issue on these appeals is whether pre-

trial publicity in Berks County denied appellant Stuart

Richard Cohen this fundamental right. Unlike the Court of

Common Pleas of Berks County, we conclude that the pre-

trial publicity did prevent appellant from selecting an im-

partial jury. Accordingly, we vacate the judgments of

sentence and remand for a new trial with a change of

venue.

3a

I. Procedural History

On November 14, 1974, a man walking along a fire trail

in Reading’s Egelman Park discovered the body of Steven

Warunek, a sixteen year-old Reading youth. Warunek had

been shot to death. On November 18, police arrested three

eighteen year-old suspects, Anthony Reynolds, George

Arms, and appellant, and charged all three with murder.

Police also charged appellant with conspiracy to commit

murder. Police investigation revealed that appellant hired

the other two to kill Warunek in retaliation for threats

Warunek made on appellant’s life. Warunek allegedly

told his fiance, Kerry Young, he would kill appellant,

Young’s former boyfriend.

The three suspects were committed to the Berks County

prison in lieu of $250,000 bail. Soon after arrest, appellant

was released when his father posted certificates of deposit

and a bank account with the district justice. Neither Arms

nor Reynolds, however, was able to post the necessary se-

curity and both remained in prison.

At the same time appellant sought a reduction of bail.

In mid-December, at the hearing on appellant’s request,

Assistant District Attorney Murphy objected on the ground

that ‘‘Mr. Cohen is accused of premeditated contract kill-

ing, and there is a distinct possibility that the district at-

torney’s office will be requesting the death penalty in this

ease....’’' Appellant’s request. for a reduction of bail was

denied.

A preliminary hearing on the charges against appellant

was held late in January, 1975. Testifying against appel-

lant was Jack Geisler, a ‘‘witness’’ to the killing who, in

‘*sobbing’’ testimony, both admitted his own involvement

and claimed appellant had hired Arms and Reynolds to

kill the victim. After two days of testimony, appellant was

held for action by the grand jury. On March 5, appellant

? Bail Reduction Transcript at 3.

4a

moved to stay grand jury action against him on the ground

that he was prejudiced by media publicity concerning

recently-charged Jack Geisler.’ Judge Edenharter, presid-

ing judge in appellant’s case, denied appellant’s request.

The next day the grand jury indicted appellant and later

that month appellant entered a plea of not guilty. Trial was

set for April 14.

On April 7, appellant filed a number of pre-trial appli-

cations, including an application to disqualify the District

Attorney and his staff and one for a change of venue. The

court continued the trial date and on April 28 began a

hearing on the application to disqualify the District Attor-

ney and his staff.’

Appellant based his motion to disqualify on the ground

that the District Attorney and his staff were behaving

like ‘*persecutors and not prosecutors.’’ City Detective

* Geisler was not charged until February 24, approximately one

month after appellant’s preliminary hearing. Shortly after the

Commonwealth charged Geisler, the district justice, at the request

of the District Attorney’s office, reduced Geisler’s bail and then

released Geisler on his own recognizance. President Judge Eshel-

man rescinded Geisler’s release almost immediately and ordered

Geisler back to prison. In only four days, the incident prompted

six lengthy articles in the Reading press and ten radio broadcasts.

See Venue Exhibit 18 at 622 (Reading Eagle, 3/2/75) ; id. at 623

(Eagle, 3/3/75) ; id. at 624 (Times, 3/3/75) ; id. at 626-27 (Times,

3/4/75) ; id. at 628 (Times, 3/4/75) ; id. at 629 (Eagle, 3/4/75) ;

Venue Exh. 20 at 669 (Station WRAW, 3/2/75); id. (WRAW,

3/3/75) ; id. at 670 (WRAW, 3/4/75); id. (WRAW, 3/5/75) ;

Venue Exh. 21 at 698 (WEEU, 3/2/75); id at 699 (WEEU,

3/3/75); id. at 700 (WEEU, 3/4/75); id. at 701 (WEEU,

3/4/75); id. at 702 (WEEU, 3/4/75); id. at 703 (WEEU,

3/4/75); id. at 704 (WEEU, 3/5/75).

*On the first day of hearings, the court permitted media repre-

sentatives to remain in the courtroom but ordered the media not

to publish testimony until further order of court. The next day,

the court rescinded this order, deeming the hearings fully opened

as of inception and thus lifting any restriction on publication.

5a

John Halstead testified that during period of interrogation

either Distriet Attorney VanHoove or Assistant District

Attorney Murphy threatened Commonwealth witness Jack

Geisler as well as appellant’s co-defendant Reynolds that

they would ‘‘burn’’ or would have the opportunity to smell

‘*hurning flesh’? if they did not provide details of the kill-

ing. Police Lieutenant Thomas Hess testified that District

Attorney VanHoove expressed his desire to stand beside

appellant when the ‘‘switch was pulled.’’

The trial court denied the application to disqualify and

from May 1 to May 9 held a hearing on appellant’s applica-

tion for a change of venue. At the hearing, appellant pre-

sented copies of Berks County newspaper crticles and

transcripts of local radio broadeasts which discussed ap-

pellant’s case.‘ Appellant also presented Dr. Jay Schul-

man, a professor at Columbia University and member of

the National Jury Project, who is an expert on the impact

of publicized criminal proceedings on public opinion.’ Dr.

*Reading has no local television station.

° Dr, Schulman has participated in, consulted in, or researched

jury selection in over fifty criminal and civil proceedings, includ-

ing the ‘‘Harrisburg 7’’ case, United States v. Elisberg, United

States v. Mitchell and Stans, the ‘‘Wounded Knee’’ cases, the

‘*Attica’’ cases, and the Joan Little case.

We note there is nothing in either our case law or the com-

mentary which would suggest that exhibits of newspaper articles

and other media broadcasts are the exclusive evidence in support

of an application for change of venue. To the contrary, the ABA

Standards on Fair Trial and Free Press encourage use of opinion

surveys. Standard 8-3.3(b) of the Standards (2d ed. Approved

Draft, 1978) expressly provides:

‘In addition to the testimony or affidavits of individuals in

the community, which shall not be required as a condition

to the granting of a motion for change of venue . . ., qualified

public opinion surveys shall be admissible as well as other

materials having probative value.’’

See id., Commentary at p. 18 (‘‘trial courts should be very liberal

in the types of testimony and evidence they will consider’’),

6a

Schulman testified on the results of a public opinion poll

he conducted which tested Berks County residents’ views

on appellant’s guilt. Dr. Schulman, four other expert wit-

nesses, and six lay witnesses all expressed an opinion that

appellant could not receive a fair trial in Berks County.

The Commonwealth opposed the application for a change

of venue, but offered no evidence. The court denied appel-

lant’s application without opinion or other explanation of

record.

Appellant then petitioned this Court for a writ of pro-

hibition or mandamus, ‘‘direct[ing] a change of venue ...,

or in the alternative, prohibit[ing] the enforcement of the

order denying the change of venue.’’* Simultaneously, ap-

pellant requested the court to continue trial. It did so,

setting a tentative trial date of July 14, 1975. ‘This Court

denied appellant’s application for extraordinary relief

on July 2. Appellant then applied for and obtained another

continuance, the court setting trial for the September, 1975

Term.

On September 2, 1975, before the scheduled date of trial,

appellant filed a ‘‘Re-Application For Change of Venue.”’

In support of his ‘‘Re-Application,’’ appellant presented

the results of a second public opinion survey. This survey

was conducted on August 22 and 23 by Dr. Robert Buck-

hout, another member of the National Jury Project. Once

again, the Commonwealth, opposing the motion, presented

no contrary evidence. The court denied appellant’s ‘‘Re-

Application,’’ again without explanation. Appellant im-

mediately applied for and was denied another continuance.

Trial was set for September 8.

Voir dire began Monday, September 8 and lasted two

full weeks, through Friday, September 19. In all, 180 per-

* Petition for Writ of Prohibition or Mandamus, Commonwealth

ex rel. Cohen \. Judjye Edenharter, No. 431 Mise. Docket 20, at 5.

Ta

sons were called in order to select a twelve-member jury

and two alternates. The court ordered each juror immed-

iately sequestered upon selection. At the close of voir dire,

appellant for the third time requested a change of venue.

The trial court denied this request, again without explana-

tion. Trial began the following Monday, September 22.

At trial, the Commonwealth proceeded on its theory that

appellant hired Arms and Reynolds to kill the victim

Warunek, presenting testimony not only of Jack Geisler

and Anthony Reynolds but also of appellant’s former girl-

friend Kerry Young. In defense, appellant admitted that

he spoke with Arms and Reynolds and produced $700 cash

as payment. He maintained, however, that he wanted only

Warunek to be ‘‘seared’’ and ‘‘shoved around’’ so that

Warunek would know people were protecting appellant.

Appellant sought to discredit Commonwealth witness Jack

Geisler by showing on cross-examination that Geisler had

given police and the District Attorney inconsistent state-

ments and that he had previously testified at appellant’s

preliminary hearing that appellant wanted only to have

Warunek ‘‘messed up.’’ Appellant also pointed out that,

as of appellant’s trial, neither Geisler nor Reynolds had

been sentenced on their convictions followings their earlier

guilty pleas.

The case went to the jury on Wednesday, October 1.

That Friday, October 3, the jury returned verdicts of

guilty of murder of the third degree and conspiracy to

commit murder. Appellant then filed written post-verdict

motions for a new trial and in arrest of judgment, which

included appellant’s claim that the trial court erred in

denying a change of venue.

While appellant’s motions were pending, Judge Bertolet,

presiding judge at co-defendant Arms’s separate trial,

Sa

granted Arms’s motion for a change of venue. In support

of his motion for a new trial, appellant relied in part upon

Judge Bertolet’s ruling in the Arms case.’

Judge Edenharter, however, denied all of appellant’s

post-verdict motions. In his accompanying opinion, Judge

Idenharter for the first time sought to explain his orders

denying appellant’s three pre-trial applications for a

change of venue. The court summarily dismissed appel-

lant’s principal contention that the pre-trial publicity was

‘inherently prejudicial,’’ concluding that, unlike the Arms

case, there is insufficient evidence that any inflamatory in-

formation was widely disseminated at the time of trial. The

court also concluded that the jury appellant did select

was not affected by the pre-trial publicity.

On July 15, 1977, the court imposed sentence of ten to

twenty years imprisonment, costs, and a fine of $15,000

on the murder conviction, as well as a concurrent sentence

of five to ten years, costs, and a fine of $10,000 on thé

conspiracy conviction. These appeals followed.*

‘In his order of March 22, 1976 granting Arms’a change of

venue, Judge Bertolet stated that a fair and impartial trial cannot

be had in Berks County because of the ‘‘massive publicity to date

and expected to continue to the time of trial.’’ Judge Bertolet

based his determination on newspaper articles offered by appel-

lant and did not rely upon Arms’s offer of a public opinion sur-

vey Dr. Shulman conducted in connection with the Arms case.

We note that this survey, conducted in November of 1975, re-

vealed that 40% of those Berks County residents surveyed could

identify Arms, while 79% could identify appellant.

* Upon sentencing, the court denied appellant bail pending ap-

peal. Appellant then took a direct appeal to this Court from the

judgment imposed on the murder convictions and a separate appeal

to the Superior Court from the judgment imposed on the con-

spiracy conviction. Appellant also immediately petitioned this

Court for Supersedeas and Allowance of Bail pending appeal. Then-

new District Attorney of Berks County Morrissey ‘‘consented’’

to the petition filed with this Court. On July 15, two members of

9a

II. Discharge Not Appropriate

Before considering whether a motion for a change of

venue should have been granted, we must first consider

appellant’s contention that, in light of improper conduct

on the part of the prosecution, appellant must now be dis-

charged. Appellant makes three arguments in support of

this relief. First, he contends the prosecution ‘‘coerced’’

certain Commonwealth witnesses with threats of the elec-

tric chair and promises of leniency and that without the

‘‘eoerced’’ testimony the evidence is insufficient to support

this Court entered an order reinstating bail in the amount of

$250,000 ‘‘pending the appeal in this Court.’’ On July 21, 1977,

the Superior Court certified appellant’s appeal from the judgment

on the conspiracy conviction to this Court.

This Court originally heard argument on these appeals in May

of 1979. Appellant claimed trial error, including improper venue,

as well as prosecutorial misconduct on the part of previous Dis-

trict Attorney VanHoove and his staff requiring discharge. Then-

District Attorney Morrissey not only agreed with appellant that

a new trial should be granted but also agreed that the previous

district attorney’s conduct requirs discharge. After argument, at

the request of President Judge Eshelman of Berks County, Attor-

ney General Biester reviewed the matter and determined the Attor-

ney General should supersede District Attorney Morrissey to en-

sure the interests of the Commonwealth are adequately protected.

In June of 1979, District Attorney Morrissey petitioned this Court

for review of the Attorney General’s supersession. The Attorney

General was granted a stay of consideration. Also granted were

the District Attorney’s request for a rule to show cause and the

Attorney General’s request for oral argument. This Court heard

argument on supersession in September of 1979. At argument,

the Attorney General agreed to an order vacating supersession

but permitting the Attorney General leave to file an amicus brief

and orally to argue on the Commonwealth’s behalf. This Court

then heard reargument on the entire matter in December of 1979.

Appellant maintained his previous position, as did District Attor-

ney Morrissey. The Attorney General, as amicus, urges there is

neither trial error nor prosecutorial misconduct requiring dis-

charge and thus contends that judgments of sentence should be

affirmed.

10a

the jury’s verdicts. Second, he contends that the many acts

of misconduct on the part of the prosecution, including the

alleged coercion of certain witnesses, interference with

defense access to Commonwealth witnesses, and unfair

argument and cross-examination at trial, so denied appel-

lant due process that a discharge is warranted. Third, ap-

pellant contends that, under Commonwealth v. Potter, 478

Pa. 251, 386 A.2d 918 (1978), appellant must now be dis-

charged for what appellant has termed the prosecution’s

‘foverwhelming display’’ of ‘‘bad faith.’’ We reject all

three arguments.

We cannot agree that there is insufficient evidence to

support the jury’s verdicts. Corroborated testimony of

Commonwealth witnesses supports a jury’s conclusion that

appellant hired Arms and Reynolds to kill the victim.

Although appellant invites this Court in evaluating the

sufficiency of the evidence not to consider testimony of

Commonwealth witnesses allegedly coerced by the District

Attorney, we must decline the invitation. It is not the

practice of this Court to ‘‘diminish the record’’ before

reviewing the sufficiency of the evidence. ‘‘[T]he suffi-

ciency of the evidence must be evaluated upon the entire

trial record.’’ Commonwealth v. Tabb, 417 Pa. 13, 16, 207

A.2d 884, 886 (1965). Accord, Commonwealth v. Kuebler,

484 Pa. 358, 361 n.*, 399 A.2d 116, 117 n.* (1979) ; Common-

wealth v. Meadows, 471 Pa. 201, 369 A.2d 1266 (1977).

