Commonwealth v. Stanley

VOORT, concurring: Judge, VAN der CERCONE Judge President Opinion the lead join I we are not authoriz- my part on understanding with the the same items. for recovery double ing

401 A.2d Pennsylvania COMMONWEALTH STANLEY, Appellant. Paul S. Pennsylvania. Superior Court 23, 1977. June Submitted 12, 1979. April Decided August Granted Appeal Petition for Allowance J., dissenting opinion. filed Spaeth, Defender, Chief, Packel, Appeals Public John W. Assistant Div., Philadelphia, for appellant. Chief, Goldblatt, Attorney, H. Assistant District

Steven Com., Div., appellee. for Philadelphia, Appeals JACOBS, WATKINS, and Judge, President Before HOFFMAN, CERCONE, PRICE, VAN der VOORT SPAETH, JJ.

PRICE, Judge: of instant arises conviction appellant’s

The from appeal of escape,2 of of instruments possession the crimes escape,1 crime,3 and a carrying prohib- of an instrument possession was Appellant acquitted weapon.4 ited offensive weapon5 and possession possession of a concealed charges of a firearm former convict.6 aby this are as On

The facts rise to follows. giving appeal first mur- 28, 1975, degree was convicted May appellant 1, 1975, Philadelphia he to the der. On October was taken in hospital’s prison a cell in the Hospital placed General and that appellant Later it was discovered day ward. that which the bars had been window from escaped through a an solicited a ride from cut. and two others Appellant Stella, at deposited who them individual named Dominick Philadelphia. Stella throughout city various locations 1. 18 Pa.C.S. § 5121.

2. 18 Pa.C.S. 5122. § 907(a). §

3. 18 Pa.C.S. §

4. Pa.C.S. 908. 907(b).

5. 18 Pa.C.S. §

6. 18 Pa.C.S. noticed that when the three exited his automobile left they in partially wrapped tape. behind hacksaw blade The next he in the day recognized appellant’s photograph newspaper and the incident reported police. later,

A few a woman named Keim told a days Jacqueline man named Sperduto appellant Carmen was at her newspaper saw a item apartment. Sperduto detailing appel- lant’s and them he escape telephoned police telling had seen know where might appellant was. Based this obtained an arrest upon tip, police warrant. 3, 1975, entered forcibly On October Keim’s they apartment and discovered in a bedroom appellant hiding under a child’s addition, crib. In seized a revolver that they lying on dresser, conviction, of a few from the top feet crib. After the instant appellant brought appeal alleging that the court below committed the errors: following

(1) the lower court erred in not granting his motion to revolver; suppress

(2) the lower in court erred not his demurrer sustaining charges firearms because the Commonwealth failed to prove possession of the revolver found the bedroom in which he was captured; (3) his 907(a) conviction under 18 Pa.C.S. should be reversed because a revolver does not constitute an instru- crime; ment of

(4) the Commonwealth failed to establish one of the ele- ments of escape;

(5) the court erred in not to permitting appellant intro- duce evidence of the conditions at the Philadelphia prison as a defense to of escape; the charge (6) the lower court erred in permitting the to prosecution introduce evidence regarding appellant’s prior conviction murder; for first degree

(7) the court in erred the' to permitting prosecutor amend the information to the charge offense under 18 Pa.C.S. 6105. For the below, reasons stated we affirm the of judgment the court below.

203 I-IV in the the analysis court embraces The of this majority of four assignments the first opinion regarding dissenting upon assign- will those and, therefore, expound we not error ments.

V is court of error the assignment fifth Appellant’s regarding the conditions excluding erred in evidence below of charge a defense Philadelphia prison at the court the evi- with lower While the agreeing escape. excluded, clear our we wish to make was properly dence escape defense to an on of duress as a the use position charge. to a recognize refused has Pennsylvania

Generally, illegality an escape upon to a of based charge defense rule is reason for this The one’s sentence or incarceration.7 administration would be prison difficulties obvious—the to if over prisoner permitted “go intolerable each incarceration, his testing legality wall” as means of means administrative customary rather than utilizing judicial redress.8 is, escape The defenses general against prohibition however, law, a defense of neces not At common absolute. of the for factors control beyond sity recognized Moreover, recognized the defense of duress was prisoner.9 Storm, Pa.Super. 5121(c); v. See 18 185 7. Pa.C.S. Commonwealth Ashe, (1958); 138 ex rel. Penland v. A.2d 140 Commonwealth Francies, Pa.Super. (1941); 224 142 17 A.2d Commonwealth v. Pa.Super. (1919). negligence prison This court also held that neither 8. has escape, necessity prisoner permitting an of a officials nor escape family matters will suffice as a defense to an attend certain charge. Longenberger, Pa.Super. See Commonwealth Schwartz, (1978); A.2d 1006 Commonwealth (1977). accident, necessity prison be “If the fired and there be life, felony prison . .” this excuseth the . break to save his Hale, Crown, History Pleas of the 204 part of the common law of see Pennsylvania, Respublica 2 86, (1781)

v. Dall. 1 300 M’Carty, (dicta), L.Ed. and has been as a defense incorporated statutory under Crimes Code, Therefore, 18 Pa.C.S. 309. the issue for determina tion is whether duress recognized will be as a defense to the escape. crime of

While of novel inquiry Pennsylvania, courts in other jurisdictions have determined that the defense should be recognized, have although they disagreed at to what constitutes duress. The greatest disagreement source of has arisen to respect with whether abuse physical of a prisoner or by prison officials other prisoners constitutes duress justifies which an or escape,10 whether such abuse merely relates “conditions” of which imprisonment should be aby protest remedied or proper prison judicial officials.11 Although not directly presented in instant case,12 we hold that such are abuses analogous cases in which a is prisoner his contesting legality incarcera tion. Mere conditions, even those from prison arising physi abuse, cal not will constitute a defense to an escape charge; instead, a prisoner’s avenue of is proper redress through or judicial administrative channels. As one court stated: confinement, “Since he under lawful had no legal he right to resort as a method to self-help assert his claim with to conditions in the respect prison. 823, People Lovercamp, Cal.App.3d Cal.Rptr.

