No. 2837 Philadelphia, 1981 Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Philadelphia County, Nos. 1579, 1582-1584 November Term, 1980.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Wieand and Hoffman, JJ. Spaeth, J., concurs in the result.
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Following trial by jury, Edward Newman was acquitted on a charge of riot*fn1 but convicted of recklessly endangering another person*fn2 and disorderly conduct.*fn3 Post-trial motions were denied, and Newman was sentenced to pay total fines of $2,000.00 and to serve consecutive periods of probation totaling three years. On direct appeal, Newman's principal argument is that videotape evidence established incontrovertible physical facts and that, therefore, the trial court erred (1) when it denied a defense request for a directed verdict and (2) when it refused to instruct the jury that videotape evidence constituted proof of incontrovertible physical facts. He also contends that the trial court erred in refusing a requested instruction pertaining to his right of assembly. There is no merit in these contentions. For sentencing purposes, however, the conviction for disorderly conduct merged into the conviction for recklessly endangering
[ 323 Pa. Super. Page 398]
another person. Therefore, we must remand for resentencing.
During the early evening hours of August 25, 1980, a demonstration and rally took place at 18th and Diamond Streets in the City of Philadelphia, the purpose being to protest the shooting of a young black male by an arresting policeman on the prior day. A pick-up truck arrived, equipped with loud speakers and amplifiers and carrying several persons who incited and led a march of 500 to 1000 persons to the police station on 17th Street. There, the crowd eventually became ugly. The police station and an approaching fire truck were pelted with rocks, bottles and bricks, and a general melee ensued. When police, equipped with riot gear, attempted to clear the intersection, they were also pelted with thrown missiles. Appellant was observed throwing a brick which struck a policeman in the chest. He was immediately placed under arrest.
At trial, two police officers testified that they had seen appellant, who was shirtless and wearing blue pants and a necklace, hurl a brick over their heads and into the ranks of policemen. Officer Robert Adelsburger testified that he observed appellant throw a brick from a point near the northeast corner of 17th and Montgomery Streets. When appellant turned to run, Adelsburger pursued him, placed him under arrest, and returned him to the district headquarters. Officer Henry Bruhl, called as a witness by the defense, testified that he, too, had observed appellant throw a brick from the northeast corner of the intersection. He said that the brick had struck Officer Richard O'Neill in the chest. He also said that he observed Adelsburger make the arrest.
Appellant produced videotaped, short clips which TV stations had used in news programs.*fn4 He contended that this photographic replay depicted incontrovertibly (1) that appellant had not been arrested at the location testified to by the police officers and (2) that Officer Bruhl had not been where he said he was and could not have observed the
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occurrences to which he testified. This evidence, appellant argued, proved that the police witnesses had falsified their testimony or were mistaken and confirmed his ...