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COMMONWEALTH v. PIERCE (03/20/70)

decided: March 20, 1970.

COMMONWEALTH
v.
PIERCE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, April T., 1968, No. 1797, in case of Commonwealth v. Tyrone Pierce.

COUNSEL

David Kanner, with him Stephen L. Hymowitz, for appellant.

James D. Crawford, Assistant District Attorney, with him Richard A. Sprague, First Assistant District Attorney, and Arlen Specter, District Attorney, for Commonwealth, appellee.

Bell, C. J., Jones, Cohen, Eagen, O'Brien, Roberts and Pomeroy, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 437 Pa. Page 266]

In 1968 appellant was indicted for murder, voluntary manslaughter and involuntary manslaughter. Appellant waived his right to a trial by jury, the murder

[ 437 Pa. Page 267]

    indictment was nolle prossed, and he was found guilty of voluntary manslaughter. Post-trial motions were filed and denied and appellant was sentenced to ten years probation. This appeal followed. We affirm.

The Commonwealth's theory of criminal responsibility is that appellant aided and abetted William "June" Smith in the killing of Anthony Rhodes, and therefore may be punished as if he were the principal offender.*fn1 See Act of June 24, 1939, P. L. 872, § 1105, as amended, 18 P.S. § 5105. Appellant's sole contention is that on the state of the facts of the instant case, he did not "aid and abet" Smith in the homicide.

At trial the Commonwealth's evidence consisted of a statement given to police by appellant*fn2 and the testimony of Nathaniel Matt, who was with Rhodes when the fatal shooting occurred; appellant testified in his own behalf. From this evidence the following facts appeared: On January 14, 1968, appellant and two friends, John Mizelle and William "June" Smith, were on their way to a dance when they decided to stop at a candy store for some food. As the trio was about to enter, they saw two members of the 32nd and Berks Street gang inside. The trio waited outside until the two members, Anthony Rhodes and Nathaniel Matt, came out of the store. Appellant then shouted "32nd and Berks," which statement, according to appellant, was an invitation to a "fair one," i.e., a fight. According to Matt, approximately four seconds after appellant's shout, Smith pulled out a revolver and began shooting. Rhodes attempted to knock the gun out of

[ 437 Pa. Page 268]

Smith's hand with an umbrella. He was not successful and was shot to death. The participants then fled. Matt testified that appellant did not say or do anything after his initial shout. Appellant testified that although he knew Smith owned a gun, he did not know that Smith had the gun with him.

It is, of course, settled law that "mere presence" at a homicide does not constitute aiding and abetting. See, e.g., Commonwealth v. Giovanetti, 341 Pa. 345, 353, 19 A.2d 119, 123 (1941); 1 Wharton, Criminal Law and Procedure § 114, at 248 (Anderson 1957). On the other hand, "[g]uilt or innocence of the abettor . . . is not determined by the quantum of his advice or encouragement. If it is rendered to induce another to commit the crime and actually has ...


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