10. (1974); v. 43 118 110 People Unger, 333, 848, v. (1977); 66 Ill.2d Ill.Dec. 319 N.E.2d Boleyn, (La.1976) (by implication); State People v. 328 So.2d 95 Luther, (1975); Harmon, People 394 Mich. 232 N.W.2d 184 Mich.App. affd., (1974), 220 N.W.2d 212 394 Mich. (1975). N.W.2d 187 Alberigo, (1973); 11. State v. Ariz. P.2d 1156 State v. Dyer, (Me. 1977); Green, State v. 470 S.W.2d 565 (Mo.), denied, cert. 405 U.S. 92 S.Ct. 31 L.Ed.2d 806 Appellant’s proffered allegations physi- evidence did not entail abuse, instead, imprisonment, cal but related to actual conditions of e., overcrowding i. and lack of medical care. judicial The as well as the system, prison administration, has been as the normal long recognized channels for meritorious to complaints relating prison registered conditions. could have his [The defendant] claimed via grievances accepted these avenues of redress.” 1086, (Me.1977). State v. 371 A.2d 1090-91 Dyer, conclusion, In this it must be reaching recognized is unlike that prison wholly environment general large. at A in the population person general popula tion, confronted compelling a situation the commission of by crime, will in most cases or have little no to opportunity secure immediate aid from the authorities.13 In proper contrast, environment, definition, the prison is by replete with constant supervision officials whose task is to ensure the safe operation of the prison system. Because this constant and aid, source of available well as ready traditional remedies of habeas see corpus, Commonwealth ex rel. Bryant Hendrick, 83, v. (1971); 444 Pa. 280 A.2d 110 Jeffes, 432, Commonwealth ex rel. Ford v. 260 394 A.2d (1978), 1004 and actions under the federal Rights Civil (42 Act 1983), see, Sullivan, U.S.C. e. Fox v. g., 539 F.2d 1065 (5th Beto, Cir. 1976); v. 460 F.2d 765 Campbell (5th Cir. 1972), for conditions, contesting oppressive prison we restrict the defense to all but the most extreme situations.

An example such a situation was advanced in People v. Wester, 232, 237 46 Cal.App.2d Cal.Rptr. (1965), 699 in which the court if hypothesized prisoner was confronted with a choice mate, between an cell accompanying escaping 424, Ragland, (1967); 13. See State v. 4 233 A.2d Conn.Cir. State Miller, Collier, (La.App.1966); City 187 So.2d 461 of Hamilton v. 419, App.2d (1975) (duress 44 Ohio 339 N.E.2d 851 when defendant pursuant under police); arrest or detention and acted to orders of cf. Kearns, N.C.App. (1975) (no State v. S.E.2d duress opportunity State, escape); LaBryer when defendant had to Ala.App. denied, 222 So.2d cert. 284 Ala. 222 So.2d 366 (Ala. 1969) (no accomplice engaged sodomy duress when on two opportunity report police different occasions and had to in inter im). Toscano, (1977) But cf. State v. 74 N.J. (duress though opportunity defense available even defendant had report police police but did not out of fear would be ineffective in affording protection). or being seriously injured if he chose behind, to remain then duress would be a case, defense. In such a the usual sources of aid would not be available, immediately and confronted with the choice between serious or injury escape, the defend- ant would be properly excused for choosing the latter course Accord, action. v. Alberigo, State 109 Ariz. 508 P.2d (1973); see Schwartz, Commonwealth v. 251 Pa.Super. 36, 379 (1977) A.2d 319 (by implication). Absent such an extreme situation, we refrain from opening the floodgates to permit Pennsylvania prisoners to raise the defense of duress to a charge of escape. we

Finally, emphasize the requirement outlined in the dissent’s of summary People v. Lovercamp, 43 Cal. 823, App.3d 118 110 Cal.Rptr. (1974), that a defendant must return to official detention as expeditiously possible after absenting himself from the danger that initially prompted his escape. Cf. United States v. Chapman, (5th 455 F.2d 746 Cir. 1972) (duress defense vitiated if defendant forced to escape by other prisoners but then remains at on own large volition).

VI Appellant’s sixth assignment of error relates to the admission into evidence of prior his conviction for first degree stated, murder. As appellant had been found guilty 28, first degree 1975, murder on May and was incarcerat ed at the time he 1,1975. on October escaped In addition to escape, appellant was under charged 18 6105, Pa.C.S. § which prohibits a person from a possessing firearm if he has previously been convicted of a crime of violence. Under 18 Pa.C.S. 6102 a crime of violence is § defined as including

“[a]ny crimes, the following or an to attempt commit same, any murder, namely: rape, aggravated as sault, robbery, burglary, entering a with building intent to commit a therein, crime and kidnapping.” add (emphasis ed).

