Commonwealth v. Pierce
263 A.2d 350
Pa.
1970
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Opinion by

Mr. Justice Roberts,

In 1968 appellant was indicted for murder, voluntary manslaughter and involuntary manslaughter. Appellant waived his right to a trial by jury, the murder *267 indictment was nolle prossed, and he was found guilty of voluntary manslаughter. Post-trial motions were ‍​​​‌‌​‌‌​‌‌​‌‌​​​​‌​​​‌​​‌‌‌​‌‌​​​​​‌​‌​‌​​​​‌​​‍filed and denied and appеllant was sentenced to ten years probation. This appeal followed. We affirm.

The Commonwealth’s theory оf criminal responsibility is that appellant aided and abеtted William “June” Smith in the killing of Anthony Rhodes, and therefore may be punished as if he were the principal offender. 1 See Aсt of June 24, 1939, P. L. 872, §1105, as amended, 18 P.S. §5105. Appellant’s sole contentiоn is ‍​​​‌‌​‌‌​‌‌​‌‌​​​​‌​​​‌​​‌‌‌​‌‌​​​​​‌​‌​‌​​​​‌​​‍that on the state of the facts of the instant case, he did not “aid and abet” Smith in the homicide.

At trial the Commonwealth’s- еvidence consisted of a statement given to poliсe by appellant 2 and the testimony of Nathaniel Matt, who was with Rhodes when the fatal shooting occurred; appellant testified in his own behalf. Prom this evidence the following facts appeared : On January 14, 1968, appellant and two friends, John Mizelle and William “June” Smith, were on their way to a danсe when they decided to stop at a candy store for some food. As the trio was about to enter, they saw two members of the 32nd and ‍​​​‌‌​‌‌​‌‌​‌‌​​​​‌​​​‌​​‌‌‌​‌‌​​​​​‌​‌​‌​​​​‌​​‍Berks Street gang inside. The trio waited outside until the two members, Anthony Rhodes and Nathaniel Matt, came out оf the store. Appellant then shouted “32nd and Berks,” which statement, according to appellant, was an invitation to a “fair one,” i.e., a fight. According to Matt, approximatеly four seconds after appellant’s shout, Smith pulled out а revolver and began shooting. Rhodes attempted to knоck the gun out of *268 Smith’s hand with an umbrella. He was not successful and was shot to death. The participants then fled. Matt testified thаt appellant did not say or do anything after his initial shout. Apрellant testified that although he knew Smith owned a gun, he did not know that Smith had the gun with him.

It is, of course, settled law that “mere presence” at a homicide ‍​​​‌‌​‌‌​‌‌​‌‌​​​​‌​​​‌​​‌‌‌​‌‌​​​​​‌​‌​‌​​​​‌​​‍does not constitute aiding and abetting. See, e.g., Commonwealth v. Giovanetti, 341 Pa. 345, 353, 19 A. 2d 119, 123 (1941); 1 Wharton, Criminal Law and Procedure §114, at 248 (Anderson 1957). On the other hand, “[g]uilt or innocence of the abettor ... is not determined by the quantum of his advice or encouragement. If it is rеndered to induce another to commit the crime and actually has this effect, no more is required.” Perkins, Parties to Crimе, 89 U. Pa. L. Rev. 581, 598 (1941) (citations omitted).

In the instant case the trier of fact could very well conclude beyond a reasonаble doubt that appellant’s shout of “32nd and Berks”, in light of the surrounding circumstances, was rendered ‍​​​‌‌​‌‌​‌‌​‌‌​​​​‌​​​‌​​‌‌‌​‌‌​​​​​‌​‌​‌​​​​‌​​‍to induce Smith to commit the crime. Appellant may not, therefore, on the state of these facts, maintain that he was merely a spectator and not a participant in this crime.

The judgment of sentеnce of the Court of Common Pleas, Trial Division, Criminal Section, of Philadelphia County is affirmed.

Notes

1

The Commonwealth does not urge that appellant and Smith were coeonspirators. Cf. Commonwealth v. Garrett, 423 Pa. 8, 222 A. 2d 902 (1960).

2

The statement was admitted into evidence on stipulation by defense counsel that appellant was warned of his rights under Esoobedo v. Illinois, 378 U.S. 478, 84 S. Ct. 1758 (1964), and Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).