Appeal from order of Court of Common Pleas of Berks County, No. 440 of 1973, in case of Commonwealth of Pennsylvania v. James Richard Smith.
Grant E. Wesner, Deputy District Attorney, and Robert L. VanHoove, District Attorney, for Commonwealth, appellant.
Ralph W. D. Levan, First Assistant Public Defender, for appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J.
[ 235 Pa. Super. Page 283]
This appeal comes before our Court following the granting of appellee's motion in arrest of judgment by the lower court en banc. Appellee was a prisoner who had been convicted of rape and had been sentenced to a term in prison of from 29 to 59 months, sentence to commence September 5, 1971. He was granted a holiday furlough from the Berks County Prison, which was to last from 8:30 a.m., September 3, 1972, until 10:30 p.m., September 4, 1972. Appellee failed to return to the prison on September 4, and did not return during the entire month of September. Appellee was charged with prison breach and convicted of that crime by a jury. His motion in arrest of judgment was subsequently granted, and the Commonwealth has appealed.
In its opinion reversing the jury verdict, the lower court en banc held that the Commonwealth failed to establish that appellee was given any instructions on the duration of the furlough. The lower court held in effect that appellee was granted a furlough but did not know he was required to return. The court en banc then concluded that in the absence of proof that appellee knew he had to return from the furlough, the Commonwealth had failed to establish an essential element of the crime of prison breach.
[ 235 Pa. Super. Page 284]
Authority for granting such a furlough is found at 61 P.S., Chapter 19, which states:
"The Bureau of Correction shall establish rules and regulations for granting and administering release plans and shall determine those inmates who may participate in any plan. If any inmate violates the rules or regulations prescribed by the bureau, his release privileges may be withdrawn. Failure of any inmate to report to or return from the assigned place of employment, training, education or other authorized destination shall be deemed an escape under the provisions of section 309 of the act of June 24, 1939 (P.L. 872), known as 'The Penal Code.'" (emphasis added).*fn1
That section of The Penal Code reads in pertinent part:
"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, a felony, and, on conviction thereof, shall be sentenced to undergo imprisonment, by separate and solitary confinement at labor, for a term not exceeding ten (10) years."*fn2
Nowhere in either section is there language which indicates that notice to return from a furlough is an essential element of the crime of prison breach. When a prisoner is granted a holiday furlough, that prisoner knows he is not being permanently released and that he must return to the prison. To argue that, if appellee did not know when to return, it ...