Com. v. Savard (unpublished)
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J-S63020-12 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. MICHAEL SAVARD, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 173 WDA 2012 Appeal from the Judgment of Sentence entered on August 26, 2011 in the Court of Common Pleas of Clarion County, Criminal Division, No. CP-16-CR-0000499-2007 BEFORE: STEVENS, P.J., MUSMANNO and ALLEN, JJ. MEMORANDUM BY MUSMANNO, J.: Filed: January 25, 2013 Michael Savard ( Savard ) appeals from the judgment of sentence entered after he was convicted of one count of first-degree murder and simple assault, and two counts of aggravated assault.1 We affirm. On July 4, 2007, Savard killed his paramour, Jennifer O Neil ( the victim ), during an altercation inside their apartment in Knox, Pennsylvania. Savard stabbed the victim multiple times in the face, chest, and neck. Several hours after the attack, the police entered the residence, discovered the victim s body, and found Savard barricaded in the bathroom, covered in blood. The police transported Savard to the hospital, where he admitted to killing the victim. Subsequently, the Commonwealth charged Savard with the above-listed crimes, among other offenses. In the days and weeks following Savard s arrest, there were seven newspaper articles published in 1 See 18 Pa.C.S.A. §§ 2502(a), 2701(a)(1), 2702(a)(1) and (a)(4). J-S63020-12 two local newspapers servicing Clarion County regarding the murder and Savard s alleged involvement. In November 2008, Savard pled guilty to third-degree murder and aggravated assault, and was sentenced to serve twenty-five to fifty years in prison. In October 2010, upon collateral review under the Post-Conviction Relief Act, the trial court vacated Savard s judgment of sentence and granted him a new trial based upon the court s finding that defense counsel was ineffective in allowing Savard to plead guilty. Thereafter, the trial court scheduled Savard s case for a jury trial. The trial court set forth the relevant procedural history as follows: On November 8, 2010, [Savard] filed Omnibus Pretrial Motions[, which included] a [M]otion for change of venue and a [M]otion to impanel [a] jury from another county. Th[e trial] court held a hearing [o]n the matter on December 16, 2010. The court denied relief on the [M]otions ¦ due to a lack of any evidence of prejudice. On April 13, 2011, [Savard] filed Supplemental Omnibus Pretrial Motions[, which included] a [M]otion for change of venue, [M]otion to impanel [a] jury from another county, and a [M]otion for individual voir dire. A hearing was held on the matter on June 15, 2011. [The trial] court granted [Savard s M]otion for individual voir dire, and denied [Savard s M]otion for change of venue and [his M]otion to impanel [a] jury from another county. On July 22, 2011, [Savard] filed an Emergency Motion for Change of Venue/Venire ¦ due to [two] newly published newspaper articles concerning the case[,2 which Motion the trial] court denied ¦. 2 In these newspaper articles, the author mentioned Savard s previous plea of guilty in the case and his admission of guilt made at the hospital. -2- J-S63020-12 [Savard s] jury trial began on August 1, 2011[,] with jury selection. Jury selection was conducted through individual voir dire. A twelve[-]member jury was selected, with four alternate jurors, for a total of sixteen jurors. *** [T]he Commonwealth and [Savard] each were given seven peremptory challenges to use during the selection of the twelve[-]member jury, and an additional two peremptory challenges to use during the selection of the four alternate jurors. The Commonwealth only used six of its seven peremptory challenges for the twelve[-]member jury, and only one of its two alternate peremptory challenges. [Savard] used all seven of his peremptory challenges for the twelve[-]member jury. He used his last peremptory challenge after the eleventh juror was selected, but before the twelfth juror was chosen. [Savard] used both [of] his alternate peremptory challenges. During jury selection, [Savard] made a challenge for cause to excuse [potential] juror number 31. Juror number 31 was [] employe[d as a secretary for] the Clarion Borough Police Department[, and she] had heard about [Savard s] case at the time it occurred. [In response to questioning by the trial court, juror number 31 stated that nothing prevented her from being a fair and impartial juror.] Th[e trial] court denied [Savard s M]otion to strike for cause, and [Savard] used his fifth peremptory challenge to strike [juror number 31]. Had [Savard] not used his fifth peremptory challenge to strike juror number 31, that juror would have been seated as juror number 10. [Savard] did not request a change of venue or venire during the jury selection process or at its conclusion. Trial Court Opinion and Order, 1/4/12, at 2, 4 (footnote added; numbering omitted). -3- J-S63020-12 At the close of trial, the jury found Savard guilty of first-degree murder, simple assault, and two counts of aggravated assault. court subsequently sentenced Savard to life in prison. The trial Savard timely filed post-sentence Motions, which the trial court denied. Savard then timely filed a Notice of appeal. On appeal, Savard raises the following questions for our review: 1. Whether the lower court erred in denying [Savard s] Motion to Strike for Cause as to potential juror No. 31[?] 2. Whether the lower court erred in denying [Savard s] Motions for Change of Venue/Venire[?] 