decided: February 13, 1968.
Appeals from order of Court of Quarter Sessions of Philadelphia County, August T., 1967, Nos. 1874 and 1875, in case of Commonwealth of Pennsylvania v. Albert Leach.
Leslie J. Carson, Assistant District Attorney, with him Alan J. Davis, Assistant District Attorney, Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellant.
John Packel, Assistant Defender, with him Melvin Dildine, Assistant Defender, and Herman I. Pollock, Defender, for appellee.
Watkins, Montgomery, Jacobs, Hoffman, and Spaulding, JJ. (Ervin, P. J., and Wright, J., absent). Dissenting Opinion by Montgomery, J. Spaulding, J., joins in this dissenting opinion.
Author: Per Curiam
[ 211 Pa. Super. Page 477]
Dissenting Opinion by Montgomery, J.:
The evidence in this case is sufficient to sustain all charges for which this appellee was indicted, i.e., conspiracy, assault with intent to kill, aggravated assault and battery, and assault and battery. The victim, Tyrone Jones, was pursued by a group of fifteen men, including appellee, with the evident intent of harming him. Appellee was carrying a stick, another two bricks, and a third a sawed off shotgun which was fired at Jones, the pellets striking him in the head causing serious injury.
The conspiracy may be inferred from the concerted overt acts demonstrated by the record. Commonwealth v. Kubacki, 208 Pa. Superior Ct. 523, 224 A.2d 80 (1966). The other charges were also sustained because the appellee was clearly a principal in the attack since he aided and abetted in its commission. Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75 (1937); Commonwealth v. Lawrence, 193 Pa. Superior Ct. 75, 163 A.2d 690 (1960); Commonwealth v. Jackson, 187 Pa. Superior Ct. 2, 144 A.2d 249 (1958).
[ 211 Pa. Super. Page 478]
I would reverse the order sustaining the demurrer and grant a new trial.
Therefore, I respectfully dissent from the per curiam order of affirmance.
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