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decided: November 22, 1976.


Appeal from the refusal of the Berks County Court of Common Pleas to grant a new trial to, or to arrest the judgment of conviction against the appellant at No. 37 of 1975. No. 858 October Term, 1976.


William F. Ochs, Jr., Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Price, J., files a concurring and dissenting opinion in which Watkins, President Judge, and Jacobs, J., join.

Author: Hoffman

[ 245 Pa. Super. Page 118]

Appellant was convicted by a jury of disorderly conduct*fn1 and failure of a disorderly person to disperse upon official order.*fn2 Following the denial of a new trial and an arrest of judgment, this appeal was taken challenging the sufficiency of the evidence.

During the evening of December 22, 1974, the officials of the Berks County Prison distributed Christmas packages to the prison inmates. The packages contained bottles of mouthwash with an alcoholic content of 17%. After consuming the mouthwash, a group of inmates became boisterous, overturning tables and benches, and scattering empty mouthwash bottles and other debris around the prison. Deputy Warden High testified that the men were "shuffling around", that some inmates were hitting each other, and that the inmates refused to return to their cells. Prison officials called the state police to the prison and recalled off-duty guards to aid in returning the prisoners to their cells.

On December 23, 1974, appellant, an inmate, was charged in a criminal complaint with riot, disorderly conduct, and failure to disperse. On March 13, and 14, 1975, appellant was tried in the Court of Common Pleas of Berks County. The jury acquitted him of the charge of riot but convicted him of disorderly conduct and failure to disperse. Appellant moved for a new trial and arrest of judgment. After argument, the lower court denied both motions. Appellant argues that the evidence produced at trial was insufficient to sustain his conviction.

[ 245 Pa. Super. Page 119]

In reviewing the sufficiency of the evidence, we must examine the evidence in a light most favorable to the verdict winner, together with all reasonable inferences flowing therefrom. Commonwealth v. Cimaszewski, 447 Pa. 141, 288 A.2d 805 (1971). It is clear that evidence to convict an accused of a crime must be based on facts and conditions proved; mere conjecture or surmise is insufficient. Commonwealth v. Bailey, 448 Pa. 224, 292 A.2d 345 (1972). Further, mere presence at the scene of a crime without affirmative evidence of participation is insufficient to convict. Commonwealth v. Garrett, 423 Pa. 8, 222 A.2d 902 (1966).

Because appellant was convicted of disorderly conduct and failure to disperse, we must consider the elements of each offense separately. To prove an accused guilty of disorderly conduct under § 5503 of the Crimes Code the Commonwealth must establish that the person, acting "with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, (1) engages in fighting or threatening, or in violent or tumultuous behavior; (2) makes unreasonable noise; (3) uses obscene language, or makes an obscene gesture; (4) or creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor."

It is undisputed that a disturbance occurred in the prison on December 22, 1974. The only issue is whether the accused was an active participant in that event. The Commonwealth produced four witnesses at trial. Two of them arrived at the prison after the disturbance had occurred and therefore could not identify appellant as having performed any act which constitutes one of the elements of disorderly conduct. The third witness, Assistant Warden Santoro stated that appellant was not with the group of men who were boisterous and did not see appellant engage in other conduct which would constitute disorderly conduct under § 5503.

[ 245 Pa. Super. Page 120]

The fourth witness, Deputy Warden High, was present in the prison throughout the disturbance. On direct examination he testified as follows:

"Q. [by the district attorney] Warden High, tell me what occurred on that day that was out of the ordinary?

"A. At approximately 7 p. m. or 6:30 to 7 p. m., the men got very boisterous and loud and started shuffling around, even some inmates hitting each other and things like that. Different scuffles, and they were -- it appeared in a drunken mood.

"THE COURT: Drunken mood?

"THE WITNESS: Yes, I ...

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