No. 2518 October Term, 1978, Appeal from the Judgment of Sentence imposed September 6, 1978 by the Court of Common Pleas, Criminal, County of Luzerne, at No. 2518 of 1976.
John J. Thomas, Assistant Public Defender, Wilkes-Barre, for appellant.
Chester B. Muroski, District Attorney, Wilkes-Barre, for Commonwealth, appellee.
Van der Voort, Hester and Wieand, JJ.
[ 273 Pa. Super. Page 588]
Richard V. Gilliam was tried by a jury and convicted of a criminal attempt to escape*fn1 and possession of implements for escape.*fn2 On appeal, he argues that the convictions should be set aside (1) because the evidence was insufficient, and (2) because of delay in the argument of post-trial motions. We find no merit in these arguments and, accordingly, affirm the judgment of sentence.
In assessing the sufficiency of the evidence, we must view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth. Commonwealth v. Williams, 269 Pa. Super. 544, 410 A.2d 835 (1979).
On September 21, 1976, while appellant was incarcerated at Dallas State Correctional Institution, a guard discovered that the bars of the window in appellant's cell had been cut and were being held in place by sticks and paper. The condition of the bars was such that they could be removed manually at will. The same guard observed that a shelf hook was missing from its place in the cell. A subsequent search revealed visegrips concealed inside appellant's mattress and two knotted extension cords attached to a hook were found in a box of clothing. Appellant was arrested and charged with the offenses for which he has now been convicted.
[ 273 Pa. Super. Page 589]
At trial, evidence showed that the hook had been fashioned from the missing shelf hook. The visegrips were capable of cutting barbed wire of the type located along the top of the fence which was the sole barrier between appellant's cell window and the perimeter of the prison compound. Inspection of the cell immediately prior to the time when it was assigned to appellant as its sole occupant had disclosed bars intact and the shelf hooks in place.
Appellant's first argument is that the cutting of the cell bars was, at most, mere preparation and not an attempt to escape. He stresses that he was arrested in a place where he was authorized to be and contends that he could be guilty of attempt to escape only if he were apprehended while in the process of exiting the prison compound.
Prior to enactment of the Crimes Code,*fn3 a criminal attempt was 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. . . . So long as the acts are confined to preparation only, and can be abandoned before any transgression of the law or others' rights, they are within the sphere of intent and do not amount to attempts." Commonwealth v. McCloskey, 234 Pa. Super. 577, 580, 341 A.2d 500, 501 (1975) quoting Commonwealth v. Eagan, 190 Pa. 10, 21-22, 42 A. 374, 377 (1899).
With the adoption of the Crimes Code, however, the legislature devised a new test for attempt. Thus, in Section 901(a), 18 Pa.C.S. § ...