J-A10045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA
                              Appellee

                       v.

ROY LEE SNYDER

                              Appellant                       No. 1423 MDA 2014


              Appeal from the Judgment of Sentence July 18, 2014
                 in the Court of Common Pleas of Berks County
              Criminal Division at No(s): CP-06-CR-0005704-2013


BEFORE: GANTMAN, P.J., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                     FILED JUNE 02, 2015

        Roy Lee Snyder (“Appellant”) appeals from the judgment of sentence

entered in the Berks County Court of Common Pleas following his jury trial

conviction for escape.1 We affirm.

        The   trial   court    summarized      the   events    underlying   Appellant’s

conviction as follows:

              On August 21, 2013, [Appellant] was transferred from
        SCI-Frackville to the [Alcohol Drug Addiction Probation Parole
        Treatment ([ADAPPT[)] Halfway House for purposes of being
        placed under parole supervision. Mr. Christopher Bardwell was
        assigned as [Appellant’s] state parole supervisor at the time. On
        September 30, 2013, [Appellant] was released to parole and
        discharged with an unsuccessful completion of the ADAPPT
        Halfway House program for being disrespectful to staff.
        [Appellant] was held at Berks County Prison until the Board of
        Probation and [P]arole made a determination in response to
____________________________________________


1
    18 Pa.C.S. § 5121(a).
J-A10045-15


     [Appellant’s] discharge from ADAPPT. On November 8, 2013,
     the Board of Probation and Parole made the decision to detain
     [Appellant] in a secure community corrections center and to hold
     the violation hearing in abeyance pending completion of the
     parole violator’s program at the correction center.

            On November 19, 2013, in the afternoon, [Appellant] was
     transported to Wernersville Community Corrections Center
     (WCCC) to complete the parole violator’s center program in
     Building 30. On that date, Mr. Brandon Smith, Community
     Correction Monitor for WCCC, was assigned to patrol Building 30,
     which is a locked parole violator facility. At approximately 11:00
     p.m., Mr. Smith heard a fire alarm sound, indicating that one of
     the fire exits in Building 30 was opened. As soon as the alarm
     went off, Mr. Smith notified all staff in the building that the fire
     alarm had been activated. Mr. Smith then confirmed that no
     members of the staff tripped the alarm. Mr. Smith immediately
     went down to inspect the alarm area and reset the fire alarm.
     An emergency head count was then conducted by Mr. Smith and
     additional staff to make sure all parole violators were still
     present inside Building 30. Each parole violator was instructed
     to return to their assigned bunk for purposes of performing the
     “head count.”

            To determine whether or not an individual is in fact
     missing, Mr. Smith utilized a checklist which spells out every
     parole violator[’]s name and Department of Corrections (DOC)
     number.     Mr. Smith was then able to cross-reference this
     checklist with the door cards located on each bunkroom door.
     The door cards exhibit a photo of each violator assigned to the
     room and indicate the violator’s assigned bunk number. Mr.
     Smith testified that the only individual not accounted for was
     [Appellant]. Mr. Smith then proceeded to inspect [Appellant’s]
     wall locker next to his assigned bunk. Mr. Smith confirmed that
     all of [Appellant’s] personal items were missing from his
     assigned bunk. The only materials left inside [Appellant’s] wall
     locker were the issued items given to him by the WCCC at his
     time of entry. At approximately 11:51 p.m., Trooper Jason Hope
     of the Pennsylvania State Police was then notified that
     [Appellant] had pulled the fire alarm and exited the west side of
     Building 30. At no time had [Appellant] returned to WCCC.

           On November 22, 2013, at about 4:20 p.m., Officer David
     Samsel was dispatched to Redners Warehouse Market on North
     5th Street, Muhlenburg Township, Pennsylvania. Officer Samsel

                                    -2-
J-A10045-15


      proceeded to question [Appellant] regarding his identity.
      [Appellant] did not have identification with him at the time, but
      informed Officer Samsel that his name was Roy Lee Snyder.
      [Appellant] then told Officer Samsel that he was court
      committed at [WCCC]. [Appellant] was then recommitted due to
      his parole violations.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed October 8, 2014 (“1925(a)

Opinion”), pp. 2-4.

      Following a trial conducted on June 18, 2014, a jury convicted

Appellant of escape. On July 22, 2014, the trial court sentenced Appellant to

30 months to 7 years of incarceration. After the trial court denied his post-

sentence motion on July 29, 2014, Appellant filed a timely notice of appeal

on August 25, 2014.       Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant raises the following issues for our review:

      1. Whether the evidence is insufficient to sustain a jury verdict
      of guilty for the crime of [e]scape charged against [Appellant]
      because a) he was on parole and not committed to a parole
      violation center as required by 61 Pa.C.S.[] Section 5006 and b)
      the Commonwealth failed to prove beyond a reasonable doubt
      that [Appellant] acted recklessly when he left [WCCC]?

