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filed: June 12, 1981.


No. 1338 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Susquehanna County, No. 43 Aœ April Term, 1977.


Peter G. Loftus, Scranton, for appellant.

Sam W. Lewis, Assistant District Attorney, Montrose, for Commonwealth, appellee.

Hester, Cavanaugh and Van der Voort, JJ. Cavanaugh, J., files a concurring opinion.

Author: Hester

[ 291 Pa. Super. Page 281]

On April 26, 1977, the Grand Jury of Susquehanna County, Pennsylvania, returned a multi-count indictment against appellant Allyn D. Booth charging him with three counts each of involuntary deviate sexual intercourse, furnishing contraband, and indecent assault and one count each of facilitating escape, obstructing administration of the law, and official oppression. Following a ten-day jury trial in August, 1977, appellant was found guilty only of obstructing administration of the law, furnishing contraband (one count) and facilitating escape.*fn1 He was acquitted of all other charges. Post-trial motions were argued and denied and in

[ 291 Pa. Super. Page 282]

    aggregate sentence of two to four years imprisonment was imposed. This appeal followed.

At the time of the alleged offenses, appellant was the Sheriff of Susquehanna County and warden of the county jail. Specifically, the Commonwealth averred that at divers times in January and February of 1977, appellant engaged in various sexual activities with several inmates of the jail; that he had unlawfully furnished alcohol to these individuals and permitted one of them to escape; and that he generally obstructed administration of the law and subjected the victims to official oppression by mistreating them and providing alcohol to them. The evidence supporting those charges of which appellant was ultimately convicted was as follows:

On Friday afternoon, February 4, 1977, Paul Howard Gross, age 20, was brought in custody to the Susquehanna County Jail from the Elmira Correctional Facility in New York where he had been serving a sentence for burglary. Gross was transported from New York by appellant and Police Chief Willard Collier and brought to Susquehanna County to face criminal charges pending in that jurisdiction. Appellant at first placed Gross with the general prison population, but later transferred him to the cell reserved for juvenile prisoners, which is located above the other cell blocks and adjacent to the sheriff's residential quarters. Upon his arrival at the jail, Gross complained that he was not feeling well and that he had a headache. Appellant escorted Gross to the sheriff's living quarters, located within the jail building, and gave Gross a bottle of beer which he consumed in the kitchen. Gross spent that night (Friday, 2/4/77) in the juvenile cell. The next day, appellant gave Gross breakfast in the sheriff's kitchen and left him in the livingroom watching television while he, appellant, tended to some business in town. That afternoon, appellant drove Gross to nearby Hallstead to purchase a watch. Gross was not handcuffed, shackled, or restrained in any way and was left in the car alone while appellant went into several stores. That evening, appellant furnished Gross with scotch, which

[ 291 Pa. Super. Page 283]

    he drank in appellant's quarters. Later, Gross was placed back in the juvenile cell but was not locked therein.

The next day, (2/6/77) appellant again provided this inmate with beer and scotch. Gross was permitted to watch television in the sheriff's living room that day and the next day as well. On Tuesday night, 2/8/77, Gross was again not locked in his cell. Desiring to escape, he walked into the sheriff's kitchen and was able to crawl through a window to the outside. He was apprehended a few days later in New York.

We have reviewed the evidence in the light most favorable to the Commonwealth and conclude there was sufficient evidence by which the jury could find all elements of crimes of which appellant was convicted beyond a reasonable doubt. Commonwealth v. Harper, 485 Pa. 572, 403 A.2d 536 (1979). Providing Gross with beer and liquor certainly constituted "furnish[ing] to any convict in a prison . . . any kind of spirituous or fermented liquor." 18 Pa.C.S.A. § 5123 (Contraband). Further, by failure to assure that Gross securely confined within his cell and allowing him to roam about the sheriff's living quarters, appellant, being a public servant, "knowingly or recklessly permit[ted] an escape." § 5121(b) (Escape), and failed to maintain requisite control over the prisoner. Toll, Pa.Crimes Code Annotated, p. 605 (1974). See e. g., Commonwealth v. Shields, 50 Pa. Super. 194 (1912); Commonwealth v. Norris, 87 Pa. Super. 66 (1925) (prosecutions of sheriffs under Act 1860, March 31, P.L. 382, for permitting prisoners to escape). Finally, appellant could properly be convicted of "impair[ing] . . . the administration of law . . . by . . . breach of official duty" on evidence that he provided liquor to Gross and permitted him to escape. § 5101. This section has been interpreted to reach, inter alia, malfeasance of public office. Toll, supra, p. 578.

Appellant contends the court erred in its instructions to the jury concerning the charge of facilitating escape. Under 18 Pa.C.S.A. § 5121, escape or facilitating escape will rise to a third degree felony if any of the three

[ 291 Pa. Super. Page 284]

    subsections of § 5121(d)(1) are present.*fn2 Otherwise, the offense constitutes a misdemeanor of the second degree. The indictment herein averred that appellant was being charged with a felony under this section, but appellant contends the court instructed the jury only as to a misdemeanor. We do not agree. By inclusion of the words "reasonably prudent man" and "reasonably prudent sheriff" in the charge, the court was allowing the jury to find that appellant did not necessarily intentionally permit Gross to escape, but that he nonetheless recklessly permitted same. § 5121(b). The element of recklessness does not, as appellant urges, reduce the crime to a misdemeanor in all instances, for § 5121(d)(1)(i) provides that the offense will constitute a felony if "the actor [i. e., prisoner] was under arrest for or detained on a charge of felony or following conviction of crime." The evidence established that Gross, the "actor" herein, was serving a sentence on a New York state conviction. Thus, under the facts as presented by the Commonwealth, the jury charge was proper.

Appellant next contends that all charges should have been dismissed because of alleged prosecutorial misconduct and improper influence over Commonwealth witnesses by the prosecutor. Before trial, the court granted a defense request to sequester all witnesses. On the morning of the fifth day of trial, the district attorney informed the court in chambers that he may have unintentionally violated the order. On the record, the prosecutor stated that in interviewing a potential Commonwealth witness, one Kathy Sterling, he related to her a small portion of Paul Gross' testimony. Specifically, Miss Sterling was, at the time of the

[ 291 Pa. Super. Page 285]

    crimes, a cook at the jail and often delivered food to the prisoners in their cells. While interviewing Miss Sterling, the prosecutor, through an apparent oversight, told her that Gross had already testified that she "unlocked him twice" from his cell and "handed him a meal". Defense counsel's motion for a mistrial, based upon the violation of the sequestration order, was denied. Prior to Miss Sterling's in-court testimony, the court instructed the jury that she had inadvertently become aware of a portion of Gross' testimony and that they should bear this in mind in assessing her credibility. During her testimony, Miss Sterling denied ever handing a meal to Gross except through a latch in his cell door and denied ever unlocking him from his cell.

In Commonwealth v. Floyd, 259 Pa. Super. 552, 557, 393 A.2d 963, 966 (1978), we summarized the law governing ...

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