Commonwealth v. Sciullo
| Decision Date | 19 July 1951 |
| Citation | 82 A.2d 695,169 Pa.Super. 318 |
| Parties | COMMONWEALTH v. SCIULLO et al. Appeal of ALBERT. |
| Court | Pennsylvania Superior Court |
Application for Allocatur Denied Sept. 24, 1951.
Proceedings by the Commonwealth of Pennsylvania against Emilio Sciullo Nathan Albert, D. Clemente, Paul Ionadi, and Gabriel Gresson. Nathan Albert was convicted in the Court of Quarter Sessions Allegheny County, No. 328, October Term, 1948, Harry M Montgomery, J., of the offense of inciting to riot, and he appealed. The Superior Court, No. 35, April Term, 1951 Rhodes, P. J., held that the evidence sustained the conviction, that evidence of defendant's prior conviction on plea of nolo contendere of having obtained signatures to primary nomination petition by false representations was admissible for impeachment purposes, that there was no error in admission of rebuttal testimony and no showing that newspaper publicity prevented a fair trial.
Judgment affirmed.
A complaint that newspaper publicity prevented a fair trial was not supported by record in absence of showing of any motion to withdraw a juror or continue case by reason of any publicity.
William S. Doty, Pittsburgh, for appellant.
William S. Rahauser, District Atty., W. F. Cercone, Asst. District Atty., Pittsburgh, for appellee.
Before RHODES, P. J., and HIRT, RENO, DITHRICH, ROSS, ARNOLD and GUNTHER, JJ.
Defendant, Nathan Albert, has appealed from a conviction and sentence on a bill of indictment charging inciting to riot.
Appellant contends that the evidence presented by the Commonwealth was not sufficient to sustain the verdict. The basis of the trouble out of which the prosecution arose was alleged racial discrimination in the use of the public swimming pool maintained by the City of Pittsburgh at Highland Park. Mixed groups on at least three Sundays prior to August 22, 1948, had used the pool under police protection. On August 22d, one hundred sixty policemen were assigned to this area due to mounting tension and the likelihood of serious disturbance. On that day a mixed group came by trolley and was given police protection to the pool, a distance of about a quarter of a mile. A group which was opposed to such use of the swimming pool had collected in the vicinity; they were held back by the police. It was estimated that the number reached many hundreds by the middle of the afternoon.
Appellant arrived about 1:30 on the afternoon of August 22d and conferred with the so-called ‘ Progressive’ group which was opposed to racial discrimination in the use of the pool. Minor disorders occurred from time to time, and there was hostility manifested between the respective factions. Police Lieutenant Baker who was in charge of the police, 120 of whom were in uniform and 40 in plain clothes, testified that appellant said to him, ‘ I hear you are going to have trouble here today,’ and that he replied, ‘ If we are going to have trouble, we will be able to take care of it.’ The opposition group had collected on the opposite side of Stanton Avenue from the pool. On at least three different occasions prior to 3:30 that afternoon, appellant signaled with his hands, then ran and was followed by a crowd apparently of the so-called ‘ Progressive’ group, who wore ‘ Progressive Party’ buttons. Appellant led this group toward those who had gathered on the opposite side of Stanton Avenue, as well as up and down the passageway leading from Stanton Avenue to the pool entrance. The police would break up the crowd and thus avert a conflict between the two contending factions. On the last occasion, when appellant was arrested, the police interceded and broke up the skirmish which followed, and prevented those on the opposite side of Stanton Avenue and the followers of appellant from coming together and engaging in a serious altercation or riot which would have inevitably ensued. On that occasion Police Officer Walsh was badly injured, and Police Lieutenant Baker was beaten and bruised. About one-half hour prior to appellant's arrest, Police Officer Robinson was also injured. Following appellant's arrest the disturbances ended. Appellant had been at the pool previously and was known to some of the police.
Taking the stand in his own behalf, appellant admitted circulating among the ‘ Progressive’ group. He denied that he had made any signals or that he ran or that he was knowingly followed by any person or group. He explained that he was there as an observer to see that the rights of all citizens were protected. He denied any intention to cause trouble. There was testimony to support his own version of his conduct. Appellant did not recall being present at a meeting of the ‘ Progressive’ group on Wood Street, Pittsburgh, where racial discrimination was discussed and where he agreed to escort colored people to the pool on the Sunday afternoon in question. He admitted his presence at various meetings where racial discrimination was discussed. In rebuttal a Commonwealth witness, Matthew Cvetic, who had been present at the previous meeting of the pro-Negro group on Wood Street, testified that appellant was present at the Wood Street meeting, and was directed and specifically agreed to personally escort Negroes to the pool on Sunday afternoon, August 22d.
The Commonwealth's evidence, if believed, was sufficient to sustain a conviction." 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. If any man or set of men should combine and arrange to so agitate the community to such a pitch, that the natural, and to be expected results of such agitation, would be a riot, that, would be inciting to riot, * * *" : Com. v. Merrick, 65 Pa.Super. 482, 491. See Com. v. Spartaco, 104 Pa.Super. 1, 7, 158 A. 623; Com. v. Egan, 113 Pa.Super. 375, 380, 173 A. 764; Com. v. Safis, 122 Pa.Super. 333, 340, 186 A. 177; Com. v. Apriceno, 131 Pa.Super. 158, 198 A. 515.
The trial judge in a complete charge submitted to the jury the question whether appellant's conduct tended to precipitate a riot. Certainly appellant's actions tended ‘ to provoke a breach of the peace.’ Com. v Merrick, supra, 65 Pa.Super. 482, 489. We think the jury was justified in concluding that the natural and probable result of appellant's actions would be an outbreak of violence or a riot. The reason for the presence of 160 policemen at the swimming pool was apparent to everyone there, and appellant was aware of the danger inherent in the situation, as indicated by his remarks to Police Lieutenant Baker. The jury could find that appellant, fully cognizant of the hostile attitude of the respective groups and of the possibilities of conflict between them, with or without a prearranged plan, signaled members of the pro-Negro group to action with the intention of provoking violence or in utter disregard of the probable result of his own actions. Signs, actions, and movements are just as effective in inciting to riot as the use of words or inflammatory language. The only reasonable inference from the Commonwealth's evidence is that appellant's acts were committed with the intent to provoke a riot by bringing the opposing groups into violent conflict or with reckless and willful disregard of their probable outcome in that respect. Com. v. Spartaco, supra, 104 Pa.Super. 1, 5, 158 A. 623; Com. v. Egan, supra, 113 Pa.Super. 375, 381, 173 A. 764. Only police interference prevented a riotous conflict, and that was not accomplished without some physical violence. Of course, if appellant's testimony were accepted, he committed no unlawful acts and was only exercising his legal rights as an observer for a cause; and as an innocent bystander he would not be responsible for the acts of those over whom he had no control. The only question before us, however, is the sufficiency of the...
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