Appeal from judgment of sentence of Court of Common Pleas of Montgomery County, Oct. T., 1972, No. 649, in case of Commonwealth of Pennsylvania v. Thomas J. McLaughlin, Jr.
Jerome B. Nulty, with him Clemens & Nulty, for appellant.
Stewart J. Greenleaf, Assistant District Attorney, with him J. David Bean, Assistant District Attorney, William T. Nicholas, First Assistant District Attorney, and Milton O. Moss, District Attorney, for Commonwealth, appellee.
Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Hoffman, J. Jacobs, J., dissents.
[ 230 Pa. Super. Page 421]
This is an appeal from a refusal to grant a new trial or arrest judgment on a conviction of unlawful entry.
On October 25, 1972, the appellant, Thomas J. McLaughlin, Jr., and his wife lived in the Helen Marie Apartments in Lansdale, Montgomery County. Just down the hall lived the complainant, Mrs. Butscher, her husband and their young baby. Taking the evidence in a light most favorable to the Commonwealth, it is revealed that at approximately 1:00 p.m. on that date, Mrs. Butscher, who had gone out of her apartment for a few minutes to get her mail, entered her apartment to find her baby in a playpen where she had left the child during the brief exit. She proceeded to feed her baby, and after twenty minutes, a figure emerged from her bedroom with her husband's bathrobe over his head. The disguised visitor walked silently through the apartment and out her door. Frightened by the incident, Mrs. Butscher called the police, who upon coming on the scene found the bathrobe in the hallway. Police found
[ 230 Pa. Super. Page 422]
fingerprints and traced them to the appellant. Appellant was thereafter arrested and charged with burglary with intent to commit larceny or rape. On June 1, 1973, the appellant was brought to trial before the Honorable Vincent A. Cirillo, sitting without a jury.
At the conclusion of Commonwealth's case, a demurrer was sustained on the burglary charge. In so doing the Court explained: ". . . [T]here has not been sufficient evidence to show by any scintilla of evidence that a felony was intended in this case." Despite this statement by the Court, the defense was required to proceed with its case, since the Court believed the defendant had not dispelled the evidence indicating unlawful entry.
Appellant took the stand, and sought to explain his presence in the apartment. Mr. McLaughlin testified that he was on his way to the supermarket when he heard a baby crying in great distress. He found the Butscher apartment door ajar, and receiving no response to his calling the mother's name, the appellant entered the apartment. The appellant said that as soon as the baby saw him, she stopped crying. Appellant then proceeded to the bedroom believing the baby's mother was perhaps ill or unconscious. Mr. McLaughlin then said that Mrs. Butscher returned. Embarrassed by his position in the bedroom of his neighbor's apartment, he remained there for about twenty minutes in a state of confusion. Thereupon, he found the bathrobe and left the apartment.
During argument before the Court, defense counsel asked what possible crime could ...