Commonwealth v. McNeill

DiSALLE, Judge:

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.G.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.

* * * * ;¡. *

(d) Grading—

(1) An offense under this section is a felony of the third degree where:

(1) 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 the criminal information filed against him. The first count, he argues, does not contain any information which would permit his escape to be graded as a felony. We agree.

The first count of the information reads:

First count—that on or about February 24, 1979 in Philadelphia County, Reginald McNeill did unlawfully remove himself from official detention following temporary leave granted for a specific purpose or limited period.

This count is an almost verbatim recitation of the statutory definition of escape, § 5121(a), supra, but is silent on the grade of the offense.

In Commonwealth v. Longo, 269 Pa.Super. 502, 410 A.2d 368 (1979), our court vacated a judgment of sentence and remanded for resentencing a conviction for retail theft. 18 Pa.C.S.A. § 3929 (Supp. 1981-82). In Longo we held that an indictment for retail theft must state that the defendant has at least two prior convictions for retail theft before the defendant’s conviction may be graded as a felony of the third degree; otherwise the conviction must be graded as a misdemeanor. We stated that “Retail Theft is an offense ‘different in kind and character from’ Retail Theft, Third Offense.” Id., 269 Pa.Super. at 503, 410 A.2d at 369. Accord Commonwealth v. Herstine, 264 Pa.Super. 414, 399 A.2d 1118 (1979).

The statute defining escape, like that dealing with retail theft, incorporates the grading of the offense. We therefore hold that escape under § 5121(d)(1), felony of the third degree, is “different in kind and character from” § 5121(d)(2), misdemeanor of the second degree. Consequently, if an indictment or information fails to set forth the degree of the offense, a conviction for escape must be graded as a misdemeanor of the second degree. See Commonwealth v. Jones, 279 Pa.Super. 93, 420 A.2d 1046 (1980) (grading of defendant’s escape conviction upheld because the information identified the charge as a felony).

In the present case appellant was convicted only on the first count of the indictment which makes no reference to the degree of the offense. Appellant, therefore, may be sentenced only to a maximum of two years imprisonment. 18 Pa.C.S.A. § 5121(d)(2); 18 Pa.C.S.A. § 1104. The sentence imposed, imprisonment for one to five years, is beyond this statutory limit and therefore illegal. See Longo, supra.

Nor may the Commonwealth rely on the second or third counts of the indictment to upgrade the conviction to a felony because the trial court failed to find appellant guilty of those counts.¹ The sentencing court is limited to the trial court’s finding of guilt only on the first count and is, therefore, restricted to the language of the first count. For this same reason the sentencing court may not upgrade the conviction based on trial testimony that appellant was in official detention as the result of a felony conviction. See Longo, supra.

Judgment of sentence vacated and case remanded for resentencing.²

POPOVICH, J., files a dissenting opinion.

1 . The second and third counts of the indictment state: Second Count—That on the same day and year, in Philadelphia County, REGINALD MCNEILL feloniously did remove himself from official detention or fail to return to official detention following temporary leave granted for a specific purpose or limited period, the said defendant being under arrest for or detained on a charge of felony or following conviction of crime.

Third Count—That on the same day and year, in Philadelphia County, REGINALD MCNEILL feloniously did remove himself from official detention or fail to return to official detention following temporary leave granted for a specific purpose or limited period, the said defendant employing force, threat, deadly weapon or other dangerous instrumentality to effect the escape.

2 . The sentencing court is directed to place on the record its reasons for the sentence it imposes on appellant. Commonwealth v. Riggins, 474 Pa. 115, 377 A.2d 140 (1977).