Commonwealth v. Leach
211 Pa. Super. 476
Pa. Super. Ct.
1968
Check Treatment

Dissenting Opinion

Dissenting Opinion by

Montgomery, J.:

The evidence in this case is sufficient to sustain all charges for which this appellee was indicted, i.e., conspiracy, assault with intent to kill, aggravated assault and battery, and assault and battery. The victim, Tyrone Jones, was pursued by a group of fifteen men, including appellee, with the evident intent of harming him. Appellee was carrying a stick, another two bricks, and a third a sawed off shotgun which was fired at Jones, the pellets striking him in the head causing serious injury.

The conspiracy may be inferred from the concerted overt acts demonstrated by the record. Commonwealth v. Kubacki, 208 Pa. Superior Ct. 523, 224 A. 2d 80 (1966). The other charges were also sustained because the appellee was clearly a principal in the attack since he aided and abetted in its commission. Commonwealth v. Strantz, 328 Pa. 33, 195 A. 75 (1937); Commonwealth v. Lawrence, 193 Pa. Superior Ct. 75, 163 A. 2d 690 (1960); Commonwealth v. Jackson, 187 Pa. Superior Ct. 2, 144 A. 2d 249 (1958).

*478I would reverse the order sustaining the demurrer and grant a new trial.

Therefore, I respectfully dissent from the per curiam order of affirmance.

Spaulding, J., joins in this dissenting opinion.



Lead Opinion

Opinion

Per Curiam,

Order affirmed.