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COMMONWEALTH PENNSYLVANIA v. PAUL T. MCGAVIN (01/20/82)

submitted: January 20, 1982.

COMMONWEALTH OF PENNSYLVANIA
v.
PAUL T. MCGAVIN, APPELLANT



No. 1710 Philadelphia, 1981, Appeal from the Judgment of Sentence of June 3, 1981 in the Court of Common Pleas, Wyoming County, Criminal Division, No. 80-116, 80-118, 80-119.

COUNSEL

Barry M. Miller, Norristown, for appellant.

Judd B. Fitze, District Attorney, Tunkhannock, for Commonwealth, appellee.

Johnson, Watkins and Lipez, JJ.

Author: Johnson

[ 305 Pa. Super. Page 530]

Appellant, Paul T. McGavin, was convicted of riot*fn1 and simple assault*fn2 following trial by jury. He brings this appeal from judgment of sentence on these convictions. For the reasons set forth herein, we reverse the conviction of

[ 305 Pa. Super. Page 531]

    riot, affirm the conviction on simple assault, and remand for resentencing.

The following facts were brought out at trial. On the evening of July 7, 1980, Constable Frank Stephens, Sr. was summoned from his home by two private citizens, Charles McCarthy and Lancer McMicken [hereinafter McCarthy and McMicken]. Constable Stephens accompanied McCarthy, at his request, to the location of a nearby Dodge automobile to record its license plate numbers. McCarthy suspected that the automobile had been involved earlier that evening in a rock and bottle throwing incident. Upon securing the license plate numbers, McCarthy and Constable Stephens turned to walk back toward Constable Stephens' home when they were confronted by appellant. Appellant questioned Constable Stephens' authority to record the license plate numbers of the automobile. Appellant was joined by Timothy Blaisure and Daniel McGavin.*fn3 Shortly thereafter, an altercation ensued during which Constable Stephens sustained injuries.

After verdict and denial of post-verdict motions, appellant was sentenced to imprisonment for a term of not less than six months nor more than twenty-three and one-half months. Sentence was imposed solely on the riot conviction because the trial court improperly merged the simple assault offense into the riot offense.*fn4

[ 305 Pa. Super. Page 532]

In his brief, appellant raised five issues for our consideration. However, we will consider only two of them because the others were not properly preserved for our review.*fn5 The issues remaining for our consideration are: (1) whether or not Appellant's convictions were contrary to the evidence, and against the weight of the evidence, and (2) whether the Commonwealth's case is legally sufficient to support the conviction on the offense of riot. In reviewing the first issue, we will not ...


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