dissenting.
I respectfully disagree with the holding of the majority that appellant was never “lawfully in custody” because he was not physically restrained by the officers and did not submit to their authority. The majority relies upon the rationale of California v. Hodari D., 499 U.S. 621, 625 (1991), which I find inapplicable to this situation.
While this issue has not yet been specifically addressed in the Commonwealth, several federal cases provide guidance. See, e.g., United States v. Keller, 912 F.2d 1058, 1060 (9th Cir. 1990) (holding that a defendant who failed to report to his place of confinement at the appointed time escaped from custody), cert. denied, 498 U.S. 1095 (1991); United States v. Peterson, 592 F.2d 1035, 1037 (9th Cir. 1979) (holding that a defendant who failed to report to the United States Marshal immediately after sentenc*618ing escaped from custody); Murphy v. United States, 481 F.2d 57, 60-61 (8th Cir. 1973) (holding that a prisoner in jail escaped from custody even though he was not in the actual physical custody of the arresting officer).
In Tennant v. United States, 407 F.2d 52 (9th Cir. 1969), a customs inspector told the driver of a car suspected of carrying drugs that he was under arrest. The driver fled and was later convicted of escape from the custody of a federal officer. In upholding that conviction, the Ninth Circuit held that “[i]f appellant heard and understood the oral communication that he was ‘under arrest,’ the authorized detention became ‘custody’.” Id. at 53.
It is clear that custody is not limited only to direct physical restraint. Custody can be effectuated either by an actual touching or by circumstances in which a person of ordinary intelligence would know that he was not free to leave. When a police officer in uniform tells a suspect that he has a warrant for the suspect’s arrest and reaches for his handcuffs with one hand and for the suspect with the other, a person of ordinary intelligence would know he is “lawfully in custody” and not free to leave. Appellant heard and understood the oral communication that he was under arrest and was at that time in “lawful custody” and subject to prosecution for escape.
Accordingly, I respectfully dissent.