No. 297 October Term, 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Division at Nos. 2177, 2178, 2180, May Session, 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Div., Philadelphia, for appellant.
Steven H. Goldblatt, Assistant District Attorney, Chief, Appeals Div., Philadelphia, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Spaeth, J. files a dissenting opinion. Jacobs and Watkins, former President Judges, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 265 Pa. Super. Page 201]
The instant appeal arises from appellant's conviction of the crimes of escape,*fn1 possession of instruments of escape,*fn2 possession of an instrument of crime,*fn3 and carrying a prohibited offensive weapon.*fn4 Appellant was acquitted of the charges of possession of a concealed weapon*fn5 and possession of a firearm by a former convict.*fn6
The facts giving rise to this appeal are as follows. On May 28, 1975, appellant was convicted of first degree murder. On October 1, 1975, he was taken to the Philadelphia General Hospital and placed in a cell in the hospital's prison ward. Later that day it was discovered that appellant had escaped through a window from which the bars had been cut. Appellant and two others solicited a ride from an individual named Dominick Stella, who deposited them at various locations throughout the city of Philadelphia. Stella
[ 265 Pa. Super. Page 202]
noticed that when the three exited his automobile they left behind a hacksaw blade partially wrapped in tape. The next day he recognized appellant's photograph in the newspaper and reported the incident to the police.
A few days later, a woman named Jacqueline Keim told a man named Carmen Sperduto that appellant was at her apartment. Sperduto saw a newspaper item detailing appellant's escape and telephoned the police telling them that he had seen appellant and might know where appellant was. Based upon this tip, the police obtained an arrest warrant. On October 3, 1975, they forcibly entered Keim's apartment and discovered appellant hiding in a bedroom under a child's crib. In addition, they seized a revolver that was lying on top of a dresser, a few feet from the crib. After conviction, appellant brought the instant appeal alleging that the court below committed the following errors:
(1) the lower court erred in not granting his motion to suppress the revolver;
(2) the lower court erred in not sustaining his demurrer to the firearms charges because the Commonwealth failed to prove that appellant was in possession of the revolver found in the bedroom in which he was captured;
(3) his conviction under 18 Pa.C.S. § 907(a) should be reversed because a revolver does not constitute an instrument of crime;
(4) the Commonwealth failed to establish one of the elements of escape;
(5) the court erred in not permitting appellant to introduce evidence of the conditions at the Philadelphia prison as a defense to the charge of escape;
(6) the lower court erred in permitting the prosecution to introduce evidence regarding appellant's prior conviction for first degree murder;
(7) the court erred in permitting the prosecutor to amend the information to charge the offense under 18 Pa.C.S. § 6105.
For the reasons stated below, we affirm the judgment of the court below.
[ 265 Pa. Super. Page 203]
The majority of this court embraces the analysis in the dissenting opinion regarding the first four assignments of error and, therefore, we will not expound upon those assignments.
Appellant's fifth assignment of error is that the court below erred in excluding evidence regarding the conditions at the Philadelphia prison as a defense to the charge of escape. While agreeing with the lower court that the evidence was properly excluded, we wish to make clear our position on the use of duress as a defense to an escape charge.
Generally, Pennsylvania has refused to recognize a defense to a charge of escape based upon an illegality in one's sentence or incarceration.*fn7 The reason for this rule is obvious -- the difficulties of prison administration would be intolerable if each prisoner was permitted to "go over the wall" as a means of testing the legality of his incarceration, rather than utilizing the customary means of administrative and judicial redress.*fn8
The general prohibition against escape defenses is, however, not absolute. At common law, a defense of necessity was recognized for factors beyond the control of the prisoner.*fn9 Moreover, the defense of duress was recognized
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as part of the common law of Pennsylvania, see Respublica v. M'Carty, 2 Dall. 86, 1 L.Ed. 300 (1781) (dicta), and has been incorporated as a statutory defense under the Crimes Code, 18 Pa.C.S. § 309. Therefore, the issue for determination is whether duress will be recognized as a defense to the crime of escape.
While of novel inquiry in Pennsylvania, courts in other jurisdictions have determined that the defense should be recognized, although they have disagreed at to what constitutes duress. The greatest source of disagreement has arisen with respect to whether the physical abuse of a prisoner by prison officials or other prisoners constitutes duress which justifies an escape,*fn10 or whether such abuse merely relates to the "conditions" of imprisonment which should be remedied by a proper protest to prison or judicial officials.*fn11 Although not directly presented in the instant case,*fn12 we hold that such abuses are analogous to cases in which a prisoner is contesting the legality of his incarceration. Mere prison conditions, even those arising from physical abuse, will not constitute a defense to an escape charge; instead, a prisoner's proper avenue of redress is through administrative or judicial channels. As one court stated:
"Since he was under lawful confinement, he had no legal right to resort to self-help as a method to assert his claim with respect to conditions in the prison.
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. . . The judicial system, as well as the prison administration, has long been recognized as the normal channels for meritorious complaints relating to prison conditions. [The defendant] could have registered his claimed grievances via these accepted avenues of redress." State v. Dyer, 371 A.2d 1086, 1090-91 (Me.1977).
In reaching this conclusion, it must be recognized that the prison environment is wholly unlike that in the general population at large. A person in the general population, confronted by a situation compelling the commission of a crime, will in most cases have little or no opportunity to secure immediate aid from the proper authorities.*fn13 In contrast, the prison environment, by definition, is replete with constant supervision by officials whose task is to ensure the safe operation of the prison system. Because of this constant and ready source of available aid, as well as the traditional remedies of habeas corpus, see Commonwealth ex rel. Bryant v. Hendrick, 444 Pa. 83, 280 A.2d 110 (1971); Commonwealth ex rel. Ford v. Jeffes, 260 Pa. Super. 432, 394 A.2d 1004 (1978), and actions under the federal Civil Rights Act (42 U.S.C. § 1983), see, e. g., Fox v. Sullivan, 539 F.2d 1065 (5th Cir. 1976); Campbell v. Beto, 460 F.2d 765 (5th Cir. 1972), for contesting oppressive prison conditions, we restrict the defense to all but the most extreme situations.
An example of such a situation was advanced in People v. Wester, 237 Cal.App.2d 232, 46 Cal.Rptr. 699 (1965), in which the court hypothesized that if a prisoner was confronted with a choice between accompanying an escaping cell mate,
[ 265 Pa. Super. Page 206]
or being seriously injured if he chose to remain behind, then duress would be a defense. In such a case, the usual sources of aid would not be immediately available, and confronted with the choice between serious injury or escape, the defendant would properly be excused for choosing the latter course of action. Accord, State v. Alberigo, 109 Ariz. 294, 508 P.2d 1156 (1973); see Commonwealth v. Schwartz, 251 Pa. Super. 36, 379 A.2d 319 (1977) (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.
Finally, we emphasize the requirement outlined in the dissent's summary of People v. Lovercamp, 43 Cal.App.3d 823, 118 Cal.Rptr. 110 (1974), that a defendant must return to official detention as expeditiously as possible after absenting himself from the danger that initially prompted his escape. Cf. United States v. Chapman, 455 F.2d 746 (5th Cir. 1972) (duress defense ...