Nor can we agree with appellant that the alleged prose-

cutional misconduct here forecloses retrial on a theory

that due process has been denied. We cannot accept ap-

pellant’s claim that a new trial is not a sufficient remedy

for the asserted prosecutorial misconduct. Appellant’s

claim mistakenly rests on an unsupportable assumption

that a fair trial cannot be had in the future. Finally, we

cannot agree with appellant that Potter requires discharge

here. Potter is a case where prosecutorial misconduct al-

legedly foréed the defendant to request a mistrial. No such

lla

circumstance is present here. Appellant points to nothing

on this record establishing that he made any timely request

for a mistrial.

III. Record Mandates Change of Venue

‘‘egal trials are not like elections, to be won through

the use of the meeting-hall, the radio, and the newspaper.’’

Bridges vy. California, 314 U.S. 252, 271, 62 S.Ct. 190, 197

(1941). Accordingly, a trial court has an affirmative con-

stitutional obligation to take ‘‘strong measures’’ to assure

a fair trial. Sheppard v.' Maxwell, 384 U.S. 333, 362, 86 S.

Ct. 1507, 1522 (1966). As our cases repeatedly state, a trial

court requested to change venue must exercise a ‘‘sound”’

discretion. Commonwealth v. Casper, 481 Pa. 143, 150, 392

A.2d 287, 291 (1978).°

In exercising sound discretion, the trial court is to con-

sider the following ‘‘discrete factors :’’

‘‘whether the pre-trial publicity was, on the one hand,

factual and objective, or, on the other hand, consisted

of sensational, inflammatory and ‘slanted articles de-

manding conviction,’ United States v. Sawyers, 423

I’.2d 1335, 1343 (4th Cir. 1970); whether the pre-trial

publicity revealed the existence of the accused’s prior

criminal record; whether it referred to confessions,

admissions or reenactments of the crime by the de-

fendant; and whether such information is the product

of reports by the police and prosecutorial officers.’’

® Accord, Commonwealth v. Richardson, 476 Pa. 571, 586, 383

A.2d 510, 518 (1978); Commonwealth v. Hoss, 469 Pa. 195, 199,

364 A.2d 1335, 13837 (1976) (Hoss IT) ; Commonwealth v. Kichline,

468 Pa, 265, 273, 361 A.2d 282, 287 (1976); Commonwealth v.

Stoltzfus, 462 Pa. 43, 52, 337 A.2d 873, 877 (1975) ; Commonwealth

v. Powell, 459 Pa. 253, 259, 328 A.2d 507, 510 (1974) ; Common-

wealth v. Martinolich, 456 Pa. 136, 141, 318 A.2d 680, 683 (1974) ;

Commonwealth v. Swanson, 432 Pa, 293, 299, 248 A.2d 12, 15

(1968).

12a

Commonwealth v. Casper, supra, 481 Pa. at 152-53, 392 A.2d

at 292 (footnotes omitted). So too, the extent of saturation

as well as the possibility that a period of ‘‘cooling-off’’

has occurred must be considered. Id., 481 Pa. at 153-54, 392

A.2d at 292-93. It must also be remembered that

‘‘TA] motion for change of venue... shall be granted

whenever it is determined that because of the dissemi-

nation of potentially prejudicial material, there is a

substantial likelihood that in the absence of such re-

lief, a fair trial cannot be had. This determination may

be based on such evidence as qualified public opinion

surveys or opinion testimony offered by individuals, or

in the court’s own evaluation of the nature, frequency,

and timing of the material involved. A showing of

actual prejudice shall not be required.’’

ABA Standards Relating to Fair Trial and Free Press,

supra, at Std. 8-3.3(¢) (2d ed. Approved Draft, 1978).

Moreover, a reviewing court must not simply defer to

a trial court’s order denying a change of venue. Rather,

a reviewing court must very carefully scrutinize such an

order to ensure that a sound discretion has been exercised.

As the Supreme Court of the United States has made clear,

where, as here, the accused’s ability to obtain a trial by

an impartial jury is called into question, ‘‘appellate tri-

bunals have the duty to make an independent evaluation of

the cireumstances.’’ Sheppard v. Maxwell, supra, 384 U.S.

at 362, 86 S.Ct. at 1522. See Commonwealth vy. Pierce, 451

Pa. 190, 303 A.2d 209 (1973). Here, our review of the record

and independent evaluation of the circumstances convince

us that prejudicial material was widely disseminated at

the time of trial and thus a change of venue is necessary.

13a

A. Dissemination of Prejudicial] Material

Krom appellant’s arrest in mid-November, 1974 until

hearings in May of 1975 on appellant’s first application for

a change of venue, Reading’s two newspapers the ‘‘Times”’

and the ‘‘Kagle,’’’? as well as Reading radio stations

WRAW and WEEU, extensively covered every aspect of

this case. The record contains thirty-seven newspaper ar-

ticles, including sixteen front-page stories, and thirty-eight

radio broadeasts which directly feature aspects of this

case.

Most extensively publicized is the allegation of a ‘‘con-

tract killing.’’? The front page of the December 13 Eagle

reported Assistant District Attorney Murphy’s disclosure

that the Commonwealth ‘‘may seek the death penalty

which, he said, is allowed for premeditated contract kill-

ings.’’' The December 14 Times and radio station WRAW

also immediately gave similar coverage.’ Forty-one sub-

sequent newspaper stories, reporting through the May

hearings on appellant’s application for a change of venue,

carried what became standard-reference to the fact that

a ‘‘contract killing’’ was involved. These references be-

came so prevalent that subsequent stories referred to the

‘‘contract killing’’ without mentioning that the remarks

were made by Assistant District Attorney Murphy at ap-

pellant’s reduction of bail hearing. One newspaper story

even pointed out that ‘‘[t]he case is believed to be the first

‘©The Times and Eagle have a combined daily circulation of

44,994. The Eagle has a Sunday circulation of 46,860.

™ Venue Exh. 18 at 604.

"Venue Exh. 18 at 605 (Times, 12/14/74) ; Venue Exh. 20 at

666 (WRAW, 12/13/74).

l4a

alleged contract killing in Pennsylvania since the Joseph

Yablonski murders in 1969.’’ *

Also well-publicized were allegations that appellant and

the co-conspirators made plans to kill Warunek while

‘thigh’’ on drugs and alcohol. A front-page story of the

January Times 25 entitled ‘‘Cohen murder hearing be-

gun,’’ accompanied by a 6% inch by 6%4 inch photograph

of appellant and his attorney, summarizes witnesses’ alle-

gations that

‘‘a conspiracy to ‘mess up’ the 16-year-old Steve E.

Warunek was made during a dope and booze party in

an apartment at 111 S. 8th St. when the alleged con-

spirators were ‘high’’’ ™

The same day the Kagle also carried a story entitled ‘‘ Kill-

ing Linked To Lover’s Spat.’’ Accompanying this story,

like the story in the Times, is a 5 inch by 6 inch photo-

graph of appellant and his attorney. The story begins:

‘The November slaying of 16-year-old Steve KE. Waru-

nek in Egelman Park was depicted Friday as a con-

tract murder, carried out amidst fear of reprisal in a

heater lovers’ triangle with the conspirators discuss-

ing plans during smoke-filled pot and alcohol par-

oa" *

‘8 Venue Exh, 18 at 609 (Eagle, 1/25/75). It is noted that three

of the persons charged in connection with the Yablonski ‘‘ contract

killings’’ were granted a change of venue. See Philadelphia News-

papers, Inc. v. Jerome, 478 Pa, 484, 490, 387 A.2d 425, 428 (1978)

(Boyle) ; Commonwealth v. Pass, 468 Pa. 36, 44 n.2, 360 A.2d 167,

170 n.2 (1976) (Pass); id., 468 Pa. at 44, 360 A.2d at 170

(Prater).

1 Venue Exh, 18 at 608.

Td. at 609.

15a

The January 31 and February 2 Eagle, the February 1 and

February 4 Times and a January 30 WRAW radio broad-

cast carried similar reports.’® Additionally, all but one of

the same newspaper articles disclosed that appellant and

his former girlfriend had a child out-of-wedlock. Cf. Com-

monwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977)

(dissemination of accused’s criminal record prejudicial) ;

Commonwealth v. Pierce, supra (same).

Kqually prominent among the subjects of extensive me-

dia publicity is the fact that only appellant of the three

originally-arrested suspects had the financial capacity to

afford pre-trial release on bail. Immediately upon appel-

lant’s release, both the November 19 Times and Eagle as

well as news broadcasts of WRAW and WEEU made

regular reference to the fact that only appellant was free

on bail.’ Reports on the disparity in the suspects’ ability

to afford pre-trial release appeared in eighteen subsequent

newspaper articles and sixteen radio broadcasts.

In reporting on appellant’s pre-trial applications, media

attributed to appellant ‘‘delays’’ in the proceedings. The

April 9 Eagle, in its front-page story ‘‘Court grants de-

lay,’’ reported that Assistant District Attorney Murphy

‘‘opposed any continuance, claiming that the pretrial re-

lief could be resolved without too much reasonably [sic]

delay. Hlowever, Judge Frederick Edenharter overruled the

objection.’? The same story commenting on the ‘‘delay’’

‘® Venue Exh. 18 at 611 (Eagle, 1/31/75); id, at 614 (Eagle,

2/2/75) ; id. at 613 (Times, 2/1/75) ; id. at 615 (Times, 2/4/75) ;

Venue Exh. 20 at 667 (WRAW, 1/30/75).

7 Venue Exh, 18 at 600 (Eagle, 11/19/74) ; id. at 601 (Times,

11/19/74) ; Venue Exh. 20 at 609 (WRAW, 11/18/74); id. at

660 (WRAW, 11/18/74) ; id. at 661 (WRAW, 11/18/74) ; Venue

Exh. 21 at 682 (WEEU, 11/18/74); id. at 683 (WEEU,

11/18/74) ; id. at 686 (WEEU, 11/19/74); id. at 687 (WEEU,

11/19/74).

l6a

also repeated Murphy’s characterization of appellant’s

‘©95-page legal document’’ as ‘‘extraordinary and extra-

legal.’’'’* The April 10 Times carried a similar story, en-

titled ‘‘Cohen case delayed a month.’’

Special media attention centered on appellant’s pre-

trial application to disqualify the District Attorney and

his staff.*° The April 29 Eagle highlighted police testimony

concerning District Attorney VanHoove and Assistant Dis-

trict Attorney Murphy:

‘City Detective John Halstead testified that either

Mr. VanHoove or Mr. Murphy threatened Jack Geis-

ler, 23-year-old suspect in the case, and another de-

fendant, Anthony Reynolds, 18, during the interroga-

tion periods.

During questioning by Atty. Dimitriou, Detective

Halstead said that one or the other told the two de-

fendants that ‘he would burn’ or would have the op-

portunity to smell burning flesh if they did not provide

details in the case.

Lt. Thomas P. Hess was called to testify regarding

a statement by Mr. VanHoove allegedly made some

time in December 1974 or late January 1975. Through

18 Venue Exh, 18 at 640.

Td. at 641. See also Venue Exh. 21 at 712 (WEEU, 4/9/75).

2° The April 28 Eagle carried a story ‘‘Press in Closed Hearing’’

which recited the preliminary order of the court permitting media

representatives to remain during the hearings but not permitting

the media to publish testimony and evidence until further order

of the court. Venue Exh. 18 at 646. See supra note 3. The next

day, the April 29 Times carried a front-page story that ‘‘Press

will fight secreey—Appeal planned in Cohen case ruling.’’ Venue

Exh. 18 at 648. That evening’s Eagle, however, carried a story

‘‘Cohen Action Opened,’’ reporting both the court’s reversal of

its previous order not permitting publication until further order

of court and the testimony presented at the hearing on appellant's

motion to disqualify. Id. at 647.

17a

examination by Atty. Dimitriou, Lt. Hess admitted

that Mr. VanHoove made a remark to the effect that

he wanted to stand beside Mr. Cohen when they pulled

the switch.

Lt. Hess explained that the reference to Cohen was

made to a room full of people and was an offhand re-

mark. He didn’t remember if it was presented in a

joking manner but that it was made in the county de-

tective’s office of the DA’s headquarters.’’ ®

By his publicized ‘‘pull the switch’? remark, VanHoove

announced his opinion on appellant’s guilt in violation of

Commonwealth v. Pierce, supra. The April 30 Times

carried front-page stories, one entitled ‘‘Cohen hearing

opened to public’’ and one ‘‘Defense claims partiality,’’

both of which further detailed testimony at the hearing on

71 Venue Exh. 18 at 647.

**In Pierce, this Court relied upon sections 1.1 and 2.1 of the

ABA Standards Relating to Fair Trial and Free Press (Approved

Draft, 1968), which recommend restrictions on disclosures by

prosecuting attorneys and law enforcement officers, to set down

the following rule:

‘*{I]n this Commonwealth policemen and members of the

staffs of the office of District Attorneys shall not release to

the news media; (a) the existence or contents of any state-

ment or confession given by the accused, or his refusal to

give a statement or to take tests; (b) prior criminal records

of the accused, including arrests and convictions; (c) any

inflammatory statements as to the merits of the case, or the

character of the accused; (d) the possibility of a plea of

guilty; (e) nor shall the authorities deliberately pose the

accused for photographs which connect him with the scene

of the crime.’’

Pierce, 451 Pa. at 200, 303 A.2d at 215. Although nothing would

indicate that District Attorney VanHoove’s ‘‘pull the switch’’

remark concerning the merits was directly released to the news

media, still it must be obvious that, by this tactic, the District

Attorney accomplished by indirection what Pierce directly pro-

scribes.

18a

appellant’s application to disqualify. The ‘‘Cohen hearing

opened to public’’ story summarized Officer Hess’s pre-

vious testimony, reported in the April 29 Eagle, that Van-

Hoove wanted to be standing next to Cohen when the

‘*switch was pulled.’’ The ‘‘Defense claims partiality’’

story mentioned the earlier release of Geisler on his own

recognizance at the request of the District Attorney, and

again discussed testimony of Detective Halstead concern-

ing the ‘‘lurid’’ statements about the electric chair made

by the District Attorney.”

