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decided: June 24, 1975.


Appeal from judgment of sentence of Court of Common Pleas of Luzerne County, No. 80 of 1973, in case of Commonwealth of Pennsylvania v. George McCloskey.


Francis P. Burns, Assistant Public Defender, for appellant.

No appearance entered nor brief submitted for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Watkins, P. J., and Jacobs and Spaeth, JJ., join in this opinion. Van der Voort, J., concurs in the result. Concurring Opinion by Cercone, J. Spaeth, J., joins in this opinion. Dissenting Opinion by Price, J.

Author: Hoffman

[ 234 Pa. Super. Page 578]

Appellant contends that the Commonwealth's evidence at trial was insufficient to sustain his conviction for an attempted prison breach.*fn1

[ 234 Pa. Super. Page 579]

At the time of the alleged offense, appellant was serving a one- to three-years sentence for larceny in the Luzerne County Prison. At about 12:15 a.m., on December 26, 1972, James Larson, a Guard Supervisor at the prison, heard an alarm go off that indicated that someone was attempting an escape in the recreation area of the prison. The alarm was designed so that it could be heard in the prison office, but not in the courtyard. Larson immediately contacted Guards Szmulo and Banik. Initially, the guards checked the prison population, but found no one missing. The three men then conducted a search of the area where the alarm had been "tripped". Near the recreation yard between two wings of the prison, they found one piece of barbed wire that had been cut. In addition, Guard Szmulo found a laundry bag filled with civilian clothing. The bags are issued by the prison and are marked with a different number for each prisoner. A check revealed that the bag belonged to appellant.

At approximately 5:15 a.m., on December 26, the appellant voluntarily approached Larson. Appellant had spent that night on the nine p.m. to five a.m. shift at work in the boiler room, situated near the point where the alarm had been triggered. Appellant explained to Larson that "I was gonna make a break last night, but I changed my mind because I thought of my family, and I got scared of the consequences." Appellant testified at trial that he had become depressed prior to his decision to escape because he had been denied a Christmas furlough on December 24, 1972. His testimony at trial was consistent with Larson's version of the episode: ". . . in the yard, I realized that I had shamed my family enough, and I did not want to shame them any more . . . . So I went back to the boiler room and continued working."

On April 18, 1973, the grand jury returned an indictment charging the appellant with prison breach. Appellant went to trial on May 25, 1973, before a judge sitting without a jury and was found guilty of attempted prison

[ 234 Pa. Super. Page 580]

    breach. Thereafter, appellant filed motions in arrest of judgment and for a new trial. Motions were heard in October, 1973, and denied on June 10, 1974, by the Luzerne County Court of Common Pleas en banc. This appeal followed.

A criminal attempt is defined as "an overt act done in pursuance of an intent to do a specific thing, tending to the end by falling short of complete accomplishment of it. In law, the definition must have this further qualification, that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. So long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or of others' rights, they are within the sphere of intent and do not amount to attempts." Commonwealth v. Eagan, 190 Pa. 10, 21-22 (1899) (Emphasis added). Thus, we must locate the line between an act which is mere preparation and one that is sufficiently proximate to be labelled an attempt.

[ 234 Pa. Super. Page 581]

A review of the cases on the law of attempt indicates that "[i]t is difficult to formulate any precise rule about how close the overt act must come to the accomplishment of the ultimate criminal result." 21 Am. Jur. 2d Criminal Law ยง 111. "At what point does a potential criminal pass beyond preparation and become guilty of an attempt? Among the various tests suggested or applied are: the last act doctrine, holding that the defendant will not be guilty of an attempt until he does the last act necessary to the commission of a crime; Justice Holmes' dangerous-proximity test which focusses on both the dangerousness of the crime and the nearness to which the defendant has come to accomplishing it; and the movie camera test, which disregards the defendant's declarations of intent and instead focusses on the extent to which his acts demonstrate a specific intent or commitment to the ...

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