      2. Whether the trial court abused its discretion in allowing the
      Commonwealth      to   introduce   evidence    concerning    the
      circumstances that led to [Appellant’s] expulsion from ADAPPT
      as that situation was not related to the charge of [e]scape for
      which he was on trial?

      3. Whether the trial court erred in instructing the jury that the
      definition of “official detention” excludes only “active”
      supervision of probation or parole?

Appellant’s Brief at 5.



                                     -3-
J-A10045-15



      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Thomas G.

Parisi, we conclude Appellant’s issues merit no relief. The trial court opinion

comprehensively     discusses   and    properly   disposes   of   the   questions

presented.    See 1925(a) Opinion, pp. 4-20 (finding: (1) Commonwealth

proved Appellant’s guilt beyond a reasonable doubt where evidence

illustrated Appellant was officially detained within WCCC and consciously and

willfully removed himself from official detention; (2) trial court did not abuse

its discretion in allowing Commonwealth to elicit details of Appellant’s

expulsion from ADAPPT Halfway House where such details described

chronology of events leading to escape and explained Appellant’s detention

status; and (3) viewing jury instruction as a whole, trial court properly

instructed jury on concepts of “official detention”).   Accordingly, we affirm

on the basis of the trial court’s opinion.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/2/2015




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                                                                                                         ',::,




 COMMONWEALTH OF PENNSYLVANIA                              IN THE COURT OF COMMON PLEAS
                                                           BERKS COUNTY,PA
                           v.                            . CRJMINAL DIVISION
                                                           NO. CP-06-CR-5704-2013
ROY LEE SNYDER,
            Defendant                                     JUDGE THOMAS G. P ARJSI

Amy Shaffer, Esquire, Attorney for the Defendant

Alisa R. Hobart, Esquire, Appeal Attorney for the Commonwealth

MEMORANDUM OPINION, Thomas G. Parisi~                                                       October 8, 2014

        Following a jury trial on June 18, 2014, Defendant was convicted ofEscape.1 On July

18, 2014, this Court imposed a sentence of not less than 30 months nor more than 7 years to the

Bureau of Corrections for confinement in a state correctional facility.

        On August 25, 2014 Defendant filed a Notice of Appeal. On September 15, 2014,

Defendant filed a Concise Statement of Matters Complained of on Appeal and raises the

following issues for review:

       J. The Court erred in denying Defense's motion for judgment of acquittal at the close of
       the Commonwealth's case in chief because there was insufficient evidence to establish
       that Roy Snyder had physically arrived at Wernersville Community Corrections Center
       on November 19, 2013 thereby making it factually impossible for Roy Snyder to escape
       that facility.

       2. There is insufficient evidence to sustain the jury verdict of guilty for the crime of
       Escape against Roy Snyder because the Commonwealth did not establish that Roy Snyder
       was subject to official detention where he was, in fact, on PEtf?!~-,~4J:R~.~ppunitted to a
       parole violation center as required by 61 Pa. C.S.A. Section! 5006 wllicn1was enacted in
       2012 thereby changing the statutory landscape regarding the law of Escape since the
       2009 decision in Commonwealth v. Maldonado, 2009 Pa. Super. 15.
             ·                                            ·    r '1· t -l .~- l ~G vL
                                                             ..   :.:J(,·   ·-   0   -·
       3. The evidence presented at trial is insufficient to sustain the jury verdict of guilty for the
       crime of escape against Roy Snyder because the, Commonwealth failed .. !!? prove beyond a
       reasonable doubt that Roy Snyder acted recklessly wlienJi@foft Werner.hl1tle Correction
       Community Center when he believed that he had been released from commitment at


118PaC.S.A.
              § 512l(a).
                                                                                 Circulated 05/06/2015 03:40 PM




        Berks County Jail and reinstated onto his original parole to an approved program at the
        correction community center.

        4. The trial court abused its discretion when it overruled Defense's objection to the
        Commonwealth eliciting testimony from Roy Snyder concerning the circumstances that
        led to his expulsion from ADAPPT as that situation is irrelevant to the crime of Escape
        that was charged against Roy Snyder and the introduction of such evidence is not
        harmless 'error because it is prejudicial against Defendant and the evidence has no
        probative value.

        5. The trial court erred in instructing the jury that the definition of "official detention"
        excludes only "active" supervision of probation or parole because 18 Pa. C.S.A. Section
        5121 makes no distinction in type or status of supervision.

Defendant's Concise Statement of Matters Complained of on Appeal, 9/15/14.

                                      FACTUAL IDSTORY

        On August 21, 2013, Defendant was transferred from SCI-Frackville to the ADAPPT

Halfway House for purposes cifbeing placed under parole supervision. Mr. Christopher Bardwell

was assigned as Defendant's state parole supervisor at this time. On September 30, 2013,

Defendant was released to parole and discharged with an unsuccessful completion of the

ADAPPT Halfway House program for being disrespectful to staff. Defendant was held at Berks

County Prison until the Board of Probation and parole made a determination in response to

Defendant's discharge fromADAPPT.        On November 8, 2013, the Board of Probation and Parole

made the decision to detain Defendant in a secure community corrections center and to hold the

violation hearing in abeyance pending completion of the parole violator's program at the

correction center.

