HomeMy WebLinkAboutCP-21-CR-0387-2005
COMMONWEAL TH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
V.
JOSEPH EDWARD FRIARY
CP-21-CR-0387 -2005
IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF
APPELLATE PROCEDURE 1925
Bayley, J., April 12, 2006:--
On November 16, 2005, a jury convicted defendant, Joseph Edward Friary, of
involuntary deviate sexual intercourse,1 and indecent assault. 2 The offenses were
committed against an eleven-year-old boy when defendant was forty-one years old. On
March 2, 2006, defendant was sentenced on the count of indecent assault to pay the
costs of prosecution. On the count of involuntary deviate sexual intercourse, he was
sentenced to pay the costs of prosecution and undergo imprisonment in a state
correctional institution for not less than sixty-six months or more than fifteen years.
Defendant filed a direct appeal from the judgment of sentence to the Superior Court of
Pennsylvania. He raises one issue on appeal: "Whether the court erred in admitting
testimony surrounding 'flight' of Defendant."
Evidence of flight was admitted at trial over the objection of defendant. The
victim did not immediately tell his mother of the crime that occurred on July 16, 2004.
When he did tell her on August 24, 2004, she made an immediate complaint to the
police. Officer James Stone and Detective Marc Bradley interviewed defendant on
118 Pa.C.S. S 3123(a)(7).
218 Pa.C.S. S 3126(a)(7).
CP-21-CR-0387 -2005
September 14, 2004. Defendant was not in custody during the interview. Defendant
admitted having oral sex with Zachary and allowing Zachary to "lick his butt."
Defendant stated that he knew it was wrong to have sex with the boy. When the
interview ended, defendant was told that the officers would contact the District Attorney
before charges were filed, and that he would have a couple of days to get his life in
order. Charges were filed on September 23rd, and a warrant of arrest was issued. The
officers were unable to locate defendant at his home or at any other location.
Defendant was apprehended on December 5,2004, in EI Paso, Texas, as he crossed
into the United States from Mexico.
The following charge was given to the jury:
Generally, when a crime has been committed and a person,
knowing or believing he is accused of committing it, flees, such flight is a
circumstance tending to show consciousness of guilt. However, flight
does not necessarily show consciousness of guilt in every case. A
person could leave for some other motive or may do so even though that
person is not guilty. Whether any evidence of flight should be looked at
as showing consciousness of guilt depends on the facts and
circumstances of each case, and especially such motives which may have
prompted such flight.
In Commonwealth v. Johnson, 838 A.2d 663 (Pa. 2003), the Supreme Court of
Pennsylvania stated:
. . . where evidence exists that a defendant committed a crime, knew that
he was wanted, and fled or concealed himself, such evidence is
admissible to establish consciousness of guilt. . . .
A defendant's knowledge may be inferred from the circumstances
attendant his flight.
In the case sub judice, defendant knew on September 14, 2004, that he was
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CP-21-CR-0387 -2005
going to be charged with a sexual offense within a couple of days of making his
inculpatory statement to the police. Thereafter, he abandoned his normal pattern of
living and could not be located at his residence or any other place. It was not until
December 5,2004, that he was discovered crossing into Texas from Mexico. As in
Johnson, the charge to the jury that they could consider flight as a circumstance
tending to show consciousness of guilt was admissible.
(Date)
Edgar B. Bayley, J.
David Freed, Esquire
Michelle Sibert, Esquire
For the Commonwealth
Timothy L. Clawges, Esquire
F or Defendant
:sal
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