Com. v. Reeves

• Decision Date: 28 April 1978
• Citation: 255 Pa.Super. 409,387 A.2d 877
• Parties: , 98 L.R.R.M. (BNA) 3031 COMMONWEALTH of Pennsylvania v. Henry T. REEVES, Carlton Brown, Robert Mangini, Michael Moffo, Frank Mawhinney, Joseph C. Ford, Carl K. Henry, Appellants (two cases).
• Court: Pennsylvania Superior Court

Page 877

387 A.2d 877

255 Pa.Super. 409, 98 L.R.R.M. (BNA) 3031

COMMONWEALTH of Pennsylvania v. Henry T. REEVES, Carlton Brown, Robert Mangini, Michael Moffo, Frank Mawhinney, Joseph C. Ford, Carl K Henry, Appellants (two cases).

Superior Court of Pennsylvania.

Argued March 19, 1976.

Decided April 28, 1978.

Robert F. Simone, Philadelphia, for appellants.

William T. Nicholas, First Asst. Dist. Atty., Norristown, for Com., appellee.

Before WATKINS, President Judge, and JACOBS, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

CERCONE, Justice:

The instant appeal arises from the conviction of the seven appellants, after a jury trial, of various charges ranging from riot, riotous destruction of property, and malicious destruction of fences, to conspiracy and assault. The trial itself, which began on January 21, 1974 and ended on April 10, 1974 established the following facts, generally.

Prior to June 5, 1972, Altemose Construction Company had won the bid on a construction project, a complex of buildings in Upper Merion, Montgomery County, Pennsylvania, the principal building of which was to be a hotel. It was a large project, especially for a construction company such as Altemose which operates as an "open-shop" with an overwhelming majority of non-union employees. Indeed, the success of Altemose Construction Company had long been a matter of considerable concern to the Philadelphia Building and Trades Council (BTC), which had taken the position that Altemose's cost-cutting employment of non-union labor was destroying 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.

Although most of the men peacefully picketed on the perimeter of the jobsite while wearing placards declaring their grievance against Altemose, hundreds of others set out immediately to destroy the completed preliminary work, and the equipment which was on the site, much of which belonged to A. J. Volpi Construction Company, a subcontractor for Altemose. By their sheer weight they trampled down thousands of feet of cyclone fencing. Temporary office modules of fiberglass, 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 an hour's time. When the violence was done, and the project lay smoldering and completely destroyed, the perpetrators rejoined those picketing peacefully around the perimeter of the site.

Although the number of the people involved in both the peaceful and violent activity and the fact that virtually all were strangers in Upper Merion combined to make identification of those responsible for the damage difficult, eventually twenty-three men were sufficiently identified to lead to their arrest and trial. It is from the trial of nine of the twenty-three that the instant appeal arises. ¹ Two of the nine defendants, Donald Offner and Clinton Holmes, were acquitted by the jury, and all of the men tried herein were members of Local 30, Roofers Union, an affiliate of the BTC.

First, two of the appellants in the instant case, Carl Henry and Henry Reeves, argue that the evidence at trial was insufficient to sustain the verdicts of guilty against them for riot, malicious destruction of fences, and conspiracy. Of course, as has been frequently stated, the scope of appellate review concerning the sufficiency of evidence is indeed limited:

"The scope of review of an appellate court determining the sufficiency of the evidence is limited to deciding whether, accepting as true all evidence, direct or circumstantial, and all reasonable inferences arising therefrom upon which the trier of fact could have properly based the verdict, the evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Miller, 234 Pa.Super. 146, 339 A.2d 573 (1975).

Nevertheless, with respect to appellants Henry and Reeves, we agree that the evidence was not sufficient to sustain the jury's verdict.

There is no need to expound at length on the elements of malicious destruction of fences and conspiracy because, given the nature of the Commonwealth's evidence and its strategy, if it failed to prove riot against Henry and Reeves, a fortiori, it failed to prove the other offenses.

