No. 153 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas of Huntingdon County, Criminal Division, at No. 77-184
Joseph W. Mullin, Public Defender, Huntingdon, for appellant.
Stewart L. Kurtz, District Attorney, Huntingdon, for Commonwealth, appellee.
Brosky, Wickersham and Eagen, JJ.*fn*
[ 281 Pa. Super. Page 312]
On July 7, 1977, a criminal complaint was filed against appellant, Anthony Jackson, a/k/a Kenneth Terry Watkins, by the Pennsylvania State Police charging him with attempted escape and possession of weapons or implements of escape. The appellant was tried in the Criminal Division of the Court of Common Pleas of Huntingdon County, without a jury, on October 10, 1977; and a verdict was rendered which found the appellant not guilty of criminal attempt and guilty of possession of weapons or implements of escape.
Motions in arrest of judgment and for a new trial were timely filed. The motions were subsequently dismissed. Appellant was sentenced on December 18, 1978 for having possession of implements of escape and was committed for a period of not less than six months nor more than two years, this sentence to run consecutively to the sentence previously
[ 281 Pa. Super. Page 313]
imposed by the County of Philadelphia, which appellant was presently serving.
Appellant predicated his appeal on two grounds:*fn1
First: Was the appellant properly convicted of the offense of possession of weapons or implements of escape? Second: Is Section 5122(a)(3) of the Pennsylvania Crimes Code [18 C.P.S.A. as amended] unconstitutional?
On June 22, 1977, the appellant was an inmate in the S.C.I.H.*fn2 and was the sole occupant of cell 567 in "E" block. On that date, at approximately 6:30 p. m., in the course of making a routine bar check*fn3 of "E" block, a Corrections Officer checked the window bars of appellant's cell and discovered that two of the bars had cuts which were concealed by putty and paint. Inside the cell, the officer found paper bags containing beef jerky, protein pills, candy bars, civilian clothing, a ball of putty, and a can of paint of the type that was used to cover the cuts in the bars. Inside a locked locker, the officer found a hacksaw blade in a wooden frame wrapped inside a newspaper. During the bar check and shakedown of appellant's cell, appellant was not present.
The case against appellant stands or falls on the disposition of the issue of whether the Commonwealth has proved beyond a reasonable doubt that the hacksaw was in the appellant's possession or under his control. In the case of Commonwealth v. Crowley, 259 Pa. Super. 204, 393 A.2d 789 (1978), SPAETH, J. held that evidence, which established that inmate had for some time been sole occupant of cell and that implements ...