Berks County media also gave great attention to appel-

lant’s pre-trial application for a change of venue. The

court began to hear testimony on appellant’s application

on May 1. The May 2 Times carried a lengthy story en-

titled ‘‘Court ponders trial site plea’’ which set forth testi-

mony on the qualifications of appellant’s expert witness

Dr. Jay Schulman. The same day’s Eagle carried an-

other extensive story entitled ‘‘Survey Allowed in Cohen

Case,’’ which discussed the court’s ruling allowing appel-

lant to introduce Schulman’s expert testimony.*® Both the

May 3 Times and Eagle carried related, extensive stories.”

Kight more stories appeared between May 5 to May 9,

all of which discussed testimony at the hearing on appel-

lant’s application for a change of venue, including ‘‘Con-

sultant Queried on Survey Errors,’’* ‘‘Jury researcher

calls Berks biased,’’** ‘* ‘Prejudice’ Is Probed At Hear-

*8 Venue Exh. 18 at 649-50.

** 1d. at 654.

*° Td. at 653.

6 Td. at 656.

** Venue Exh. 22 at 719 (Eagle, 5/5/75).

*® Id. at 722 (Times, 5/7/75).

19a

ing,’’*® **Prejudice Is Estimated,’’ * and ‘*4 rule out fair-

ness,’’"!

B. Prejudicial Material Pervasively Disseminated at Time of Trial

The record clearly establishes that the repeatedly-dis-

seminated prejudicial material was widespread throughout

Berks County at the time of trial. Thus inapposite are

those cases in which the allegedly objectionable reports

were not particularly widespread.” Equally distinguishable

are those cases in which the claimed objectionable reports

so long preceded jury selection as to allow for a period of

‘‘eooling off.’’ ™

Ifere in the months between arrest and trial, Berks

County residents became increasingly aware of this case.

So too, an ever-growing number of residents formed an

opinion on the merits. The publie opinion poll conducted

by Dr. Schulman in March and April of 1975 and admitted

into evidence at the May hearing on appellant’s first ap-

plication for a change of venue revealed that, of 804 ran-

*° Td. at 723 (Eagle, 5/7/75).

8° Td. at 725 (Times, 5/8/75).

“' Td. at 726 (Times, 5/9/75).

%2 See Commonwealth v. Richardson, 476 Pa. 571, 586-87, 383

A.2d 510, 518 (1978); Hoss II, supra, 469 Pa. at 202, 364 A.2d

at 1339; Commonwealth v, Nahodil, 462 Pa. 301, 306, 341 A.2d

91, 93 (1975) ; Commonwealth v. Hoss, 445 Pa. 98, 106, 283 A.2d

58, 63 (1971) (Hoss 1).

’ See Commonwealth v, Casper, supra, 481 Pa, at 157, 392 A.2d

at 294; Commonwealth v. Richardson, supra, 476 Pa. at 587, 383

A.2d at 518; Commonwealth v. Kichline, 468 Pa. 265, 275-76, 361

A.2d 282, 287 (1976) ; Commonwealth v. Pass, 468 Pa. 36, 44, 260

A.2d 167, 170 (1976) ; Commonwealth v. Nahodil, supra, 462 Pa.

at 306, 341 A.2d at 93; Commonwealth v. Stoltzfus, 462 Pa. 43,

53, 337 A.2d 873, 877-78 (1975) ; Commonwealth v. Douglas, 461

Pa. 749, 753, 337 A.2d 860, 862 (1975) ; Commonwealth v. Dobre-

lenski, 460 Pa. 630, 639, 334 A.2d 268, 272 (1975).

20a

domly-selected Berks County registered voters, 65% then

were aware of the case. Of those polled, 30% or 242 out

of 804 people, expressl.” conceded they had prejudged ap-

pellant guilty. Dr. Buckhout’s survey, conducted approxi-

mately four months later in late August, revealed a still

greater public awareness of this case. Of the 250 people

randomly interviewed, 79% were aware of this case, an

increase of approximately 15% from the level of awareness

found four months earlier. Dr. Buckhout’s survey also re-

vealed that 57% of all persons interviewed, or 143 out of

250 people, attributed guilt to appellant. This figure is

nearly twice as great as the figure found in the previous

poll. These results, unchallenged and undisturbed by the

trial court, demonstrate with unquestionable clarity the

substantial extent to which pretrial publicity had reached

the local population and had influenced its judgment.”

Voir dire, conducted in September, about two weeks after

Dr. Buckhout’s August survey, confirmed the results of

Dr. Buckhout’s poll. Of the 180 prospective jurors called,

eleven were excused on various grounds of hardship and

not questioned concerning the merits. Of the 169 persons

questioned, 105 stated they held an opinion concerning

the merits. Indeed, of these 105 prospective jurors, eighty-

nine were excused on the ground that they admitted a

‘*fixed,’’ irrevocable opinion on guilt. Thus, 53% of the

** Dr. Buckhout asked persons polled to rate their belief of ap-

pellant’s guilt on a scale of ‘‘zero’’ to ‘‘ten.’’ One hundred forty-

three ascribed more than ‘‘zero’’ guilt. One hundred thirty-eight

of the 143, or 55% of all persons interviewed, ascribed to appel-

lant guilt of ‘‘five’’ or greater.

** The trial court here in no respect questioned the basic results

of the surveys relied upon in text. Instead, the trial court merely

questioned Dr. Schulman’s estimation, based upon the results of

the survey, that as many as 75% to 80% of Berks County resi-

dents prejudged appellant guilty. (Nowhere in its opinion does

the trial in any respect dispute either the evidence or conclusions

of Dr. Buckhout.)

2la

prospective jurors questioned were excused because of

prejudgment.

These percentages of persons expressing an opinion on

an accused’s guilt are unprecedented in our cases. For ex-

ample, in /’razier, supra, this Court held that widespread

pre-trial disclosures of the accused’s previous convictions

as well as police testimony at the preliminary hearing that

the accused admitted his own involvement were ‘‘inher-

ently prejudicial’? and required a change of venue. There,

a ‘‘majority’’ of eleven of the thirty-two jurors questioned

were challenged for cause by the accused. In addition, five

prospective jurors, excused by peremptory challenges, had

an opinion on guilt. This Court in Frazier concluded on

the basis of voir dire that ‘‘clearly ... the news coverage

which occurred at the time of and shortly after the homi-

cide was still in the minds of the prospective jurors at the

time of trial. Frazier, 471 Pa. at 131, 369 A.2d at 1229.

Compare Commonwealth v. Casper, supra (no inherent

prejudice where two out of 42 prospective jurors knew of

case and couldn’t decide case on basis of evidence at trial) ;

Commonwealth v. Stoltzfus, supra (no inherent prejudice

where 31 out of 139 prospective jurors questioned formed

fixed opinion) ; Hoss J, supra (no inherent prejudice where

36 An additional five persons were stricken for cause on other

grounds of prejudgment. One was prejudiced when told appellant

could obtain release on $250,000 bail, two when told a ‘‘contract

killing’’ is involved, and two when told appellant is Jewish.

Opinion of Edenharter, J., Sur Motion for New Trial and in

Arrest of Judgment, at 15 n.13.

We note that the pre-trial publicity also affected the jury se-

lected. It required substantial periods of sequestration. The first

three jurors, sequestered immediately upon selection, were seques-

tered a total of 25 days. Twelve of the fourteen jurors and alter-

nates admitted that to some extent they had read about appellant’s

case. One of the selected jurors admitted that he had formed an

opinion. Despite the fact that a majority of prospective jurors

admitted they had fixed opinions which could not be set aside,

22a

26 out of 138 jurors questioned had formed opinion).

Surely appellant, whose evidence reveals that as many as

nearly two-thirds of those jurors questioned had an opinion

on guilt, and indeed 53% of those questioned were excused

on the ground of an irrevocable prejudgment of the merits,

is entitled to no less protection than that afforded in

Frazier. It therefore must be concluded that the preju-

dicial material was widespread at the time of trial and

that the court abused its discretion in refusing on this

record to grant a change of venue.

So too, this record mandates that retrial must be in an-

other venue. Pursuant to Pa. R. Crim. Proe. 312(a), we

change venue from the Court of Common Pleas of Berks

County, 23rd Judicial District of the Commonwealth of

Pennsylvania to the Court of Common Pleas of Lacka-

wanna County, 45th Judicial District of the Commonwealth

of Pennsylvania.”

Judgments of sentence vacated and case remanded for

proceedings consistent with this opinion.

Mr. Justice Nix files an opinion concurring in part and

dissenting in part.

this juror claimed he could set his opinion aside. Voir Dire Trans.

at 584. A second juror, selected September 9 and sequestered the

full total of twenty-five days, is a self-employed plumber who ad-

mitted that service on the jury would pose a ‘‘great financial loss’’

which would affect his judgment. Voir Dire Trans. at 104. A third

juror stated he was familiar with the case by way of discussions

among prospective jurors. Voir Dire Trans. at 1107.

*? Because we conclude that a new trial is necessary, we have no

occasion to address any of appellant’s following claims: (a) that

the trial court should have continued the date of trial from Sep-

tember 8; (b) that prosecutorial misconduct requires a new trial;

(ce) that the court improperly failed to provide appellant pre-trial

statements of Commonwealth witnesses.

23a

IN THE SUPREME COURT OF PENNSYLVANIA

EASTERN DISTRICT

Nos. 561, 583 January Term, 1977

COMMONWEALTH OF PENNSYLVANIA

Vv.

Stuart Ricwarp Cowen, Appellant

Appeals from the Judgments of Sentence Imposed July 15, 1977 by

the Court of Common Pleas of Berks County, Criminal Division,

at Nos. 213 and 213(a) of 1975.

CONCURRING AND DISSENTING OPINION

Filed: April 30, 1980

Nix, J.

I am in substantial agreement with the reasoning of the

majority in reaching the conclusion that appellant was not

entitled to be discharged and that further prosecution for

these offenses should not be barred. I also share the posi-

tion 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 conelude that the climate remains un-

changed today, without the least support for such a judg-

24a

ment, cannot be supported. 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

charge of venue sua sponte.

The record before us contains only information concerning the

climate prevailing in Berks County in 1975. Five years have passed

since the trial and without any information concerning the cli-

mate 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 black-

letter 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 ‘‘[o]nly the facts that appear in this record may be con-

sidered by the appellate court.’’ Commonwealth v. Young, 456

Pa. 102, 115, 317 A.2d 258 (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, —— (1975). Moreover, at this juncture

we do not know whether appellant still desires a change of venue.

25a

APPENDIX C

IN THE COURT OF COMMON PLEAS OF

BERKS COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

Nos. 213, 213a of 1975

COMMONWEALTH OF PENNSYLVANIA

V.

Sruart RicHarp CoHEN

SENTENCE

No. 213 of 1975

Anp Now, this 15th day of July, 1977, the sentence is

that the Defendant Stuart Richard Cohen in the above-

captioned Criminal Action pay the cost of prosecution, a

fine in the sum of $15,000 and be committed to: Bureau of

Correction for confinement in a State correctional facility

for a period of not less than 10 years nor more than 20

years from date of July 15, 1977.

By Tue Court,

EDENHARTER, J.

No. 213a of 1975

Anp Now, this 15th day of July, 1977, the sentence is

that the Defendant Stuart Richard Cohen in the above-

captioned Criminal Action pay the cost of prosecution, a

fine in the sum of $10,000 and be committed to: Bureau of

Correction for confinement in a State correctional facility

for a period of not less than 5 years nor more than 10 years

from date of July 15, 1977. This sentence shall run con-

currently with the sentence imposed at Criminal Action

No. 213 of 1975.

By THe Court,

EDENHARTER, J.

26a

APPENDIX D

IN THE COURT OF COMMON PLEAS OF BERKS COUNTY

PENNSYLVANIA CRIMINAL DIVISION

Nos. 213, 213a of 1975

CoMMONWEALTH OF PENNSYLVANIA

V.

Stuart Ricuarp CoHEN

Sur Motion for New Trial and Arrest of Judgment

ORDER

Anp Now, June 23, 1977, motion for new trial and arrest

of judgment in the above captioned matter is dismissed.

By THE Court,

/s/ FrepericK EpENHARTER

Judge

27a

APPENDIX E

IN THE COURT OF COMMON PLEAS OF

BERKS COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

Nos. 213, 213a of 1975

4a

COMMONWEALTH OF PENNSYLVANIA

We

Stuart Ricuarp CoHEN

Sur Motion for New Trial and Arrest of Judgment

Arcurp Berore Epenuarter, J.

OPINION

Epenuarter, J. June 23, 1977

Defendant, Stuart Richard Cohen, was convicted by a

jury of murder in the third degree and conspiracy to com-

mit murder. A motion for a new trial and arrest of judg-

ment was filed and argument was held thereon.

The pertinent evidence viewed most favorably for the

Commonwealth revealed that the victim, Stephen (Steven)

Warunek, informed one Kerry Young that he would cause

bodily harm to Cohen who was her former boyfriend.

Young informed Cohen of this threat. On or about October

29, 1974, Cohen was introduced by Richard Wamsher to

Jack Geisler, George Arms and Anthony Reynolds at

Geisler’s apartment in the City of Reading. At that time,

Cohen stated in their presence that he would like to have

Warunek killed and would pay $500 to $700 to have it done.

On or about October 31, 1974 all of them had another

meeting at the apartment. Cohen then gave $700 to Wam-

sher to be paid to Geisler, Arms and Reynolds for the

28a

killing of Warunek. Wamsher paid them the money. There-

after, on or about November 7, 1974 Geisler, Arms and

Reynolds went to the residence of Warunek in the City

of Reading. Reynolds lured Warunek to Geisler’s truck on

the pretense that he had drugs that he wanted to sell to

him. Warunek, Arms and Reynolds were then driven by

Geisler to an area in or around Engelman’s Park in the

City of Reading. After arriving at the park, Arms fired a

rifle bullet at Warunek which struck him and caused his

death. Cohen took the stand. He testified that he did not

intend to have Warunek killed but wanted him “off my

back”. He testified that he gave $700 to Wamsher with

instructions that the sum was to be paid to Geisler, Arms

and Reynolds after they had gotten Warunek “off my

back”. Cohen stated that “off my back” meant to “fuck

somebody up”, to “scare ’em off, threaten him, just get him

away from me”, and to “shove him around”.'

Defendant filed a petiton for reduction of bail; applica-

tion to stay grand jury; application to quash the indict-

ments; application to disqualify the district attorney, the

prosecuting attorney and all members of the district attor-

ney staff of Berks County; application for change of venue;

application for challenge to the jury array; application

for pretrial discovery and inspection; application for bill

of particulars; and application for suppression of evidence.

