No. 2137 Philadelphia 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas of Centre County, Criminal at Nos. 1981 - 569, 1981 - 26.
Daniel McGee, Public Defender, Bellefonte, for appellant.
David Edward Grine, District Attorney, Bellefonte, for Commonwealth, appellee.
Spaeth, Rowley and Van der Voort, JJ.
[ 314 Pa. Super. Page 314]
This is an appeal from judgments of sentence for escape and theft. Appellant was sentenced to imprisonment for a period of from two to four years for escape and from six months to one year for theft, the sentences to be served concurrently. He was also ordered to make restitution and to pay the costs of prosecution. On appeal, appellant argues that the verdicts were contrary to the evidence and contrary to the weight of the evidence, and that the sentence he received was manifestly excessive. We affirm.
Appellant and his co-defendant, Charles O. McKahan, escaped from the Rockview State Correctional Institution on December 15, 1980. As we shall discuss in some detail in a moment, appellant claims that he escaped to avoid being homosexually attacked by other inmates. On the day of the escape he told McKahan of his plan to leave and McKahan decided to accompany him. After leaving the prison the escapees made their way through a wooded area, and after about five hours, being tired and cold, they came upon an unoccupied cabin. They entered the cabin through the unlocked door, made a fire, and removed some of their clothes and placed them near the fire to dry. Appellant put on a green jacket that was hanging in the cabin. Appellant and McKahan took some cereal from a cupboard and some gauze bandages from a medicine cabinet to wrap their feet in. Appellant fell asleep for a short time and was awakened by McKahan telling him that someone had arrived at the cabin. The two then jumped out of a window and rolled down a hill outside the window. They proceeded about a mile, and after hearing their names called by personnel from the prison, they kept running. They were apprehended a short time later, N.T. 127-35, and were charged with escape, burglary, and theft. The jury acquitted
[ 314 Pa. Super. Page 315]
them of burglary but convicted them of escape and theft.
Appellant admits that he escaped from the Rockview State Correctional Institution*fn1 but he argues first that the evidence was insufficient to convict him of escape because the Commonwealth failed to disprove the defense of duress beyond a reasonable doubt. He claims that the defense of duress is available to him because of the threats of homosexual attack that other inmates at the prison made to him.
The defense of duress is defined as follows:
It is a defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use unlawful force against his person or the person of another, which a person of reasonable firmness in his situation would have been unable to resist.
The Commonwealth does not argue that appellant failed to make out a claim of duress and we therefore do not express an opinion on whether, based on the evidence appellant presented, he should have been permitted to argue the defense of duress to the jury.
In reviewing the sufficiency of the evidence, we must accept as true all the evidence that supports the Commonwealth, and give the Commonwealth the benefit of all reasonable inferences from that evidence, and then determine whether, when so regarded, the evidence is sufficient to prove beyond a reasonable doubt that appellant was guilty of the crimes charges. See, e.g., Commonwealth v. Smith, 484 Pa. 71, 73-74, 398 A.2d 948, 949 (1979); Commonwealth v. Boyd, 463 Pa. 343, 347, 344 A.2d 864, 866 (1975).
[ 314 Pa. Super. Page 316]
Appellant testified that almost from the time of his arrival at the prison, in late July 1980, a group of inmates threatened him with homosexual rape if he failed to respond to their advances, and that his reason for escaping was that he "just couldn't take it any more." N.T. 152.
Appellant testified that except for one incident, described below, the threats were oral. Appellant testified, for example, to an incident that occurred in the "chow hall":
They saw me get up. They got up. Two of them got up before I did and went to the door. The other two said, "Look, you're going to have to think about this seriously. We [are] either going to take it or you're ...