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Commonwealth of Pennsylvania v. andre Jacobs

February 21, 2012


Appeal from the Order of the Superior Court entered August 24, 2009 at No. 1373 WDA 2008, vacating the Judgment of Sentence of the Court of Common Pleas of Allegheny County entered July 21, 2008 at No. CP-02-CR-0002109-2006, and remanding.

The opinion of the court was delivered by: Mr. Justice Baer


SUBMITTED: March 14, 2011


Appellant Andre Jacobs was convicted and sentenced for attempted escape and conspiracy to commit escape. We accepted review to determine whether Appellant's sentences for these two inchoate crimes are illegal under 18 Pa.C.S. § 906, which bars multiple "convictions" for inchoate crimes "for conduct designed to . . . culminate in the commission of the same crime." After careful review of the record, we conclude that under the facts of this case, the two inchoate crimes were intended to culminate in the commission of two different crimes, and therefore Appellant's sentence did not run afoul of Section 906.*fn1 Consequently, we affirm the Superior Court.

In January 2006, Appellant remained incarcerated as a pretrial detainee on the eighth floor of the Allegheny County Jail, where he had resided since June 2005. Appellant's cell was adjacent to the cell occupied by another inmate, Frank Seretich, who was moved to this cell on December 20, 2005. The eighth floor, which is sixteen stories and 186 feet above the ground, houses the disciplinary unit, in which inmates are confined to their individual cells for twenty-three hours a day. Appellant's and Seretich's jail cells were designed to share an exterior panel of glass, which was missing because of an escape attempt ten years before. Moreover, Appellant's and Seretich's cells each contained an individual interior Lexan*fn2 window, with a screen exterior to it, and two metal bars running from the top to the bottom of each window.

In the early morning hours of January 12, 2006, Seretich fell to his death while trying to escape from his window with a 225-foot makeshift rope composed of bed sheets, uniforms, and towels. Although Seretich's rope was long enough to reach the ground, he apparently lost his grip while descending. Upon discovering his body at 6:00 a.m., authorities instituted a lock-down and unit search to investigate his death. During the ensuing investigation, authorities looked first into Seretich's cell, where they discovered the makeshift rope, with one end attached to the bed. They further discovered that the interior Lexan window in Seretich's cell had been removed and was on the floor, that the screen had been cut and pushed aside, that the metal window bar was missing and could not be located in the cell, and a one-by-four inch hole in the wall between Appellant's and Seretich's cells.

In Appellant's cell, from which Appellant had been removed to permit the investigation, authorities discovered that Appellant's interior window was similarly removed, the exterior screen was similarly cut and pushed aside, and the metal window bar was similarly missing. They also discovered a metal pry bar that was apparently used to remove Seretich's and Appellant's windows, Appellant's removed window, two metal bars, one from Seretich's and one from Appellant's windows, and strips of cloth similar to those used to construct Seretich's rope. During the investigation, Appellant admitted that after Seretich fell to his death, Appellant leaned out his open window, pulled the rope inside, and tossed it into Seretich's cell.

Appellant was charged with possession of implements of escape, attempted escape, and conspiracy to commit escape.*fn3 The attempt and conspiracy charges specifically related to escape. Escape is defined as follows: "A person commits an offense [of escape] if he unlawfully removes himself from official detention . . . ." 18 Pa.C.S. § 5121(a). A person commits an attempt when, "with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." 18 Pa.C.S. § 901(a). Conspiracy is defined, in relevant part, as follows:

A person is guilty of conspiracy with another person or persons to commit a crime if with the intent of promoting or facilitating its commission he:

(1) agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or

(2) agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.

18 Pa.C.S. § 903(a).

The criminal information alleged that Appellant attempted to escape when, "with intent to commit the crime of Escape, [he] . . . assembled ropes, clothes and blankets, [and] removed the window[,] which constituted a substantial step toward the commission of the aforesaid crime [of escape]. . . ." Appellant's Brief at 8. With respect to conspiracy to commit escape, the criminal information tracked the statutory definition of conspiracy, see 18 Pa.C.S. § 903(a), and alleged that Appellant, "with the intent of promoting or facilitating the crime(s) of Escape[,] conspired and agreed with Frank Seretich that they or one or more of them would engage in conduct constituting such crime(s) [of escape]. . . , and in furtherance thereof did commit an overt act of gathering materials to escape and prying open cell window. . . ." Id. at 9.

