Appeal from judgment of sentence of Court of Common Pleas of Bucks County, No. 567 of 1973, in case of Commonwealth of Pennsylvania v. Thomas Wright.
Nathan Criste, 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.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Spaeth, J. Hoffman, J., took no part in the consideration or decision of this case.
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Appellant contends that his sentence for prison breach is illegal under the Act of June 24, 1939, P. L. 872, § 309, as last amended by the Act of July 16, 1968, P. L. 353, No. 174, § 1, 18 P.S. § 4309 (Supp. 1972).*fn1 Specifically, he claims that the following provision of
[ 231 Pa. Super. Page 385]
that statute was violated: "When said prison breach occurs after conviction for an offense other than the prison breach, said sentence shall commence from the expiration of the original sentence and any other sentences previously imposed which remained to be served at the time the offense of prison breach was committed."
Appellant escaped from the Bucks County prison on February 26, 1973. He was at that time serving a flat six month sentence due to expire on April 18, 1973. Seven days after his escape appellant was caught and returned to the Bucks County prison. The six month term was thus extended 7 days to April 25. Not being able to raise bail on the prison breach charge he remained in the prison until June 15, when bail was posted. On June 25, while out on bail, appellant was arrested in Philadelphia for larceny of an automobile. He was taken to the Detention Center in Philadelphia, where he remained until September 28, when at his request he was returned to Bucks County and pleaded guilty to prison breach.
It developed at the sentencing hearing that while in Philadelphia appellant had pleaded guilty to the larceny charge (as well as to other charges pending against him in Philadelphia) but had not yet been sentenced because the Philadelphia court had ordered and was awaiting a psychiatric evaluation and presentence report. Appellant was thereupon sentenced to serve a term of nine to twenty-three months in prison for prison breach, "this sentence to begin and be computed from the expiration of any sentence to be imposed by the City of Philadelphia [sic]." In his opinion to us the sentencing judge states that in serving this sentence appellant is entitled to "a credit . . . for the period between April 26 and June 15, 1973."
The Act of June 24, 1939, supra, requires that a sentence for prison breach "shall commence from the
[ 231 Pa. Super. Page 386]
expiration of the original sentence. . . ." Appellant's original sentence was due to expire on April 18. In fact, however, it expired on April 25, for appellant was not entitled to credit for the seven days he was away from prison, between his escape and return. Appellant's sentence for prison breach should therefore have commenced on April 26. Against this sentence appellant is entitled to credit for the time he spent in the Bucks County prison (April 26 to June 15), before he raised bail and while he was awaiting trial for his prison breach. He is not entitled to credit either for the time he spent out on bail (June 15 to June ...