Commonwealth v. Hayes

• Decision Date: 15 April 1965
• Parties: COMMONWEALTH of Pennsylvania v. Abysinnia HAYES a/k/a Shaykh Hasson, Appellant.
• Court: Pennsylvania Superior Court

209 A.2d 38

205 Pa.Super. 338

COMMONWEALTH of Pennsylvania v. Abysinnia HAYES a/k/a Shaykh Hasson, Appellant.

Superior Court of Pennsylvania.

April 15, 1965.

Herman Weiner, Herbert L. Floum, Philadelphia for appellant.

T M. Reed, Patrick F. Casey, Asst. Dist. Attys., Joseph M Smith, Asst. Dist. Atty., Chief, Appeal Division, F. Emmett Fitzpatrick, Jr., First Asst. Dist. Atty., James C. Crumlish Jr., Dist. Atty., Philadelphia, for appellee.

Before ERVIN, P. J., and WRIGHT, WATKINS, MONTGOMERY, JACOBS and HOFFMAN, Jj.

JACOBS, Judge.

Appellant was convicted by a jury of the crimes of inciting to riot participating in a riot and conspiracy to commit riot. Appellant's motions in arrest of judgment and for a new trial were refused by the court below and sentence was imposed. In his appeal the appellant states the sole question to be whether or not the evidence was sufficient to warrant his conviction of the offenses charged. He does not allege any trial errors or make any objection to the trial judge's charge.

Appellant was charged with committing these various crimes in connection with the disturbance which took place in Philadelphia on the night of Friday, August 28, 1964, and the morning of Saturday, August 29, 1964. The appellant admits that a riot took place at that time but he denies that he participated in the same or incited the same or conspired with anyone else to bring about a riot.

A riot 'is commonly defined as a tumultuous disturbance of the peace by three or more persons assembled and acting with a common intent; either in executing a lawful private enterprise in a violent and turbulent manner, to the terror of the people, or in executing an unlawful enterprise in a violent and turbulent manner.' Commonwealth v. Kahn et al., 116 Pa.Super. 28, 176 A. 242. Participating in a riot is made a misdemeanor by Section 401 of The Penal Code, 18 P.S. § 4401.

Inciting to riot is not a statutory offense in Pennsylvania but it is a common law crime. 'Inciting to riot, from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot.' Commonwealth v. Merrick et al., 65 Pa.Super. 482 at 491.

Conspiracy to do an unlawful act is made a crime by Section 302 of The Penal Code, 18 P.S. § 4302. The elements of the crime are a combination or a confederacy of two or more persons, with criminal intent, to do an unlawful act. The Commonwealth is not required to show an express agreement but the elements of the crime may be inferred from the actions of the parties. Commonwealth v. Gaines, 167 Pa.Super. 485, 75 A.2d 617.

Since it is admitted that a riot occurred in Philadelphia at this time and place, we need not further discuss this element of the crimes charged. So far as the other elements of the crimes are concerned our only task is to determine whether or not there was sufficient evidence from which the jury could find the defendant guilty beyond a reasonable doubt. In considering the motion in arrest of judgment the testimony must be read in the light most favorable to the Commonwealth and we must accept as true all the Commonwealth's evidence upon which, if believed, the jury could properly have based its verdict. Commonwealth bv. Whiting, 409 Pa. 492, 187 A.2d 563. It is not within the province of the appellate court to pass upon the credibility of the witnesses. Commonwealth v. Logan, 361 Pa. 186, 63 A.2d 28.

The Commonwealth's evidence shows that the appellant was present at 22nd Street and Columbia Avenue, in the City of Philadelphia, and at other points in the near vicinity from approximately 9 p. m. on Friday, August 28, 1964, until sometime in the morning of Saturday, August 29th. When appellant was first observed hundreds of people were milling around. The appellant was leading the people in cheering 'We want freedom. We want justice.' Those cheers were directed at the police who were trying to get the people back on the curb. The people were in the street and the appellant was on the curb in front of the people leading the cheers. Appellant asked one witness to help him get the people away from the police. A policeman heard the appellant say 'What are the policemen doing here? Why don't they have a warrant?' Appellant told another police officer that that police officer should get out of the area or there would be trouble. Appellant told the police that he was in charge of the area. Appellant was heard to say to the crowd 'Wait until we get organized, then we will get these m. f. cops.' The appellant would talk with the people in the crowd in front of him, then he would turn around facing the police and lead the crowd in their cheer. He was also seen moving through the crowd and linking arms with them. Shortly after midnight, when the authorities were trying to disperse the crowds, people in the crowd were seen coming to the appellant and talking to him and then moving to other parts of the crowd. There was evidence to show that when the appellant first...