NO. 162 PITTSBURGH, 1981, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal, of Mercer County, at No. 101 Criminal 1980.
Robert G. Kochems, Grove City, for appellant.
Charles Hersh, Assistant District Attorney, Mercer, for Commonwealth, appellee.
Hester, Beck and Van der Voort, JJ. Beck, J., files a concurring and dissenting statement.
Appellant was found guilty of escape, conspiracy to commit escape, unauthorized use of a motor vehicle and conspiracy to commit unauthorized use of a motor vehicle by the court sitting non-jury.*fn1 The charges arose out of an incident on February 25, 1980, when McKee overpowered the night matron at the Mercer County Juvenile Court Center, locked her into a room, and escaped with five other juveniles, including appellant, Martell by taking the matron's car. Appellant was tried together with co-defendant McKee. Appellant Martell raises five issues on this appeal; we will address them seriatim.
I. DID THE TRIAL COURT ERR IN ADJUDGING THE APPELLANT GUILTY OF CRIMINAL ESCAPE AND CONSPIRACY TO ESCAPE IN THAT THE EVIDENCE PRESENTED BY THE COMMONWEALTH FAILED TO SHOW THAT THE APPELLANT WAS UNDER OFFICIAL DETENTION AS IS REQUIRED BY THE STATUTE?
Escape is defined by the Crimes Code, 18 Pa.C.S. § 5121(a) as:
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.
Subsection (e) further defines official detention as:
Definition -- as used in this section, the phrase "official detention" means arrest, detention in any facility for custody of persons, under charge or conviction of crime or alleged or found to be delinquent, detention for extradition or deportation, or any other detention for law enforcement purposes; but the phrase does not include supervision of probation, parole, or constraint incidental to release on bail.
Appellant cites our decision in Commonwealth v. Markle, 245 Pa. Superior Ct. 108, 113, 369 A.2d 317, 319 (1976), where we said, that: "In order to prove the charge against appellant of attempted escape, the Commonwealth had to prove that appellant was held in 'official detention' . . ."; and went on to say that in the Markle case: "the jury ...