Opinion by
This is an appeal from the lower court’s refusal to grant appellant’s motions for new trial and in arrest of judgment after conviction and sentence on seventeen separate indictments covering the offenses of riot by prisoner, riotous destruction of property, assault and battery, and aggravated assault and battery, all of which indictments arose out of defendant’s participation in a riot which occurred in Holmesburg Prison on July 4, 1970.
Defendant presents numerous arguments all of which, after careful study and consideration, we have determined to be without merit.
Appellant first claims that the trial court refused extensive scope of voir dire examination and that this refusal constituted palpable abuse of discretion. Our study of the record and the application of governing-law causes us to disagree with this argument. The trial
Nor can we find any systematic exclusion of Negroes from the panel of the petit jury as contended by defendant. The record indicates that of the first jury panel of thirty veniremen nine were Negroes, and that of the second panel of twenty-one veniremen six were Negroes. It was the burden of the defendant to prove the existence of purposeful discrimination with respect to excluding Negroes from the jury panel: Whitus v. Georgia, 385 U.S. 545, at 549-550 (1967). No proof of intentional design to exclude Negroes from the jury panel was shown by defendant. Our Supreme Court of Pennsylvania recently held in a case in which there had been no Negroes on the panel from which the jury to try defendant was chosen that there was no violation of defendant’s constitutional rights since the system by which the prospective jurors were selected sought to have the jury panel fairly represent a cross-section of the community: Commonwealth v. Carroll, 443 Pa. 518 (1971).
As to the contention that the evidence was not sufficient to sustain the verdict of guilty on the charge of riot by prisoner, a reading of the evidence reveals this argument to be, as stated by the Commonwealth, “utterly and hopelessly unfounded”. Defendant’s participation in the prison riot and his serious criminal
Nor can we agree that there was error in the charge of the court with respect to the definition of the crime of riot by prisoner. In fact, a reading of the charge shows it to correspond to the instruction requested by the defendant. No exception was taken to the complained of definition of the trial court.
The evidence was also more than sufficient to prove beyond a reasonable doubt that defendant was guilty of the charges of assault by prisoner and of conspiracy to riot.
We find equally without merit defendant’s argument that the specific crime of assault by prisoner (18 P.S. Sec. 4710.1) prevails over and merges into the general penal statutes defining assault and battery, aggravated assault and battery, and assault with intent to kill so that he could only be convicted on the charge of assault by prisoner. The elements of assault by prisoner are not irreconcilable with the elements of the crimes of assault, battery, aggravated assault and battery, and assault with intent to kill. For example, the element of battery required under 18 P.S. §§4708 and 4709 is not a necessary element of the crime of assault by prisoner nor is the intent to kill necessary to establish assault by prisoner under 18 P.S. §4710. Conversely, it is essential to the crime of assault by prisoner under 18 P.S. §4710.1 that a person be “committed to or confined in” a detention facility, jail or penal or correctional facility, though such confinement is certainly not a prerequisite to any of the other offenses in question. The statutory rules of construction, 46 P.S. §563, state: “. . . Whenever a general provision in a law shall be in conflict with a special provision in the same or another law, the two shall he construed, if
The defendant also argues that the evidence was insufficient to sustain his conviction under the assault by prisoner statute in that at the time of the commission he was not sentenced to imprisonment for any term of years as required by the statute. The defendant, however, failed to make note of the fact that on March 2, 1970 the assault by prisoner statute was amended so as to define prisoner as: “Every person committed to or confined in any local or county detention facility, jail or prison or any State penal or correctional institution or other State penal or correctional facility, regardless of the reason for commitment or confinement. . . .” It is readily apparent that under said definition, in effect at the time of defendant’s commission of the crime charged, defendant was “a prisoner” to which the assault by prisoner statute applied even though he was not at that time imprisoned under any sentence as formerly required by the statute.
We therefore affirm the lower court’s denial of defendant’s motions for new trial and in arrest of judgment and affirm the judgments of sentence imposed on all the indictments.