3. Whether the lower court erred in denying [Savard s] Motion to Recuse Trial Judge[?] Brief for Appellant at 4. Savard first argues that the trial court abused its discretion in denying the defense s Motion to strike for cause potential juror number 31. Id. at 10-11. The Pennsylvania Supreme Court has held that the decision to grant or deny a challenge for cause is within the sound discretion of the trial judge and will not be reversed absent a palpable abuse of that discretion. Commonwealth v. Chambers, 685 A.2d 96, 107 (Pa. 1996) (citation omitted). In determining whether a motion to strike a prospective juror for cause was properly denied, this Court is guided by the following precepts: The test for determining whether a prospective juror should be disqualified is whether [s]he is willing and able to eliminate the influence of any scruples and render a verdict according to the evidence, and this is to be determined on the -4- J-S63020-12 basis of answers to questions and demeanor. It must be determined whether any biases or prejudices can be put aside on proper instruction of the court. A challenge for cause should be granted when the prospective juror has such a close relationship, familial, financial, or situational, with the parties, counsel, victims, or witnesses that the court will presume a likelihood of prejudice or demonstrates a likelihood of prejudice by his or her conduct or answers to questions. Commonwealth v. Briggs, 12 A.3d 291, 333 (Pa. 2011) (citation and ellipses omitted). According to Savard, potential juror number 31 was biased against the defense, and the trial court should have thus stricken her for cause, because she (1) had recollection of the events from the time when they happened and had read [a] recent newspaper article wherein [Savard] was quoted indicating his guilt[;] (2) was closely related professionally to one witness, while working with two others[;] and (3) indicated she has a positive relationship with the office of the District Attorney. Brief for Appellant at 10. In its Opinion, the trial court addressed Savard s claim as follows: [Savard] claims that juror number 31 should have been dismissed by the court for cause due to her connection with the Clarion Borough Police Department. Th[e trial] court disagrees. The crime at issue in this case took place in the Borough of Knox. The Knox Borough Police Department responded to the scene. The Clarion Borough Police Department responded only as back up, and not as investigating officers. The only witness at trial from the Clarion Borough Police Department was Officer William Peck[,] IV [ Officer Peck ], who testified about the pictures he took of the scene. Officer Peck s testimony was not challenged by [Savard], and there is no indication that his credibility was at issue, or of importance, in the outcome of the case. The Pennsylvania Supreme Court has stated that the sole purpose of examination of jurors under voir dire is to secure a -5- J-S63020-12 competent, fair, impartial and unprejudiced jury. Com[monwealth] v. Ellison, 902 A.2d 419, 423 (Pa. 2006). Juror number 31 stated that she could be fair and impartial despite her association with a police department. She had no doubts that she could consider the evidence fairly. Juror number 31 was not prejudiced by her association with the Clarion Borough Police Department due to the nature of [Savard s] case. [Savard] did not claim he was innocent. Defense counsel admitted at trial that [Savard] killed his girlfriend, and that the murder was brutal. Defense counsel did not challenge the testimony of any officer as to the nature of the crime scene or [Savard s] location in the house at which the crime occurred. [Savard s] defense at trial was that he did not intend to kill his girlfriend. [Savard] attempted to convince the jury that he killed his girlfriend out of the heat of passion. The sole issue for the jury to determine was [Savard s] state of mind at the time of the killing. The fact that he killed the victim was not at issue. Therefore, juror number 31 s knowledge of the crime and her association with the police department was of no matter. The fact that she knew that [Savard] was involved with the murder was irrelevant. Her task as a juror, if she were seated, would have been to determine [Savard s] state of mind when he killed his girlfriend. As to this issue, juror number 31 [was] qualified as a competent, fair, impartial, and unprejudiced juror. There was no error in failing to dismiss her for cause. Trial Court Opinion and Order, 1/4/12, at 6-7. After review of the parties briefs and the certified record, we agree with the sound reasoning of the trial court, and affirm on this basis as to Savard s first issue. See id. Savard next contends that the trial court abused its discretion in denying his Motions for change of venue/venire, and the court deprived him of a fair trial. Brief for Appellant at 12-13. Savard points out that he presented the trial court with a total of nine newspaper articles pertaining to his case, and the most recent media coverage, from less than two weeks prior to trial, indicated [that Savard] had previously entered a guilty plea in -6- J-S63020-12 the case, and he was quoted as admitting to killing the victim. Id. at 13. According to Savard, this pretrial publicity, and, especially, the newspaper articles published just prior to his trial, was so pervasive and prejudicial that it was impossible to empanel an impartial jury in Clarion County. Id. Our standard of review is well established: An application for a change of venue is addressed to the sound discretion of the trial court, which is in the best position to assess the community atmosphere and judge the necessity for a venue change, and its exercise of discretion will not be disturbed in the absence of an abuse of discretion. The mere existence of pretrial publicity does not warrant a presumption of prejudice. If pretrial publicity occurred, its