207 6105, it was 18 under Pa.C.S. § a conviction support To rea a prove beyond the Commonwealth upon incumbent convicted of one of had been appellant sonable doubt Common 6102.14 See in 18 Pa.C.S. crimes enumerated (1978). Todd, 477 Pa. A.2d wealth v. that evidence is which it is held legion are

Cases E. g. inquiry. under to the matter if relevant admissible (1949). Pa. 63 A.2d Corp., v. Essex Wire Clark or “prove disprove if it tends to relevant Evidence is deemed Jones, 355 Pa. in issue.” Commonwealth the matters of the “matters one Instantly, 50 A.2d of any had been convicted in issue” was whether was 6102. the evidence crime detailed in 18 Pa.C.S. Since matter, proper we hold that it was resolving relevant this an essential Commonwealth’s part admitted as ly case.15 to inform necessary it

While concedes violence, of a crime he been convicted jury stipulate for which he had Appellant that the crime offered to However, in previously of violence. was a crime been convicted (1975), Evans, the su- Pa. 348 A.2d Commonwealth accept not bound to preme court ruled that the Commonwealth proffered stipulations. adversary litigation general party court to an “The rule is that may required by proper may prove not be his case evidence and evidence, stipulation accept, what it would as to in lieu of such proving of prove. has the burden . . . The Commonwealth doubt; beyond it must be guilt a reasonable of the defendant the permitted Id., by muster.” material it can to do that whatever 17, 348 A.2d at 94-95. Pa. at Moreover, prosecution jurisdictions have held that the courts in other being stipulations tried accept defendants are when need not similar Smith, F.2d 544 analogous States v. See United under (8th statutes. 135, (1977). Or.App. 1975); Taylor, 571 P.2d 508 State v. Cir. argument brief, poses alternative and an 15. In its the Commonwealth prove appellant to that was also admissible states that the evidence detention,” necessary of element in the crime a was escape. “official under jury argument merit since the be without this We find prior in order the crime required nature of was not to know the exact at the time appellant “official detention” was under to conclude that Hospital. Philadelphia Cf. Common- escaped General he from the (1976) (informing Markle, wealth v. felony permissible, but not exact jury prior was was that crime crime). nature or details of argues he that it was to inform prejudicial them regarding the exact of nature the crime. As for prior support this Commonwealth v. proposition, cites the the of case Scoggins, 466 Pa. A.2d 392

In Scoggins, the defendant was under The charged, Code,16 murder,17 Penal with first degree and by assault life the prisoner.18 prove To that defendant was incarcerat ed for a life assault, term at the time he committed the the prosecution introduced evidence that had previously he been convicted of first In degree holding murder. that the court in evidence, erred the admitting supreme the court empha sized that the of exact nature the crime was not a prior necessary proof element establishing the defend ant was serving contrast, term of life In imprisonment.19 the crime in the instant charged required case the introduc tion into evidence of the exact nature of the prior crime. Scoggins While in the whether the defendant question serving a life sentence could be determined without easily crime, prior reference to the the case proof instant required 24, 1939, 16. Act of June seq., P.L. 101 et 18 P.S. 4101 et §§ §§ seq., repealed, 6, 1972, ofAct Dec. P.L. 5.§ amended, 17. Id. at § as 18 P.S. 4701. 710.2, amended,

18. Id. at 18 P.S. § 4710.2. 19. The court went on to conclude that the admission of the exact prior prejudicial jury nature of the would conclude simply crime was not as much as the prior egregious the crime “the was of most sort” being informed that the defendant had been sentenced to imprisonment. light prejudice, necessary life prejudice In of this no additional informing jury prior from the resulted that the crime had murder, degree merely first been evidence cumulative. Scoggins, supra, Commonwealth v. at Pa. 353 A.2d at 395. Although by appellant, not raised we note a similar result pertain informing respect jury would with instant case grade appellant’s prior as to the exact satisfy murder conviction. To requirements jury only of 18 Pa.C.S. 6102 the be need previously informed that been convicted murder generally. prejudice accruing light prejudice, perceive In of this we can of no additional appellant by informing jury regarding degree prior exact murder conviction. Commonwealth v. Scoggins, supra.

209 whether it was for the to determine jury of the crime prior of violence.20 or was not a crime Moreover, distinguishable instant case is the Scoggins, In the Scoggins respect. from in one material first murder and the degree tried for being defendant was he had previ evidence that was established presented offense. Because the same been convicted for the ously into evidence of the introduction general prohibition against from the concluding the jury crimes is to prior prevent reason activity by for criminal propensity accused has a Allen, see, g., e. Commonwealth v. conviction, his prior Trowery, Commonwealth (1972); 177, 292 A.2d 373 Pa. 171, (1967), particu this fear is 235 A.2d Pa.Super. defendant’s informed that the when the is jury acute larly he for which was the same as one of the crimes crime prior Scoggins, the instant tried. In contrast being is currently the same crime encompass did not charges against Therefore, the convicted. for which he had been previously appellant’s belief in jury’s feared the prejudice regarding great was not as as activity criminal for certain propensity fact that This, jury with the in Scoggins. coupled crime, plus prior facts of not informed as to the evidence, limited use of the judge’s regarding instruction prejudice. vitiate any was sufficient been decided under no cases have although Finally, under The Penal its historic antecedent 6105 or Pa.C.S. § amended, (see Act of June Code, P.L. § have held cases from other 4628(d)) jurisdictions 18 P.S. § prior jury of the crime is 20. The the nature need detail acquitted perhaps by underscored the fact that convict, charge possession former 18 Pa.C.S. of a firearm charged were the same as events for that offense 6105. Since the § crime, possession instrument Pa.C.S. the events for of an weapon, 907(a), prohibited possession offensive 18 Pa.C.S. of a § previously appellant been element that with the additional violence, jury incongruous it is convicted of a crime of charge him acquitted appellant but convicted of the former jury charges. return an inconsistent Either the chose to latter two verdict, Parrotto, 150 A.2d see Commonwealth proof (1959), prosecution in its of an essential failed or the element of 18 Pa.C.S. 210

