No. 125 January Term, 1979, Appeal from Judgment of Superior Court Affirming Judgment of Sentence of the Court of Common Pleas, Criminal Section, of Montgomery County, at No. 663 October Term, 1972, C.A. Nos. 4041, 4043; C.A.Nos. 4044/4046; C.A.Nos.4047/4049 C.A.Nos. 4050, 4052; C.A.Nos. 4053/4055; C.A.Nos. 4056/ 4058; C.A.Nos. 4059/4061; C.A.Nos. 4066/4068; C.A.Nos. 4072/4074; C.A.Nos.4084/4086 C.A.Nos. 4087/4089.
Robert F. Simone, Philadelphia, Morris Gerber, Norristown, for appellants.
John J. Burfete, Asst. Dist. Atty., Wm. T. Nicholas, Norristown, for appellee.
Eagen, C. J., and O'Brien, Roberts, Larsen and Flaherty, JJ. Nix, J., took no part in the consideration or decision of this case. Roberts, J., files a dissenting opinion which Larsen, J., joins.
This is an appeal by eleven individuals, all of whom were convicted, following a jury trial in the Court of Common Pleas, Criminal Division, of Montgomery County, of various criminal offenses. Post-verdict motions were filed and argued before the court en banc, and, on July 31, 1975, an order was entered denying the motions. Hence, this appeal.
The criminal incident from which the instant appeal has arisen was an episode in a continuing struggle between the Philadelphia Building and Construction Trades Council (BTC) and the Altemose Construction Company (hereinafter Altemose) and its president, J. Leon Altemose. As part of that struggle, a large protest demonstration was planned for Monday, June 5, 1972. The site of the demonstration was a plot of land located in Upper Merion Township, Montgomery County, where Altemose was engaged in the construction of a hotel/motion-picture-theater/office building complex. The purpose of the demonstration was to show support for the BTC and to protest the Altemose "open shop" policy of employment of non-union labor, which the BTC contended
was adversely affecting the prevailing wage standards in the Philadelphia area. Thus it was, on June 5, 1972, that workingmen affiliated with the BTC came in busloads and carloads, almost 1,000 strong, to the Upper Merion jobsite, ostensibly to picket.
While most of the men, wearing placards announcing their grievance against Altemose, peacefully picketed on the perimeter of the jobsite, hundreds of others immediately set out to destroy what work had been completed and the equipment at the site, much of which was the property of A. J. Volpi Construction Company, a subcontractor. A chain link "cyclone" fence, eight feet high and approximately 4,500 feet long, was levelled; groups of men leaped upon the fence and by their sheer weight bent it over at the top. They would then walk along the fence toward another group engaged in a similar effort several yards away. The men continued along the fence in this fashion until the entire length of fence surrounding the site was flattened. Temporary office modules, trailers and heavy equipment were set afire and demolished. Security personnel and the police chief of Upper Merion Township and others were stoned. In all, some $300,000 worth of damage was done in little more than a hour. When the destruction was complete, the perpetrators rejoined those picketing peacefully around the perimeter of the site.
Both the numbers of persons involved and the fact that virtually all were strangers in Upper Merion combined to make identification of those who may have engaged in criminal conduct difficult. In the event, however, twenty men were sufficiently identified to lead to their arrest, indictment and trial. The eleven appellants party to the instant case were among a group of fourteen charged, each one, with malicious destruction of fences,*fn1 riot*fn2 and conspiracy.*fn3 Three of the defendants so charged were acquitted by
the jury. Eight, appellants Yocum, Shirley, Joseph O'Brien, Columbo, Taylor, Layton, McLain and Hinkel, were convicted of all three offenses. Three, appellants Tolassi, Michael O'Brien and Dolinski, were convicted of those counts charging riot and conspiracy. The eight appellants convicted of all charges were sentenced as follows: on the count charging riot, a fine of one thousand ($1,000) dollars and a term of imprisonment of from one to three years; on the count charging malicious destruction of fences, a fine of fifty ($50) dollars and a concurrent term of three to six months imprisonment; on the count charging conspiracy, a two year probationary period to be served consecutively to the term of imprisonment imposed. The three appellants convicted of riot and conspiracy were sentenced to a term of imprisonment of nine months to two years and fined one thousand ($1,000) dollars on that count charging riot; and on that count charging conspiracy, to a consecutive two year probationary term and a fine of five hundred dollars.
