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COMMONWEALTH v. MEISE (11/16/73)

decided: November 16, 1973.

COMMONWEALTH
v.
MEISE, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 200 of 1973, in case of Commonwealth of Pennsylvania v. John Meise.

COUNSEL

Clyde W. Waite, Assistant Public Defender, for appellant.

Martin J. King, Assistant District Attorney, with him Stephen B. Harris, First Assistant District Attorney, and Kenneth G. Biehn, District Attorney, for Commonwealth, appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Spaeth, JJ. Opinion by Jacobs, J.

Author: Jacobs

[ 225 Pa. Super. Page 524]

The issue in this case is the proper computation of a sentence for prison breach.

[ 225 Pa. Super. Page 525]

For some time prior to November 30, 1972, appellant was imprisoned in the Bucks County jail awaiting trial on a drug charge. On that date appellant escaped. He was returned to the jail on December 26, 1972. He pleaded guilty to prison breach on June 4, 1973, and on July 3, 1973, was sentenced to imprisonment for a period of 1 to 5 years, to be computed from June 4, 1973. At the time of the sentencing the appellant was not serving a sentence on any other charge, but was awaiting trial on the drug charge. Appellant claims that his sentence for prison breach should be computed from December 26, 1972, because of the provisions of the Act of May 28, 1937, P. L. 1036, § 1, 19 P.S. § 894, and the Act of August 14, 1963, P. L. 841, § 1, 19 P.S. § 898, which read as follows: "From and after the passage of this act, all sentences for criminal offenses of persons who at the time sentence is imposed are held in custody in default of bail, or otherwise, shall begin to run and be computed from the date of commitment for the offense for which said sentence shall be imposed, unless the person sentenced shall then be undergoing imprisonment under a sentence imposed for any other offense or offenses, in which case the said sentence shall begin to run and be computed, either from the date of imposition thereof or from the expiration of such other sentence or sentences, as the court shall, in its discretion, direct."*fn1

"Any person who has been convicted of an offense in any court in this Commonwealth and sentenced to a term of imprisonment shall be given credit toward the service of his sentence for any days spent in custody on this offense prior to the imposition of his sentence, including any days spent in custody on this offense prior to the entry of bail."*fn2

[ 225 Pa. Super. Page 526]

Appellant's sentence for prison breach was imposed under § 309 of the Penal Code of 1939, Act of June 24, 1939, P. L. 872, as last amended by the Act of July 16, 1968, P. L. 353, § 1, 18 P.S. § 4309.*fn3 That section, in pertinent part, provides that any person undergoing imprisonment, whether before or after conviction, who breaks prison is guilty of a felony. The section directs that when the prison breach occurs after conviction of another offense, the sentence for prison breach shall commence from the expiration of the sentence for the other offense and any other prior sentences. The section says nothing about the commencement of a sentence where, as here, the prison breach occurs prior to conviction of the offense for which the person was originally imprisoned. The lower court, in imposing sentence to begin on June 4, 1973, relied on Commonwealth ex rel. Dailey v. Myers, 186 Pa. Superior Ct. 176, 142 A.2d 381 (1958).

The Dailey case was decided under an earlier prison breach statute differing somewhat from that under discussion; although the differences are not material for present purposes, an appreciation of the wording of the earlier statute is necessary to an understanding of the case. It provided, in part: "Any person undergoing imprisonment who breaks prison and escapes, or shall break ...


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