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November 6, 1981


No. 1585 Philadelphia, 1980, Appeal from the Judgment of Sentence of the Court of Common Pleas of Berks County, Criminal Division, No. 79013501-2.

Before Cavanaugh, DiSALLE and Montemuro, JJ.


Appellant, Edward Brosky, having been convicted by a jury of the charge of escape, 18 Pa.C.S.A. ยง 5121(a), was sentenced to be imprisoned for one and one-half to five years. This direct appeal followed the lower court's denial of appellant's post-trial motions.

Appellant's first four allegations of error, that the verdict was contrary (1) to the law, (2) to the evidence, and (3) to the weight of the evidence, and (4) that the evidence was insufficient to sustain the verdict, are without merit.

To evaluate the sufficiency of the evidence, we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and all reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Moreover, it is the province of the trier of fact to pass upon the credibility of witnesses and the weight to be accorded the evidence produced. The fact-finder is free to believe all, part or none of the evidence. Commonwealth v. Yost, 478 Pa. 327, 386 A.2d 956 (1978).

Commonwealth v. Tate, 485 Pa. 180, , 401 A.2d 353, 354 (1979).

Here, the evidence establishes that appellant, while in custody in the Berks County courthouse, slipped out of his handcuffs and fled. He was soon discovered hiding under a parked motor vehicle. It was within the jury's discretion to reject appellant's claim that he had no intent to escape, but only intended to demonstrate to the police that they were lax in the performance of their duty to detain him. Commonwealth v. Mumma, 489 Pa. 547, 414 A.2d 1026 (1980). The jury, therefore, had sufficient evidence before it to find that appellant intended to and did escape.

Appellant's next contention is that the lower court erred in granting the Commonwealth an extension under Pa.R.Crim.P. 1100. Appellant's 180 day run date was May 8, 1979, but he was not brought to trial until June 12, 1979. The Commonwealth, therefore, must demonstrate why the extra 35 days should be excluded from the 180 day run time. Commonwealth v. Shelton, 469 Pa. 8, 364 A.2d 694 (1976).

The Commonwealth filed a Petition to Extend Time for Trial on May 11, 1979, and a hearing was held on May 22. At the hearing the lower court made the following findings. Appellant's case had been placed on the April jury trial list, but was never reached. The case was then placed on the next trial list which was held during the weeks of May 7 and May 14, 1979. Appellant's counsel was on vacation from May 7 to May 15. Based upon these findings the lower court held that appellant's counsel was unavailable from May 7 to May 15 and that such time was excludable from the period. Pa.R.Crim.P. 1100(d)(1). The lower court then held that because the run time for appellant's trial had not expired on May 8 the Commonwealth's petition had been timely filed. Shelton, supra. The lower court also found that despite the use of due diligence the Commonwealth was unable to bring appellant to trial on or before May 16. Pa.R.Crim.P. 1100(c). The Commonwealth's petition was granted and appellant's trial was ordered to begin on or before June 22, 1979. The lower court acted properly. It was the unavailability of appellant's counsel which frustrated the commencement of appellant's trial on May 7 or May 8.

Appellant's final contention, that the lower court should have granted a mistrial when the Commonwealth's attorney laughed (or smiled) in disbelief at appellant's response to one of his questions on cross-examination, also fails. A review of the trial transcript shows that the Commonwealth's attorney showed "amusement" at appellant's testimony and that after a sidebar conference the jury was given a curative instruction. We hold that the Commonwealth's attorney's actions, although not entirely proper were not prejudicial to the appellant and that the curative instruction was adequate.

Commonwealth v. Ashmore, 266 Pa. Super. 181, 403 A.2d 603 (1979).

Judgment of sentence affirmed.


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