At Appellant's trial, the Commonwealth presented much of the testimony detailed above through personnel from the Allegheny County Police Department and the Allegheny County Department of Corrections, who had recovered evidence from Seretich's and Appellant's cells that allegedly showed a conspiracy had been entered between the two inmates, which had as its objective an escape by both inmates or Seretich alone. Specifically, the Commonwealth introduced evidence that after Seretich's fall, jail personnel discovered that Seretich's interior window and metal bar had been removed, and the window and rope were in his cell. The Commonwealth also presented evidence of the hole in the wall between Appellant's and Seretich's cells, and testimony that after Seretich fell, Appellant admitted that he pulled the rope up and threw it into Seretich's cell through the broken window. The Commonwealth additionally introduced the evidence found in Appellant's cell, including Appellant's removed interior window, the screen that had been cut and pushed aside, the metal pry bar that was used to remove the rivets from both inmates' windows, the metal bars removed from both inmates' windows, and strips of cloth.

Appellant's defense was that he had the misfortune to be assigned a cell next-door to Seretich, and there was no direct evidence that Appellant had anything to do with Seretich's escape. Specifically, Appellant testified that he did not attempt to escape, did not plan to escape with Seretich, and was not aware Seretich was attempting to escape that morning. According to Appellant, he had no knowledge of the evidence discovered in his cell; he did not make the hole in the wall between his cell and Seretich's; he did not admit that he pulled Seretich's rope back into his cell as the Commonwealth witness testified; and the pieces of cloth discovered in his cell were not intended for escape.

At the close of trial, the court instructed the jury with regard to conspiracy in accord with the statutory language of Section 903(a) as follows, in relevant part:

Before any Defendant can be convicted, all 12 jurors must agree on the same person whom the Defendant allegedly conspired with, the same object of the crime and the same overt act.

In order to find the Defendant guilty of conspiracy to commit escape, you must be satisfied that the following three elements have been proven beyond a reasonable doubt: First, that the Defendant agreed with the other person, that is, Frank Seretich, that one or more of them would engage in conduct for the planning and/or commission of the crime of escape; second that the Defendant and the other person intended to promote or facilitate the crime of escape; in other words, they shared the intention to bring about that crime or to make it easier to commit the crime; and third, that the Defendant or the other person did the acts that are alleged to be overt acts and did them in furtherance of their conspiracy.

Notes of Testimony (N.T.) April 23 - 28, 2008, at 214.

The jury returned a guilty verdict on all counts. Concerning the conspiracy, the verdict was a general one, with no special findings regarding the object of the conspiracy. On July 1, 2008, Appellant was sentenced to two concurrent terms of sixteen to thirty-two months of imprisonment for attempted escape and conspiracy to commit escape, and a consecutive term of thirty-three to sixty-six months for possession of escape tools, for an aggregate term of forty-nine to ninety-eight months.

Appellant filed his statement of issues complained of on appeal pursuant to Pa.R.A.P. 1925(b), challenging the sufficiency of the evidence as to the three convictions. Appellant also raised a sentencing issue based on Section 906, which, as noted, bars multiple sentences for inchoate crimes with the same criminal object. Appellant argued that his sentence violated Section 906 because the two inchoate crimes of attempt and conspiracy were directed toward the commission of the same crime: his escape alone. Specifically, after arguing at trial that he had no knowledge of any escape, Appellant contended for purposes of appeal that the object of the attempt was his own escape. Further, he asserted that the object of the conspiracy was also his escape alone, not Seretich's escape. Therefore, he argued that it was possible for the jury to have concluded that the object of both the attempted escape and the conspiracy to commit escape was his escape alone, and not Seretich's, and ...

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