No. 1063 October Term, 1977, Appeal from the Order entered January 11, 1977 by the Court of Common Pleas of Lycoming County, Criminal Division, at No. 76-10, 709.
John A. Felix, Williamsport, for appellant.
David C. Shipman, Assistant District Attorney, Williamsport, for Com., appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Watkins, former President Judge, and Hoffman, J., did not participate in the consideration or decision of this case.
[ 261 Pa. Super. Page 241]
Appellant Carl Brown brings this appeal from a dismissal of his P.C.H.A. petition.*fn1 He contends that he was not in "official detention" at the time he walked away from a work release program, and was erroneously charged with escape under 18 C.P.S.A. § 5121(a). That section reads:
(a) Escape. -- A person commits an offense if he unlawfully removes himself from official detention or fails to return to official detention following temporary leave granted for a specific purpose or limited period.
In the alternative, he argues that the charge of escape should have been classified as a misdemeanor of the second degree, rather than as a felony of the third degree. The relevant grading guidelines are set forth in 18 C.P.S.A. § 5121(d):
(1) An offense under this section is a felony of the third degree where:
(i) the actor was under arrest for or detained on a charge of felony or following conviction of crime . . .
(2) Otherwise an offense under this section is a misdemeanor of the second degree.
The record below clearly demonstrates that appellant was properly charged with and sentenced for escape as a third ...