Following denial of appellants' post-verdict motions in the trial court, appeals were taken to the Superior Court. On October 20, 1978, that court affirmed the judgments of sentence. Commonwealth v. Tolassi, 258 Pa. Super. 194, 392 A.2d 750 (1978). We granted a petition for allowance of appeal.
Appellants advance nine assertions of error. We address these seriatim.
Initially appellants argue the trial court erred in denying their pretrial motion for severance. In support of this assertion appellants propound, essentially, three rationales. First, appellants claim that the publicity attendant to the instant case characterized the crime as an example of labor union violence, particularly emphasizing the allegedly violent history of Local 30 of the Roofers Union. As all fourteen of the defendants in the instant case were roofers, and thirteen were members of Local 30, appellants contend a strong likelihood of associational guilt existed. Second, appellants assert the Commonwealth's case focused on the activities of groups of persons rather than upon individuals,
and hence the jury was unable to determine whether individual appellants were engaged in criminal activity. Finally, appellants argue that since the Commonwealth's case rested principally upon photographic evidence, to-wit, photographs of the riot taken by a non-involved observer, and since aside from the photographs no witness identified any appellant as having participated in the crimes, the jury was faced with what appellants characterize as the extremely difficult if not impossible task of keeping straight the names and actions of the accused. Appellants rely for support primarily upon our decision in Commonwealth v. Belgrave, 445 Pa. 311, 285 A.2d 448 (1971).
The decision whether to sever cases against co-defendants is one within the sound discretion of the trial court. Commonwealth v. Kloiber, 378 Pa. 412, 106 A.2d 820 (1954), cert. denied, 348 U.S. 875, 75 S.Ct. 112, 99 L.Ed. 688 (1954); Pa.R.Crim.P. 219. Such a decision will be reversed only where there has been a manifest abuse of that discretion. Commonwealth v. Lasch, 464 Pa. 573, 347 A.2d 690 (1975) (opinion in support of affirmance); Commonwealth v. Patrick, 416 Pa. 437, 206 A.2d 295, appeal after remand 424 Pa. 380, 227 A.2d 849 (1965). And the critical factor in one analysis is the prejudice which inures to the accused as a result of the trial court's determination. Commonwealth v. Peterson, 453 Pa. 187, 194, 307 A.2d 264, 267 (1973); Commonwealth v. Lasch, supra, 464 Pa. at 584-585, 347 A.2d 690. From this perspective it can be seen that appellants' reliance upon Belgrave, supra, is misplaced.
In Belgrave, sixteen individuals were charged with riot and assault, charges which arose out of a melee at a high school football game. In addition, however, to the general riot charges, five of the sixteen were charged with a separate assault upon a band musician, and a sixth was charged with an assault upon spectators. Although, as we said, "there was one riotous scene, the riot [could have been] viewed as the background of two prominent features: the assault on the band member and the assault on the . . . spectators." Id., 445 Pa. at 315, 285 A.2d at 450. "Quite
simply," we held "there [was] a very real possibility that those appellants having no connection with the assaults were nonetheless prejudiced by that evidence." Id., 445 Pa. at 316, 285 A.2d at 450.
In the instant case, however, all appellants were charged with identical offenses: riot, malicious destruction of fences and conspiracy. All the offenses so charged arose from the same criminal activity, i. e., the destruction of the cyclone fence which enclosed the construction site. Moreover, unlike Belgrave, id., the evidence in the instant case consisted not of witness identification testimony but rather of photographs depicting the riot in progress, eliminating what we decried in Belgrave, viz, "the constant shifting of names presented to the jury [which] might possibly blur the jury's vision." Id. Finally, the result in the instant case contravenes ...