Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Luzerne County, No. 923 of 1985.
Joseph Giebus, Wilkes-Barre, Assistant District Attorney, for Com., appellant.
Joseph J. Yeager, Assistant Public Defender, Wilkes-Barre, for appellee.
Wieand, Montemuro and Beck, JJ. Beck, J., files a concurring and dissenting opinion.
[ 355 Pa. Super. Page 177]
This is an appeal by the Commonwealth from an order sustaining a defense demurrer to a charge that Ralph Isreal Cruz had escaped on June 12, 1973 by failing to return to the State Correctional Institution at Dallas after a home furlough. The trial court sustained the demurrer and dismissed the charge because the information, on its face, failed to disclose that the applicable statute of limitations had been tolled.
[ 355 Pa. Super. Page 178]
The issue presented by this appeal is one of law. The trial court sustained the defense demurrer for reasons which did not pertain in any way to the guilt or innocence of the accused. Such an order is appealable by the Commonwealth. See: United States v. Scott, 437 U.S. 82, 98 S.Ct. 2187, 57 L.Ed.2d 65 (1978).
The evidence at trial established that after Cruz had failed to return to the prison at the end of his furlough, a warrant for his arrest was issued on June 15, 1973.*fn1 Cruz, upon leaving the prison at the start of his furlough, travelled to Chester where he stayed for a period of two days. He then borrowed money to buy an airline ticket and flew to Puerto Rico. There, he lived with his mother for approximately four years, after which he moved into the home of and lived with a woman who bore him two children. On December 20, 1984, he flew to Chicago where, on or about April 15, 1985, he was taken into custody by the Chicago police. A complaint charging Cruz with escape was thereafter signed, an arrest warrant was issued, and he was returned to Pennsylvania. An information charging him with escape was filed on June 11, 1985.
A prosecution for the offense of escape must be commenced within two years after its commission. 42 Pa.C.S.A. § 5552(a).*fn2 "[A] prosecution is commenced either when an indictment is found or an information under § 8931(b) is issued, or when a warrant, summons or citation is issued, if such warrant, summons or citation is executed without reasonable delay." 42 Pa.C.S.A. § 5552(e).*fn3 The period of limitation, however, does not run while "the
[ 355 Pa. Super. Page 179]
accused is continuously absent from this Commonwealth or has no reasonably ascertainable place of abode or work within this Commonwealth[.]" 42 Pa.C.S.A. § 5554(1).*fn4
The evidence offered by the Commonwealth in this case was clearly sufficient to establish a tolling of the statute from June 12, 1973 until April 15, 1985.*fn5 It would seem, therefore, that the trial court's order sustaining a defense demurrer to the ...