Appeal from judgment of sentence of Court of Common Pleas of Carbon County, Sept. T., 1970, No. 8, in case of Commonwealth of Pennsylvania v. Carl E. Shindler.
Thomas S. McCready, Public Defender, for appellant.
Murray Mackson, First Assistant District Attorney, and John Deutsch, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Montgomery, Jacobs, Hoffman, Spaulding, and Cercone, JJ. Opinion by Spaulding, J.
[ 219 Pa. Super. Page 377]
Appellant Carl Shindler appeals from an order of the Court of Common Pleas of Carbon County denying his motion in arrest of judgment. While serving a term for "wantonly pointing and discharging a firearm," appellant was subsequently convicted of prison breach for an escape which occurred while being transferred
[ 219 Pa. Super. Page 378]
from one jail to another.*fn1 A sentence of 2 to 5 years was imposed on the prison breach charge.
In this appeal, appellant advances two arguments: (1) that he cannot be convicted of prison breach because he was not physically within a prison when he escaped; and (2) that his sentence for prison breach cannot be longer than the sentence he was serving when he escaped. Both contentions are without merit.
As to appellant's first argument, The Penal Code, Act of July 16, 1968, P. L. [ILLEGIBLE WORD], No. 174, § 1, amending Act of June 24, 1939, P. L. 872, § 309, as amended, 18 P.S. 4309, provides that "imprisonment . . . means any restraint by lawful authority pursuant to a commitment issued by . . . a court order or after conviction of any crime." (Emphasis added.) Appellant was in the custody of a sheriff and a deputy when he escaped.
As to his second argument, appellant cites two cases which at first glance appear to support his position. See Commonwealth ex rel. Lewis v. Ashe, 335 Pa. 575, 7 A.2d 296 (1939); Commonwealth ex rel. O'Leary v. Ashe, 152 Pa. Superior Ct. 322, 32 A.2d 36 (1943). The statute in effect at the time those cases were decided specifically provided that the sentence for prison breach could only be "for a period of time not exceeding the original sentence, by virtue of which he was imprisoned." However, the statute was amended in 1953 to make prison breach a felony punishable by "a term not exceeding ten (10) years"; and appellant's position, therefore, is no longer tenable. Act of July 29, 1953, P. L. 1445, § 1, amending the Act of June 24, 1939, P. L. 872, § 309, as amended, 18 P.S. 4309.
The judgment of sentence is ...