        On November 19~ 2013, in the afternoon, Defendant was transported to Wernersville

Community Corrections Center (WCCC) to complete the parole violator's center program in

Building 30. On that date, Mr. Brandon Smith, Community Correction Monitor for WCCC, was

assigned to patrol Building 30, which is a locked parole violator facility. At approximately 11:00



                                                  2
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;~
~).



         p.m., Mr. Smith heard a fire alarm sound, indicating that one of the fire exits in Building 30 was

         opened. As soon as the alarm went off, Mr. Smith notified all staff in the building that the fire

         alarm had been activated. Mr. Smith then confirmed that no members of the staff tripped the
,..i,
.,,,.
~       alarm. Mr. Smith immediately went down to inspect the alarm area and reset the fire alarm. An
'
·qi,
·~      emergency head count was then conducted by Mr. Smith and additional staff to make sure all
()

        parole violators were still present inside Building 30. Each parole violator was instructed to

        return to their assigned bunk for purposes of performing the "head count."

                To determine whether or not an individual is in fact missing, Mr. Smith utilized a

        checklist which spells out every parole violators name and Department of Corrections (DOC)

        number. Mr. Smith was then able to cross-reference this checklist with the door cards located on

        each bunkroom door. The door cards exhibit a photo of each violator assigned to the room and

        indicate the violator's assigned bunk number. Mr. Smith testified that the only individual not

        accounted for was Defendant. Mr. Smith then proceeded to inspect Defendant's wall locker next

        to his assigned bunk. Mr. Smith confirmed that all of Defendant's personal items were missing

        from his assigned bunk. The only materials left inside the Defendant's wall locker were the

        issued items given to him by the WCCC at his time of entry. At approximately 11:51 p.m.,

        Trooper Jason Hope of the Pennsylvania State Police was then notified that Defendant had pulled

        the fire alarm and exited the west side of Building 30. At no time had Defendant returned to

        wccc.
               On November 22, 2013, at about 4:20 p.m., Officer David Samsel was dispatched to

        Redners Warehouse Market on North 5th Street, Muhlenberg Township, Pennsylvania. Officer

        Samsel proceeded to question Defendant regarding his identity. Defendant did not have

        identification with him at the time, but informed Officer Samsel that his name was Roy Lee



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!.
      Snyder. Defendant then told Officer Samsel that he was court committed at Wernersville

      Community Corrections Center. Defendant was then recommitted due to his parole violations.

                                            DISCUSSION ·

      I. Insufficient Evidence

             Defendant first claims that the evidence admitted at trial was insufficient to establish that

     he had physically arrived at Wernersville Community Corrections Center on November 19, 2013

     thereby making itfactually impossible for Defendant to escape that facility.

             The standard of review of a sufficiency of the evidence challenge is as follows:

             In reviewing a challenge to the sufficiency of the evidence, we must determine
            whether, viewing all the evidence admitted at trial, together with all reasonable
            inferences therefrom,· in the light most favorable to the Commonwealth, the trier
            of fact could have found that each element of the offense charged was supported
            by evidence and inferences sufficient in law to prove guilt beyond a reasonable
            doubt.

     Commonwealth v. Jones, 636 A.2d 1184, 1189 (Pa. Super. 1994).

     The reviewing court must determine whether the evidence was sufficient to have

     permitted the trier of fact to find that each and every element of the crimes charged was

     established beyond a reasonable doubt. Commonwealth v. Davidson, 860 A.2d 575, 580

     (Pa. Super. 2004 ). The facts established by the Commonwealth need not be absolutely

     incompatible   with the defendant's    innocence so long as the evidence against the

     defendant is not "so weak and inconclusive that as a matter of law no probability of fact

     can be drawn from the circumstances." Id. The Commonwealth may meet its burden by

     means of wholly circumstantial evidence. Commonwealth v. Craybill, 926 A.2d 488, 490

     (Pa. Super. 2007). The credibility of witnesses and the weight to be accorded the

     evidence produced are matters within the province . of the trier of fact, who is free to




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 believe all, some or none of the evidence. Commonwealth v. Hughes, 908 A.2d 928 (Pa.

 Super. 2006).

        In support of his first question, Defendant argues that the evidence adduced failed

to establish that he had physically arrived at WCCC on November 19, 2013. However, at

trial, Witness Kerry Kerschner, Facility Director at WCCC, testified that Defendant

arrived at Building 30 on November 19, 2013, at approximately I:30 in the afternoon.

Notes of Testimony [hereinafter N.T.J, p. 40, 6/17/14. Furthermore, Defendant testified at

trial that he was in fact present at WCCC on November 19, 2013.

