decided: June 16, 1972.
Appeal from order of Court of Common Pleas, Criminal Division, of Allegheny County, Oct. T., 1971, No. 6447, in case of Commonwealth of Pennsylvania v. Brooks Story Bey.
Frederick N. Frank, Assistant Attorney General, with him Carol Mary Los, Assistant District Attorney, Robert W. Duggan, District Attorney, and J. Shane Creamer, Attorney General, for Commonwealth, appellant.
John J. Dean, Assistant Public Defender, with him George H. Ross, Public Defender, for appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Jacobs, J.
[ 221 Pa. Super. Page 406]
The Commonwealth appeals from an order of the lower court sustaining a demurrer to the evidence at the conclusion of its case against the appellee on a charge of prison breach.
Such an order is appealable by the Commonwealth; the test to be applied by us is whether the evidence of record and the inferences reasonably drawn therefrom would support a guilty verdict, and in making our determination we must read the evidence in the light most favorable to the Commonwealth. Commonwealth v. Green, 210 Pa. Superior Ct. 482, 233 A.2d 921 (1967).
[ 221 Pa. Super. Page 407]
The sole witness for the Commonwealth was the senior records officer at the State Correctional Institution at Pittsburgh. His testimony from the records showed that appellee was sentenced on May 15, 1970, to a term of 2 1/2 to 5 years in the institution and was received there on May 20, 1970; that upon orders of a counselor at the institution appellee was furloughed for a 3-day pass on July 23, 1971, with directions to return Sunday evening, July 25, 1971. The appellee left the institution on July 23, 1971, and was returned by a minister on September 15, 1971. Although this was the entire Commonwealth case, it is reasonable to infer from the sentence that appellee was sentenced following conviction of an indictable offense.*fn1
The court below held that the failure of the appellee to return to prison at the end of his furlough did not constitute prison breach. The court felt that while on furlough the appellee could not be considered as undergoing imprisonment within the meaning of § 309 of The Penal Code, Act of June 24, 1939, P.L. 872, as amended, July 29, 1953, P.L. 1445, § 1; July 12, 1961, P.L. 575, § 1; and July 16, 1968, P.L. [ILLEGIBLE WORD], No. 174, § 1, 18 P.S. § 4309. We hold otherwise.
Section 309 of The Penal Code defines prison breach as follows: "Any person undergoing imprisonment, whether before or after conviction, who breaks prison or escapes, or shall break prison although no escape is actually made, is guilty of prison breach . . . ." The use of the disjunctive "or" makes it plain that either breaking prison or escaping will support the statutory crime of prison breach.*fn2
[ 221 Pa. Super. Page 408]
The final paragraph of § 309 defines imprisonment in the following language: "The word 'imprisonment,' as used in this section, means actual confinement in any penal or correctional institution, regional jail, forestry camp and other off institution grounds, facility or installation, established by law located in this Commonwealth or any restraint by lawful authority pursuant to a commitment issued by an issuing authority, a court order or after conviction of any crime." Since the appellee was not "actually confined" we must determine if he was under "any restraint by lawful authority". The wording of the statute divides such restraint into two groups. The first group seems to cover the situation where the person has not been convicted and in order to qualify his status as imprisonment there must be either a commitment by an issuing authority or a court order restraining him. The second group covers those convicted of a crime. In such cases all that is required is that the restraint be exercised by lawful authority which in this case was the correctional institution to which appellee was sentenced. The lawful authority placed him on furlough and directed him to return to prison at the end of his
[ 221 Pa. Super. Page 409]
furlough. During that time he was not discharged but was still under restraint. That restraint constituted imprisonment within the meaning of the statute. See Commonwealth v. Hearn, 34 Pa. D. & C. 2d 49 (1964), wherein it was held that a prisoner engaged in private employment under the work release program from county jails was still a prisoner under § 309.
We have no difficulty in concluding that appellee escaped when he failed to return from the furlough or pass granted him. As we said in Commonwealth v. Adams, 3 Pa. Superior Ct. 167, 169 (1896), "Any person who, being lawfully confined or in custody, regains his freedom, with or without force, before being lawfully discharged, is guilty of an escape . . . ." The furlough with its direction to return was a lawful restraint imposed upon appellee similar to custody and when he failed to return he went beyond the limits of that restraint and escaped.*fn3
If the facts as presented are believed by a jury they are sufficient to support a verdict of guilty. Therefore, the order of the court below granting a demurrer must be reversed.
Order reversed with a procedendo.