that the exact nature of the prior crime be introduced may as a element of under proper proof statutes similar to that addition, in In numerous have Pennsylvania.21 jurisdictions statutes a former convict from prohibiting possessing firearm if the crime prior was a but without felony, crime specific Pennsylvania requirement prior be one of violence. Even in those evidence of the jurisdictions, exact prior nature of the crime has been held admissible as an essential element of the offense.22 establishing pending Indeed, prosecution cases have been reversed when the failed to crime was one of prior establish violence23 or was a when those factors were essential elements felony,24 in the of the crime proof subsequent possession firearm.

Therefore, we rule the evidence was admissible as an essential part proof Commonwealth’s 18 Pa.C.S. State, 98, English (1975) (by 21. See v. 295 Ala. 323 So.2d 728 State, 516, implication); Ala.App. (1972); Bell v. 47 257 So.2d 375 Robinson, Del., State, (1969); State v. Powell v. 538 denied, 928, 334, (Tex.Crim.App.), S.W.2d 617 cert. 429 U.S. 97 S.Ct. (1976). 50 L.Ed.2d 298 Smith, denied, (8th 1975), 22. United States v. 520 F.2d 544 cert. Cir. 925, 328, (1976); 429 U.S. 97 50 294 United States v. S.Ct. L.Ed.2d Mason, Boyer, (9th 1970); 421 F.2d 842 States v. 68 Cir. United 89, (D.Md.1975); Jackson, People F.R.D. 619 v. 53 Cal.2d 346 P.2d 384, (1959); Faulkner, People Cal.App.3d Cal.Rptr. 389 104 v. 28 625 409, (1972); Willis, People Ill.App.3d v. 43 2 Ill.Dec. 357 N.E.2d (1976); People Perry, (1975); Ill.App.3d 576 People v. 35 585 340 N.E.2d Lampkins, (1975); Ill.App.3d v. 328 100 State N.E.2d Hoover, (1959); Taylor, 219 Or. 347 P.2d 69 State v. Or.App. 571 P.2d 508 State, (Tex.Crim.App.1970); 23. See Mendoza v. 460 S.W.2d 145 Waf State, (Tex.Cr.App.1970) (Texas fer v. S.W.2d statute did not State, violence); supra (adequate proof define crime of cf. Powell v. Robinson, presented). (indictment supra See also State v. defective merely alleges prior specify when crime was one of violence without ing violence). exact nature of the crime of People Lampkins, (adequate proof presented). supra 24. Cf. See State, (Miss.1974) (conviction also Watson v. reversed So.2d merely alleged felony prior when indictment crime was a without specifying felony). the exact nature of the

VII we are confronted with conten appellant’s Finally, permitting prosecution tion that the court below erred to amend information to a violation of 18 allege Pa.C.S. not to own a firearm.” Appellant convict “[f]ormer been with of a firearm a initially charged possession 6105), a firearm (18 carrying former convict Pa.C.S. § (18 6106). without a license At a trial Pa.C.S. § Court, found guilty Philadelphia Municipal under 18 charge under 18 while the Pa.C.S. Pa.C.S. § then Appellant appealed 6106 had been dismissed earlier. § of Common Philadelphia for a trial de novo in the Court information, In the the inadvert drawing prosecutor Pleas. 18 6106and violating with Pa.C.S. ently charged appellant § During pre-trial a firearm in (carrying public): § motions, the moved to amend the informa- Commonwealth tion to delete the under 6106 and 6108 and to charges § § substitute the offense for which had been convict- court, in Appellant ed the 6105. contends that municipal § under impermissible this substitution was Pa.R.Crim.P. 229. We disagree. that an information be provides may

Pa.R.Crim.P. 229 amended if offense, form, of the description

“there is a defect the date person the or or the description any any property, the information as amended does not charged, provided an additional or different offense.” charge (emphasis added). 31, 1860, 12, 13, Act March P.L.

See also P.S. §§ alleges deletion Appellant §§ under 18 6106and 6108and the charges Pa.C.S. substitu- § 6105 entails the tion of the under 18 Pa.C.S. charge of an “additional or different offense.” While charging appellant’s superficial reading contention is supported by of Rule it is unsubstantiated Pennsylvania prece- dents interpreting provision.