Portions of the application for pretrial discovery and in-

spection, and application for bill of particulars were

granted. The application for suppression of evidence was

withdrawn. All other pretrial applications were denied. On

June 3, 1975 defendant filed a petition for writ of prohibi-

tion or mandamus in the Supreme Court requesting, inter

‘Geisler entered a plea of guilty to third degree murder, and

was sentenced to a term of not less than 6 nor more than 15 years;

Reynolds entered a plea of guilty to voluntary manslaughter, and

was sentenced to a term of not less than 5 nor more than 10 years;

and Arms was convicted by a jury of third degree murder, and

post-verdict motions are pending.

29a

alia, a change of venue, disqualification of the district

attorney, and discovery and relief prayed for in the chal-

lenge to the jury array. On July 2, 1975 the petition for

writ of prohibition or mandamus was denied Per Curiam.

Commonwealth ex rel. Stuart Richard Cohen v. Judge

Frederick Edenharter, et al., Pa. Supreme Ct., 431 Mise.

Docket 20.

The post-verdict motions are pervasive and challenge

almost every phase of the proceeding from beginning to

end. A voluminous record has been produced. The funda-

mental question is—did defendant receive a fair trial? We

will take the issues raised at argument and discuss them

in proper sequence.

Grand Jury

Defendant contends that the March 1975 grand jury’

should have been “stayed” by reason of prejudicial pretrial

publicity. First, it should be noted that Pa. R. Crim. P.

203(a) provides: “A defendant who has been held for

court or the attorney for the Commonwealth may chal-

lenge the array of the grand jury or an individual grand

juror. A challenge to the array may be made only on the

ground that the grand jury was not selected, drawn or

summoned substantially in accordance with law.” (Empha-

sis supplied.) It is apparent that the ground upon which

defendant relied was not a proper basis to support his

challenge. We have supervisory power over a grand jury,

but care should be taken in the exercise of supervisory

powers not to abridge its function. Pirillo v. Takiff, 462 Pa.

511, 530, 341 A.2d 896, 905, cert. denied, 423 U.S. 1083, 96

S. Ct. 873, 47 L. Ed. 2d 94 (1976). Also, there is a

presumption of regularity that attaches to grand jury

“The grand jury was later abolished in Berks County by order

of the Court of Common Pleas effective January 5, 1976 pursuant

to the provisions of the Act of Oct. 10, 1974, P.L, 713, No, 238

§ 1, 17 P.S. § 271 et seq.

30a

proceedings. Commonwealth v. Brownmiller, 141 Pa, Su-

perior Ct. 107, 118, 14 A.2d 907, 910 (1940); Robert Haw-

thorne, Ine. v. Director of Internal Revenue, 406 F. Supp.

1098, 1115 (1.D. Pa. 1976). And, a strong showing is re-

quired to justify any interference with its orderly pro-

cesses. In re William H. Pflaumer & Sons, Ince., 53 F.R.D.

464, 477 (I.D. Pa. 1976). Defendant failed to establish

that the grand jury was subjected to prejudicial pretrial

publicity. The petition to stay the grand jury was properly

denied for such a stay would have been an unwarranted

encroachment on its authority. See In re Grand Jury Pro-

ceedings (U.S. Steel-Clairton Works), 525 F.2d 151, 157

(3d Cir, 1975).

Indictments

Defendant contends that the indictments should have

been quashed since the grand jurors were subjected to

adverse pretrial publicity. A motion to quash an indictment

based upon the allegation of “extraneous factors”, speci-

fically adverse pretrial publicity, should not be sustained

‘unless it clearly appears that the defendant has been

harmed by some improper conduct that interfered with

his substantial rights.’’ Commonwealth v. Evans, 190 Pa.

Superior Ct. 179, 197, 154 A.2d 57, 68-9 (1959), aff’d, 399

Pa. 387, 160 A.2d 407 (1960), cert. denied, 364 U.S. 899,

81S. Ct. 233, 5 L. Kd. 2d 194, rehearing denied, 364 U.S.

939, 81S. Ct. 377, 5 L. Ed. 2d 371 (1961). There is no

indication in the record that the grand jurors were either

subjected to or influenced by the pretrial publicity in this

case. The application to quash the indictments was properly

denied. Accord, U.S. v. Addonizio, 313 F. Supp. 486, 495

(D.N.J. 1970), aff’d, 451 F.2d 49 (8d Cir. 1971), cert.

denied, 405 U.S. 1048, 92 S. Ct. 1309, 31 L. Ed. 2d 591

(1972). Also, see Commonwealth v. Douglas, 461 Pa. 749,

753, 337 A.2d 860, 862 (1975); Commonwealth v. Dessus,

214 Pa. Superior Ct. 347, 355, 257 A.2d 867, 871 (1969),

allocatur refused sub. nom., U.S. ex rel. Dessus v. Com-

3la

monwealth, 316 F. Supp. 411 (.D. Pa. 1970); 37 U. Pitt.

L. Rev. 12-13.

Defendant asserts that the conspiracy indictment * should

have been quashed since it failed to state an overt act and

was ‘‘duplicitious’’. Pa. R. Crim. Pa. 304(e) provides: ‘‘ All

grounds for relief demanded shall be stated in the [pre-

trial] application and failure to state a ground shall con-

stitute a waiver thereof.’’ Pa. R. Crim. P. 305 provides:

‘* . . no pretrial application shall be considered if made

less than ten days before a trial unless opportunity there-

for did not exist or the defendant or his attorney was not

aware of the grounds for the application.’’ No pretrial

motion was made to quash the conspiracy indictment on

the basis set forth. All grounds for claiming indictments

to he defective must be stated in an application to quash

and if not stated in such application, are deemed to have

been waived. Commonwealth vy. Mervin, 63 D. & C. 2d 62,

65 (1973). See Commonwealth v. Ruth, 73 D. & C. 2d 501,

503 (1975). These issues are not properly raised for the

first time in post-verdict motions. Even assuming that such

claims were properly preserved, they are without merit.

The purpose of an indictment is to inform defendant of

the charges against him and to protect him against further

prosecution for the same cause. Commonwealth v. Petrillo,

338 Pa. 65, 77, 12 A.2d 317, 324 (1940); Commonwealth v.

Ackerman, 239 Pa. Superior Ct. 187, 194, 361 A.2d 746,

*The conspiracy indictment (213a) avers: ‘‘The Grand Jury of

Berks County by this indictment presents that on (or about) Oc-

tober 29, 1974, and October 31, 1974, in or around 111 South 8th

Street and/or various other places, City of Reading, in said

County, the above defendant did conspire with George Arms,

and/or Anthony Reynolds and/or Jack Geisler to commit the

crime of murder and did then and there hire the said co-conspirators

to murder one Stephen Warunek, which murder was carried out

by the said co-conspirators or one or more of them, on or about

November 7, 1974, in or around Egelman’s Park, City of Reading,

in violation of Section 903(a)(1), the Act of December 6, 1972,

No, 334 (18 Pa. S. Section 903(a)(1)’’.

32a

749 (1976); Commonwealth v. Brown, 229 Pa. Superior Ct.

67, 70, 323 A.2d 845, 847 (1974). An indictment charging a

conspiracy is sufficient if it follows the language of the

statute, contains a sufficient description of the object of the

conspiracy, and contains a sufficient statement of an overt

act to effect the object of the conspiracy. U.S. v. Gilboy,

160 F. Supp. 442, 451 (M.D. Pa. 1958). See Pa. R. Crim.

P, 213. An overt act in a conspiracy is an act which is done

openly by one of the co-conspirators to accomplish the

purpose of the conspiracy. Commonwealth v. Cohen, 203

Pa. Superior Ct. 34, 68, 199 A.2d 139, 154 (1964), cert.

denied, 379 U.S. 902, 85 S. Ct. 191, 13 L. Ed.2d 176 (1964). It

is expressly stated in the indictment that defendant did

hire the said co-conspirators to murder Warunek. This

meets the requirement of alleging an overt act for a con-

spiracy. See Commonwealth v. Petrillo, supra at 90, 12

A.2d at 329.

As a general rule a count in an indictment which joins

two or more distinct crimes or offenses is improper on the

grounds of duplicity. Commonwealth v. Doran, 145 Pa.

Superior Ct. 173, 176, 20 A.2d 815, 816 (1941). The only

crime alleged in this indictment is the conspiracy to murder

Warunek. The use of the disjunction applies only to the

alleged co-conspirators within that conspiracy. Conspiracy

by definition involves an agreement between two or more

parties to do an unlawful act. Commonwealth v. Stephens,

231 Pa. Superior Ct. 481, 485, 331 A.2d 719, 721 (1974);

Act of Dee. 6, 1972, P.L. , No. 334 $1, 18 C.P.S.A.

§ 903. Whether it is alleged that there were two or ten

persons within the conspiratorial framework would not

make it more than a single conspiracy.

Disqualification of District Attorney

Defendant contends that the district attorney and his

staff should have been ‘‘disqualified’’ by reason of prose-

33a

cutorial misconduct.‘ In Commonwealth v. Toth, 455 Pa.

154, 158-9, 314 A.2d 275, 277-8 (1974) it is stated: “A district

attorney holds an office of unusual responsibility, and he

must exercise his duties with complete impartiality. . .

‘The district attorney is a quasijudicial officer. He repre-

sents the commonwealth, and the commonwealth demands

no victims. It seeks justice only, equal and impartial jus-

tice, and it is as much the duty of the district attorney

to see no innocent man suffers as it is to see that no guilty

man escapes. Hence he should act impartially.’ ’? See Com-

monwalth v. Tumpson, 242 Pa. Superior Ct. 1, 5, 363 A.2d

1129, 1131 (1976). It is the prosecutor’s duty to seek justice,

not merely to acquire convictions. Commonwealth vy. Gil-

man, Pa, , 868 A.2d 258, 257 (1977). Although the

district attorney is a quasi-judicial officer whose goal

should be discovering the truth, he is also an officer of the

Commonwealth obligated to advance the Commonwealth’s

interests. Commonwealth v. Diana, 455 Pa. 267, 269 n., 314

A.2d 262, 263 n. (1974),

Defendant urges that the district attorney made an im-

proper remark in open court during a pretrial bail reduc-

tion hearing when he stated the case involved a “contract

killing”. In setting pretrial bail, one of the standards

which Pa. R. Crim, P. 4004 sets forth for determining bail

is “the nature of the offense charged and any mitigating

or aggravating factor that may bear upon the likelihood

of conviction and possible penalty”. The district attorney

*The Act of April 9, 1929, P.L. 177, art. IX, § 907, 71 P.S. § 297

provides, inter alia, that a district attorney may be superseded

when the president judge shall request the Attorney General to

do so, in writing, setting forth that, in his judgment, the case is

a proper one for the Commonwealth’s intervention, In Gwinn v.

Kane, 465 Pa. 269, 283, 348 A.2d 900, 907 (1975) it is stated:

‘‘The purpose of section 907 is to provide for the enforcement of

the law when the district attorney, for any reason, is unable or

unwilling to conduct prosecutions.’’ In the present case the district

attorney was not unable or unwilling to conduct the prosecution.

34a

provided information dealing with this standard which was

proper. See Commonwealth v. Herron, —— Pa. Superior

Ct. , 365 A.2d 871, 873-4 (1976). In addition, defendant

alleges the following prosecutorial misconduct: that threats

were made by the district attorney and prosecuting attor-

ney toward numerous persons and witnesses to obtain

statements from them against defendant in violation of

their constitutional rights; that the district attorney and

prosecuting attorney illegally reduced the bail of a key

Commonwealth witness to solicit favorable testimony from

the witness against defendant; and that the Commonwealth

failed to bring charges against other persons who testified

against defendant in return for their testimony against

him. A review of the testimony at the pretrial hearing

demonstrates that these allegations were either not estab-

lished under the evidence, derived from conversations

taken from incomplete context, or subject to dispute. The

Commonwealth did not show prejudice toward defendant

by its failure to bring criminal charges against Common-

wealth witnesses. The district attorney has general and

widely recognized power to conduct criminal litigation on

behalf of the Commonwealth and to decide whether and

when to prosecute, and whether and when to discontinue

a case. Commonwealth v. DiPasqualae, 431 Pa. 536, 540-1,

246 A.2d 430, 432 (1968). See Commonwealth v. Ragone,

317 Pa. 113, 118, n.1, 176 A. 454, 456, n.1 (1935); Pisecanio

Appeal, 235 Pa. Superior Ct. 490, 494, 344 A.2d 658, 660

(1975). The claim by defendant that the conduct of the

district attorney and his staff violated the dictates of

Commonwealth v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973)

is without merit.’ Defendant also relies on Commonwealth

° Pierce held at page 200, 303 A.2d at 215 as follows: ‘*. . . we

rule that in this Commonwealth .. . members of the staffs of the

office of District Attorneys shall not release to news media: (a)

the existence or contents of any statement or confession given by

the accused, or his refusal to give a statement or to take tests;

(b) prior criminal records of the accused including arrests and

35a

v. Vallone, 151 Pa. Superior Ct. 431, 441, 30 A.2d 229, 233

(1948), rev’d on other grounds, 347 Pa. 419, 32 A.2d 889

(1943). Vallone is inapposite.* Although we would not con-

done the alleged behaviour of the district attorney we are

aware that the prosecution of crime does not always in-

volve witnesses who are interested in the pursuit of justice.

Trial preparation is ever intense and indiscretion remains

an ever-present possibility.” The issue is not whether the

disrtict attorney used inappropriate “barrack’s room” lan-

guage during the course of the investigation. Words are

not the quintessence of things. We must look to the overall

convictions; (c) any inflammatory statements as to the merits of

the ease, or the character of the accused; (d) the possibility of a

plea of guilty; (e) nor shall the authorities deliberately pose the

accused for photographs at or near the scene of the crime, or in

photographs which connect him with the scene of the erime.’’

(Emphasis supplied.) A review of the record indicates that if

the press did report any evidence which could be deemed prejudi-

cial such information was not ‘‘released’’ by the district attorney’s

office but was elicited in pretrial hearings or during the trial,

often by defense counsel.

® Vallone held at page 440, 30 A.2d at 233 that it violated funda-

mental principles of fair play for the district attorney to intimi-

date a defense witness before he was called to testify by arresting

him without charges or without any reasonable justification, and

holding him in jail overnight until required by the court to pro-

duce him. Such facts are not present in this case.

The district attorney is alleged to have described the electric

chair and the smell of ‘‘burning flesh’’ to potential Commonwealth

witnesses. It is further alleged that in a private conversation he

said this case would not be like a past criminal prosecution, and

that he ‘‘would be standing right next to Cohen when the switch

is pulled.’’ Also, an assistant district attorney is alleged to have

said to a potential Commonwealth witness that he was ‘‘tired of

fooling around with him’’, and that he wanted to know about this

case and if he didn’t reveal what he knew that he was ‘‘going to

knock him on his ass’’. None of the above statements were made

public or to the press by any member of the district attorney’s

office.