The Commonwealth's proof of riot against Henry was largely based upon a photograph taken at the scene of the rioting which depicts Henry running along side of the fence which was being trampled down. Coupled with Henry's membership in the Roofers Local, the Commonwealth argues that it has adequately demonstrated Henry's opportunity, disposition and motive to commit riot to sustain the jury's verdict. In particular, the Commonwealth argues that the jury could infer that Henry had been alternately jumping onto and from the fence, and that the cameraman happened to take the picture while Henry was only running beside the fence. This argument is so patently conjectural, we are surprised the Commonwealth thinks it persuasive. Insofar as the evidence against Henry is concerned, one could also conjecture that he was running along the fence urging his comrades to dismount it and stop breaking the law. In any event, this is precisely the kind of guesswork or conjecture which the law prohibits a jury from engaging. "(S)uspicion is never accepted in a court of justice as a substitute for proof." Commonwealth v. New, 354 Pa. 188, 193, 47 A.2d 450, 457 (1946). Especially in light of the fact that many of the men at the scene of the destruction were not involved in violence, and were picketing peacefully, surmising from Henry's presence at the scene that he was a participant in the violence, simply because he was a member of the Roofers Local, is impermissible.

It is true that there is language in some cases which suggests that a person's mere presence at the scene of a riot, if he is not engaged in suppressing it, is sufficient to sustain a verdict of guilty for rioting. For example, by way of dictum in Commonwealth v. Hayes, 205 Pa.Super. 338, 343, 209 A.2d 38, 40 (1965), this court stated: "In fact, all persons who are voluntarily present and not assisting in the suppression of a riot, where their presence tends to encourage the rioters, shall be prima facie inferred to be participants." However, the reported case law in Pennsylvania demonstrates that more than mere presence is needed to prove riot beyond a reasonable doubt. Commonwealth v. Hayes, itself, involved a man who had been threatening police and giving directions to the rioters. In Commonwealth v. Abney, 195 Pa.Super. 317, 171 A.2d 595 (1961) the defendants were caught in the acts of violence which constituted the riot. In Commonwealth v. Safis, 122 Pa.Super. 33 (1936), the defendants were proven to have verbally incited the crowd to violence. Thus, obiter dicta aside, the cases indicate that more than presence at the scene is required to prove riot. We conclude that the better view is that expressed by this court in Commonwealth v. Merrick, 65 Pa.Super. 482, 489 (1917): mere presence without proof of encouragement is not sufficient to prove riot. See also 2 Wharton's Criminal Law & Procedure § 865 (Anderson ed. 1957). Insofar as Mr. Henry was concerned, without conjecture or guesswork, one cannot conclude beyond a reasonable doubt that he was engaged in riot. See Commonwealth v. Long, 470 Pa. 204, 368 A.2d 265 (1977).

Similarly, the evidence against Mr. Reeves was insufficient. The pictures demonstrating his presence at the scene were taken after the destruction was complete and do not depict him as engaged in any act of violence or encouragement. Hence, there being no proof that Reeves either engaged in or encouraged the violence, the jury's verdict of guilty cannot stand.

Among numerous issues raised on this appeal, the remaining appellants contend that the lower court erred in denying their motion for sequestration of the jury because the court did not fully appreciate the nature and character of the prejudicial implications of the publicity reported in newspapers and over radio and television stations prior to and during the trial. Furthermore, appellants complain that, absent sequestration, the trial court did not sufficiently and adequately inquire of the jury as to whether or not they had heard, read or listened to news, and if so, to inquire as to what influence this news would have on their impartiality. We agree and order a new trial. ²

There was a considerable flow of publicity about this case, to say the least, over radio, television and more than one hundred newspaper accounts continuing for a period of almost 22 months from the time of the incident on June 5, 1972, through the trial which began on January 21, 1974 and ended on April 10, 1974. ³ Indeed, photocopies of newspaper articles alone, many of which were partisan and vitriolic, filled more than one volume of this exceedingly lengthy record. As trial approached, typical headline stories in various newspapers covering the Philadelphia, Montgomery and adjoining county areas ran as follows:

"Security Tightened For Trial of Unionists"

This was a headline to a November 27, 1973 story in "Today's Post," a Montgomery County newspaper, appearing the same day on which pre-trial proceedings began in this case. The story related how Montgomery officials would "beef up security measures" throughout the Montgomery County Court House during pre-trial proceedings involving the nine accused in this case of taking part in the riot of June 5, 1972, on the King of Prussia construction site. In the story, Sheriff Jeremiah P. Delaney of Montgomery County, was quoted as saying that he didn't expect a large crowd "but we'll be ready just in case." The Sheriff also pointed out that he...