April 11, 1980
COMMONWEALTH OF PENNSYLVANIA
JACK ERNEST MATSON, APPELLANT
No. 441 April Term, 1979, Appeal from the judgment of sentence of the Court of Common Pleas, Criminal Division, of Indiana County, Pennsylvania, dated April 30, 1979, and entered on the name date at No. 431 Crim. 1977.
Before Price, Cavanaugh and Watkins, JJ.
Judgment of sentence affirmed on the opinion of Judge Earley of the court below.
Opinion AND ORDER OF COURT
The defendant after having been convicted of the offense of escape in a trial by jury on October 13, 1978, filed Motions for a New Trial and in Arrest of Judgment.
The Defendant alleges that he should receive a new trial and/or be granted an Arrest of Judgment for the following reasons:
1. The Court erred in denying defendant's request for continuance of his trial on October 13, 1978 is order that he could obtain certain government records in support of his defense theory.
2. The trial Court erred in refusing to permit the sheriff of Armstrong County to testify as a witness for the defense.
3. That the Court erred in refusing to permit the defendant to testify that his "escape" was justified, because he escaped for the purpose of working undercover against organized crime and furthermore, the Court erred in refusing to instruct the jury on the defense of justification.
4. That the trial Court erred in denying the Defendant's objection to the District Attorney's closing statements to the jury in which he referred to exhibits testified to at the trial, but which had not been offered and accepted as evidence.
FINDINGS OF FACT
1. The Defendant was indicted for the offense of escape, 18 C.P.S.A. Section 5121, as a result of his unlawful removal of himself from official detention in the Indiana County jail on October 23, 1975.
2. That the defendant was officially detained in the Indiana County jail on October 23, 1975 as a result of a conviction of burglary by an Indiana County jury on said date (October 23, 1975).
3. The defendant was arraigned on the charge of escape on August 2, 1978.
4. The defendant's case was scheduled for trial in Indiana County on August 21, 1978.
5. The defendant was granted a continuance for the purpose of gathering information from various agencies of the Federal government in order to prepare his defense.
6. The defendant's trial was rescheduled for October 13, 1978.
7. On October 13, 1978, the defendant made another request for a continuance on the same grounds for which the continuance was granted in August of 1978, which Motions for Continuance were denied by the Court.
The defendant's request for a continuance on both occasions was for the purpose of obtaining any official document in the possession of the Federal Bureau of Investigation, Central Intelligence Agency, or Drug Enforcement Administration, concerning the defendant's involvement as an undercover agent engaged in a crusade against organized crime.
The defendant's theory that he was justified from removing himself from official detention from the Indiana County jail on October 23, 1975, was that several months prior to October of 1975 while the defendant was serving on another offense in the Armstrong County jail, he had a discussion with the sheriff of Armstrong County offering to become an undercover agent in the employ of the sheriff in return for his release from custody. The defendant was informed by the sheriff that he would not so employ him.
The defendant claims that subsequent to his conviction on October 23, 1975 in the Indiana County Court, he determined that very day to remove himself from detention in the Indiana County jail so that he could enter on a crusade against the organized underworld, specifically that division trafficking in drugs, believing the fact that his escape would enhance his "cover" and make him more readily acceptable into the ranks of the underworld. However, the defendant neglected to inform or to gain the consent of anyone at the state, county or federal levels who could have officially sanctioned his conduct.
Because of the fact that the Court was and is of the opinion that the defendant's "justification" for his escape did not constitute a defense to the charge of escape, the Court denied the defendant a further continuance on the theory that even if records were obtained from one or more of the Federal agencies that they were requested to submit by the defendant that they would not be relevant and hence would be inadmissible at trial. The Court being aware that no documentation was received by the defendant during the period between August 21, 1978, the date of the first continuance and October 13, 1978 the date of the scheduled second trial. The refusal to grant a continuance is discretionary with the Court. US vs. Hamilton, 457 F.2d 95 (3rd Cir. 1972).
The factors to be considered in determining whether or not to grant a continuance in a criminal proceeding are the diligence exercised to secure the witness or documents, the likelihood that the witness or documents would be produced at the next session of court, and the relevance of the evidence to be produced.
As previously stated, the Court was of the opinion that no documents would be forthcoming from the Federal Agencies in view of the fact that the defendant did not contact them before he "flew the coop" and further, any documentation in the possession of these agencies would not be admissable. It should be noted that as late as March 9, 1979, the date of the argument on the Motions for a New Trial and Arrest of Judgment, the defendant had received only one document from a Federal Agency as a result of his request of August 1978. The sole document received was from the F.B.I. listing chronologically the defendant's past record of misconduct commonly known as a rap sheet.