       ADA WEST:                     Mr. Snyder, you want the jury to believe that you
                                      didn't know that when you pulled that fire alarm on
                                      November 19th that it was something different
                                      than walking out of ADAPPT? That's what you
                                      want the jury to believe? That you didn't know the
                                    . difference?

       DEFENDANT:                    No, there isn't much of a difference if you are on
                                     parole, yes.

N.T., pp. 131-132, 6/18/14.

       ADA WEST:                     So at what point during November 19th did you
                                     decide you were going to leave because you wanted
                                     to go home?

       DEFENDANT:                    Well I think that, you know, I was a little upset
                                     about the conditions that I was violated under while
                                     I was at ADAPPT in the first place. Yeah, I was
                                     pretty upset about that; and I felt as if I know they
                                     had no reason to actually put me under these
                                     conditions in the first place and because of that, you
                                     know, I just took off.

N.T., p. 139, 6/18/14.


Defense counsel even admitted to identification of Defendant after Defendant's testimony

concluded.


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    I




!
                DEFENSE COUNSEL:                On the identification point at this point obviously
                                                Mr. Snyder has stated he was there. That judgment
                                                of acquittal would be moot.

        N.T., p. 170, 6/18/14.

                Based on the testimony provided at trial, sufficient evidence was presented at trial to

        establish.that Defendant had physically arrived at WCCC on November 19, 2013.

               In support of Defendant's second question, Defendant argues that the evidence adduced

        failed to establish that he was in "official detention" as defined by section 512l(e), as he was on

        parole at the time he left WCCC. In this case, the trial court convicted Appellant of Escape

        based upon his failure to return to a Community Correction Center after he left a locked facility

        building subsequent to his pulling of a fire alarm. The provision of the Crimes Code applicable

        under such circumstances provides as follows: .

               § 5121. Escape

               (a) Escape.-A person commits an offense ifhe unlawfully removes himself from

               official detention or fails to return to official detention following temporary leave

               granted for   a specific purpose or limited period.
               ****
               ( e) Definition.-As    used in this section the phrase "official detention" means

               arrest, detention in any facility for custody of persons under charge or conviction

               of crime or alleged or found to be delinquent, detention for extradition or

               deportation, or any other detention for law enforcement purposes; but the phrase

               does not include supervision of probation or parole, or constraint incidental to

               release on bail.

        18 Pa.C.S.A. § 5121.



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        § 5006. Escape

        An individual committed to a community corrections .center or a community

        corrections facility shall be deemed to be in official detention under 18 Pa.C.S. §

        5121 (relating to escape).

 61 Pa. C.S.A. § 5006.

        Defendant's argument is based on the fact that by leaving WCCC, he committed a

violation of parole rather than the crime of Escape. Defendant asserts that when he

committed a violation of parole at ADAPPT, instead of recommitting him to jail, the

parole board gave him a break by sending him to WCCC as a subsequent condition of his

parole. Defendant concedes that he failed to comply with the program at WCCC.

However at the time he left Building 30 at WCCC, Defendant argues he was under parole

supervision and was therefore not subject to "official detention" as defined by the Escape

statute, section 5121(e).

       Mr. Charles Fox, Chief Hearing Examiner for the Board of Probation and Parole,

testified that on November 8, 2013, administrative action was taken by the Board of

Probation and Parole, where it was ordered that Defendant be detained in a secure

community corrections center and to hold the violation hearing pending completion of the

parole violator's center program. N.T., pp. 84-85, 6117/14; see Defendant's Exhibit 1.

The record verifies that when Defendant was sent to Building 30 at the WCCC parole

violation center, Defendant's parole status changed from active parolee to detaine

parolee. Mr. Fox explained that when a defendant is being committed to a parole

violation center the parolee's status changes from the status previously in effect when

supervised by a parole agent at ADAPPT. Mr. Fox testified to the following:



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         We refer to them in this status as a detained parolee. They are essentially waiting
         a violation decision. At the Wernersville Center, as in the other parole violation
         centers throughout the Commonwealth, they assign a different agent there for
         monitoring of this individual while they are there. But they are not - they actually
         close the field case while they are in the center because they are not considered to
         be out under active supervision in the community. In other words, they cannot
       . leave the center. They are pretty much restricted to the center while they are there.

 N.T., p. 91, 6/17/14.

 When asked if Agent Bardwell supervised active street time for people as opposed to

 someone who is detained in Building 30, Mr. Fox confirmed the supervision by Agent

 Bardwell is different from detained parolee supervision. N.T., pp. 90-91, 6/17/14. Mr.

Fox stated that for the time Defendant is in custody at the parole violator center (WCCC),

Defendant would receive credit for jail time for he was in detained parolee status. N.T.,

pp. 91-92, 6/17/14. Mr .. Fox confirmed that if a defendant is in detained status, a

defendant gets credit for the time that defendant is detained just as if he was incarcerated.

