Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Oct. T., 1972, No. 2062, in case of Commonwealth of Pennsylvania v. Frank Lynch a/k/a James Felton.
Eli N. Donsky, Francis X. Nolan, and Donsky, Katz, Levin & Dashevsky, for appellant.
David Richman and James T. Ranney, Assistant District Attorneys, and Arlen Specter, District Attorney, for Commonwealth, appellee.
Wright, P. J., Watkins, Jacobs, Hoffman, Cercone, and Spaeth, JJ. (Spaulding, J., absent.) Opinion by Cercone, J.
[ 227 Pa. Super. Page 317]
This appeal, from a conviction of burglary, challenges the sufficiency of the evidence adduced in a non-jury trial. The trial court sentenced the appellant to two years probation conditioned upon his continuing in the program at Gaudenzia House. In determining whether the evidence was sufficient to sustain the verdict we must read the entire record and consider the facts, and all reasonable inferences arising therefrom, in the light most favorable to the Commonwealth: Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Allen, 227 Pa. Superior Ct. 157 (1974).
The facts of the case are as follows: At approximately 9:00 p.m. on September 25, 1972, the appellant and John Loveless forced open the locked inner door of a three-story apartment building in Philadelphia. The owner of the building, Miss Taylor, upon hearing a banging noise in the entry area, went to her door and observed the men ascending the steps to the second
[ 227 Pa. Super. Page 318]
floor. About five minutes later, she saw the two men leave, apparently empty handed. She then examined the entry and saw chips of wood on the floor, presumably the result of the break-in. After the police were called an inventory was taken by the tenants, all of whom were in their apartments when the break-in occurred, but it failed to disclose that anything had been stolen.
The next morning, after most of the tenants had gone to work, Lynch and Loveless returned. Miss Taylor, seeing them coming, released her dog in the hallway and called the police. With the presence of the dog in the hallway, the two men departed.
The police arrived shortly thereafter, and while they were gathering routine information from Miss Taylor, she spotted the appellant and Loveless coming back toward the house, but on the opposite site of the street. The police then arrested the pair who made no attempt to flee as the police approached them. A subsequent search disclosed that Loveless had a screwdriver in his rear pocket.
In his appeal the appellant specifically argues that the evidence was insufficient to allow an inference that he entered the building with the intent of committing a felony therein. We agree.*fn1
Since the appellant and Loveless did not attempt to flee when the police approached them, the facts in this case are even less persuasive than those in the recent case of Commonwealth v. Freeman, 225 Pa. Superior Ct. 396 (1973), in which this court reversed a similar conviction for burglary. In that case the accused also used force to ...