Appeal from judgment of sentence of Court of Common Pleas, Trial Division, of Philadelphia, Feb. T., 1974, Nos. 633 and 635, in case of Commonwealth of Pennsylvania v. James Carter.
Albert John Snite, Jr., Elaine DeMasse, and John W. Packel, Assistant Defenders, and Vincent J. Ziccardi, Defender, for appellant.
Harry M. Spaeth, Mark Sendrow, and Steven H. Goldblatt, Assistant District Attorneys, Abraham J. Gafni, Deputy 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 Van der Voort, J. Watkins, P.j., concurs in the result. Dissenting Opinion by Hoffman, J. Jacobs and Spaeth, JJ., join in this dissenting opinion.
[ 236 Pa. Super. Page 378]
This appeal arises by appellant's challenge to his judgment of sentence. At trial on April 17, 1974, the judge, sitting without a jury, sustained appellant's demurrer to a charge of possessing an instrument of crime, found appellant guilty on an indictment charging conspiracy, and found appellant guilty of criminal trespass on an indictment charging burglary and attempted theft by unlawful taking.*fn1 Sentencing followed. Appellant now challenges the conviction of criminal trespass, arguing that the crime of criminal trespass is not a lesser included offense of the crime of burglary. If criminal trespass is a lesser included offense of burglary then appellant was properly adjudged guilty of the lesser offense. Commonwealth v. Nace, 222 Pa. Superior Ct. 329, 295 A.2d 87 (1972).
The statutes in question are those regarding "Burglary":
[ 236 Pa. Super. Page 379]
"(a) Offense defined. -- A person is guilty of burglary if he enters a building or occupied structure. . . with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." [Emphasis supplied] Crimes Code,*fn2 Section 3502 (a),
"(a) Buildings and occupied structures. -- (1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or gains entrance by subterfuge or surreptitiously remains in any building or occupied structure. . . ." [Emphasis supplied] Crimes Code, Section 3503 (a) (1).
The language of the "Crimes Code" regarding burglary comes from the "Model Penal Code", Section 221.1. The fundamentals of the crime, entering a building with criminal intent, are similar to burglary under our former "Penal Code".*fn3 We turn to the case law under our former statute to determine the elements of the crime. "The elements of burglary are 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. Commonwealth v. Procopio, 200 Pa. Superior Ct. 226, 188 A.2d 773 (1963) . . . ." Commonwealth v. DelMarmol, 206 Pa. Superior Ct. 512, 516, 214 A.2d 264, 266 (1965). Constructive, although incomplete, entry, as by a portion of the body only, satisfies the entry requirement of the crime. Commonwealth v. Myers, 223 Pa. ...