Why violent “flash mob” participants could face five to ten years incarceration

In Philadelphia, over the past two summer, there have been several incidents of group violence on the streets performed primarily by groups of young people.  In response, Mayor Nutter has enacted a stricter curfew throughout Center City and in University City.  In dealing with these bursts of violence, one of the tactics discussed by the city has been to increase the number of arrests made pursuant to the curfew laws.  The theory is that by inconveniencing some parents, i.e. those who would have to retrieve their wayward youths, the City can mobilize all parents to better monitor teens late evening activities.  Another motivator should be the very serious trouble that teens participating in flash mobs or other violent street activity can end up in.  Just last month, on July 29, 2011, two separate violent incidents landed at least six juveniles in detention and one nineteen year old in jail awaiting trial.  Although all of these boys face serious charges, teens and their parents need to understand that if any of these incidents end up in adult court, the stakes are higher than anything they ever anticipated.

The recent Superior Court decision Commonwealth v. Poland discusses the five year mandatory minimum that innovative prosecutors could seek for almost any conviction stemming from this kind of violence.  In Poland, the Superior Court addressed the applicability of section 9713 of the Judicial Code which requires a minimum sentence of five years for any crime of violence that “occurs in or near public transportation” to an aggravated assault that occurred in the Gallery located in downtown Philadelphia.  42 Pa. C.S.A. 9713(a).

The defendant in Poland was a member of a “dozen or more individuals” who were present in the Gallery at 8th and Market Streets on the evening of April 2, 2008.  At some point, and apparently without provocation, the group attacked a woman walking through the area.  Once she was knocked to the ground, she was “punched and kicked by one half of the members of the group while the other half cheered them on.  The assailants then fled to a nearby subway train.”  The victim sought help from the SEPTA cashier and SEPTA police detained the subway train carrying the assailants until the victim arrived and identified “the individuals who were present at the assault, and those who actually had assaulted her.”

The Poland defendant was arrested and charged with robbery, aggravated assault, conspiracy to commit robbery, and conspiracy to commit aggravated assault.  At a jury trial, there was conflicting evidence offered about whether the defendant “was one of the assailants, was one who encouraged the assailants, or had tried to stop one of the assailants.”  Ultimately, the jury convicted the defendant only of conspiracy to commit aggravated assault.

The prosecution sought the mandatory minimum provided in § 9713(a) because conspiracy to commit aggravated assault is considered a “crime of violence” for purposes of that subsection.  Section 9713 states that:

[A] crime shall be deemed to have occurred in or near public transportation if it is committed in whole or in part in a vehicle, station, terminal, waiting area or other facility used by a person, firm, corporation, municipality, municipal authority or port authority in rendering passenger transportation services to the public or a segment of the public or if it is committed in whole or in part on steps, passageways or other areas leading to or from or in the immediate vicinity of such a public transportation vehicle, station, terminal, waiting area or other facility.

42 Pa. C.S.A. § 9713(b).  The trial court held § 9713 inapplicable and refused to apply the mandatory minimum because the actual assault occurred in “a public corridor in the Gallery, an area that contains shops and other businesses” and is separated from SEPTA’s terminal by glass double doors.  The Superior Court overturned the trial court’s determination and remanded for sentencing in accordance with § 9713.  The Superior Court specifically emphasized the language applying the mandatory minimum to crimes committed in the “immediate vicinity” of a public transportation vehicle, station, terminal, waiting area or other facility.

According to the Superior Court, the mandatory minimum applied because the “assault in this case took place in a passageway leading to and from a SEPTA station, in the immediate vicinity of the SEPTA station, while the victim was on her way to catch the SEPTA train home.”  In a footnote, the Superior Court clarified, “We acknowledge that there were other establishments in the immediate vicinity of the location where [the victim] was assaulted, and that the passageway led to and from places other than the SEPTA station.  However, the language of Section 9713 does not limit its application to passageways that lead exclusively to public transportation facilities, or to areas in the immediate vicinity of facilities that have absolutely no other possible destinations around them.”

All of which leads back to implications for anyone convicted for participation in a violent flash mob.  The Number 40 bus runs along South Street and, east of Broad, its route connects with the Number 57, 47, 23, and the Broad Street Line.  A cursory glance over SEPTA’s Center City transit map found here makes clear that almost anywhere in downtown Philadelphia is in the “immediate vicinity” of public transportation facilities.  This means that teens, especially older teens that are either over eighteen or simply more likely to be charged as an adult, could very easily face five years’ of state incarceration for participating in a violent flash mob.  This is true even if, as in Poland, the particular teen does not even raise their hand in violence, simply “cheers on” other teens; Poland was eighteen at the time of the incident and had no prior adult record.  If the hassle of picking up your curfew-violating child at the police station is not incentive enough to keep them home, the hassle of visiting them at a state correctional institution should be.

You can read the full Poland opinion here  and the full statute here.

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