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decided: June 21, 1974.


Appeal from judgment of sentence of Court of Common Pleas, Criminal Division, of Philadelphia, Aug. T., 1972, No. 260, in case of Commonwealth of Pennsylvania v. David M. Garrett.


David Weinstein, with him Weinstein, Goss & Katzenstein, for appellant.

Louis Perez, Assistant District Attorney, with him David Richman, Assistant District Attorney, and F. Emmett Fitzpatrick, District Attorney, for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Price, J. Hoffman, J., did not participate in the consideration or decision of this case. Concurring and Dissenting Opinion by Spaeth, J. Van der Voort, J., joins in this opinion.

Author: Price

[ 229 Pa. Super. Page 460]

Appellant, David Garrett, appeals from a conviction of burglary before the Court of Common Pleas of

[ 229 Pa. Super. Page 461]

Philadelphia County, alleging that the Commonwealth did not meet its burden of proof as to the elements of the crime.*fn1

Viewing the evidence in a light most favorable to the Commonwealth as we must, Commonwealth v. Portalatin, 223 Pa. Superior Ct. 33, 297 A.2d 144 (1972), the evidence, as found by the lower court sitting without a jury, is as follows:

On June 25, 1972, appellant entered the record shop of James Sumner in order to obtain drugs. After entering the store, an argument ensued, and the appellant struck Sumner and removed money from Sumner's pocket. Sumner did not report this incident to the police; however, about two weeks later, appellant was arrested for fighting with Sumner in front of a state welfare office, and, upon arrest, Sumner informed the police that appellant had robbed him two weeks before.

Sumner, the Commonwealth's only witness at the preliminary hearing, died before trial, and his entire preliminary hearing testimony was incorporated at trial. The transcript of the earlier testimony indicated that appellant and another man entered the store, and while the second man held a gun to Sumner's head, appellant took $27.00 from the cash register. An argument then ensued, during which appellant hit Sumner in the face with his hand, took $130.00 from the cash register, and fled from the store with the second man.

The appellant, testifying in his own behalf, contends that on June 24, 1972, he purchased $35.00 worth of heroin at Sumner's store. Appellant, upon later discovering the heroin was actually quinine, telephoned Sumner, who informed appellant that he was to return to the record shop the next day to have the quinine

[ 229 Pa. Super. Page 462]

    replaced. At 9:30 the next morning appellant returned to the store, but was told by Sumner to come back in a few hours, because he was expecting a new supply of heroin. Two hours later, appellant returned with another person, whereupon Sumner told appellant that he could supply no more heroin since he could no longer obtain a supply. An argument and fight then ensued between appellant and Sumner, resulting in appellant striking Sumner with his hand. Appellant admitted that he did argue with Sumner, but only for the purpose of persuading Sumner to return his money. He further testified that after he demanded his money, Sumner gave him $27.00 from his pocket. Appellant also admitted hitting Sumner with his hand, but denied that he or the other man had a gun, or that he even knew the second man.

Appellant was charged with burglary, aggravated robbery, and carrying a firearm on a public street. He waived his right to a jury trial and was found guilty of burglary by the lower court on September 6, 1973. Oral motions for a new trial and in arrest of judgment were denied. Appellant was sentenced to one to ten years in a state correctional institution.

Appellant contends that a conviction of burglary was not justified because his actions did not give rise to the required elements necessary for burglary. Specifically, appellant alleges that the evidence does not show the requisite element of intent necessary for a conviction of burglary.

The lower court, in convicting appellant of burglary, found the necessary element of intent to commit a felony in the fact that appellant had returned to Sumner's store in order to obtain authentic heroin and in "some way to maim Mr. Sumner, and the fact that he did . . . [was] a manifestation of that intent."*fn2 The

[ 229 Pa. Super. Page 463]

    court further noted that: "Many of the so-called robberies presented to this Court represent nothing more than the violent efforts of frustrated addicts to obtain fair dealings from drug pushers. Nevertheless, with the violence engendered by these encounters and the desperate measures to which addicts resort to gain their illicit supplies, it is clear that the intent is not merely to gain the drugs, but to secure a fix at any human price."

The elements of the offense of burglary are defined as the intent to commit a felony, and the successful and effective overt act directed toward the commission of the felony by the wilful and malicious entry into a building. Act of June 24, 1939, P. L. 872, § 901 (18 P.S. § 4901). Commonwealth v. Procopio, 200 Pa. Superior Ct. 226, 188 A.2d 773 (1963). Though a wilful and malicious entry is required, the entry into a store may be such, if made with the intent to commit a felony. Commonwealth v. Schultz, 168 Pa. Superior Ct. 435, 79 A.2d 109 (1951). The specific intent required to make out a burglary charge may be found in appellant's words or conduct or from the attendant circumstances together with all reasonable inferences therefrom.

[ 229 Pa. Super. Page 464]

    a new trial. Nothing suggests that the prosecution will be able to produce a valid conviction for burglary if a new trial is granted. In view of this, it is not just to require appellant to undergo a second trial, nor to require the people of the Commonwealth to pay for it.*fn2

The majority cannot rely on the fact that appellant filed motions for a new trial and in arrest of judgment.*fn3 Such motions are perfunctorily made by defense counsel. (Here they were made orally on the day of trial.) It may be doubted that many counsel explain to their clients that by seeking a new trial they run the risk of being tried again for a crime the Commonwealth did not prove. In the absence of a finding that the defendant was so informed, the fact that a motion for new trial was filed is by itself not enough to make it just to order a new trial.

As the majority suggests, appellant might have been properly convicted of unlawful entry, Act of June 24, 1939, P. L. 872, § 901.1, added Nov. 19, 1959, P. L. 1518, No. 532, § 1, 18 P.S. § 4901.1, which is a lesser included offense of burglary. See Commonwealth v. Freeman, 225 Pa. Superior Ct. 396, 313 A.2d 770 (1973). Appellant entered Sumner's store with the intent to carry out a drug sale; at the very least he entered to procure or possess drugs. I see no reason why we should not enter an order remanding the case

[ 229 Pa. Super. Page 467]

    to the lower court with directions to enter a verdict of guilty of unlawful entry and to impose sentence thereon. Commonwealth v. Freeman, id.

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