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COMMONWEALTH PENNSYLVANIA v. JOHN ZWIERZELEWSKI (01/14/55)

January 14, 1955

COMMONWEALTH OF PENNSYLVANIA
v.
JOHN ZWIERZELEWSKI, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. CARROLL G. KNEISLEY, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. DONALD RAY, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. JAMES H. CLOWE, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. VERNON MASTERSON, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. KENNETH W. HARRIS, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. WILLIAM HOLLAND, APPELLANT. COMMONWEALTH OF PENNSYLVANIA V. ROBERT W. HAMM, APPELLANT



Appeals, Nos. 42 to 47, inclusive, and No. 49, Oct. T., 1954, from judgments of Court of Quarter Sessions of Centre County, May T., 1953, Nos. 137, 141, 161, 151, 171, 174 and 144, in case of Commonwealth of Pennsylvania v. John Zwierzelewski et al. Judgments affirmed.

COUNSEL

James Dessen, Philadelphia, William W. Litke, Fleming & Litke, Bellefonte, for appellants.

E. L. Willard, Special Counsel, State College, Edward Friedman, Ralph Snyder, Deputies Attys, Gen., Frank F. Truscott, Atty. Gen., Harrisburg, for appellee.

Before Rhodes, P. J., Hirt, Ross, Gunther, Wright and Ervin, JJ. (woodside, J., absent).

Author: Rhodes

[ 177 Pa. Super. Page 143]

OPINION BY RHODES, P. J.,

These appeals involve eight defendants, inmates of the Rockview Prison Farm, Western State Penitentiary, Centre County, Pennsylvania, who were indicted, tried, and convicted for the offense of riot in the Court of Quarter Sessions of Centre County. The crime was allegedly committed by these eight defendants, and other inmates, at Rockview between January 19 and 4 22, 1953. Upon motion of the Commonwealth fifteen of thirty defendants indicted were tried together. These fifteen defendants, including the eight appellants, were all convicted, and each was sentenced to a term of not less than one and one-half years nor more than three years to be computed from the expiration of sentence that each defendant was serving as an inmate of the penitentiary on January 19, 1953.

[ 177 Pa. Super. Page 144]

Of the eight appellants all but William Holland are represented on appeal, as they were at the trial, by the same counsel. The questions raised in each of the eight appeals are substantially identical and all the appeals will be disposed of in this opinion. These questions may be set forth as follows: (1) Can the crime of riot be committed by the inmates of a penitentiary, particularly in view of their involuntary confinement therein? (2) Assuming the inmates can be guilty of riot, was the Commonwealth's evidence sufficient to establish the participation of each individual appellant in the riot? (3) Were these appellants deprived of a fair trial because of the fact that they were tried jointly rather than separately?

Appellants concede, as they must, that the events which took place at Rockview between January 19 and 22, 1953, would make the participants therein guilty of riot in any place other than a prison. The Commonwealth by its evidence in these cases established the presence of a general disturbance, and then attempted to show the participation of each of the defendants therein. Approximately 775 prisoners were confined at Rockview in three different buildings or blocks. Block A was U-shaped and consisted of an east and west wing. There were about 175 prisoners in the east wing, and 125 in the west wing of Block A; 200 were in Block B; and about 200 were in Block C. The disturbance started about 5:45 p.m. on Monday, January, 19, 1953, and continued until the inmates of Block A finally surrendered about 7 p.m. the evening of Thursday, January 22d. Soon after 5:45 p.m. on January 19th, the inmates seized six guards, disarmed them and held them in cells as hostages. Thereafter all Blocks, A, B, and C, passed into control of the inmates. All exits and entrances were locked and barricaded. The institution was in a virtual state of siege with the inmates

[ 177 Pa. Super. Page 145]

    in control. Inmates roamed the cell blocks in groups, shouting and cursing, and breaking skylights and windows. Everything that could be torn loose was piled up and set on fire. The chaplain's office in Block C was completely demolished and burned. Mirrors were smashed; china toilet bowls were torn loose, and dropped from heights and broken. A barber shop in its entirety was destroyed. Inmates seized guns and went about armed. They engaged in fights among themselves and in other types of violent conduct. They broke open a storehouse in the basement, removed food therefrom, cooked and ate it. Prisoners hung hand-painted signs and banners out of windows, which referred to alleged grievances concerning parole and food. They proposed to establish their own rules and impose their own wishes. Inmates in the various blocks communicated by telephone, and by shouting and waving. They acted in concert and proceeded to execute their purpose with violence. Events took such a course that, by January 21st, 98 State Police were on the scene. Local police were alerted and local firemen called to extinguish numerous fires. Police removed women living on the grounds and blocked off roads passing near the institution. Prisoners threw various objects at firemen and policemen, and cursed them. In an effort to quell the disturbance the Attorney General of the Commonwealth, two Assistant Attorneys General, the Secretary of Welfare, the Adjutant General, and the Superintendent of State Police went to Rockview. It was indicated that the Attorney General was the only official who could exercise any influence with the inmates. The penitentiary was not fully restored to control of the officials until the evening of Thursday, January 22d. The Commonwealth established property damage of at least $73,000 by the inmates during the four-day disturbance.

[ 177 Pa. Super. Page 146]

Can a riot be committed by the inmates of a penitentiary? Appellants were convicted and sentenced under section 401 of The Penal Code, Act of June 24, 1939, P.L. 872, 18 PS § 4401, which provides: "Whoever participates in any riot, rout, unlawful assembly or affray, is guilty of a misdemeanor and upon conviction thereof, shall be sentenced to imprisonment not exceeding three (3) years, which imprisonment may be at separate or solitary confinement at labor, or to pay a fine not exceeding one thousand dollars ($1,000), or both." The statute itself does not define the offense of riot and common law definitions must be relied upon to give meaning to the Act. Com. v. Duitch, 165 Pa. Superior Ct. 187, 190, 67 A.2d 821. "A riot is commonly defined as a tumultuous disturbance of the peace by three or more persons, assembled and acting with a common intent; either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner': 54 C.J. 826[828], § 1: Com. v. Kahn, 116 Pa. Superior Ct. 28, 31, 176 A. 242, 243. Again, a riot has been defined as "the assembling together of three or more persons in a riotous, tumultuous, and disorderly manner, and proceeding with a common intent and purpose to the commission of unlawful acts which tended to alarm and terrify law-abiding citizens engaged in the peaceful exercise of their constitutional rights and privileges": Com. v. Apriceno, 131 Pa. Superior Ct. 158, 161, 198 A. 515, 517. See, also, Com. v. Paul, 145 Pa. Superior Ct. 548, 553, 21 A.2d 421.

Appellants assert that they were involuntarily present in the penitentiary and that the Commonwealth failed to show an unlawful assembly as a necessary element of the crime of riot. Their compulsory ...


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