The purpose of Rule 22925 is to insure that a him, defendant is fully appraised charges against to avoid prejudice by prohibiting last minute addition criminal acts of which the alleged defendant is uninformed. Jones, Commonwealth v. See 378 A.2d Pa.Super. King, Commonwealth v. (1977); A.2d 260 (1974). In this effecting purpose, the courts of this Commonwealth the test of whether the crimes employ speci fied in the indictment or information original involve the same basic elements and evolved out of the same factual situation as the crimes specified the amended indictment so, or information. If then the defendant is deemed to have been placed regarding alleged on notice his criminal cond If, however, uct.26 amended provision alleges differ events,27 ent set of or the elements or defenses amended crime are different from the elements materially or defenses to the crime originally charged, such that interpretive 25. While the cases discussed infra are of Pa.R.Crim.P. 220, they may determining be utilized in the extent of Rule 229. The identical, provisions only of the two rules are and differ in that Rule applicable applies 220 is to indictments while Rule 229 to informa- tions. Boone, (1973) 26. Cf. Commonwealth v. 450 Pa. 301 A.2d 699 (charge voluntary manslaughter, of murder amended to include Fowler, offense); Pa.Super. lesser included Commonwealth v. (1978) (charge conspiracy robbery 393 A.2d 844 of to commit conspiracy aggravated and theft amended to include to commit assault); Coles, Pa.Super. Commonwealth v. 313 A.2d 329 (1974) (charge larceny larceny of of automobile amended to include tape tapes auto). of recorder and in the Swint, (1976) 27. Cf. Commonwealth v. 465 Pa. 350 A.2d 851 (charge original possession of firearm at time arrest different from possession charge of at time of murder when the arrest twenty-nine days original murder). occurred after the But cf. Com King, Pa.Super. (1974) (amend monwealth v. 323 A.2d 260 charge drug p. permissible though ment to sale at 1:00 m. even preliminary hearing evidence at to defend informed defendant he would have against alleged p. p. an sale at 3:00 m. or 7:00 m. of the day). same then the change,28 prejudiced by would be defendant permitted. is not amendment court municipal was informed at the appellant

Instantly, rise giving the events to the charge level of both the and convict, 18 firearm a former by offense of possession time, at the trial de 6105. His defense at that and Pa.C.S. § in was that he was not pleas, novo in the court of common dresser, found on the since mere weapon of the possession posses- was insufficient to establish weapon proximity who had sion, have to others weapon may belonged and At no time did appellant access to the bedroom. equal convict, his status as a former additional challenge only in amended offense that was not encompassed element Moreover, in the offenses the facts originally charged. the of- the information with alleged charging under 18 6106 and 6108 were not changed fenses Pa.C.S. § and charges when those were deleted 18 Pa.C.S. stead. because Accordingly,

substituted their and the events concern- fully appraised charges court,29 and because his defense municipal 6105 at the ing § “label” was attached to those was unaffected whatever events, we can of no perceive prejudice appellant by the amendment. permitting

Judgment sentence affirmed. SPAETH, dissenting opinion. J. files a WATKINS, Judges, former President and JACOBS HOFFMAN, J., not in the or participate did consideration decision of this case. Bruce, (1974)

28. Commonwealth v. (amendment allege burglary to commit murder differ- with intent burglary larceny ent from with intent to commit since elements of different). offenses and defenses are Nelson, 29. In Commonwealth (1974), proceedings apprise municipal we held court serve to that the charges, respect, a obviate defendant of the nature of the and preliminary hearing charges. the need to conduct a on those SPAETH, Judge, dissenting: This for escape, is an from of sentence appeal judgments escape, possession of an instru- possession implements ment of crime and a offensive generally, carrying prohibited I are in accord four majority The and on weapon.1 opinion which I discuss below. We differ appellant’s.arguments, others; therefore, on two I dissent. 28, 1975, degree

On was convicted of first May appellant 1, 1975, murder. he from the detention escaped On October room of General He was Philadelphia Hospital. recaptured when with an arrest warrant entered a police forcibly pri- vate and discovered him under a child’s apartment hiding crib. In the course of this the seized a recapture police revolver on feet from they top saw of dresser a few the crib. -1- argues first that the lower court erred in not

Appellant his motion to the revolver. granting suppress At the suppression hearing Commonwealth of fered to this effect: that a woman named testimony Jacque Sperduto line Keim told a man named Carmen that appel lant was at her saw a apartment; Sperduto newspaper item about and escape telephoned police, appellant’s them that he had seen and know telling appellant might was; where and that it on the basis of this tip that the and went to the police Sperduto apartment. Appel lant that this was insufficient to show that argues testimony cause to believe that he would be in police probable therefore the fruit of an apartment;2 revolver was unlawful entry. Code,

1. The Crimes Act of Dec. P.L. No. 5121, 5122, 907(a), respectively. and Pa.C.S.A. §§ Sperduto pointed apartment, present out the correct but was not during recapture appellant. Instead he went with some offi- police headquarters gave long telling cers to where he statement appel- where he had seen how he had learned where statement, however, staying. may lant This not be considered

215 to obtain a police for the necessary While it is not warrant, United States to execute an arrest search warrant 1977);3 see United Cravero, States v. (5th 545 F.2d 406 Cir. 430, (1950); 94 L.Ed. 653 Rabinowitz, 339 U.S. 56, 70 v. S.Ct. 20, 4, 70 L.Ed. States, 269 U.S. 46 v. United S.Ct. Agnello cause probable with appellant 145 we (1925), agree warrant is on of the arrest subject believe enter police may before the required nonetheless is premises However, may before we to execute the arrest warrant. was not requirement that this argument appellant’s consider standing whether has satisfied, we must discuss the argument. make the fourth amendment under rights

