Commonwealth v. Sandutch

BROSKY, Judge:

Appellant was convicted by jury of attempted murder, aggravated assault and burglary. He was sentenced to five to ten years on the attempted murder charge and ten to twenty years on the burglary charge. All sentences were to run consecutively with a sentence appellant was already serving. Sandutch was ordered to pay costs of prosecution and compensate the victim for injuries. Posttrial motions were filed and denied. This appeal followed. The lower court denied defendant’s motion in arrest of judgment. We affirm.

John R. Aufiero awoke when a burglar alarm connected from his restaurant called the “Pizza Shack” to his home began to ring. Aufiero, who had gone to his business to wait for the police to arrive, could sée three men exiting his restaurant. When Aufiero attempted to stop one of the men, he was shot.

Seven days later, Aufiero was unable to identify his assailant. The trial court reasoned Aufiero’s inability stemmed from his debilitated state as he continued to be in intensive care at the hospital.

Several weeks after the incident, police were able to make a composite drawing of the alleged attacker from information provided by Aufiero. Three months later, Aufiero was able to make a positive identification from a newspaper *529picture he had seen. As a result of this identification, Sandutch was convicted.

Appellant presents four questions for answers. First, he charges trial counsel was ineffective because he failed to supplement the record when a motion for change of venue was argued. Second, he claims his trial was prejudiced by testimonial references to known criminals alleging they were associates of the appellant. Third, he asserts the Commonwealth was improperly allowed to impeach its witness by a showing of prior inconsistent statements. Fourth, he remonstrates that a former District Attorney’s testimony was improperly admitted.

Sandutch was involved in numerous criminal proceedings before and during the time of the instant trial. His association with other alleged and convicted criminals brought him acclaim in the local press. In response to appellant’s notoriety, he filed a motion for change of venue, alleging he would be unable to receive a fair trial in the county in which he was charged. Appellant claims his attorney was ineffective because he failed to introduce evidence of the extended publicity when a hearing was held on the motion. Sandutch states these actions could not have had any reasonable basis related “to his representation.” Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).

The decision of a trial court to order a change of venue is one within its discretion. Commonwealth v. Coder, 252 Pa.Super. 508, 382 A.2d 131 (1977). The factors to be considered by the trial court are established in Commonwealth v. Richey, 249 Pa.Super. 365, 378 A.2d 338 (1977). We are satisfied that the lower court properly applied relevant consideration. Clearly, the underlying claim upon which appellant alleges ineffectiveness is without merit. We believe trial counsel was effective.

Appellant claims his trial was prejudiced by testimonial references to criminals which associated him with them. The relationship between Sandutch and these known criminals arose from a display of photographs to Aufiero of *530persons known to have perpetrated past crimes. The trial court instructed the investigating officer to repeat his recollection of Aufiero’s inability to identify Sandutch among the photographs. Therefore, in the jury’s eyes there could be no association. The court’s instruction removed whatever prejudice resulted from the photographic identification testimony. Commonwealth v. Whitfield, 474 Pa. 27, 376 A.2d 617 (1977) and citation presented therein, 474 Pa. at 44, 376 A.2d 626.

Sandutch argues the Commonwealth should not have, been permitted to impeach its own witness. The Commonwealth called James Mastrota about whom the Commonwealth had understood he would testify that he was an active participant in the crime and that he witnessed appellant’s participation in that incident. Yet, when Mastrota took the stand, he claimed not to be involved. Under these circumstances, the Commonwealth properly claimed surprise. The trial court correctly declared the witness hostile, and the Commonwealth appropriately cross-examined their witness by use of inconsistent statements. Commonwealth v. London, 461 Pa. 566, 337 A.2d 549 (1975).

Finally, appellant asserts the testimony of a former district attorney—now Judge Patrick J. Toole, Jr.—was improperly admitted. Judge Toole’s testimony related Mastrota’s claim that his prior inconsistent statements were coerced. Sandutch believes this testimony was improperly introduced because “it referred to collateral matters.” Appellant’s brief page 3, 18. This claim is without merit because the testimony given by Judge Toole did not go to a collateral matter, rather it focused on testimony which was key to the success or failure of the Commonwealth’s case. Commonwealth v. Whitfield, supra; Commonwealth v. Fisher, 447 Pa. 405, 290 A.2d 262 (1972); McGoldrick v. Pennsylvania R. R., 430 Pa. 597, 241 A.2d 90 (1968); Commonwealth v. Petrillo, 341 Pa. 209, 19 A.2d 288 (1941).

Judgment affirmed.

*531VAN der VOORT, J., concurs. SPAETH, J., files dissenting opinion.