If a defendant is in a halfway house like ADAPPT, Mr. Fox testified that the time spent

counts towards parole time, not jail time. N.T., p. 92, 6/17/14.

        Mr.   Kerry      Kerschner,· Facility   Director   at the   Wernersville   Community

Corrections Center, testified that there are three buildings at the WCCC. N.T., p. 37,

6/17/14. Mr. Kerschner confirmed that Building 30 is the parole violator center and

Building 18 and Building 27 are general housing for offenders who do not have approved

home plans through the Board of Probation and Parole. N.T., p. 38, 6/17/14. Mr.

Kerschner stated that Building 30 houses those placed there under a board action or a

warrant by parole, and that the facility is locked at all times. N.T., pp. 38-39, 6/17/14. Mr.

Kerschner testified that the only circumstances under which offenders can leave Building

30 is either due to a medical emergency or to be returned to prison. N.T., p. 39, 6/17/14.



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         The record verifies that Defendant's parole status was that of detained parolee

 when he left Building 30, distinguishable from active, supervised parole.            Mr. Fox

 confirmed at trial that the Board of Probation and Parole issued an administrative action

 on November 8, 2013, ordering Defendant be "DETAIN[ED] IN PV CENTER." N.T., p_.

 87, 6/17/14; see Defendant's Exhibit 1.

        In Commo'!wealth v. Maldonado, 966 A.2d 1144 (Pa. Super. 2009), the

Pennsylvania Superior Court held:

        Once a parolee is arrested and detained for failing to report, and acknowledges he
        is essentially in prerelease status, he is in official detention for purposes of section
        5121 just as any other person placed in custody is. As such, he can hold no
        reasonable expectation that he retains the liberties and freedoms customary to a
        person operating under "supervision of parole.

Id at 1148.

In Commonwealth v. Davis, 852 A.2d 392 (Pa. Super. 2004), the Pennsylvania Superior Court

affirmed judgment of sentence under section 5121 for an inmate who had been removed from

prison and housed at Penn Capp in "prerelease" status at the time he left the facility without

permission. The Superior Court found that a parolee in an in-patient treatment program such as a

halfway house is "not deemed to be in official detention, but rather at liberty on parole." A

parolee at a halfway house will not be charged with escape as they are not similarly situated with

the "pre-release" inmates, who are deemed to be in "official detention" for purpose of credit for

time spent at the halfway house. Id. at 397-98; see Jackson v. Pennsylvania Bd. Of Probation

and Parole, 568 A.2d 1004 (Pa. Cmwlth. 1990). However, "pre-release" inmates at the halfway

house are considered to be in custody, not at liberty on parole. If a "pre-release" inmate was to

leave the halfway house, the "pre-release" inmate could be convicted of Escape under section

5121. Defendant claimed when he was out of prison, he was on parole, and thus eligible for the



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 "supervision of parole" exclusion while atthe halfway house. Id. at 397~98.The Superior Court

rejected this claim, reasoning that "prerelease" translates to "prior to release," finding parole

could not have commenced as long as the defendant was in "prerelease" status. Id. at 396. The

Superior Court held defendant was not on parole when housed at the halfway house due to the

fact he was receiving credit for jail time and was facing restricted liberties. The Superior Court

found his unauthorized departure from the institution constituted removing himself from "official

detention."

        Looking at the testimony and exhibits provided at trial, Defendant's status while

in Building 30 is distinguishable from his active parole status while housed at ADAPPT.

Defendant's status runs parallel to the "pre-release" status found in Davis and

Maldonado. Building 30 is a specific locked facility for parole violators. Offenders

cannot leave Building 30 except for medical emergency or to be returned to prison. Once

placed in Building 30, Defendant was no longer supervised by a field parole agent nor

was Defendant receiving parole credit time. While Defendant was under detained parolee

supervision in Building 30, Defendant was to receive jail time credit, similar to the

defendant in "pre-release" status in Davis. Additionally, Defendant's liberty to leave the

facility was severely restricted.

       Based on these facts, while under detained parolee supervision in Building 30,

Defendant could hold no reasonable expectation that he retained the liberties and

freedoms customary to a person operating under "supervision of parole." Consequently,

Defendant was properly subject to a charge of Escape upon leaving the WCCC facility

while under such detained supervision. Therefore, his unauthorized departure· from

WCCC constituted removing himself from official detention. As Defendant does not



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 dispute his conduct in leaving the facility without authorization, the evidence is sufficient

to sustain his conviction for Escape.

        Defendant next · contends that · the evidence presented at trial is insufficient

because the Commonwealth failed to prove beyond a reasonable doubt that Roy Snyder

acted recklessly when he left WCCC when he believed that he had been released from

commitment at Berks County jail and reinstated onto his original parole to an approved

program at the correction community center.