Constitutional States, 411 Brown v. United U.S. are nature. personal Commonwealth v. 1565, (1973); 36 208 93 S.Ct. L.Ed.2d Treftz, A 351 A.2d 265 defendant who is 465 Pa. itself, but the intro aggrieved, solely by not the search Al evidence, be denied standing. duction of will damaging States, derman v. 89 22 United 394 U.S. S.Ct. States, Jones v. United (1969); L.Ed.2d 176 U.S. Treftz, Commonwealth 725, 4 (1960); S.Ct. L.Ed.2d been identified that a supra. Four interests have “personal” standing: assert in order to establish may defendant at the time of the search (1) presence premises his on seizure; in the (2) interest evidence possessory seized; (3) that the offense include as charged improperly case, an essential element of the the element prosecution’s deciding police probable apart- whether had cause to enter the Wilds, ment. Cf. Commonwealth (1976); issuing may (magistrate in search warrant Pa.R.Crim.P. 2003 affidavits). not consider evidence outside of the Cravero, supra, suggested In that one United States v. the court required reason was that a search warrant was not particularize there is no need to the search —the arrest warrant has danger “general already done that. There is not the same requiring warrant writ” which is the reason for that a search police specific to search for. what items are allowed described 545 F.2d at n. 1. at the time of the contested search and possession

seizure; or, possessory or interest (4) proprietory [sic] the searched premises. Treftz, supra,

Commonwealth v. 621-22, 465 Pa. at omitted). (footnotes A.2d at 268 Thus is if the may police be seen it, entered the in order to search and apartment improperly revolver, would have had standing had found the evidence, to to the revolver as his suppress standing move the based on the fact of “his on at being presence premises the and seizure.” the time of search said, ask whether the result should be This we must where, here, different as the do not enter to search police the but to make an arrest. premises

We the result be The believe should different. reason a search is forbidden is to someone’s of protect right privacy. search, When out they the set to make a intend to police Here, invade of when the right privacy. police someone’s entered the to look for did not apartment appellant, they but, if right privacy intend to invade of appellant’s they him, Nor, fact, the police found to arrest him. in did invade sure, of To be invaded his appellant’s right privacy. they that, to authority of but do right liberty, they proper the arrest warrant. The invasion of appellant’s form of the however, right of was not an invasion of his of right liberty, right does not have a if privacy; fugitive privacy from, resist, or is meant a to hide “privacy” right proper arrest.4 say subject right of an

4. This is not the arrest has no arrest, privacy. police may While the search him incident to his 752, California, scope. search is of limited See Chimel v. 395 U.S. Here, however, (1969). the seizure of the S.Ct. L.Ed.2d limits, held in revolver did not exceed those which were Chimel to might grab in order to include “the area into which an arrestee reach weapon . . .” 395 at at 2040. Alternative- U.S. S.Ct. seizure, ly they might although police it made a made be said that search, Coolidge plain view. See v. New no for the revolver was Hampshire, 403 U.S. 29 L.Ed.2d 564 S.Ct. the lawfulness of not attack appellant may Since him,5 to arrest the revolver which was the entry proper arrest, view, was in plain of a search incident subject held admissible.6 properly -2- that his for a as Appellant next motion demurrer argues granted to the firearms should have been because charges the Commonwealth failed to of the revolver prove possession at the seized time of his arrest. evidence,

In we must deciding sufficiency first all the accept upon true evidence which the trier of verdict, fact could based properly have and then ask evidence, whether with all reasonable inferences from Cravero, (5th 1976), 5. In United States v. 545 F.2d 406 Cir. cert. denied, (1977), 429 U.S. 97 S.Ct. 51 L.Ed.2d 549 the Court Appeals although reached the same result as we have here without explicitly relying standing. initially on the doctrine of It held that to party police execute an arrest warrant in the home of a third Cravero, (in (5th need a search warrant United States v. 545 F.2d 406 1977), that, holding), say Cir. although the court rescinded this but went on to unlawful, entry appellants the arrests of the were valid: represent judicial deprivations The arrest warrants sanction of the suspects’ of the liberties. Possession of the warrants was a com- pletely self-validating justification regardless for the arrests police circumstances under which the reached the location where they served the warrants. To hold otherwise would mean that suspected temporary sanctuary felon could claim what amounts to require contemplate in the home of another and would us to with equanimity prospect by against the of a section 1983 suit him warrant, officers who arrested him on a valid which seems self-evi- Thus, valid, dently though absurd. the arrests are the method of effecting them be not. (footnote omitted). 417 545 F.2d at Appellant argued entry by police has that the was unlawful However, police purpose. because the failed to announce their standing argument depends upon proof to make this also of an right privacy. invasion of one’s was, Although sense, appellee “fugitive,” in the most literal our escapees applies anyone discussion is not a warrant of arrest has apartment, but limited to to for whom As for the been issued. tenants of the untouched; right privacy police their stands if the attempted against apartment found evidence and to use it ten- ants, they certainly standing argue police would have had that the probable had no cause to believe that was there. 218

it, prove guilt was sufficient a reasonable doubt. beyond Fortune, v. Commonwealth 365, 367, 327, Pa. 318 A.2d 456 Petrisko, v. 579-89, (1974); Commonwealth 575, 328 442 Pa. 46, 275 (1971). proved A.2d Guilt must be and not Wilson, v. Commonwealth 513, conjectured. However, (1973). A.2d 430 be established guilt may Cimaszewski, v. Commonwealth circumstantial evidence. (1972). 447 Pa. 288 A.2d Here, that of his appellant correctly argues evidence mere insufficient proximity revolver would be Tirpak, Commonwealth Pa. prove possession. Furthermore, A.2d 476 the evidence that (1971). apart others had suggest ment was not appellant’s might revolver, would argue against appellant’s access to the which Davis, 444 Pa. Commonwealth of it. possession However, testified that two Sperduto days A.2d 119 arrest, is, he day appellant escaped, before the on the appellant’s saw a to the floor from inside trousers. gun drop black, He further testified that it was a .22 caliber with gun that he it thought a white handle —as was the revolver —and this testimony, and the revolver were the same. Given possessed jury justified finding revolver.

