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COMMONWEALTH v. HAYES (04/15/65)

decided: April 15, 1965.

COMMONWEALTH
v.
HAYES, APPELLANT



Appeals from judgments of Court of Quarter Sessions of Philadelphia County, Sept. T., 1964, Nos. 507 and 508, in case of Commonwealth of Pennsylvania v. Abysinnia Hayes, also known as Shaykh Hasson.

COUNSEL

Herbert L. Floum, with him Herman Weiner, for appellant.

Thomas M. Reed, Assistant District Attorney, with him Patrick F. Casey and Joseph M. Smith, Assistant District Attorneys, F. Emmett Fitzpatrick, Jr., First Assistant District Attorney, and James C. Crumlish, Jr., District Attorney, for appellee.

Ervin, P. J., Wright, Watkins, Montgomery, Jacobs, and Hoffman, JJ. (Flood, J., absent). Opinion by Jacobs, J.

Author: Jacobs

[ 205 Pa. Super. Page 340]

Appellant was convicted by a jury of the crimes of inciting to riot, participating in a riot and conspiracy to commit riot. Appellant's motions in arrest of judgment and for a new trial were refused by the court below and sentence was imposed. In his appeal the appellant states the sole question to be whether or not the evidence was sufficient to warrant his conviction of the offenses charged. He does not allege any trial errors or make any objection to the trial judge's charge.

Appellant was charged with committing these various crimes in connection with the disturbance which took place in Philadelphia on the night of Friday, August 28, 1964, and the morning of Saturday, August 29, 1964. The appellant admits that a riot took place at that time but he denies that he participated in the same or incited the same or conspired with anyone else to bring about a riot.

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." Commonwealth v. Kahn, 116 Pa. Superior Ct. 28. Participating in a riot is made a misdemeanor by § 401 of The Penal Code, 18 P.S. 4401.

[ 205 Pa. Super. Page 341]

Inciting to riot is not a statutory offense in Pennsylvania but it is a common law crime. "Inciting to riot, from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot." Commonwealth v. Merrick, 65 Pa. Superior Ct. 482 at 491.

Conspiracy to do an unlawful act is made a crime by § 302 of The Penal Code, 18 P.S. 4302. The elements of the crime are a combination or a confederacy of two or more persons, with criminal intent, to do an unlawful act. The Commonwealth is not required to show an express agreement but the elements of the crime may be inferred from the actions of the parties. Commonwealth v. Gaines, 167 Pa. Superior Ct. 485.

Since it is admitted that a riot occurred in Philadelphia at this time and place, we need not further discuss this element of the crimes charged. So far as the other elements of the crimes are concerned our only task is to determine whether or not there was sufficient evidence from which the jury could find the defendant guilty beyond a reasonable doubt. In considering the motion in arrest of judgment the testimony must be read in the light most favorable to the Commonwealth and we must accept as true all the Commonwealth's evidence upon which, if believed, the jury could properly have based its verdict. Commonwealth v. Whiting, 409 Pa. 492. It is not within the province of the appellate court to pass upon the credibility of the witnesses. Commonwealth v. Logan, 361 Pa. 186.

The Commonwealth's evidence shows that the appellant was present at 22nd Street and Columbia Avenue, in the City of Philadelphia, and at other points in the near ...


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