Appeal from Order dated June 25, 2007 In the Court of Common Pleas of Berks County Criminal at No(s): CP-06-CR-0000205-2007 & CP-06-CR-0005278-2006.
The opinion of the court was delivered by: Stevens, J.
BEFORE: STEVENS, LALLY-GREEN, and FITZGERALD*fn1, JJ.
¶ 1 This is a consolidated appeal from the order entered by the Court of Common Pleas of Berks County granting Appellees' respective petitions for Writ of Habeas Corpus and dismissing the charge of Escape, 18 Pa.C.S.A. § 5121(a) that had been filed against each parolee for leaving a detainment facility without permission. The Commonwealth argues the trial court erred in concluding section 5121 necessarily excludes from its reach parole violators who have been arrested and placed in a facility pending their parole violation hearing. As we agree with the Commonwealth, we vacate and remand.
¶ 2 The trial court opinion below aptly describes the facts, which apply to both Appellees and are not in dispute, and the issue of statutory interpretation confronting this Court, as follows:
[Each Appellee] was on state parole and was believed to have committed technical violations of his parole conditions. [Each] was apprehended by his Parole Officer and sent to Penn CAPP. Penn CAPP is a program administered by a company called Firetree Ltd., which rents facilities on the grounds of the Conewago-Wernersville State Hospital in Berks County. Through a contract with the Pennsylvania Department of Corrections, the Pennsylvania Community Alternative to Prison Program (Penn CAPP) is administered. [Each] was taken to the Penn CAPP facility, and a detainer against [each] was lodged. No adjudication, either preliminary or otherwise, occurred prior to [each] walking away from the facility.
Upon admission to the facility, parolees are required to sign an "acknowledgement of status," which contains language in the nature of an "acknowledgment" that the defendant is no longer on parole but is rather in a "pre-release" status. There is no testimony to the effect that upon being apprehended for the alleged technical parole violations, that [each] was given a choice between being reincarcerated in a prison facility or being housed at Penn CAPP.
After approximately 14 days at Penn CAPP, a hearing is held to determine whether defendants are appropriately placed there. After such hearing, the Penn CAPP program continues for a total of 90 days. At the end of 90 days, if the defendant has complied with all of the program's provisions, the defendant is released from Penn CAPP and no adjudication as to violation of parole is made. [Each Appellee] argue[d below] that[,] irrespective of the "acknowledgement" contained in Exhibit 1 hereto,  he was still on parole at the time of the incident [forming the basis for the escape charge] in question, and thus, the Commonwealth [was] unable to establish that [he] removed himself from "official detention" as that term is defined at 18 Pa.C.S.A. § 5121(e). The Commonwealth argue[d below in each case] that since [each defendant] acknowledged, by signing the form [prior to his admission into Penn CAPP], [he] was no longer on parole but rather was in "pre-release" status. The Commonwealth further cites Miller v. Pennsylvania Board of Proabation and Parole, 837 A.2d 618 at 622 (Pa. Cmwlth. 2003) for the proposition that a person cannot commit a technical parole violation after having been reincarcerated because one is no longer on parole within the me[aning] of Section 21.1(b) of the Parole Act.
Trial Court Opinion dated 6/25/07 at 1-2.
¶ 3 In dismissing the escape charge in each case, the trial court determined the very language of the escape statute excluded parolees from being charged thereunder. Specifically, 18 Pa.C.S. § 5121 provides:
(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.
(e) 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 or parole, or constraint incidental to release on bail.
18 Pa.C.S. § 5121(a) and (e). The issue presented, therefore, is whether Section 5121 necessarily excludes all parolees from its ambit, even those who have been arrested for violating terms of their parole, notified they are considered to be in "prerelease" status, and detained in an official housing facility from which they leave without permission prior to adjudication of their parole violation hearings.
¶ 4 Initially, our jurisprudence on section 5121 in the context of home confinement supports the conclusion that placement in Penn CAPP, though not a prison, may subject one to official detention as contemplated in the escape statute. In Commonwealth v. Wegley, 574 Pa. 190, 829 A.2d 1148 (2003), the Pennsylvania Supreme Court addressed the issue of whether the offense of escape can occur in the context of home confinement. Interpreting Section 5121 according to "the fair import of its terms" as required by 18 Pa.C.S. § 105, the Court construed "detention" broadly. Id. at 194-95 n.5, 1150-5 n.5 (noting cases recognizing various modes of detention). In so doing, it looked past the lack of a traditional institutional setting and instead found ...