-3- next that his conviction for Appellant argues he was of the revolver should be reversed because possession 907(b); 907(a) convicted under 18 instead of Pa.C.S.A. § § view, appellant’s although 907(b) possession includes However, firearms, 907(a) does not. this court decided McNear, 238 Pa.Super. otherwise in Commonwealth v. (1976).7 Furthermore, analysis accept author of this if were to of the one McNear, ), opinion (who supra revolver in still the loaded dissented convict, possession appellant, escaped would come under of an 907(a) something “commonly purposes and as used for criminal § manifestly appropri- possessed by the actor under not circumstances have,” may an “instrument of ate for lawful uses it and therefore -4- next the Commonwealth argues Appellant of the crime of escape. failed to one of the elements prove on in the escape charge was tried Appellant originally which is jurisdiction of of Philadelphia, Court Municipal for a appealed When appellant limited misdemeanors. Pleas, again trial de novo in the of he Court Common Code, The Crimes supra, tried for as a misdemeanor. escape as follows: provides C.P.S.A. § (d) Grading.— third An under this section is a

(1) felony offense degree where: on a the actor was under arrest for or detained

(i) crime; conviction of following of or charge felony is a misde- (2) an offense under this section Otherwise meanor degree. second prove the Commonwealth failed to Appellant argues because it failed to escape the crime of as a misdemeanor that he detained for other than “a prove something crime,” or conviction of a charge felony following 5121(d)(l)(i). Pa.C.S.A. §

The with this is that the elements difficulty argument out, 5121(d), crime of are set not in but escape § 5121(a): §

(a) an offense if he Escape. person commits unlawful- —A detention or fails to removes himself from official

ly Goosby, 907(c)(2). v. 251 Pa.Su- crime” under See Commonwealth § 326, 333, J., per. (SPAETH, concurring). 380 A.2d may point two It also be mentioned at this makes arguments regarding possession of other his convictions incident First, prove argues not the revolver. he that the Commonwealth did employ criminally, required that he had the intent the revolver Second, 907(a). argues that we should vacate his conviction he possession prohibited offen- under 18 Pa.C.S.A. which bars McHarris, weapons, sive for in Commonwealth prohibit- (1977), revolvers were not this court held that arguments weapons. may these be- ed offensive We not consider post-verdict in his motions. cause failed to include them Blair, 460 Pa. 331 A.2d Commonwealth 220 leave following temporary to official detention

return limited period. or purpose a specific for granted and did prove, to required prove, The Commonwealth from official himself removed unlawfully appellant relies, section, appellant on which The grading detention. but of the crime this definition or subtract to does not add Com- or misdemeanor. felony as a severity, defines its only 160, 340 McKennion, Pa.Super. 235 v. Commonwealth pare Code, offenses, under the Crimes theft (1975) (for A.2d 889 is not element goods stolen 3903, valuation of supra, § (HOFFMAN only of offense crime, grading but controls be absurd Furthermore, it would SPAETH, JJ., dissented)). of conviction proof by requiring Legislature, to that the say felony, as a graded could be escape crime before an of a of a crime of conviction proof that to forbid intended as a misdemeanor. So be graded an could escape before notice to adequate was not deprived long that he argue does not his defense—and prepare charged to have been was fortunate was so deprived—he might than he a less serious offense convicted of with and Farmer, have been. Cf. Commonwealth charging (1976) (indictment 334, 344, A.2d on no- defendant put fairly theft of automobile attempted at- him; him of to convict proper against tice of charges contents, since defense any theft of automobile’s tempted defense to any have been identical would charge first second charge).

-5- erred in not lower court that the argues next Appellant his conditions of introduce evidence him to permitting escape. charge as a defense in prison confinement Here, and I differ. majority clear that even if a notes, the law is majority

As the or set aside on be reversed would conviction prisoner’s escape. he has no corpus, right habeas writ of or appeal is that duress from this law follow necessarily It does not People In charge escape. to a as a defense not available Lovercamp, Cal.App.3d Cal.Rptr. (1974), the court set out five factors to be considered in deciding whether duress had been shown: (1) specific threat of death, attack, forcible sexual or substantial bodily injury future; (2) immediate lack of time for complaint or futile; circumstances indicating that a would complaint be (3) courts; no time or to resort opportunity (4) the absence of force or violence toward prison personnel in the making escape; (5) and an immediate report proper authorities once the has prisoner attained a position of from the immediate safety threat. This decision has been followed, see, widely Michelson, e. g., United States v. F.2d 567 (9th 1977); State, Cir. Johnson v. 1977);

(Del.Supr., State v. Worley, Cr.L. 2310 (S.C.Sup. Ct., filed 1975), Dec. although some courts have held that the factors enumerated are not prerequisites but rather go to the weight duress, about testimony see Esquibel v. State, 91 N.M. 576 P.2d (1978); 23 Cr.L. 2137 People Unger, 66 Ill.2d 5 Ill.Dec. 362 N.E.2d 319 in Recently United v. Bailey, (1978), States 585 F.2d 1087 the Court of for the Appeals District of Columbia has had the occasion to consider the defense of duress. After exam- ining such cases as Lovercamp and Michelson at length, a of the court majority concluded that of proof prison condi- tions should be if permitted relevant to the “intent to avoid confinement.” The drew between, a distinction on majority hand, the one a prisoner who “to escaped see his mother who ill”, and, is other, on the a who prisoner escaped “to avoid conditions that are not normal of aspects ‘confinement’— such as in for beatings reprisal trial, testimony failure to provide essential care, medical or homosexual attacks

. .” 585 F.2d case, at 1128. In the latter said the “the majority, intent element of the crime of escape not may satisfied,” be id.