36a

=e

effect that such words have produced. When this is done

we are unable to conclude that defendant has been denied

due process of law. Did the district attorney overstep the

bounds of propriety to such a degree as to require his

disqualification? Under the evidence such relief, even if

properly pursued, was not warranted. See Commonwealth

v. Bolden, (Nos. 85 & 98 March Term, 1976, Pa. Sup. Ct.,

filed April 28, 1977). Furthermore, it is apparent that

defendant seized upon and utilized the said alleged im-

proper conduct as a central defense stratagem at trial. In

accordance with Pa. R. Crim. P. 1116(a) after the jury

was sworn, the attorney for the Commonwealth made an

opening statement. The attorney for defendant then made

an opening statement which placed the district attorney

on trial. Defense counsel stated: “. . . there will be testi-

mony that will reveal absolutely incredible and improper

conduct by the district attorney’s office and by Mr. Murphy

himself.” The application to disqualify the district attorney

and his staff was properly denied.

Change of Venue

Defendant contends that a change of venue should have

been granted in that pretrial publicity created a pattern

of deep and bitter prejudice against defendant denying

him due process and a fair trial. In Commonwealth v. Hoss

(Hoss II), Pa. ——, 364 A.2d 1335 (1976) at page

1337 it is stated: “Under the laws of this Commonwealth

it has been clearly established that the grant or refusal

of a request to change venue rests within the sound dis-

cretion of the trial judge. Commonwealth v. Powell, 459

Pa. 253, 328 A.2d 507 (1974); Commonwealth v. Martino-

lich, 456 Pa. 136, 318 A.2d 680 (1974) [appeal dismissed,

419 U.S. 1065, 95 S. Ct. 651, 42 L. Ed. 2d 661 (1974)];

Commonwealth v. Yount, 455 Pa. 303, 314 A.2d 242 (1974) ;

Commonwealth v. Hoss, 445 Pa. 98, 283 A.2d 58 (1971);

Commonwealth v. Swanson, 432 Pa, 293, 248 A.2d 12 (1968),

SL

37a

cert. denied, 394 U.S. 949, 89 S. Ct. 1287, 22 L. Ed. 2d 483

(1969); Commonwealth v. Richardson, 392 Pa, 528, 140

A.2d 828 (1958).” In reviewing a denial of the motion to

change venue, the only legitimate inquiry is whether any

juror formed a fixed opinion of appellant’s guilt or inno-

cence as a result of pretrial publicity. Commonwealth v.

Hoss II, supra at 1338; Commonwealth v. Kichline,

Pa. , 361 A.2d 282, 287 (1976). A defendant claiming

that his right to a fair trial was abridged has the burden

of proving a nexus between pretrial publicity and actual

jury prejudice. Commonwealth v. Hoss II, supra at 1338.*

The totality of the circumstances must be reviewed to de-

termine whether defendant has established identifiable

prejudice as a result of the pretrial publicity. Id. at 1339.

In Hoss II, the court examined the following factors to

decide if the jury was capable of rendering a fair verdict:

(1) The record of the voir dire, (2) the length of time

between the publicity and the commencement of trial, (3)

the degree of saturation of inflammatory and prejudicial

publicity, and (4) the measures taken by the trial judge

to assure a fair trial. A review of the voir dire establishes

that extensive examination was permitted to determine if

any opinion held about the case was “fixed”, and to make

certain that the only evidence to be considered was the

evidence presented during the trial. When a prospective

‘There are certain situations where as a result of pretrial pub-

licity actual jury prejudice is presumed to exist. The first situa-

tion is when the pretrial publicity is very ‘‘extensive’’ and is

‘*highly inflammatory and prejudicial’’ rather than being a factual

account of events reported. Commonwealth v. Hoss II, supra at

1338. A second situation is when the ‘‘dignity and objectivity of

the court proceedings’’ are themselves disrupted by the pretrial

publicity. Id. at 1338. Thirdly, a situation is when police officers

or members of the district attorney’s staff make statements or

release certain information to the press which heighten in a signifi-

cant way pretrial publicity prejudicial to defendant. Common-

wealth v. Pierce, 451 Pa. 190, 200, 303 A.2d 209, 215 (1973).

None of the above situations are present in this case.

38a

juror had a “fixed” opinion a challenge for cause was

granted. See Commonwealth v. Nahodil, 462 Pa. 301, 307,

341 A.2d 91, 93 (1975). During the course of voir dire

defendant utilized the services of defense counsel and the

services of Dr. Jay Schulman, a defense expert in “jury

composition” and “jury selection”.® Significantly, twelve

jurors and two alternates were seated without defendant

exhausting his 20 peremptory challenges. We entertain no

doubt whatsoever that defendant was fully satisfied with

the jury as empanelled. See Commonwealth v. Martinolich,

supra at 144, 318 A.2d at 685; U.S. v. Green, 373 F. Supp.

149, 153 (E.D. Pa. 1974), aff’d, 505 F. 2d 731, cert. denied,

420 U.S. 978, 95 S. Ct. 1404, 43 L. Ed. 2d 659 (1975).

The length of time between the arrest of defendant and

trial was approximately ten months. The court granted five

continuances at various stages of the proceedings. Con-

siderable publicity occurred at the time of arrest and when

bail was posted. The newspaper accounts were not inflam-

atory but were factual in nature and traced procedural

developments. And, it must be noted, that defendant’s own

expert witnesses testified that the news accounts were

primarily “factual in nature”. See Commonwealth v. Mar-

tin, 465 Pa. 134, 149, 348 A.2d 391, 399 (1975); Common-

wealth v. Hoss I, supra at 105, 283 A.2d at 63.*° There need

®See Michael J. Saks, ‘‘ ‘Scientific’ Jury Selection’’, Psychol-

ogy Today, Jan. 1976, pp. 48-57.

‘© In a hearing on the application for the disqualification of the

district attorney and his staff, the pretrial hearing judge granted

defendant’s request to have a ‘‘closed’’ hearing and to withhold

press releases to avoid publicity. After the hearing was in prog-

ress, defendant moved that the above order be withdrawn, permit-

ting the hearing to be ‘‘open’’ and to be reported in the press.

Also, defendant conducted a survey in Berks County in an attempt

to determine the degree of prejudgment in this case. This survey

in itself made more persons aware of the details involved in the

case since it involved asking 804 selected citizens of Berks County

questions about it. One of the questions asked was: ‘‘Have you

39a

be no basic incompatibility in the application of the First

and Sixth Amendments separately or in tandem. We must

recognize the right of the media to inform the public

of crime and the administration of justice.

Now we look at the degree of saturation. Dr. Schulman,

also a defense expert on “venue” conducted a survey to

determine the extent to which publicity may have stimu-

lated community prejudice against defendant. According

to this survey, 65% of the persons surveyed in Berks

County were aware of the case, and of these persons 46%

of them, or 30% of all persons surveyed, had prejudged

the case." Defendant’s own expert witness did not estab-

heard of a case of an 18 year old defendant named Richard Cohen

who is charged with first degree murder in killing another teen-

ager in what the prosecutor has called a contract killing ?’’

‘t Dr. Schulman further offered his ‘‘opinion’’ that the portion

of the Berks County population which may have prejudged this

case may be as high as 80%. However, he conceded that the above

figure was only his ‘‘estimate’’ based on such factors inter alia,

as people surveyed claiming not to have prejudged the case but

having prejudged on the death penalty, negative attitudes toward

Jews and negative attitudes toward people of wealth. No statistical

data was introduced showing that 80% of the population of Berks

County prejudged this case.

The survey was disparate in methodology. Schulman stated that

he conducted his survey by making a ‘‘reasonable hypothesis’’ of

the proposition, hp intended to prove and then he collected data to

see if empirical information supported the hypothesis. He stated:

‘‘T start with the assumption that there may well be bias in a

situation which may make it very difficult for a person to have a

fair jury trial. I make the assumption because a venue survey done

well is a serious matter, involves expenses, and I would expect that

counsel, upon asking for my services and I deciding I want to do

it, that there is a reasonable belief on the part of counsel that

there is some basis for the assertion or suspicion of substantial

prejudice.’’ Schulman stated that his presumption was as follows:

‘‘My own presumption, having had some experience with the Cen-

tral District of Pennsylvania, was that given the publicity I was

aware of, there should be some substantial prejudgment in this

40a

lish by his survey that the publicity which this case re-

ceived surpassed the saturation point.

Finally, it is seen that the measures taken by the trial

judge to assure a fair trial were substantial. Each juror

when seated was immediately sequestered and the entire

jury remained sequestered to isolate them from publicity

that occurred during trial. A period of 25 days transpired

from the time the first juror was selected until verdicts

were returned.” Wide latitude was permitted defense coun-

sel during voir dire to determine possible prejudice as

a result of pretrial publicity.’** See Commonwealth v. Hoss

case.’’ Dr. Richard Christie, an associate of Dr. Schulman who

assisted the latter in the survey stated that he did not enter the

survey with an ‘‘assumption’’ or ‘‘hypothesis’’ of prejudice or

prejudgment within the community but simply reviewed the em-

pirical results of the survey and drew conclusions from them.

‘2 Even Dr. Schulman stated that he felt sequestration of a jury

is very significant in overcoming group prejudices. He testified:

“‘The question 1s whether those 12 people, acting as a group, are

able to face their prejudices and deal with them. I have discovered

that with sequestered juries that happens a great deal because

people have a group life of their own and they have to face cach

other, Everyone of the cases I have researched which has had a

sequestered jury, they have been able to develop exactly the kind

of group life and they have been able to face their prejudices and

come up with, I think ,an absolutely reasonable and fair judgment.

But when jurors have come together and they come together and

just come in here and they sort of spend a little bit of time in

the jury room, they don’t know each other well. They are, by and

large, strangers to each other’’ (Emphasis supplied. )

8 Defense counsel argues that the number of challenges for

cause granted support Dr. Schulman’s ‘‘estimate’’ of prejudgment

in Berks County. A review of the 180 jurors called for service

during voir dire reveals that: 14 persons were seated as jurors;

1 person was struck for cause since he was prejudiced by the fact

defendant’s family could raise $250,000 bail ; 6 persons were struck

because of their unqualified opposition to the death penalty; 29

jurors were struck because of hardship, medical or other personal

reasons; 6 jurors were struck by the Commonwealth and 17 jurors

4la

II, supra at 1341. The entire voir dire was individually

conducted outside the presence of other prospective jurors

in accordance with Pa. R. Crim. P. 1106(e)(1). When sev-

eral prospective jurors revealed that they had heard about

the examination in the jury assembly room, in addition to

cautionary instructions previously given to the panel,”

the trial jrdge expressly instructed excused veniremen not

to discuss the voir dire.’* Defendant asserts that Arms was

were struck by defense counsel through use of peremptory chal-

lenges; 2 jurors were struck because of prejudice arising by the.

term ‘‘contract killing’’; 1 juror was struck because of his testi-

mony under oath; 2 jurors were struck because of anti-semitism ;

1 juror was struck because she was prejudiced by the seriousness

of the crime involved; 8 jurors were struck by the Commonwealth

and 4 by defense counsel because they were prejudiced directly or

indirectly by knowledge of a person involved; 35 persons were

struck by the Commonwealth because they claimed to have ‘‘fixed’’

opinions; 54 persons were struck by defense counsel because they

claimed to have ‘‘fixed’’ opinions. Thus, 49% of the total number

of jurors were struck because their opinions were deemed to be

‘*fixed’’. Of the total number of jurors, 30% were struck for cause

by defense counsel because their opinions were ‘‘fixed’’. These

statistics do not support Schulman’s ‘‘estimate’’ of prejudgment

which was as high as 80%. Also, it must be recognized that pro-

spective jurors may be inclined to exaggerate their opinions to

avoid lengthy and sequestered jury service in capital cases. See

Commonwealth v. MeGrew, 37 Erie 139, 167, aff’d 375 Pa. 518,

100 A.2d 467 (1953).

14 See footnote 35, infra.

‘Ss Defendant cites Commonwealth v. Frazier, Pa. , 369

A.2d 1224 (1977) in support of his position for change of venue.

Frazier holds at page 1230 as follows: ‘‘. . . examination of the

pretrial publicity reveals the existence of references to appellant’s

prior criminal record, and also contains quotations of admissions

of guilt allegedly made by him to police. Furthermore, the record

shows that news stories reached the homes of practically every

potential juror in the county. Furthermore, the record fails to

demonstrate that the effect created by this publicity had faded

42a

granted a change of venue at a subsequent time upon a

showing of substantially less prejudicial publicity. How-

ever, there is nothing in this record concerning that pro-

cedure.”* A change of venue was not justified.

Jury Array

Defendant challenged the jury array on the ground that

the composition of the entire panel was discriminatory on

the basis of, inter alia, age, sex, race, religion and geog-

from the minds of the prospective jurors in four months inter-

vening between the time of the homicide and the trial. In fact,

the record shows a high proportion of the prospective jurors inter-

viewed during the voir dire remembered reading such articles, The

potential for prejudice created by such publicity therefore re-

mained great at the time the request for change of venue was

made, and the trial court abused its discretion in refusing that

request.’’ (Emphasis supplied.) Frazier differs significantly from

the present case. First, the pretrial publicity in the present case

contained no reference to any criminal record of defendant and

contained no quotations or confessions of guilt made by defendant

to police. Defendant’s own expert witnesses conceded that the

news articles were primarily factual in nature and not inflamma-

tory. The population of Berks County is roughly three times the

size of that in Lebanon County. The statistics of the survey con-

ducted by defendant in Berks County suggest the publicity sur-

rounding the present case did not ‘‘reach the homes of practically

every potential juror’’ in Berks County. Much of the publicity

surrounding the present case was in fact generated by defense

procedures, In Frazier, there was only a four month lapse between

the homicide and trial while in the present case there was a lapse

of approximately ten months. Finally, defendant in the present

case was assisted by defense experts in ‘‘jury selection’’ and a

jury was seated without defendant exhausting all his peremptory

challenges.

It appears that Arms escaped from Berks County Prison, that

his trial took place after the present trial and that a suppression

order was violated.

48a

raphy. The legislature has provided a procedure to be

followed by third class counties in jury selection.’ The

jury was selected in accordance with law.'* The “Key-

man System” of selecting jurors is not unconstitutional

per se, for only after a showing that the jury commis-

sioners and keymen were aware of irrelevant criteria for

jury selection such as age, race and political party, coupled

with an evidentiary record that such information afforded

a basis for the selection or nonselection of jurors, would

the invalidation of the jury selection be justified. Com-

monwealth v. Pass, Pa, , 860 A.2d 167, 170 (1976) ;

Commonwealth v. Martin, supra at 153-7, 348 A.2d at

401-3. Defendant must establish at least a prima facie case

of invidious discrimination in the selection of the jury

array before the burden shifts to the Commonwealth to

refute the presumption of unconstitutional action. Common-

wealth v. Martin, supra at 154, 348 A.2d at 401. The fact

that a subjective element is present in the selection process

does not by itself make the selection procedure inherently

discriminatory. Id. at 156, 348 A.2d at 402, Defendant has

not met his burden of showing invidious discrimination.

