Caseflicks

Superior Court of Pennsylvania • 1975

Commonwealth v. McCloskey

234 Pa. Super. 577 | 341 A.2d 500 | 1975 Pa. Super. LEXIS 1564

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Takeaway

In short, this case applied Pennsylvania's former, narrow proximity test for attempt: even serious escape preparations did not constitute attempted prison breach when the prisoner stopped inside the prison before beginning the actual breach.

Background

McCloskey was serving a one-to-three-year larceny sentence in Luzerne County Prison. While working the overnight boiler-room shift on December 26, 1972, he decided to escape after being denied a Christmas furlough. A prison alarm sounded near the recreation yard. Guards found a cut strand of barbed wire and a prison-issued laundry bag, bearing McCloskey's identifying number, filled with civilian clothing.

At about 5:15 a.m., McCloskey voluntarily told a guard that he had planned to escape but changed his mind after thinking about his family and the consequences. At trial, he testified that he had crossed an inner fence into the prison yard but then returned to work; he never reached or crossed the prison's outer wall.

A judge sitting without a jury convicted McCloskey of attempted prison breach. The Luzerne County Court of Common Pleas en banc denied his post-trial motions for arrest of judgment and a new trial. McCloskey appealed, arguing that the evidence showed preparation rather than a criminal attempt.

Issues

Issue #1

Whether McCloskey's conduct—crossing an inner prison fence, cutting barbed wire, assembling civilian clothing, and entering the recreation yard—was sufficiently proximate to an escape to support a conviction for attempted prison breach.

Holding

No. Under the pre-Crimes Code law of attempt, McCloskey's conduct remained preparation and contemplation rather than an attempt to breach the prison.

Reasoning

The governing rule required more than an intent to commit a crime and preparatory acts in support of that intent. An overt act had to be sufficiently proximate to the completed offense to form part of the natural sequence of acts necessary for its execution. Conduct that could still be abandoned before a transgression of the law or another's rights remained mere preparation.

Pennsylvania precedent set a demanding proximity requirement. In Commonwealth v. Eagan, planning a robbery, watching the victim's home, and preparing a rope were preparatory; the attempt began only when the defendant struck the victim. Likewise, in Commonwealth v. Willard, even accepting payment, directing an undercover agent to prepare for an abortion, and obtaining surgical instruments did not come close enough to the completed offense. And in Commonwealth v. Skipper, obtaining hacksaw blades for a planned escape did not move the defendant beyond preparation because he still had time to withdraw.

The evidence showed that McCloskey had gone over an inner fence and entered a yard that was still within the prison's physical confines. The cut barbed wire was located at the gate to that recreation yard, not at the prison's outer wall. Thus, although his actions strongly demonstrated an intention to escape, he had not yet begun the actual prison breach itself. Because he could voluntarily abandon the plan at that point, the evidence was insufficient to establish an attempted prison breach, and the court vacated the sentence and ordered him discharged on that conviction.

Concurrences

Judge Cercone

Reasoning

Judge Cercone agreed that the conviction could not stand, but rejected the majority's conclusion that McCloskey had done no more than prepare. In his view, a prisoner who crosses a forbidden inner fence, cuts barbed wire, and proceeds toward escape has gone beyond preparation. If guards had apprehended McCloskey immediately after those acts, Judge Cercone would have affirmed the attempt conviction.

He reasoned that the majority effectively gave legal effect to McCloskey's voluntary renunciation by relabeling his conduct as preparatory. That approach, he argued, creates artificial and inconsistent distinctions: the same conduct may be called an attempt when police interrupt it but mere preparation when the defendant voluntarily stops.

Judge Cercone would instead recognize complete and voluntary abandonment as an affirmative defense to attempt, even under the former Penal Code. He read Commonwealth v. Tadrick as reflecting that principle and viewed the later Crimes Code, which expressly permits a defense of complete and voluntary renunciation, as confirming rather than creating the sound rule.

Recognizing abandonment as a complete defense serves important policy goals. A person who freely and permanently gives up a criminal purpose is less dangerous, and a rule that offers exoneration gives would-be offenders a meaningful incentive to stop before the crime is completed. Because McCloskey's abandonment was unequivocal and voluntary, Judge Cercone concurred only in the result.

Dissents

Judge Price

Reasoning

Judge Price concluded that the evidence established an attempt rather than preparation. McCloskey crossed a forbidden fence, cut barbed wire, and triggered an alarm specifically designed to alert prison personnel to escape efforts. Any one of those acts, in Judge Price's view, moved McCloskey beyond mere contemplation and preparation.

The fact that McCloskey remained within the prison's physical perimeter did not make his conduct noncriminal. Because the evidence sufficiently proved attempted prison breach, Judge Price would have affirmed the judgment of sentence.