J-S42004-17

                             2017 PA Super 222

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

RICK ALAN WAUGAMAN,

                        Appellant                     No. 170 MDA 2017


        Appeal from the Judgment of Sentence November 30, 2016
              In the Court of Common Pleas of Union County
           Criminal Division at No(s): CP-60-CR-0000296-2015


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

OPINION BY OLSON, J.:                                  FILED JULY 13, 2017

     Appellant, Rick Alan Waugaman, appeals from the judgment of

sentence entered on November 30, 2016, following his jury trial conviction

for escape, 18 Pa.C.S.A. § 5121. Upon review, we affirm.

     The trial court summarized the facts of this case as follows:

     On September 12, 2015, [Appellant] was incarcerated in the
     Union County Prison.       The [trial] court had granted him
     work-release status. Prison officials released [Appellant] from
     the work-release section of the prison to go to work on that date
     at approximately 3:00 a.m. [Appellant] did not go to work.
     Instead, [Appellant] went to his girlfriend’s house. He then
     returned to the prison around 8:00 a.m. that same day. Later,
     prison authorities revoked [Appellant’s] work-release status.

Trial Court Opinion, 2/17/2017, at 2 (unpaginated).

     Procedurally, the case proceeded as follows:

     [The Commonwealth charged Appellant with escape based upon
     the same facts that supported his removal from work release
     status.] On October 6, 2016, a jury convicted [Appellant] of
     [e]scape[.] On November 30, 2016, [the trial] court sentenced
J-S42004-17


       [Appellant] [to] a period of incarceration in a state correctional
       facility [to] not less than one year nor more than four years.
       [Appellant] filed his [p]ost-[s]entence [m]otion on Monday[,]
       December 12, 2016[.] [The trial] court denied [Appellant’s]
       motion on that same day. [Appellant] filed his [n]otice of
       [a]ppeal on January 12, 2017.         [The trial] court ordered
       [Appellant] to file a [s]tatement of [errors] [c]omplained of on
       [a]ppeal.     In his [s]tatement filed on February 2, 2017,
       [Appellant] claimed [the trial] court erred when it denied his
       [pretrial motion].

Id. at 1-2 (unpaginated).         The trial court issued an opinion pursuant to

Pa.R.A.P. 1925(a) on February 17, 2017.

       On appeal, Appellant presents the following issues for our review:

    1. Did error occur in [the] denial of Appellant’s [o]mnibus [m]otion,
       specifically where [the] prosecution for [e]scape was improper
       as there was no showing that Appellant attempted to remove
       himself from official detention?

    2. Did error occur in [the] denial of Appellant’s [m]otion in [l]imine,
       as his behavior was addressed by removal of work release
       privileges, thus making prosecution in this matter a double
       jeopardy violation?

Appellant’s Brief at 5.

       In his first issue presented, Appellant contends that the trial court

abused its discretion by denying his omnibus pre-trial motion wherein he

challenged the Commonwealth’s ability to prove he intended to remove

himself from official detention, one of the required elements in establishing

escape.1    Id. at 8.     Appellant claims that, “while not going to work, [he]

____________________________________________


1
   We note that Appellant filed a pre-trial motion essentially challenging the
sufficiency of the evidence before the case went to trial. “It is clear that the
proper means for testing the finding that the Commonwealth has sufficient
(Footnote Continued Next Page)


                                           -2-
J-S42004-17



maintained contact with both employer and prison[,] stated his intention to

return to jail[, and] followed through on his word, voluntarily coming back to

the Union County Prison.”            Id. at 9.    Appellant relies upon our 1991

decisions in Commonwealth v. Edwards, 595 A.2d 183 (Pa. Super. 1991)

and Commonwealth v. Hall, 585 A.2d 1117 (Pa. Super. 1991) for the

proposition that his actions did not constitute a substantial deviation from

his travel route necessary to prove escape. Id. at 8-9.