        The Escape statute itself fails to specify the level of scienter necessary to sustain a

conviction. Consequently, we apply the .default standard specified by 18 Pa.C.S. § 302,

which provides in relevant part as follows:

        § 302. General requirements of culpability

        ****
       (c) Culpability    required   unless otherwise    provided.-When       the culpability

       sufficient to establish a material element of an offense is not prescribed by law,

       such element is established if a person acts intentionally, knowingly or recklessly

       with respect thereto.

18 Pa.C.S. § 302(c).

Section 302 also defines the applicable degrees of culpability:

       (b) Kinds of culpability defined.-

        (3) A person acts recklessly with respect to a material element of an offense

       when he consciously disregards a substantial and unjustifiable risk that the

       material element exists or will result from his conduct. The risk must be of such a

       nature and degree that, considering the nature and intent of the actor's conduct and



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         the circumstances known to him, its disregard involves a gross deviation from the

         standard of conduct that a reasonable person would observe in the actor's

         situation.

 18 Pa.C.S. § 302(b)(3).

        Defendant argues that he did not receive the November 8, 2013 Board of

 Probation and Parole administrative action until discovery was provided in this case.

 N.T., p. 133, 6/18/14.     Although Defendant confirmed at trial that he admitted to

 violating his parole at ADAPPT, Defendant claims no one informed him of the conditions

 to be imposed as a result of such violations. N.T., pp. 163-64, 6/18/14. Defendant stated

 that he believed he was going to do nine (9) months in a state correctional institution.

 considering this was his second time violating the conditions of his parole. N.T., p. 163,

. 6/18/14. Defendant testified that he "never had a chance to get any rules or regulations

 from anybody [at WCCC]." N.T., p. 167, 6/18/14.

        Although Defendant claimed he did not receive a letter from the Parole Board

 informing him of its decision and change in parole status, Mr. Fox testified otherwise.

        MR.FOX:                The Defendant would have been served with this [Parole
                               Board Administrative Action] as well copies go -to the
                               agent involved in the case. It goes to - there is copies to the
                               file copies to the prison where he is being· sent and
                               essentially what it is telling the prison or if he was in a
                               secure facility like a county jail or a SCI it would tell them
                               that at that point to move him to this secure community
                               corrections center.
        **   **
        ADA WEST:              What is the message to him? What is the conveyance?

        MR.FOX:                It tells them that they have to remain in that parole
                               violation center and to complete this program. And if they
                               complete the program,' then essentially they would not be
                               recommitted on the technical parole violations.

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N.T., pp. 87-89, 6/17/14.

Moreover, this was not Defendant's first time at WCCC and he testified to his knowledge

that Building 30 was a locked facility.

        DEFENDANT:            I was at Wernersville two other occasions but different
                              building, yes,

        ADA WEST:             What other buildings were you in?

        DEFENDANT:            I was in Building I K

        ADA WEST:             And in Building 18 could you sign out?

        DEFENDANT:            Yes, in order for you to leave you are going to have to get
                              permission from the place to leave, yes.

       ADA WEST:              But you could just walk out the door?

       DEFENDANT:             No, you can't just-

       ADA WEST:              You don't have to pull an emergency alarm?

       DEFENDNAT:             No, you cannot walk out them doors either. All of them
                              doors are locked under the same conditions as Building 30.

N.T., pp. 151-52, 6/18/14.

       THE COURT:             Based upon your prior experience in another building at
                              Wernersville you knew that the only way that people came
                              in and out are the front door, correct?

       DEFENDANT:             Yes.

       THE COURT:             There were other doors whichwere fire exits?

       DEFENDANT:             There is many doors, yes, yeah.

       THE COURT:             You are not allowed to go out those doors, you know that,
                              correct?




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        DEFENDANT:              Well, I mean someone stated that they were locked, yes,
                                yeah. I knew you couldn't get out the doors unless you
                                pulled the handle on the alarm, yes.

        THE COURT:              That was not just based on what you were told that day but
                                it was based upon your prior experience on a similar
                                building elsewhere on the campus?

        DEFENDANT:              Yeah, that the doors were all locked on the sides, yes.

N.T., pp. 167-68, 6/18/14.

        The jury in this matter was free to accept or reject Defendant's testimony concerning his

understanding of his parole status at the time he was transferred to WCCC. "While the

sufficiency of the evidence is for the court, the weight thereof is a matter exclusively for the fact

finder." Commonwealth v. Thomas, 282 A.2d 693, 697 (Pa. 197l)(citations omitted). Based on

the evidence provided at trial, this Court is bound by findings that result from resolutions of

credibility and conflicting testimony. The jury found Mr. Fox's testimony to be more credible

and the mere fact that Mr. Fox's testimony was contradicted will not take the question of its

credibility from the jury. Defendant testified at trial that he was not of the understanding that his

parole supervision or status was any different from the time he left ADAPPT for WCCC. N.T.,

pp. 131-32, 6/18/14. Defendant stated his understanding at the time he was taken to WCCC was

that he had merely violated conditions of his parole, and would not be charged with escape for

leaving WCCC, rather he would be charged with absconding. N.T., pp. 129-132, 6/18/14.