nature and effect on the community must be considered. Factors to consider are whether the publicity was sensational, inflammatory, and slanted toward conviction rather than factual and objective; whether the publicity revealed the accused s prior criminal record, if any; whether it referred to confessions, admissions, or reenactments of the crime by the accused; and whether such information is the product of reports by the police or prosecuting officers. If any of these factors exists, the publicity is deemed to be inherently prejudicial, and we must inquire whether the publicity has been so extensive, so sustained, and so pervasive that the community must be deemed to have been saturated with it. Finally, even if there has been inherently prejudicial publicity [that] has saturated the community, no change of venue is warranted if the passage of time has significantly dissipated the prejudicial effects of the publicity. Chambers, 685 A.2d at 103 (citations omitted). Further, the Pennsylvania Supreme Court has stated that the pivotal question in determining whether an impartial jury may be selected is not whether prospective jurors have knowledge of the crime being tried, or have even formed an initial opinion based on the news coverage they had been exposed to, but, rather, whether it is possible for those jurors to set aside their impressions or preliminary opinions and render a verdict solely based on the evidence presented to them at trial. -7- J-S63020-12 *** Although it is conceivable that pretrial publicity could be so extremely damaging that a court might order a change of venue no matter what the prospective jurors said about their ability to hear the case fairly and without bias [in response to questioning during voir dire], that would be a most unusual case. Normally, what prospective jurors tell [a court] about their ability to be impartial will be a reliable guide to whether the publicity is still so fresh in their minds that it has removed their ability to be objective. The discretion of the trial judge is given wide latitude in this area. Briggs, 12 A.3d at 314 (citations omitted). In the instant case, the trial court issued an Opinion setting forth the court s reasons venue/venire. for the denial of Savard s Motions See Trial Court Opinion, 3/29/12, at 2-5. for change of The trial court s sound rationale is supported by the record and we adopt it herein. See id. Additionally, in the trial court s Opinion and Order dated January 2, 2012, the trial court set forth the following rationale for its ruling: [A] fair and impartial jury was selected. Those jurors with extensive knowledge or bias were eliminated from the jury panel during jury selection. There remained enough jurors to select an impartial jury. Although some of the jurors seated on the jury did have knowledge of the case, their knowledge was not extensive or prejudicial as to cause defense counsel to object (except as to [potential] juror number 31, which is discussed [supra]). Therefore, [Savard] was not entitled to a change of venue or venire. Trial Court Opinion and Order, 2/2/12, at 5. Since the trial court s rationale is supported by the record and the applicable law, we affirm on this basis. See id.; Trial Court Opinion, 3/29/12, at 2-5; see also Briggs, 12 A.3d at 316-17 (holding that, although the pretrial media coverage of appellant s -8- J-S63020-12 case was presumptively prejudicial, the trial court did not abuse its discretion in denying appellant s motion for change of venue, where none of the[] 8 trial jurors who were exposed to media coverage indicated their exposure had caused them to form fixed, unchanging opinions of the [a]ppellant s guilt, or that it would interfere in any way with their ability to render a verdict based solely on the evidence presented in court. ). Finally, Savard argues that the trial court erred in denying his Motion requesting the trial judge to recuse himself from the case. Brief for Appellant at 14-15. Our standard of review of a trial court s determination not to recuse from hearing a case is exceptionally deferential. We recognize that our trial judges are honorable, fair and competent, and although we employ an abuse of discretion standard, we do so recognizing that the judge himself is best qualified to gauge his ability to preside impartially. The party who asserts that a trial judge should recuse bears the burden of setting forth specific evidence of bias, prejudice, or unfairness. Furthermore, a decision by the trial court against whom the plea of prejudice is made will not be disturbed absent an abuse of discretion. Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009) (citations and quotation marks omitted). Savard advances scant argument in support of his instant claim, asserting only that the lower court s continued denial of [Savard s Motions for] change of venue/venire, coupled with the lower court s denial of [Savard s] Motion to Strike for Cause, clearly indicate the lower court s abuse of discretion in denying [Savard s] Motion to Recuse. Brief for Appellant 15. Since we have already determined that the trial court properly -9- J-S63020-12 denied Savard s Motion to strike potential juror number 31 for cause and Motions for change of venue/venire, we could find that Savard s final issue lacks merit on this basis. Nevertheless, the trial court has concisely addressed this issue in its Opinion, and we affirm on this basis. See Trial Court Opinion, 3/29/12, at 6. Accordingly, we discern no abuse of discretion by the trial court regarding any of the rulings challenged by Savard on appeal, and we thus affirm the judgment of sentence. Judgment of sentence affirmed. - 10 -
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