      Our standard of review is well-settled:

      The standard we apply in reviewing the sufficiency of the
      evidence is whether viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact–finder to find every element of the
      crime beyond a reasonable doubt. In applying the above test, we
      may not weigh the evidence and substitute our judgment for the
      fact–finder. In addition, we note that the facts and
      circumstances established by the Commonwealth need not
      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact–finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence. Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      finder of fact while passing upon the credibility of witnesses and


                       _______________________
(Footnote Continued)

evidence to establish a prima facie case is to petition the trial court for a writ
of habeas corpus.” Commonwealth v. Morman, 541 A.2d 356, 357 (Pa.
Super. 1988). However, Appellant has maintained consistently that there
was not sufficient evidence to support his conviction. Hence, we will treat
his claim as a sufficiency challenge.



                                            -3-
J-S42004-17


      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Williams, 153 A.3d 372, 375 (Pa. Super. 2016).

      “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.” 18 Pa.C.S.A. § 5121.

There is no dispute that “a prisoner's participation in a work release program

[constitutes] official detention.”   Commonwealth v. Edwards, 595 A.2d

183, 184 (Pa. Super. 1991) (citation omitted).         Prior interpretation of

Section 5121 requires a substantial deviation from official custody to support

a conviction. In Edwards, Edwards was late returning to prison from work

release twice, six minutes on one occasion and seven minutes another time,

and admitted to drinking alcohol on one occasion.       Id. at 183.   We also

examined Hall in Edwards.       In Hall, when released from prison for work,

Hall stopped at his house with his girlfriend for an hour before proceeding to

his place of employment.      Id. at 184.   In examining the two cases, we

ultimately concluded, “the escape statute does not encompass a situation

where a prisoner does not substantially deviate from a prescribed travel

route, goes to work and returns to official custody as prescribed by his

work release program.” Id. (emphasis added).

      In this case, the trial court determined:

      […Appellant’s] conduct [w]as clearly distinguishable from that of
      Hall and Edwards. Here, [Appellant] never went to work, unlike
      Hall and Edwards. He stayed at his girlfriend’s house, for some
      time, and then left the house. He did not return to prison for


                                      -4-
J-S42004-17


      about five hours. The amount of time during which [Appellant]
      was not where he was supposed to be, five hours, far exceeds
      the amount of time cited in both [Hall and Edwards].

Trial Court Opinion, 2/17/2017, at 2 (unpaginated).

      Upon review, we conclude the Commonwealth presented sufficient

evidence of escape.      Here, although Appellant maintained contact with his

work and the prison, he never went to work.           N.T., 3/28/2016, at 5.

Moreover, Appellant also stipulated that after he left the prison, he went to

his girlfriend’s house for one hour, and left that location where his

whereabouts were unknown for approximately three hours.          Id. at 6, 10.

We conclude that such actions constituted a substantial deviation from his

work-release program to establish the offense of escape. Moreover, the trial

court properly distinguished this case from Edwards and Hall. Accordingly,

Appellant’s first issue fails.

      In his second issue presented, Appellant argues that he was

sanctioned for his “behavior by removal of work release privileges[, he] was

already punished for the same event[, and] this prosecution should be

barred” under the principle of double jeopardy.       Appellant’s Brief at 10.

Appellant concedes, however, that there is “case law contrary to this

notion[.]”   Id.    Indeed, our Supreme Court has concluded that “prison

disciplinary action [] imposed for infractions of prison regulations within the

confines of the authorized administrative scheme, [] falls within the range of

predictable punishment under the original sentence and can be justified on

the basis of safe, orderly or efficient institutional administration, [and] it


                                      -5-
J-S42004-17



does not implicate the constitutional proscription against subsequent

criminal prosecution based upon double jeopardy.”   Commonwealth v.

McGee, 744 A.2d 754, 759 (Pa. 2000).      Here, the prison sanction of

removing Appellant from the work release program simply did not bar the

Commonwealth’s subsequent criminal prosecution for escape. As such,

Appellant’s second issue lacks merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/13/2017




                                    -6-