The next allegation of the defendant is that the Court erred in its refusal to permit the sheriff of Armstrong County to testify on the behalf of the defendant. It is also alleged that the Court erred by refusing to permit the defendant himself to testify that he left the Indiana County jail on October 23, 1975 in order to crusade as an undercover agent in the underworld. The defendant further objects to the Court's refusal to instruct the jury on the defense of justification as set forth in 18 C.P.S.A. Section 502 and 503, based on his intended crusade. The defendant called as a witness on his behalf, Joseph Frick, sheriff of Armstrong County, Pennsylvania. The District Attorney requested an order of proof from the defendant with regard to this witness. The defendant's attorney stated:
"We are going to establish by this witness that in late January, early February, 1975, that the defendant contacted the sheriff, the witness here, in his office and also called in the District Attorney from Armstrong County at that time and offered to work undercover for them to establish or to -- strike that -- for the purpose of crushing organized crime in Armstrong County; the sheriff will testify that this conversation took place and, I believe, he will also be able to testify that the offer was refused.
This is the very basis or beginning seed that was planted at that time for Jack Matson to begin his attempt to get a credible cover to work or undercover for the purpose of crushing organized crime in this country."
The District Attorney objected on the basis that such testimony did not amount to a defense and the Court sustained his objection on the basis of relevancy and remoteness. The testimony did not even offer to show that the sheriff or the District Attorney were trying to recruit the defendant for undercover work. It was simply a request by the defendant to work undercover and a refusal.
The last witness called on behalf of the defense was the defendant himself who attempted to testify over objection, that he escaped from the Indiana County jail on October 23, 1975, for the purpose of crushing organized crime. He further attempted, over objection, to testify that because of his intention and belief, (known solely to him) from October 23, 1975, until his first trial dated August 21, 1975 amounted to a defense of justification as defined in the crimes code. It was, and is, the Opinion of this Court that the circumstances alleged by the defendant which resulted in his escape from the Indiana County jail did not establish the defense of justification under the law of the Commonwealth of Pennsylvania and therefore, such testimony was irrelevant and inadmissible.
It is true and the defendant has cited in his brief several cases where the defense of justification was found to exist from testimony that the defendant "escaped" because of unconscionable prison conditions or because the defendant was in danger of serious bodily injury or death if he remained confined. Of course, no person who believes that his life or health are seriously threatened because of his confinement would be prevented from testifying about the circumstances which led him to the conclusions that his health and/or life could only be protected by fleeing his confinement. The jury would be permitted to hear such testimony and determine whether the defendant believes that his life or health were seriously endangered as a finding of fact.
The defendant in the instant case did not offer or intend to testify that his escape was due to a belief, justified or unjustified, that his life or health were endangered because of his incarceration. The offered testimony that he escaped to crush organized crime was rejected by the Court as previously discussed. The rejection of testimony of the sheriff of Armstrong County and the defendant himself with regard to his intention to crush organized crime was based upon settled decisions that the Court interprets the law of the case while the function of the jury is to determine the facts of the case. The rationale of the sustaining of the objections of the District Attorney's was based upon the Court's opinion that even if the jury found that the defendant believed that he escaped in order to participate in the elimination of organized crime in the nation, that under the circumstances where there was to no documentation or testimony that the defendant was solicited for these services by any official of any law enforcement agency; state, federal or local, therefore, the evidence was not admissable.
The final allegation of error alleged by the defendant in his Motions for New Trial and Arrest of Judgment is that the Court erred in overruling defendant's objection to the District Attorney's closing statements in which he referred to Commonwealth's exhibits, the indictment and conviction for burglary of the defendant in the Indiana County Court on October 23, 1975 for the purposes of showing that the defendant was in official detention. The indictment and conviction were testified to by competent witnesses and were properly admitted in order to prove a necessary element of the crime, that the defendant was in official detention, the fact that the Commonwealth neglected to move for the admission of the documents themselves is in the opinion of this Court of no moment. The offense of escape requires proof that the defendant be in official detention, the jury has a right to know under what circumstances the defendant was being detained. Commonwealth vs. Markle, 369 A.2d 317 (1976).
WHEREFORE, the Court makes the following Order:
Order OF COURT
AND NOW, April 9th, 1979 the Motions for a New Trial and Arrest of Judgment are hereby denied and the District Attorney is directed to schedule a date for the defendant to appear before the Court for the purpose of passing sentence on the defendant.
BY THE COURT, /S/ Robert C. Earley / Judge
Entered this 10th day of April, 1979 in the office of the Prothonotarv.
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