I should not decide which of these several is analyses the most persuasive, for here appellant did not offer enough evidence to make out a prima facie case under any them. condi- living to show that general, offer only

Counsel’s 292; “unbearable”, N.T. at were tions in prison he medical subpoenaed appellant’s counsel said although show. On records, what the records would say he did not to receive the evidence. offer, it not error to refuse this the duress that the extent of recognizes The majority case,” instant directly presented is “not defense on “we say, at hold slip yet goes Majority opinion discussion is I submit that the majority’s . . .”. but mere dictum. holding not -6- unfairly prejudiced he was argues that Appellant finally he had been crime evidence introduction Here, too, majori- murder. degree convicted was first and I differ. ty appel- introduced evidence

The Commonwealth escape, in order prove murder lant had been convicted discussed, that the defendant which, just requires proof as detention, prove under and also in order was official felon, of a former in violation the by of a firearm possession was (appellant Code, Pa.C.S.A. supra. § Crimes charge). this acquitted evidence, counsel trial, appellant’s

At to this objecting had to that only prove that the Commonwealth argued crime of (for escape) a and a committed crime appellant felon). It was by of a firearm (for violence possession what exactly argued, prove unnecessary, counsel was; further, stipulate counsel offered to crime violence a crime convicted of was had been that crime of violence. law elsewhere the is as the majority

I that acknowledge upon proving could insist the Commonwealth says—that degree was first question the crime of violence does majority we should adopt murder. Perhaps —the me, however, that we should It seems to view. adopt —this evidence admissible that otherwise principle remember the cumulative, and if it is but not essential be inadmissible may the jury it difficult for to make likely to be prejudicial so manner. Common- unimpassioned case in an decide the (1976); 371 A.2d Fed.R. Ulatoski, 472 Pa. wealth Evidence, (Cleary 185 at 438-40 403; McCormick, Evid. applied recognized Ed., 1972). This principle A.2d 392 466 Pa. v. Scoggins, Commonwealth assault a life with charged had been There the defendant neces- of that crime proof that while argued He prisoner. fact that he was jury involved exposing sarily had been obviously therefore a life sentence —and serving for the to be jury was unnecessary convicted of a crime—-it The Supreme first murder. degree the crime was told that that the admission holding argument, with this agreed Court murder had degree crime was first evidence that the However, presumably reasoning jury error. been “crime of the most life sentence involved a knew that a A.2d at the Court sort,” 466 Pa. at egregious its admission cumulative and merely held the evidence error. harmless sure, as appellant To be

The same cannot be said here. had to be ex- necessarily recognized, jury and counsel a crime of had committed to the fact that posed However, of violence” com- “crimes phrase violence.8 in addition to g., e. range gravity, crimes of a wide prises building with murder, “entering or or robbery, burglary, therein.” 18 Pa.C.S.A. intent to commit a crime See worse thought well have might is clear that the here jury It first degree he had committed knowing appellant, been informed murder, accurately, than if it had but simply, of violence.” Thus the had committed a “crime that he not murder was had committed appellant evidence that cumulative, Scoggins, supra. it was in v. as Commonwealth because distinguishable is Scoggins The that majority says the introduc- in the instant case charged required “the crime necessity Appellant argues arisen because this should not have that improperly charge possessing before the firearm was the of a felon a impermissible jury amend- in result of an the first instance as the However, argu- this I need not consider ment to the information. ment. crime,” at Slip opinion the of the prior tion of exact nature evidence 1173; which is whether question, but that the begs “required” crime” was prior “of the nature exact greater The also that there was a here. majority says here, at Slip opinion of in than danger Scoggins prejudice a come to juror, but of I position the putting myself opposite the conclusion. however, the evi- remains,

There the whether question e., harmless, by was i. it prejudiced appellant dence whether a normal danger of “the of exposing tendency him to a basis for of convictions as juror testimony prior accept charged.” the crime a commit finding predisposition Pa. A.2d at Scoggins, supra, Commonwealth I find escape, appellant As of that at 395. to the conviction not As indicated discus- prejudiced. foregoing was sion, charge (except had no defense to appellant as at of his admitted much. N.T. “duress”); attorney claim this How- 292-93. I should therefore affirm conviction. ever, possession implements the convictions of an of crime and escape, possession generally, instrument I find appellant a offensive that carrying prohibited weapon, be vacat- was and that these convictions should prejudiced, that was the one who removed the Appellant ed. denied he at Hospital bars from the window General Philadelphia window); he (although through he admitted leaving that a said he denied blade witness possessing hacksaw had; revolver, having Sperduto he denied ever although he Thus appellant’s possession. appel- testified saw one involved, involved, for critically lant’s was and credibility guilty while there no question still, escape, jury testimony regarding if the believed his bars, blade, revolver, it could otherwise acquit hacksaw say In I cannot that the evidence him. these circumstances first murderer was harmless degree was a Story, doubt. Commonwealth beyond reasonable reason, Pa. For this I should 383 A.2d for remand a new trial.

Case Details

Case Name: Commonwealth v. Stanley

Court Name: Superior Court of Pennsylvania

Date Published: Aug 6, 1979

Citation: 401 A.2d 1166

Docket Number: 297

Court Abbreviation: Pa. Super. Ct.