See Commonwealth v. Loccisano, ——— Pa. Superior Ct.

——, 366 A.2d 276, 279-80 (1976).

Defendant argues that he was prevented from com-

pletely litigating his challenge to the jury array because

he was not permitted access to juror questionnaires. Ques-

tionnaires were sent to the persons to be called for jury

duty, and based on responses to the questions contained

therein, names were eliminated from the jury list because

‘See Act of May 17, 1939, P.L. 157, § 3.1, added 1972, June 23,

P.L, 483, No, 155, § 1, 17 P.S. § 1834.1 et seq.

‘* Electronic processing equipment was utilized for the selection

of persons to be called for jury duty from the list of registered

voters in Berks County.

d4a

of disqualification or excuse.” The returned questionnaires

were to be kept confidential.”

"The following guidelines which were adhered to have been

established to aid the Jury Clerk in processing questionnaires:

“The Jury Clerk shall deem any persons qualified to serve as a

juror unless he or she: 1, Is unable to read, write and understand

the English language with a degree of proficiency sufficient to fill

out satisfactorily the juror qualification questionnaire, 2. Is unable

to speak the English language. 8. Is incapable, by reason of mental

or physical infirmity, to render satisfactory jury service. 4. Has a

charge pending against him or her for the commission of, or has

been convicted in a State or Federal court of record of a crime

punishable by imprisonment for more than one year, The Jury

Clerk shall find that jury service by the following groups of per-

sons and occupational classes of persons would entail undue hard-

ship or extreme inconvenience to members thereof, and therefore

will excuse such persons or classes of persons: 1. All actively prac-

ticing attorneys, physicians and dentists, 2. Any person who has

served as a grand, traverse, or petit juror in a State or Federal

court during the past two years. 3. Sole proprietors of businesses,

unable to function without them. 4. All mothers of children under

the age of twelve years, who cannot arrange for supervision of the

children, 5, Members on active service in the Armed Forces of the

United States. 6. Full time members of any police department.’

A list of persons declared ineligible under the above guidelines to

serve as jurors is submitted by the Jury Clerk to the President

Judge who then either approves or disapproves the action of the

Clerk with respect to the names on the list,

“On November 5, 1971, the Board of Judges determined that

the persons selected would be sent questionnaires on an approved

form and that the returned questionnaires were to be kept con-

fidential. The form sent to prospective jurors includes, inter alia,

the following questions: ‘7, Do you have any physical or mental

infirmity impairing your capacity to serve as a juror? ——

If so, deseribe it fully: Give name and

address of attending physician; —

8. Have you at any time been convicted of or are you presently

under indictment for a State or Federal crime punishable by im-

prisonment for more than one year? —.--—— .. , 11. What is

the extent of your education? Elementary —. High School ———

College —.’*. Defendant cites Commonwealth v, Locke, No, 70-

09-1190; 70-10-919; 70-12-2416 (Ct, Com. Pleas, Philadelphia

45a

Pa. R. Crim. P. 310 provides that with the exception of

written statements by defendant himself no other dis-

covery or inspection shall be ordered except upon proof by

defendant after a hearing of, “exceptional circumstances

and compelling reasons”. Also, see Commonwealth v. Cap-

lan, 411 Pa. 568, 567, 192 A.2d 894, 896 (1963). Defendant

failed to establish “exceptional circumstances and com-

pelling reasons” which would require production to de-

fense counsel of the questionnaires obtained at the expense

of Berks County. See Commonwealth v. Galloway, 238 Pa.

Superior Ct. 69, 71, 352 A.2d 518, 519 (1975).

Polygraph Tests

Defendant contends that he should have been permitted

discovery and inspection of the questions and answers

asked of Commonwealth witnesses Reynolds and Geisler

at the time they submitted to polygraph tests. In Com-

monwealth v. Gee, 467 Pa. 123, 132-3, 354 A.2d 875, 879

(1976), it is stated: “As for pre-trial discovery in general,

the law in Pennsylvania is clear that, absent ‘proof by the

defendant, after hearing, of exceptional circumstances and

compelling reasons’ he may be permitted only ‘to inspect

and copy or photograph any written confessions and writ-

ten statements’ made by him, and that he is not entitled to

‘pretrial discovery or inspection of written statements of

witnesses in the possession of the Commonwealth.’ Pa. R.

Crim, P. 310. See also Commonwealth ex rel. Specter v.

Shiomos, 457 Pa, 104, 320 A.2d 134 (1974) ; Commonwealth

v. Stafford, 450 Pa, 252, 299 A.2d 590 (1973), cert. denied,

412 U.S, 943, 93 8. Ct. 2775, 37 L. Ed. 2d 404 (1973) ; Com-

monwealth v. Turra, 442 Pa. 192, 275 A.2d 96 (1971)”.

Defendant failed to produce any evidence showing “excep-

County 1970) for the proposition that in challenging the jury

array, questionnaires completed by prospective jurors were made

available to defense counsel to aid him in his defense. However,

the questionnaire issue was not discussed or decided in that opinion.

46a

tional circumstances and compelling reasons” which would

entitle him to pretrial discovery beyond his own statements,

See Commonwealth v. Gee, supra at 133, 354 A.2d at 879.

Defendant also claims that he was entitled to the test

results on the ground that the Commonwealth had a duty

to produce “excuipatory” evidence. Commonwealth v. Gee,

supra at 130, 354 A.2d at 878 cites Brady v. Maryland, 373

U.S. 83, 87, 83 S. Ct. 1194, 1196-7, 10 L. Ed. 2d 215 (1963)

for the proposition that “ ‘the suppression by the prosecu-

tion of evidence favorable to an accused upon request: vio-

lates due process where the evidence is material either to

guilt or to punishment, irrespective of the good faith or

bad faith of the prosecution.’” Even absent a specific re-

quest, a prosecutor has the duty to make available to the

defense evidence that is truly exculpstory rather than

merely favorable. Commonwealth v. Gee, supra at 131, 354

A.2d at 878. However, evidence in possession of the prose-

cutor cannot be considered exculpatory merely because de-

fendant chooses to call it so. Id. at 131, 354 A.2d at 878.

In Gee, defendant requested from the Commonwealth

“every test, every result, every interview sheet that was

taken in connection with that polygraph test” of defen-

dant. The refusal of the lower court to allow defendant

these polygraph test results was affirmed. The court

stated: “This evidence (polygraph tests) was exculpatory

in the sense that it certainly contained exculpatory state-

ments by appellant, but not in the sense that its denial

precluded him from any additional evidence; it did not

‘extrinsically’ tend to establish innocence or to mitigate

guilt.” Id. at 132, 354 A.2d at 879. These principles sup-

port the denial of the request for release of the results of

polygraph tests.”

*1 Polygraph test results would have been of no use to defendant

at trial since they are not admissible for any purpose. See Com-

monwealth v. Gee, supra at 142, 354 A.2d at 883-4; Commonwealth

v. Johnson, 441 Pa. 237, 240, 272 A.2d 467, 469 (1971).

47a

Voir Dire

Defendant contends that he was denied the right to pro-

pound certain questions on voir dire. In Commonwealth v.

Kahley, 467 Pa. 272, 289, 356 A.2d 745, 754 (1976) quoting

Commonwealth v. Johnson, 452 Pa. 130, 134-5, 305 A.2d 5,

7 (1973) it is stated: “ ‘It is well-settled that “the examina-

tion of jurors under voir dire is solely for the purpose of

securing a competent, fair, impartial and unprejudiced

jury. ... Neither counsel for the defendant nor for the

Commonwealth should be permitted to ... ask direct or

hypothetical questions designed to disclose what a juror’s

present impression or opinion may be or what his attitude

or decision will likely be under certain facts which may be

developed in the trial of the case. While considerable lati-

tude should be permitted on a voir dire, the inquiry should

be strictly confined to disclosing qualifications of a juror

and whether a juror has formed a fixed opinion or may be

otherwise subject to disqualification for cause.” Common-

wealth v. McGrew, 375 Pa. 518, 525, 100 A.2d 467, 470

(1953). See, Commonwealth v. Biebighauser, 450 Pa. 336,

346, 300 A.2d 70, 75 (1973); Commonwealth v. Hoss, 445

Pa. 98, 107, 283 A.2d 58, 63, 64 (1971); Commonwealth v.

Swanson, 432 Pa. 293, 299, 248 A.2d 12, 15 (1968); Com-

monwealth v. Lopinson, 427 Pa. 284, 297-98, 234 A.2d 522,

560-61 (1967). The scope of voir dire examination rests in

the sound discretion of the trial judge, see, e.g., Common-

wealth v. Biebighauser, supra; Commonwealth v. Lopin-

son, supra... .’” Also, see Commonwealth v. Futch, ——

Pa. ——, 366 A.2d 246, 248 (1976); Commonwealth v. Se-

gers, 460 Pa. 149, 156, 331 A.2d 462, 466 (1975) ; Common-

wealth v. Brown, 228 Pa. Superior Ct. 166, 168, 323 A.2d

281, 282-3 (1974). A review of the questions which were

not permitted establishes that no abuse of discretion oc-

curred. See Commonwealth v. Rainey, 242 Pa. Superior

Ct. 39, 42-3, 363 A.2d 1148, 1150 (1976).

Defendant argues that he was prevented from fully ex-

ploring the effects of pretrial publicity by reason of the

48a

denial of questions Nos. 47, 49-57, 59-61 and 64-65. How-

ever, defense counsel was permitted to ask numerous

questions exploring the possible effects of pretrial pub-

licity.* Defendant claims he was unduly restricted by not

being permitted to ask questions Nos. 22, 23, 25-29 and 33

covering ethnic prejudices; questions Nos. 75-81 concern-

ing prosecutorial misconduct; questions Nos. 82-93 dealing

with the credibility of witnesses; questions Nos. 97, 103,

112 dealing with prejudice against wealthy people; ques-

tions Nos. 99 and 100 dealing with bail; questions Nos. 94,

95 and 104-108 dealing with whether this case would be

associated with other prominent murder cases; questions

Nos. 113-117 dealing with alleged bias resulting from the

pretrial use of the term “hired” or contract” killing; and

questions Nos. 124, 125, 128, 130 and 131 dealing with

whether the veniremen could be impartial jurors. Questions

were permitted to elicit potential ethnic prejudices; ™

#2 The court permitted defendant to ask the following questions

he submitted dealing with pretrial publicity: 45. Have you heard

or read about this case in the newspapers? 46. As a result of what

you have read, have you formed an opinion as to the guilt or

innocence of Richard Cohen or about the merits of this case?

48. Would you have any difficulty overcoming that opinion that

has already been set in your mind? 58. Do you feel that you have

been so influenced by what you have heard or read that you can-

not render an impartial verdict? 62. Have you heard anyone

discuss this case? 63. Have you discussed this case with anybody?

25 The following questions dealing with ethnic prejudices were

permitted: 24. Are you a member of the Ku Klux Klan, the Amer-

ican Independent Party, the American Nazi Party or the John

Birch Society? 30. Do you have prejud .es against Jewish people?

31. Have you had any dealings or experie ces with Jewish people

that might make it difficult for you to sit in impartial judgment

of this case? 32. Will the fact that the defendant is Jewish effect

you in any way in your judgment of this case? 34. Will the fact

that the defendant is Jewish make it more difficult for you to

render a verdict in his favor than if he were not Jewish?

49a

prosecutorial misconduct ; ** possible prejudice against peo-

ple of wealth; * effect of bail; ** prejudicial effect of the

term “contract killing”; *” whether veniremen could be im-

partial jurors;** and knowledge about prosecution wit-

nesses.”” In additon, whenever it appeared that a prospec-

** The following question was permitted: 39. Were you satisfied

that the persons responsible for the investigation and/or prosecu-

tion of the case acted competently and efficiently in handling the

case ?

**The following questions were permitted: 110. Would you be

influenced by Cohen's wealth? 111. Would you resent Cohen be-

cause of his wealth?

*°The following questions dealing with bail were permitted:

101. Will you be so influenced by the fact that Richard Cohen’s

father could raise $250,009 bail for Richard that it creates such an

impression on you that you could not be a fair and impartial

juror? 102. Would you hold it against Mr. Cohen or be resentful

against him by virtue of the fact that he is free on $250,000 bail?

109. Would the fact that Cohen came from a well-to-do family

and could post $250,000 bail to make it difficult for you to be a fair

and impartial juror?

27 The following question was permitted: 96. Does the term con-

tract killing create such an image in your mind that you are in-

fluenced to a degree that you cannot be a fair and impartial juror?

** The following questions were permitted: 48. Would you have

any difficulty overcoming the opinion that was already set in your

mind? 123. Would you judge this case solely on the evidence be-

fore you without any fear of later criticism by your friends, rela-

tives, neighbors or co-workers? 126. Would you judge the case

solely on the evidence, without any regard for any personal feel-

ings or suspicions that you may have? 129. If chosen in this case,

do you know any reason why you could not sit as an impartial

juror? 132. You are not going to give any more weight to the argu-

ments of Mr. Murphy than to mine simply because he has the

title ‘‘ District Attorney,’’ are you?

*° The following questions were permitted: 20. Are you friendly,

associated with or related to anyone in the Prosecutor’s office, the

Police Department or any law enforcement agencies? (Name mem-

bers of the D.A. staff.) 98. Do you know the names of the other

50a

tive juror may have been infected with bias, additional

questioning was permitted. It is manifest that defendant

was not prejudiced by the aforesaid refusal of questions

especially when the questions which were allowed dealt with

the same basic subject matter. Commonwealth v. Futch,

supra at 248; Commonwealth v. Kahley, supra at 289, 356

A.2d at 754."

The refusal to grant defendant’s challenges for cause

was proper and did not constitute error. Defendant did not

exhaust his 20 peremptory challenges.*' In Commonwealth

v. Moore, 462 Pa. 231, 238, 340 A.2d 447, 451 (1975), it is

stated: “It is well-settled that when ... the defense does

not exhaust its peremptory challenges, it is harmless error

to overrule a challenge for cause which should have been

sustained, if the juror is actually excluded by a peremp-

tory challenge. Commonwealth v. Moon, 389 Pa. 304, 308,

132 A.2d 224 (1957); Commonwealth v. McGrew, 375 Pa.

518, 526, 100 A.2d 467 (1953); Commonwealth v. Bibalo,

375 Pa, 257, 265, 100 A.2d 45 (1953).” Also, see Dixon v.

Andrew Title and Mfg. Corp., 238 Pa. Superior Ct. 275,

277-8, n.1, 357 A.2d 667, 668, n.1 (1976).

