Commonwealth v. McCloskey
341 A.2d 500, 1975 Pa. Super. LEXIS 1564, 234 Pa.Super. 577 (1975)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
An act does not rise to the level of a criminal attempt if it constitutes mere preparation and the actor has not taken a substantial step so proximate to the intended crime that they are past the point of voluntary abandonment.
Facts:
- The appellant was an inmate at the Luzerne County Prison serving a sentence for larceny.
- After being denied a Christmas furlough on December 24, 1972, the appellant became depressed.
- Around 12:15 a.m. on December 26, 1972, the appellant scaled an internal fence to enter the prison's recreation yard.
- He cut one piece of barbed wire, which triggered a silent alarm in the prison office.
- A laundry bag belonging to the appellant and filled with civilian clothing was found nearby.
- While in the recreation yard, but before taking any further steps to breach the outer prison wall, the appellant decided to abandon his plan because he thought of his family.
- The appellant returned to his work detail in the boiler room.
- At approximately 5:15 a.m., the appellant voluntarily approached a guard supervisor and confessed that he had planned to escape but changed his mind.
Procedural Posture:
- On April 18, 1973, a grand jury indicted the appellant for prison breach.
- The appellant was tried in the Luzerne County Court of Common Pleas (trial court) before a judge sitting without a jury.
- On May 25, 1973, the trial court found the appellant guilty of attempted prison breach.
- The appellant filed motions in arrest of judgment and for a new trial, which the Court of Common Pleas en banc denied on June 10, 1974.
- The appellant (as appellant) appealed the judgment of sentence to the Superior Court of Pennsylvania (intermediate appellate court).
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does an inmate's act of scaling an internal prison fence, cutting a barbed wire, and placing a bag of civilian clothes nearby, before voluntarily abandoning the plan, constitute the crime of attempted prison breach?
Opinions:
Majority - Hoffman, J.
No. The appellant's actions did not constitute the crime of attempted prison breach. An overt act must be sufficiently proximate to the intended crime to be considered an attempt, distinguishing it from mere preparation. As long as the acts are confined to preparation and can be abandoned before a transgression of the law, they do not amount to an attempt. In this case, the appellant was still within the prison walls and had not taken the final, necessary steps to complete the breach. Because he was in a position to voluntarily abandon his criminal plan, which he did, his actions remained within the sphere of preparation and did not rise to the level of a criminal attempt.
Concurring - Cercone, J.
No. While the result is correct, the reasoning is flawed because the appellant's acts went beyond mere preparation and did constitute an attempt. The act of snipping the barbed wire and crossing the inner fence was a substantial step. However, the appellant's conviction should be vacated because he voluntarily abandoned his criminal enterprise. Voluntary abandonment should be recognized as a complete and affirmative defense to a charge of attempt, as it negates the conclusion that the accused is dangerous and provides an incentive for criminals to desist. The majority improperly used the 'mere preparation' doctrine to covertly give effect to the defense of abandonment instead of recognizing it explicitly.
Dissenting - Price, J.
Yes. The appellant's actions constituted the crime of attempted prison breach. The acts of going over a forbidden fence, cutting a piece of barbed wire, and tripping the prison's alarm system each go beyond mere preparation and contemplation. These overt acts are more than sufficient to sustain a conviction for attempted prison breach, and the judgment of the lower court should be affirmed.
Analysis:
This case illustrates the legal system's struggle to define the precise line between non-criminal preparation and a punishable criminal attempt. The majority opinion reflects a traditional, stricter standard, requiring the defendant's actions to be very close to the final consummation of the crime. The concurrence, however, advocates for a more modern legal doctrine, explicitly recognizing voluntary abandonment as an affirmative defense, a view later adopted by the Model Penal Code and Pennsylvania's Crimes Code. The case thus serves as a critical example of the doctrinal shift from focusing solely on the proximity of the act to also considering the defendant's renunciation as a matter of public policy.
