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COMMONWEALTH v. MYERS (11/16/72)

decided: November 16, 1972.

COMMONWEALTH, APPELLANT,
v.
MYERS



Appeal from order of Court of Common Pleas of Lebanon County, No. 19 of 1972, in case of Commonwealth of Pennsylvania v. Mark William Myers.

COUNSEL

David J. Brightbill, Assistant District Attorney, with him George E. Christianson, District Attorney, for Commonwealth, appellant.

Robert C. Rowe, with him Spitler, Rowe, Silberman & Kilgore, for appellee.

Wright, P. J., Watkins, Jacobs, Hoffman, Spaulding, Cercone, and Packel, JJ. Opinion by Packel, J. Dissenting Opinion by Hoffman, J. Jacobs and Spaulding, JJ., join in this dissenting opinion.

Author: PACKEL

[ 223 Pa. Super. Page 76]

This case is here on an appeal by the Commonwealth from an order sustaining the defendant's demurrer to the evidence on a charge of burglary. Two state police officers testified that they discovered the defendant standing in front of a door to an Atlantic service station at 3:10 in the morning. They stated that the door had been splintered around the lock assembly, that the window closest to the doorknob had been broken, and that just twenty minutes previously they had inspected the gas station and found the door undamaged. The trial judge granted defendant's demurrer on the ground that the evidence was insufficient to establish the element of entry necessary for a burglary conviction. We reverse.

It is true that in this case there is no direct evidence of an entry. But the condition of the door suggests that an entry did in fact occur. The frame was damaged as if someone had attempted to batter in the door. Since the window closest to the doorknob had been broken as well, it would not be unreasonable to

[ 223 Pa. Super. Page 77]

    assume that the defendant had reached his arm inside to try to unlock the door before resorting to breaking it down. And the passing of an arm through a window is enough to satisfy the entry requirement, for the entry of any part of the body is sufficient to constitute a burglary. Commonwealth v. Stefanczyk, 77 Pa. Superior Ct. 27 (1921).

The jury should have been permitted to determine whether the defendant reached his arm through the broken window. In Commonwealth v. Lewis, 346 Mass. 373, 377, 191 N.E. 2d 753, 757 (1963), cert. den., 376 U.S. 933 (1964), for example, the court concluded that evidence of a door being slowly opened from the outside was sufficient to reach the jury on the question of entry, as follows: "We are of the opinion that the jury could fairly have inferred that in the course of his opening the door some portion of the defendant's hand or arm came within the house. That was enough to constitute an entry." Likewise in the instant case the jury could have fairly drawn the inference of guilt from the evidence presented by the Commonwealth.

Order reversed and remanded for a new trial.

Disposition

Order reversed and case remanded for ...


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