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COMMONWEALTH PENNSYLVANIA v. JOSEPH MICHAEL MARKLE (11/22/76)

decided: November 22, 1976.

COMMONWEALTH OF PENNSYLVANIA
v.
JOSEPH MICHAEL MARKLE, APPELLANT



NO. 620 OCTOBER TERM, 1976 Appeal from Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal Division, at No. 1069 of 1974.

COUNSEL

William F. Ochs, Jr., Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J., files a concurring opinion in which Hoffman, J., joins.

Author: Van Der Voort

[ 245 Pa. Super. Page 110]

Appeal is taken from Judgment of Sentence rendered on November 26, 1975. Appellant had been charged with and indicted for criminal attempt, a violation of the "Crimes Code", § 901, Act of 1972, Dec. 6, P.L. 1482, No. 334, 18 Pa.C.S. § 901. The crime which appellant allegedly attempted to commit was that of escape from official detention, formerly known as prison breach, a violation of the "Crimes Code", supra, § 5121. Jury trial was held on January 13-14, 1975, and the jury returned a verdict of guilty.

The facts show that at or about 8:00 P.M. on May 5, 1974, while appellant was incarcerated in the Berks County Prison, he was found lying in the recreation yard of the jail, outside of cell block "C" to which he was assigned, but within the prison compound. A bag of clothing was next to appellant, who was calling for help and who stated that he had jumped from the roof. Appellant

[ 245 Pa. Super. Page 111]

    could not walk due to a leg injury, and he was removed from the yard on a stretcher for medical attention. At approximately 10:00 P.M. that night, following investigation, a hole was found in the roof of "C" block.

Appellant raises a sufficiency of the evidence claim, arguing that a witness for him had testified, and was not contradicted, that appellant had only been trying to prevent the witness' escape.*fn1 Contrary to appellant's argument, the testimony on behalf of the Commonwealth clearly shows that appellant was not in "C" block where he was assigned in the prison, that he admitted jumping from the roof, and that there was a hole in the roof. The prosecution is entitled to the reasonable inferences arising from its testimony. Commonwealth v. Portalatin, 223 Pa. Super. 33, 297 A.2d 144 (1972). The obvious inference in this case is that appellant climbed through the hole, removing himself from the area of the prison where he belonged. In this context was presented to the jury the factual issue as to whether appellant had committed the crime charged. The jury disbelieved appellant's evidence. Commonwealth v. Rankin, 441 Pa. 401, 272 A.2d 886 (1971).

Appellant next raises the argument that he was prejudiced by the lower court's refusal to grant his motion for continuance, requested immediately prior to commencement of trial. We find to be proper the lower court's determination that there was adequate time to prepare his defense and to call in those witnesses whom appellant believed were necessary, particularly in view of the fact that the trial on January 13, 1975, was a re-trial ordered by the lower court on December 13, 1974, the first trial having been commenced on December 9, 1974. The appellant advances no argument to show that he was prejudiced by the refusal to continue, and does not state why the month intervening was not adequate preparation

[ 245 Pa. Super. Page 112]

    time. The trial judge's discretion was properly exercised. Commonwealth v. Brown, 229 Pa. ...


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