However, Mr. Fox's testimony and Defendant's prior experience suggest otherwise. Mr. Fox's

testimony indicated that Defendant was served with notice of the administrative action taken by

the Board of Probation and Parole.

       Although Defendant claims he was unaware of his status at WCCC, Defendant had been

placed in Building 18 on two prior occasions. Defendant explained his understanding that one



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 could only leave Building 18 with signed permission, and that exit and entry was only allowed

 through the front door of each facility building. Defendant had knowledge that the doors were

triggered with alarms, and that exiting through the fire exits was not a proper form of exit from

the facility. Furthermore, not only was Defendant aware that the facilities were locked, but likely

understood that Building 30 was a facility specifically housing parole violators, who are charged

with Escape if they leave without authorization. When Officer Samsel encountered Defendant at

Redners after his fleeing ofWCCC, Defendant even told Office Samsel he was "court committed

to WCCC." N.T., p. 60, 6/17/14.

       Based on Defendant's known prior experiences at WCCC and admission of commitment,

the jury found Defendant's testimony to be less credible. This Court is well within its discretion

to reject the Defendant's   claim that he believed he was reinstated onto his original parole.

Additionally, it is apparent Defendant consciously disregarded a substantial and unjustifiable risk

that he would be charged with Escape as a result of his conduct. Defendant's placement in

Building 30 and notice of his detainment in the parole violator's center served as a warning to

Defendant that his supervision status had changed. Defendant chose to disregard these warnings,

involving a gross deviation from the standard of conduct that a reasonable person would observe

in his situation, thereby acting recklessly when making the decision to leave WCCC in an

unauthorized   manner. Thus, the evidence presented at trial was sufficient to support the

Defendant's conviction of Escape.

II. Abuse of Discretion

       Defendant claims this Court abused its discretion when it overruled Defense's objection

to the Commonwealth eliciting testimony from Defendant concerning the circumstances that led

to his expulsion from ADAPPT as that situation is irrelevant to the crime of Escape that was



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 charged against Roy Snyder and the introduction of such evidence is not harmless error because

 it is prejudicial against Defendant and the evidence has no probative value.

        The scope and manner of cross-examination are within the trial court's discretion, and

that discretion will not be disturbed absent its abuse or an error of law. Commonwealth v. Wilson,

649 A.2d 435, 445 (Pa. 1994). "The rightof cross-examination includes the right to examine the
                                                 .         .                          .
witness on any facts tending to refute inferences or deductions arising from matters the witness

testified to on direct examination." Rafter v. Raymark Industries, Inc., 632 A.2d 897, 900 (Pa.

Super.1993) (quoting Kemp v. Qualls, 473 A.2d 1369, 1371 (Pa. Super. 1984)). "Generally,

[ e]very circumstance relating to the direct testimony of an adverse witness or relating to anything

within his or her knowledge is a proper subject for cross-examination, including any matter

which might qualify or diminish the impact of direct examination." Jacobs v. Chatwani, 922

A.2d 950, 965 (Pa.Super. 2007) .

      . During trial, Defendant was questioned by Defense Counsel about his technical parole

violations resulting in his removal from the ADAPPT program. N.T., p. 127, 6/17/14. Defense

Counsel also questioned Agent Bardwell about Defendant's violation of parole conditionsat

ADAPPT    as well. N.T., p. 67, 6/17/14.   Commonwealth's Exhibit 1 was introduced at trial,

which is a copy of Defendant's Discharge Summary from ADAPPT. Agent Bardwell testified to

the following about the Commonwealth's Exhibit:

       AGENT BARDWELL:                Yes. This states that on November 30, 2013 that he was
                                      released to parole and discharged from the facility with an
                                      unsuccessful completion of the program at the halfway
                                      house and, yes, that Irecall, yes, that's the date.

N.T., pp. 74-75, 6/17/14.

       Considering the Defendant's Discharge Summary from ADAPPT was entered into

evidence and Defendant's parole violations at ADAPPT were a topic of discussion, it was proper


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  to permit the Commonwealth to inquire into the incident that triggered Defendant's eventual

  transfer to WCCC. In setting limits on cross-examination, this Court believed such questioning

  was not likely to confuse or mislead the jury. Additionally, the parole violations committed by

  Defendant at ADAPPT were not only relevant to aid in the understanding of the chronology of

  events leading up to Defendant's eventual transfer to WCCC, but also helped in distinguishing

 the difference between his parole status in the halfway house when compared to his detained

 status inside Building 30. The helpfulness of the testimony outweighed its potential confusion or

 prejudice, thereby this Court did not commit an abuse of discretion when it overruled Defense's

 objection to the Commonwealth eliciting testimony from Defendant concerning the

 circumstances that led to his expulsion from ADAPPT.

