No. 2607 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Philadelphia, County, No. 961 April Term, 1979, Criminal Division.
Charles R. Bernsee, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, DiSalle and Popovich, JJ. Popovich, J., files a dissenting opinion.
[ 293 Pa. Super. Page 321]
Appellant, Reginald McNeill, was convicted of escape in a non-jury trial. 18 Pa.C.S.A. § 5121(a). The sentencing court graded the offense as a felony of the third degree and sentenced appellant to be incarcerated for one to five years. 18 Pa.C.S.A. § 5121(d); 18 Pa.C.S.A. § 1103.
18 Pa.C.S.A. § 5121 states:
(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.
(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;
(ii) the actor employs force, threat, deadly weapon or other dangerous instrumentality to effect the escape; or
(iii) a public servant concerned in detention of persons convicted of crime intentionally facilitates or permits an escape from a detention facility.
(2) Otherwise an offense under this section is a misdemeanor of the second degree.
Appellant contends that the sentencing court erred when it graded his escape as a felony of the third degree, § 5121(d)(1), rather than as a misdemeanor, § 5121(d)(2). He argues that his sentence is illegal because the trial court found him guilty only on the first count of ...