Defendant claims that the trial judge improperly ques-

tioned certain prospective jurors on voir dire. In Com-

monwealth v. McGrew, 37 Erie 139, 167, aff’d, 375 Pa. 518,

100 A.2d 467 (1953) it is stated: “. . . since the demeanor

of the juror is of vital importance to the trial judge in

defendants who the prosecution claims to have participated in this

alleged incident? Prospective jurors were shown a list of names

which ineluded potential witnesses in order to ascertain if they

knew such persons. (Voir Dire Exhibit No. 6.)

°° Defendant cites no authority and no relevant reason appears

to justify questioning of prospective jurors concerning their knowl-

edge of past prominent murder cases.

* When the jury and alternates were seated, defendant exer-

cised 17 of the 20 peremptory challenges to which he was entitled.

5la

appraising his qualifications, it is the right and sometimes

the duty of the trial judge to interrogate the jurors.

Clark v. Commonwealth, 123 Pa. 555, 573; Commonwealth

v. Myma, 278 Pa. 505, 509. This is particularly true in

light of the fact that ‘The tendency is to exaggerate their

opinions, to escape serving in capital cases.’ O’Mara v.

Commonwealth, 75 Pa. 424, 428.” Accord, U.S. v. Segul, 534

F, 2d 578, 581 (38d Cir. 1965).°* Of the 27 named prospec-

tive jurors that the trial judge allegedly questioned im-

properly, three were not questioned by the court. In regard

to the remaining 24 veniremen, it is apparent that the

dominant purpose of the inquiries was to clarify incon-

sistent responses, and to “insure they were not exaggerat-

ing their opinions to avoid serving on the jury. Further-

more, such questions did not reflect any hositility or pre-

judice toward defendant. See Commonwealth v. Myma,

supra at 510, 123 A. at 487.

Defendant urges that he should have been granted a

mistrial on the ground that the trial judge improperly

questioned the said prospective jurors Pa. R. Crim. P.

1118(b) provides that a motion for a mistrial shall be

made when the event is disclosed. No motion for a mis-

trial was made during or following the questioning of

said prospective jurors. In any event, no legal basis has

been shown which would have justified such action.

Defendant also avers that his motion for a mistrial

should have been granted in that the trial judge made

an improper comment in the presence of a prospective

juror. This particular juror was asked a vague and con-

fusing question by defense counsel as to whether she had

“The right of the trial judge to question prospective jurors on

voir dire is well recognized. See A.B.A. standards—Trial by Jury,

Approved Draft, 1968 ; § 2.4.

52a

an opinion that Cohen was “involved in some way”.*’ An

objection by the district attorney was interposed to the

form of the question. The trial judge sustained the objec-

tion and pointed out that Cohen was involved as the de-

fendant. This statement was clearly made to enable de-

fense counsel to understand the basis upon which the ob-

jection was sustained. Defendant’s motion for a mistrial

was properly denied.”

Defendant further contends that the trial judge failed to

instruct prospective jurors waiting to be questioned on voir

dire to refrain from discussing the case among themselves

and with jurors who had already been questioned and

“The testimony to which defense counsel objected is as follows:

‘*By Mr. Dimitriou: Q In other words, do I understand, Mrs.

Gilmartin, that you now have an opinion that Mr. Cohen is in-

volved in some way, to some degree, is that correct, or else he

wouldn’t be here as a defendant? Mr. Murphy: Objection to the

form of the question. The Court: The objection is sustained as to

the form of the question. Obviously there is some involvement in

some way or other, otherwise he wouldn’t be here. He is charged.

Mr. Dimitriou: Your Honor, I object to the Court’s remarks and

I ask for a mistrial. The fact that he is a defendant—he cannot

be involved in any way. The Court: I didn’t say he was involved,

he is a defendant, he is part of these proceedings, Mr. Dimitriou.

Mr. Dimitriou: That is not the way your remark came out on the

record, it is certainly not the way I understood it. The Court: Mr.

Dimitriou, he,is ». defendant, and in that sense, he is a party to

the proceeding. Mr. Dimitriou: He may be a party to the proceed-

ing, but the remark of the Court was that he was involved in some

way or other. The Court: As a party. He is a party, he is a de-

fendant. Mr. Dimitriou: I am sure, Your Honor, that you may

intrepret it in that manner, but certainly any layman wouldn’t

interpret it in that manner. The Court: Your motion is refused.

You may rephrase your question, but it should not be a question

which is vague. He is here as a defendant.’’

In any event, no prejudice resulted to defendant since de-

fendant’s subsequent challenge for cause as to this prospective

juror was granted on the ground that she had a ‘‘fixed’’ opinion

arising from collateral sources. It must also be noted that defend-

ant did not exhaust all of his peremptory challenges.

53a

challenged. The district attorney made the request for this

instruction during the course of voir dire which was re-

fused. Defendant made no such request and did not object

to the ruling made thereon. Defendant cannot now object.

Commonwealth v. Clair, 458 Pa. 418, 422-3, 326 A.2d 272,

274 (1974). Also, it should again be noted, that when it

became apparent that several prospective jurors had heard

about the examination in the jury assembly room, the trial

judge, in addition to the cautionary instructions previously

given to the panel, expressly instructed excused veniremen

not to discuss the voir dire.** We recognize that jurors need

“On September 8, 1975, Judge James W. Bertolet preliminarily

instructed the entire jury panel that: ‘‘You don’t talk with any-

body about the case that you may be trying, acting as jurors. You

don’t talk with anybody about that until it’s all over. When it’s

over, you are free to discuss it whenever you choose, but what

went on in the courtroom, not the jury room. But while the case

is going on, you don’t talk with anybody about it. It would be just

as well if you didn’t talk with anybody about any of the cases that

are likely to come up in this next week or certainly this week,

because by your conversation, you may have influenced some which

are on it. You might learn what you thought was a piece of val-

uable information and, if it didn’t come out at trial, you might

still think it was a piece of valuable information that might in-

fluence your decision. That shouldn't be that way. If it’s relevant,

if it’s admissible, it will come out at trial. You shouldn’t be in-

fluenced by anything outside of the courtroom. Whoever gives you

this information that you might get isn’t in court to be cross-

examined on it as to how they got it, how they learned it, whether

it’s legal or not, so it’s not worth much, not worth anything, It

shouldn’t be. So, don’t talk with anybody about cases either on

or may be called this week until they are all decided, until a par-

ticular case is decided. Don't talk with anyone involved in the

case in which you are a juror. ... Don’t read about the case if

you can help it. If you see something in the newspapers about a

case in which you are involved or might be involved, see if you

can’t skip reading about it this week just so you don’t get second-

hand information. . . . It’s hard to say don’t listen to the radio

about it because you don’t know what is going to be on the radio

about it until there is. Don’t pay any attention to it, don’t take

it seriously and, as a matter of fact, you shouldn’t even discuss

54a

not be free from all pretrial exposure to information about

a case. The courts “do not expect a tabula rosa but merely

a mind sufficiently conscious of its sworn responsibility

and willing to attempt to reach a decision solely on the

facts presented. .. .”” Commonwealth v. Johnson, supra at

136, 305 A.2d at 8. Given the fact that twelve jurors and

two alternates were seated without necessitating defense

exhaustion of peremptory challenges, defendant cannot

now claim prejudicial error.

Defendant contends that it was error to sustain Com-

monwealth challenges for cause on account of opposition

to the death penalty. A challenge was granted in regard

to prospective jurors who stated that they would not re-

turn a verdict of death without regard to any evidence

that might be developed at trial. This procedure was

proper and in accordance with constitutional standards.

See Witherspoon v. IIl., 391 U.S. 510, 520-22, 88 S. Ct.

1770, 20 L. Ed. 2d 776 (1968); Bumper v. North Carolina,

391 U.S, 548, 545, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) ;

Commonwealth v. Sullivan, 446 Pa. 419, 433, 286 A.2d 898,

903 (1972). Although it is undisputed that defendant was

charged with a capital offense, he was found guilty of

murder in the third degree which is not a capital offense.

Act of Dec. 6, 1972, P.L. ——, No. 334, §1, 18 C.P.S.A.

§ 1103. Exclusion of prospective jurors having conscien-

tious objection to the imposition of the death penalty is

not prejudicial error where sentence is imposed by the

court and no death sentence can be imposed. Commonwealth

v. Rightnour, 435 Pa. 104, 112, 253 A.2d 644, 648 (1969) ;

Commonwealth v. Servey, 434 Pa, 433, 439, 256 A. 2d 469,

471 (1969). Even non-compliance with the Witherspoon

standard of jury selection is irrelevant when the death

penalty has not been imposed. Commonwealth v. Martin,

the case with your fellow jurois until it’s all over because there is

no use in discussing half of it; the second half may change your

opinion completely.’’

55a

supra at 180, 348 A.2d at 405; Commonwealth v. Dukes,

460 Pa. 180, 189-90, 331 A.2d 478, 482 (1975).

Defendant also raises the constitutionality of the Penn-

sylvania death penalty statute. A person cannot challenge

the constitutionality of a statute unless he shows he is

adversely or indirectly affected by its operation. White v.

City of Philadelphia, 408 Pa. 397, 402, 184 A.2d 266, 269

(1962); Rogan v. Rogan, 63 Luz. L. Reg. 123, 124 (1973).

Defendant ‘was not affected by this statute for it applies

only to murder in the first degree. See Act of Dec. 6,

1972, P.L. 1482; No. 334, $1311, added 1974, March 26,

P.L. 213, No. 46, §3, as amended 1974, Dec. 30 P.L. 1052,

No. 345, § 1, 18 C.P.S.A. § 1311. He lacks standing to ques-

tion the constitutionality of the statute. Commonwealth v.

Cornish, —— Pa. ——, 370 A.2d 291, 292, n.2 (1977). Also,

see U.S. v. Brewer, 363 F. Supp. 606, 608-9 (M.D. Pa.

1973), aff'd, 491 F. 2d 751, cert. denied, 416 U.S. 990, 94

S. Ct. 2399, 40 L. Ed. 2d 768 (1974).

Opening Address

Defendant contends that a mistrial should have been

granted by reason of remarks of the district attorney dur-

ing his opening address. He said: “Needless to say, on

behalf of the witnesses which I introduce or which I intro-

duce to you, I am vouching for the truth of what they are

saying. I am putting them on the stand because I believe

them. But what I believe is not the evidence in this case.

What they testify to is evidence. It is evidence for you to

weigh and consider.” (Emphasis supplied.) He later

stated: “As I have indicated, I vouch [for] the truth of

the testimony I present and I will thoroughly examine my

own witnesses so that you can understand whether they

have said something different in the past and their rea-

sons for doing so.” ** Defense counsel did not move for a

°° In Commonwealth v. Gee, supra at 137, 354 A.2d at 881 it is

stated: ‘‘. . . as a general rule a party who calls a witness repre-

sents him as being worthy of belief... .’’

56a

mistrial at the time these statements were made and did

not so move even at the conclusion of the district attor-

ney’s opening address. Only after defense counsel had con-

cluded his opening address was the motion made. Pa. R.

Crim. P. 1118(b) provides: “When ~1 event prejudicial

to the defendant oceurs during tria: only the defendant

may move for a mistrial; the motion shall be made when

the event is disclosed. Otherwise, the trial judge may de-

clare a mistrial only for reasons of manifest necessity.”

The trial judge properly denied the mistrial motion, See

Yommonwealth v. Gilman, — —Pa. ——, 368 A.2d 253, 256

(1977). In addition, no objection was made to these state-

ments. Allegations of crror at trial will not be considered

if they are not specifically objected to when made. Com.

monwealth v. Clair, supra at 422-3, 326 A.2d at 274. The

“waiver doctrine” is explained in Commonwealth v. Smith,

464 Pa. 314, 319, 346 A.2d 757, 759 (1975). No “manifest

necessity” existed to justify the trial judge declaring a

mistrial especially since the district attorney made it clear

that it was for the jury only to determine the credility

of the witnesses.

And, even if a timely mistrial motion was made, the

statements were harmless. In Commonwealth v. Chandler,

237 Pa. Superior Ct. 19, 24, 346 A.2d 579, 582 (1975), a

prosecuting attorney made a comment concerning the cred-

ibility of his witness during his closing statement. The

Superior Court stated: “. .. it is improper conduct on the

part of the district attorney to express his opinion as to

the credibility of a witness. However, such a comment does

not necessarily require reversal and a new trial. A review

of the recent cases on this subject would suggest that re-

versal is mandated only where the comment complained of

contains elements clearly inclined to create prejudice or

calculated to distract or mislead the jury. See Common-

wealth v. Lipscomb, 455 Pa. 525, 317 A.2d 205 (1974);

Commonwealth v, Toth, 455 Pa. 154, 314 A.2d 275 (1974);

Commonwealth v. Revty, 448 Pa. 512, 295 A.2d 300 (1972);

57a

Commonwealth v, Potter, 445 Pa. 284, 285 A.2a 492 (1971) ;

Commonwealth v. Shaffer, 244 Pa. Superior Ct. 564, 307

A.2d 394 (1973). Our Supreme Court has delineated the

test for determining when an improper comment consti-

tutes reversible error: ‘The language must be such that its

“unavoidable effect would be to prejudice the jury, form-

ing in their minds fixed bias and hostility toward the de-

fendant, so that they could not weigh the evidence and

render a true verdict.” Commonwealth v. Simon, 432 Pa.

386, 394, 248 A.2d 289, 292 (1968).’ Commonwealth v.

Stolzfus, Pa. , 3387 A.2d 873, 882 (filed May 13,

1975). . . . The cases that have held that the prejudice

arising from the prosecutor’s statements demanded re-

versal, have done so on the basis of fairly strong or abu-

sive language.” See Commonwealth v. Eckert, —— Pa.

Superior Ct. , 368 A.2d 794, 798 (1976). The statements

in question were not “strong or abusive”. Even if remarks

in an opening statement are improper, relief will only be

granted where the unavoidable effect is to so prejudice

the finders of fact as to render them incapable of objective

judgment. Commonwealth v. Farquharson, 467 Pa. 50, 64,

354 A.2d 545, 552 (1976); Commonwealth v. Martin, supra

at 294, 336 A.2d at 292. Defense counsel is hardly in a

position to complain since he referred to these statements

in his opening address, during trial, and in his closing

argument, This contention is without merit.

