Despite our conclusion that appellant is not entitled to discharge under Rule 1100, we find that she is entitled to a new trial because the court below abused its discretion in denying appellant's petition for change of venue. Recently, our supreme court reversed the conviction of appellant's co-defendant, Jeffrey Daugherty. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981). The basis for the court's decision in Daugherty was extensive publicity preceding appellant's and Daugherty's joint trial, which publicity not only contained information concerning prior unrelated criminal conduct, but also continued to a point proximate to trial.
The grant or denial of a change of venue is a matter within the sound discretion of the trial judge, who is in the best position to assess the community atmosphere and judge the necessity for a venue change. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978). The trial court's denial of the motion will be reversed only where there is an abuse of discretion.
The second pretrial issue is whether the trial court erred in denying appellant's request for a change of venue, or, alternatively, in denying his request for sequestration of the jury during the trial on the basis of the extensive and allegedly inflammatory publicity surrounding the murder and the trial. Appellant cites Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981) and Commonwealth v. Sourbeer, 492 Pa. 17, 422 A.2d 116 (1980), as authority for his assertion that the pervasive publicity denied him a fair trial and denial of a change of venue constitutes reversible error entitling him to a new trial. We perceive no merit in these contentions.
The grant or denial of a change of venue is a matter within the sound discretion of the trial judge, who is in the best position to assess the community atmosphere and judge the necessity for a venue change. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Rigler, 488 Pa. 441, 412 A.2d 846 (1980); Commonwealth v. Richardson, 476 Pa. 571, 383 A.2d 510 (1978). The trial court's denial of the motion will be reversed only where there is an abuse of discretion.
Moreover, even in instances where the information is inadvertently acquired, the finder of fact may be disqualified thereby, depending upon the nature of that information. Cf. Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Frazier, 471 Pa. 121, 369 A.2d 1224 (1977). Having concluded that the procedure is inherently defective, we address the question of determining the proper remedy.
Commonwealth v. Hamm, 325 Pa. Super. 401, 418, 473 A.2d 128, 137 (1984) (allocatur denied). Accord Commonwealth v. Roberts, 496 Pa. 428, 437 A.2d 948 (1981); Commonwealth v. Daugherty, 493 Pa. 273, 426 A.2d 104 (1981); Commonwealth v. Keeler, 302 Pa. Super. 324, 448 A.2d 1064 (1982). In Commonwealth v. Casper, 481 Pa. 143, 392 A.2d 287 (1978), the Supreme Court set out the analysis to be employed in reviewing a trial court's denial of a request for a change of venue:
Commonwealthv. Roberts, 496 Pa. 428, 432, 437 A.2d 948, 950 (1981); Commonwealth v. Daugherty, 493 Pa. 273, 276, 426 A.2d 104, 105 (1981); Commonwealth v. Keeler, 302 Pa. Super. 324, 328, 448 A.2d 1064, 1065-1066 (1982); Commonwealth v. Ralph Smith, 289 Pa. Super. 356, 364, 433 A.2d 489, 493 (1981). There was no abuse of discretion in refusing to change venue because of notoriety attaching to charges against a relative five years before.