HomeMy WebLinkAbout03-269 CriminalCOMMONWEALTH
EDWARD RAYMOND SMITH
Bayley, J., May 7, 2003:--
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
03-0269 CRIMINAL TERM
IN RE: OPINION AND VERDICT
Defendant, Edward Raymond Smith, is charged with counts of escape,~
graded a felony in the third degree, and summary criminal mischief.2 Defendant
and the Commonwealth waived a trial by jury. A bench trial was conducted on
May 7, 2003. We find the following facts.
On August 1,2002, defendant was convicted in the Court of Common
Pleas of Franklin County, Pennsylvania, on a count of terroristic threats.3 On
September 11, 2002, defendant was sentenced on that count to a period of
Restrictive Intermediate Punishment of four months on electronic monitoring in
his home in Shippensburg Township, Cumberland County. Defendant was
monitored by means of an electronic ankle bracelet. On November 3, 2002, at
9:31 p.m., while defendant was undergoing his sentence to Restrictive
Intermediate Punishment, the company conducting the monitoring received a
tamper alarm. In response, a Franklin County Probation Officer went to
defendant's residence at 10:20 p.m. The ankle monitor was cut and lying on a
couch. Defendant, who did not have permission to leave his residence, was not
~ 18 Pa.C.S. § 5121(a).
: 18 Pa.C.S. § 3304(a)(1).
~ 18 Pa. C.S. § 2706.
03-0269 CRIMINAL TERM
there. The next day defendant called his probation officer and told him that he
had returned to his residence. He was arrested that day on the within charges.
The damage to the ankle bracelet was $25.
The Crimes Code at 18 Pa.C.S. Section 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. (Emphasis added.)
(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. (Emphasis added.)
Defendant maintains that he cannot be convicted of escape because he
was not in "official detention" when he cut and removed his ankle monitor and left
his residence on November 3, 2002. In Commonwealth v. Wegley, 791 A.2d
1223 (Pa. Super. 2002), the Superior Court of Pennsylvania stated:
We hold that a person sentenced to intermediate punishment who
fails to comply with the terms pertaining to confinement in one's
residence and to electronic monitoring, 42 Pa.C.S.A. § 9763(b)(16),
(17), may be subject to the charge of escape under 18 Pa.C.S.A. §
5121.
We are bound by law in Wegley.4 Accordingly, the Commonwealth has
proven beyond a reasonable doubt that defendant is guilty of escape, and
4 The Supreme Court of Pennsylvania has granted allocatur at 805 A.2d 524 (Pa.
2002).
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03-0269 CRIMINAL TERM
criminal mischief by intentionally damaging the ankle monitor which was the
tangible property of another.5
VERDICT
AND NOW, this day of May, 2003, I find defendant GUILTY of escape and
criminal mischief. A presentence investigation is ordered. Defendant is ordered to
appear for sentencing on Tuesday, May 20, 2003, at 1:30 p.m.
By the Court,
Michael Mervine, Esquire
For the Commonwealth
H. Anthony Adams, Esquire
For Defendant
Probation
:sal
Edgar B. Bayley, J.
Section 3304(a) of the Crimes Code provides:
A person is guilty of criminal mischief if he: (1) damages tangible
property of another intentionally, recklessly...
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