Trial

Defendant alleges “repeated and deliberate misconduct

of the prosecutor” during trial. He claims that he was

improperly cross-examined concerning crimes for which

he was not charged; and that the district attorney im-

properly suggested before the jury that defendant was

obligated to call witnesses made available to him by the

Commonwealth. We find no substance in these arguments.

Further, defendant failed to raise any objection to the

58a

matters complained of during trial and any alleged errors

are waived. Commonwealth v. Clair, supra at 422-3, 326

A.2d at 274.

Defendant further claims that the district attorney ar-

gued incompetent evidence as proof on the merits. De-

fendant did object to the following testimony: “Q Now,

Tony, you recounted the events that took place between, I

think you said, October 29th or 30th and November 7th,

1974. Did the events which took place during that period

of time—have you described them here for us today? Ex-

cuse me? Q What you described here today, did it happen?

Mr. Dimitriou: I object. The Court: Objection is over-

ruled. The Witness: Yes, they did.” The question to this

witness was harmless, It was a common “wrap-up” or con-

cluding question which was appropriate at that phase of

the direct examination.

Defendant avers that the district attorney erred by in-

troducing numerous witnesses knowing they had previously

testified untruthfully. There is no proof that he called any

witness to testify knowing that such witness would testify

falsely. See Commonwealth v. Carpenter, —— Pa. ——,

372 A.2d 806, 810 (1977) ; Commonwealth v. Cain, —— Pa.

——, 369 A.2d 1234, 1240 (1977) ; Commonwealth v. Gaddy,

—— Pa. ——, 362 A.2d 217, 222 (1976). When a witness

does testify inconsistently on different occasions, defense

counsel may attempt to impeach the credibility of the wit-

ness by indicating to the jury the inconsistencies in his

testimony. This was done. Commonwealth v. Petrakovich,

459 Pa, 511, 525-6, 329 A.2d 844, 851 (1974). Common-

wealth v. Ravenell, 448 Pa. 162, 169, 292 A.2d 365, 369

(1974).

Defendant argues that the district attorney deliberately

elicited prejudicial testimony on cross-examination beyond

the scope of direct examination of witness Halstead. How-

ever, when defense counsel specifically objected to the

59a

question as being beyond the scope of direct examination,

the objection was sustained.

Defendant moved to prohibit Geisler and Reynolds from

testifying on the basis that their testimony was induced

and coerced as a result of their guilty pleas and that he

was thereby denied due process. Please of guilty were

accepted from Geisler and Reynolds with the understand-

ing that they would testify concerning their involvement

in the death of Warunek.”’ We find no impropriety in these

“'**Plea bargaining’’ is not improper provided that the parties

enter into it voluntarily, knowingly and fully understanding the

consequences which follow. Commonwealth v. Zuber, 466 Pa. 453,

457, 353 A.2d 441, 443 (1976). A person’s will is not so overborne

to make a guilty plea involuntary when the plea is entered into in

apprehension of imposition of the dealth penalty after a trial, in

hope for a more lenient sentence, or in some situations where police

threaten and strike a person after his arrest. See Commonwealth

v. Zuber, supra at 460, 353 A.2d at 443; Commonwealth v. Melton,

465 Pa. 529, 539-40, 351 A.2d 221, 226-7 (1976) ; Commonwealth

v. Wright, 232 Pa. Superior Ct. 470, 473, 334 A.2d 766, 768 (1975).

The memo of Geisler’s plea bargain is as follows: ‘‘In consid-

eration of the defendant’s (Geisler’s) entry of a plea of guilty

to murder generally, and in further consideration of the defend-

ant’s agreement to testify on behalf of the Commonwealth of

Pennsylvania, in the matter of the Commonwealth vs, Stuart

Richard Cohen, regarding his own involvement in the death of

one Steven Warunek, the District Attorney’s Office in a degree

of guilt hearing will recommend to the Court that the degree be

determined to be murder in the third degree and thereafter the

District Attorney’s Office will recommend a sentence of six years

to fifteen years, the sentence to be served in a state correctional

facility. It is further agreed and understood that in the event the

said defendanet shall not so testify, then this plea bargain shall

not bind the District Attorney’s Office to this stipulation of murder

in the third degree, and in the event Defendant does not so testify,

the District Attorney's Office shall be entitled, in a degree of

guilt hearing, to present such evidence and make recommendation

as to any higher degree of guilt as may be warranted under all

the evidence, facts and circumstances.’’

The memo of Reynold’s plea bargain is as follows: ‘‘In con-

sideration of the defendant’s (Reynold’s) entry of a plea of guilty

60a

pleas. Defense counsel exercised his right and elicited the

circumstances surrounding these pleas on cross-examina-

tion to attack credibility. Commonwealth v. Dobrolenski,

supra at 641, 334 A.2d at 273; Commonwealth v. Marker,

supra, at 478, 331 A.2d at 887.

Did the court err in advising Commonwealth witnesses

Geisler, Reynolds, Wamsher, Garber and Sugg of their

Fifth Amendment rights within the sight and hearing of

the jury! Defendant did not object to any of said witnesses

being advised of their Fifth Amendment rights within

sight and hearing of the jury. As a result, this issue is not

properly preserved for review. See Commonwealth v.

Clair, supra at 421-3, 326 A.2d at 274. In any event, this

contention is without merit. It has been held to be preju-

dicial for a prosecutor to call a witness to the stand with

foreknowledge that the witness intends to invoke his priv-

ilege against self-incrimination. This is said to violate

defendant’s Sixth Amendment right to confrontation, and

to constitute prosecutorial misconduct by encouraging guilt

by association in the mind of the jury. See Commonwealth

v. Davenport, 453 Pa. 235, 239-40, 308 A.2d 85, 87 (1973) ;

Commonwealth v. DuVal, 453 Pa, 205, 211-2, 307 A.2d 229,

231-2 (1973) ; Commonwealth v. Terenda, 451 Pa. 116, 120-

2, 301 A.2d 625, 628-9 (1973). Here, these witnesses all

to Voluntary Manslaughter, and to further consideration of the

defendant’s agreement to testify on behalf of the Commonwealth

of Pennsylvania in the matter of the Commonwealth v. Stuart

Richard Cohen, as well as in any related criminal prosecution,

regarding his own involvement in the death of one Steven Waru-

nek, the District Attorney’s Office will recommend a sentence of

five years to ten years, the sentence to be served in a state cor-

rectional facility. It is further agreed aud understood that in the

event the said defendant shall not so testify, then this plea bargain

shall not bind the District Attorney’s Office to this stipulation of

Voluntary Manslaughter, and in the event the defendant does not

so testify, the District Attorney’s Office shall be entitled to present

such evidence in support of such higher degree of crime as it may

deem supported by the evidence, facts and circumstances.’’

6la

waived their Fifth Amendment rights, testified, and were

subject to cross-examination by defendant. Defendant was

not prejudiced in any manner.

Did the district attorney interfere with defendant's op-

portunity to prepare his defense? Absent a showing of

exceptional circumstances or compelling reasons, it is im-

proper for the district attorney to instruct an otherwise

willing witness not to speak to defense counsel prior to

trial. Commonwealth v. Wilder, 461 Pa. 597, 603, 337 A.2d

564, 567 (1975); Lewis v. Court of Common Pleas of

Lebanon County, 436 Pa. 296, 303-4, 260 A.2d 184, 188-9

(1969). A review of the record does not establish that the

district attorney acted improperly.”

““On December 10, 1974, the district attorney sent a memo to

‘All Turnkeys’’ which provided: ‘‘No individuals, police per-

sonnel or private citizens or attorneys or anyone else shall be per-

mitted or allowed to have any conversation with Richard John

Abraham unless I personally am present.’’ The above memo was

not an instruction to witnesses not to speak to defense counsel

prior to trial. Furthermore, the district attorney gave defense

counsel a list of all the prospective witnesses he intended to call

in the case prior to trial including Richard Abraham. There is

nothing in the record to indicate that defense counsel attempted

to personally interview Abraham. No pretrial application was

made by defendant claiming he was prevented access to prosecu-

tion witnesses. During the early stages of the trial, the trial judge

instructed the district attorney in the presence of defense counsel

as follows: ‘‘As I reeall the off the record conversation that we

had in the retiring room this morning, Mr. Murphy stated that

this particular person had been contacted by someone who re-

ferred to himself as Dr. Shulman, and Mr. Murphy did not indi-

cate at any time, according to my recollection of the conversation

and discussion, that he would in any way prevent defense counsel

or your duly authorized representatives from interviewing any of

the witnesses. Mr. Murphy stated that you were free to conduct

such interviews. However, Mr. Murphy was apprehensive that cer-

tain of the witnesses may be contacted by unauthorized persons

and I believe the thrust of Mr. Murphy’s position was that he

wanted to make certain that any contact with witnesses was done

in a proper and authorized manner and done by defense counsel

62a

Was redirect examination of Phillip Sugg by the dis-

trict attorney proper? The district attorney on redirect

examination queried: “Mr. Sugg, you have before you the

statement which you gave me on March 21st, do you not?

A Yes. Q Is there anything in that that is inaccurate? A

Pardon me? Q Is that statement accurate or inaccurate?

A I believe it’s accurate. Q Referring to page 2 of the

statement, I ask you to read the question and answer

which I have pointed out to you in the middle of the page.

Mr. Dimitriou: Your Honor, I object.”** During cross-

examination of this witness the statement referred to was

attacked by defense counsel as being inaccurate. This re-

direct examination was appropriate since it developed

matters brought out on cross-examination. See Common-

wealth v. McDowell, 460 Pa, 474, 481, 333 A.2d 872, 875

(1975).

Was defendant denied a fair trial when the following

evidence was introduced? Defendant failed to specifically

object to: testimony of witnesses that defendant had been

a supplier of and user of unlawful drugs; testimony from

or his representatives, I believe this was the general thrust of the

conversation. However, Mr. Murphy, in accordance with the mo-

tion of defense counsel, we agree wholeheartedly that he has free

access to all witnesses and of course, it is entirely up to the wit-

nesses whether or not they desire to confer with defense counsel

or his authorized representatives. Mr. Murphy: Of course. The

Court: You understand that, too, that situation, do you not? Mr.

Murphy: Yes, I do. The Court: Are you willing to comply with

that? Mr. Murphy: Yes, sir. The Court: You are directed to com-

ply with that.’’ (Emphasis supplied.) Abraham was not called as

a Commonwealth or defense witness. See Commonwealth v. Sis-

trunk, 460 Pa. 655, 657-8, 334 A.2d 280, 281 (1975).

* When only a general objection is made to the admission of

evidence, if the evidence is competent for any purpose, its admis-

sibility is not error. Woldow v. Dever, 374 Pa, 370, 377, 97 A.2d

777, 781 (1953); Commonwealth v. Marshall, 287 Pa. 512, 52),

135 A. 301, 304 (1926); Lenihan v. Davis, 152 Pa. Superior Ct.

47, 50, 31 A.2d 434, 435 (1943).

63a

Geisler that after the homicide, while incarcerated, he had

been assaulted by Arms; testimony from Reynolds that he

accompanied Arms to the home of Diane Boyers where

everyone took drugs, where Arms beat up Gary Haldman

and attempted to stab Haldman, and that everyone went

to the local high school to sell barbiturates; testimony that

Geisler was involved in the murder; testimony from Geis-

ler that Abraham told him that Arms was angry because

Arms had received a phone call from defendant threaten-

ing to harm Arms, Reynolds and Geisler unless the three

kill Warunek; testimony from Wamsher that on Friday,

November 8, 1974, Geisler related that Arms had shot

Warunek as well as the details of the homicide; and testi-

mony from Sugg that Geisler had come to defendant’s

home and related to Cohen that Warunek had been killed

by a shot in the head. Allegations of error not specifically

objected to at trial are deemed waived and need not be

considered on review. Commonwealth v. Smith, supra at

319, 346 A.2d at 759; Commonwealth v. Clair, supra at

422-3, 326 A.2d at 274.

Defendant claims error when he was cross-examined re-

lating to hts purchase and possession of drugs. The objec-

tion was only on the ground that he had already answered

the question. The direct examination revealed his involve-

ment with drugs. Defense counsel objected to testimony of

Reynolds concerning his plea of guilty on the supposition

that his testimony “was something that this witness had

been told to say”. These specific objections on the grounds

set forth were properly overruled, If the ground upon

which an objection to evidence is specifically stated, all

other reasons for its exclusion are waived and may not be

raised thereafter. Commonwealth v. Stoltzfus, supra at 60,

337 A.2d at 881; Commonwealth v. McNeal, 456 Pa. 394,

398, 319 A.2d 669, 672 (1974).

An objection was made to testimony of Geisler that he

was “into the conspiracy”. Testimony from Reynolds that

he had given two previous, less complete, but consistent

i

64a

statements to the prosecutor was also objected to because

“the witness is not responsive to the question”, and be-

cause the question asked was “vague”. These obejctions

were sustained. Also, an objection was sustained to the

district attorney’s request that Halstead explain statements

made by Kuzniar. Since these objections were sustained

defendant has no valid argument. Defendant claims that it

was improper for the district attorney to elicit on cross-

examination of him that he failed to support his illegiti-

mate child. However, testimony on this topic was already

developed on his direct examination, See Commonwealth

v. Cheatham, supra at 202-3, 239 A.2d at 296; Common-

wealth v. Sweet, 232 Pa. Superior Ct. 372, 377-8, 335 A.2d

420, 423-4 (1975).

It is also claimed that it was error to permit testimony

from Geisler that he pleaded guilty to the murder of

Warunek. When testimony was first introduced as to this,

no objection was made. Later, objections were made to

testimony dealing with the guilty plea based upon the

form of the questions. It should be noted that no objection

was made on substantive grounds. Defendant is not now

in a position to raise this issue. See Commonwealth v.

Stoltzfus, supra at 60, 337 A.2d at 881; Commonwealth v.

MeNeal, supra at 398, 319 A.2d at 672; Commonwealth v.

Clair, supra at 422-3, 326 A.2d at 274. Evidence admissible

for one purpose but not for another may be admitted,

though a limiting instruction must be given if requested.

Commonwealth v. Davenport, 462 Pa. 543, 556, 342 A.2d

67, 73 (1975); Commonwealth v. Johnson, 457 Pa. 554,

D059, 327 A.2d 632, 635 (1974). However, in none of the

above situations did defense counsel request cautionary

or limiting instructions.

Closing Argument

Was defendant denied due process and a fair trial when

the district attorney in his closing argument stated that

65a

Arins was in a mental institution? A prosecuting attorney

is limited to making comments based upon the evidence and

fair deductions and inferences therefrom. Commonwealth

v. Joyner, —— Pa. ——, 365 A.2d 12

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