 III. Trial Court Error

         Defendant's final claim is that this Court erred in instructing the jury that the definition of

 ''official detention" excludes only "active" supervision of probation or parole because

 18 Pa. C. S .A. § 5121 makes no distinction in type or status of supervision.

         When examining the propriety of the instructions the trial court provides to a jury, the

· reviewing court must determine whether the trial court committed a clear abuse of discretion or

 committed an error oflaw which controlled the outcome of the case. Commonwealth v. Thomas,

 904 A.2d 964, 970 (Pa. Super. 2006). A jury charge is grounds for reversible error only if the

 charge, when read as a whole, is inadequate, unclear, or has a tendency to confuse or mislead,

 rather than clarify, a material issue. Id. Moreover, trial courts have broad discretion in phrasing

 their jury instructions and are not limited to using particular language so long as the applicable

 law is explained clearly, adequately, and accurately to the jury. Commonwealth v. McClendon,

 874A.2d 1223, 1232 (Pa. Super. 2005).



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!
N,
fi
'tr
                At trial, this Court provided the jury with the suggested Pennsylvania Standard Jury

~     Instruction, 15.5121A. Ultimately, the trial court instructed the jury as follows on the matter of

      escape:

                THE COURT:

                The defendant has been charged with the offense of escape. To find the defendant guilty

                of this offense, you must find that the following elements have been proven beyond a

                reasonable doubt: First, that the defendant was under official detention. Official detention

                includes arrest or being informed by law enforcement that an arrest warrant exists for him

                and that he is in fact under arrest or detention in any facility for custody of persons under

                charge or conviction of crime or detention for law enforcement purposes. The second

                element is that the defendant unlawfully removed himself from the official detention.

                Now if, and only if, you find that the above elements have been proven beyond a

                reasonable doubt, you must then indicate on the verdict form whether you find the

                following element also proven to that standard: that final element is that the defendant

                was under arrest for or detained on a charge of felony. The parties stipulated that the

                Defendant's original offense was a felony.

                       Now irregularity in bringing about or maintaining detention or lack of jurisdiction

                of the committing or detaining authority is not a defense to a charge of escape. Those are

                the basic elements for you to consider. I would note that under the law the phrase official

                detention does not include active supervision of probation or parole.

                       To be convicted of escape, it must be proven beyond a reasonable doubt that a

                person acted intentionally, knowingly, recklessly as to the question of whether the person

                was under official detention. A person acts intentionally when it is his conscious



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objective or desire to engage in the conduct or cause the result. A person acts knowingly,

or with knowledge, with respect to a result of his conduct when he is aware that his

conduct is reasonably certain to cause a result. A person acts recklessly with respect to a

material element of an offense when he consciously disregards a substantial and

unjustifiable risk that the material element exists or will result from his conduct.

        For recklessly, the risk must be of such a nature and degree that, considering the

nature and intent of the actor's conduct and the circumstances known to him, its disregard

involves a gross deviation from the standard of conduct that a person, a reasonable person

would observe in the actor's situation. Now an individual committed to a community

corrections center or a community corrections facility shall be deemed to be in official

detention under the statute relating to escape. Once a parolee is arrested and detained for

failing to report, he is in official detention.

        If the Defendant understood that the nature of his placement had materially

changed and that he was now housed in a facility in which his freedom was substantially

restricted, then you may conclude that he had the necessary state of mind that he was in

detention. Now because neither the scope of supervision of parole nor the interplay of the

phrase with the remainder of the statute has ever been specified you may find that the

statutory language is ambiguous under the present facts such that statutory interpretation

is warranted.

        I would note that the Pennsylvania Statutory Construction Act requires that penal

provisions that would be a statute about a crime, where there is a penalty, penal

provisions of statutes must be strictly construed thus where thereabout [ sic - transcription

error J an ambiguity in the language ofthe penal statute such language should be



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        interpreted in the light most favorable to the accused by the Statutory Construction Act

        also requires that the object of all interpretation and construction of statutes is to ascertain

        and effectuate the intention of the General Assembly.      _

                When the words of the statute are not explicit the intention of the General

        Assembly may be ascertained by considering there are actually six factors, three of which

        may apply to this case. Those factors would be the occasion and necessity for the statute,

        the mischief to be remedied, and the object to be attained.

N.T., pp. 194-197, 6/18/14.

        The instructions as a whole fairly convey the required legal principles at issue in this

case. This Court added additional language to the standard instruction because of the ambiguity

in the law which has caused confusion in numerous jurisdictions. In reviewing a challenged jury

instruction, we must review the charge not in isolated portions but as a whole to ascertain

whether it fairly conveys the required legal principles at issue. Commonwealth v. Bracey, 831

A.2d 678 (Pa.Super.2003). The term "active supervision" could be found in a single sentence of

this Court's instructions to the jury to help differentiate between active and detained supervision

which was a common theme throughout the jury trial. Looking at the entirety of the instructions

the law was clearly and accurately presented to the jury and the trial court did not err by

including the term "active supervision."

       Therefore, this Court respectfully requests that the Defendant's appeal be denied.




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