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COMMONWEALTH v. COST (03/29/76)

decided: March 29, 1976.

COMMONWEALTH
v.
COST, APPELLANT



Appeal from judgment of sentence of Court of Common Pleas of Greene County, No. 30 of 1974, in case of Commonwealth of Pennsylvania v. Joseph Cost.

COUNSEL

William M. Baily, with him Thompson and Baily, for appellant.

James A. Caldwell, Assistant District Attorney, and W. Bertram Waychoff, District Attorney, submitted a brief for Commonwealth, appellee.

Watkins, P. J., Jacobs, Hoffman, Cercone, Price, Van der Voort, and Spaeth, JJ. Opinion by Jacobs, J. Concurring and Dissenting Opinion by Cercone, J. Hoffman and Spaeth, JJ., join in this concurring and dissenting opinion.

Author: Jacobs

[ 238 Pa. Super. Page 594]

Appellant was convicted of burglary and robbery following a jury trial in May, 1974, and was sentenced to serve a term of one to ten years on the burglary count and a term of four to fifteen years on the robbery count; the terms to run concurrently. The charges against the appellant arose from an incident occurring on the evening of January 19, 1974. A tavern owner, Dominic Mandarano, testified that appellant and a companion, whose name Mandarano did not know, were drinking beer and playing pool at his tavern in the afternoon and evening of January 19, 1974. At some time after 9:00 P. M., appellant and his companion were the only two customers remaining in the tavern. Mandarano, seated at the bar watching television, was struck from behind and knocked to the floor by appellant's companion, a stranger to Mandarano. Mandarano testified that he remained conscious and that appellant's companion removed $150.00 to $250.00 from his pocketbook and another $110.00 from the cash register located behind the bar. Further, Mandarano testified that when he was struck, the appellant was not present but had left the bar a few moments before the incident and was not seen again by Mandarano.

Louis Vecchio and Charles Gapen who were in Vecchio's bar across the street from Mandarano's tavern observed appellant leave and enter the Mandarano tavern

[ 238 Pa. Super. Page 595]

    several times during the evening. After the attack on the tavern owner, the victim's son, Bruno Mandarano, along with Vecchio and Gapen, accompanied Troopers Hertig and Martinelli in their search for appellant and his companion, who were the only suspects at that time. Appellant was located at his stepfather's residence at approximately 2:00 A. M. He was taken to the patrol car and was asked to sit in the front seat where he was questioned by Trooper Michael Hertig of the State Police. Vecchio, Gapen, and Bruno Mandarano were in the back seat of the car.

At trial, Trooper Hertig testified that he immediately*fn1 read appellant his constitutional rights from the standard state police waiver form. He further testified that appellant refused to sign the waiver form*fn2 but that the appellant "advised he understood his rights." Official Transcript, N. T. at 119.

At the suppression hearing Louis Vecchio, Charles Gapen and Bruno Mandarano all testified that the appellant was given his constitutional rights, and Charles Gapen and Bruno Mandarano testified that the appellant said he understood his rights.*fn3 Trooper Martinelli testified

[ 238 Pa. Super. Page 596]

    at the suppression hearing that while standing outside of the patrol car he heard Trooper Hertig read the appellant his constitutional rights as well as the waiver paragraph at the bottom of the standard waiver form. He further testified that the appellant said "he understood everything." Official Transcript, N. T. at 28.*fn4

[ 238 Pa. Super. Page 597]

According to the testimony of the witnesses, appellant, in response to Trooper Hertig's questions, made a series of contradictory and incriminating statements concerning his involvement in the incident at Mandarano's tavern. The witnesses' estimates of the length of this initial interview vary between twenty minutes to one hour. Following this initial interview, the appellant told the trooper where he would be staying for the night, and, although the record is not absolutely clear on this, it appears that the troopers informed the appellant that they would return to question him further.

The state troopers then proceeded to a magistrate's office and, apparently on the basis of facts gathered in the initial interview, obtained a warrant for appellant's arrest. They then went to appellant's sister's home where appellant had told them he would be staying. At approximately 7:30 A. M. they arrested appellant and read to him his constitutional rights and the arrest warrant. However, they did not seek a waiver of rights from him at this point and, according to Trooper Hertig, they did not attempt to question him. At this point, the record reveals that appellant again made a series of incriminating statements, without any questions being asked of him.

In this appeal, the appellant contends (1) that he cannot be convicted of burglary since Mandarano's tavern was a place held open to the public, and (2) that "statements made by the accused to the police during their investigation" should have been suppressed because the "circumstances of defendant's refusal to sign a waiver of right form, defendant's intoxicated condition and the presence of his accusers, indicate that the defendant did

[ 238 Pa. Super. Page 598]

    not volunteer such statements or intelligently or knowledgeably waive his right to remain silent." Brief for Appellant at 1.

I

The offense of burglary is defined in 18 Pa.C.S. § 3502 as follows:

"(a) Offense defined. -- A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, 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 added).

The charge of the trial judge to the jury on the burglary count was as follows:

"The Court charges you with respect to this crime that it is necessary in this case that the Commonwealth prove that at the time the defendant entered this building, he did so with the intent to commit a crime therein, and under the provisions of that Act exempting the entry into a public building you must make a further determination. The Court charges you that even though this was a public building in that sense, inviting persons in for business purposes, that when a person comes into that place and does so for the purpose of committing a felony therein, or when a person comes into that place and goes beyond the ordinary bounds of the area provided for its business customers and there commits a crime, or enters therein for the purpose of committing a crime, he is guilty then of the crime of burglary." Official Transcript, N. T. at 143. (Emphasis added).

Appellant's counsel excepted to this charge and requested the trial judge to ". . . instruct that if the premises were open to the public, and entry into a building was proper, regardless of the intent, this does not constitute a burglary

[ 238 Pa. Super. Page 599]

    even if there's a crime later committed." Official Transcript, N. T. at 152. The trial judge, noting the exception, refused this request. Official Transcript, N. T. at 152-53.

We must determine whether the clause in § 3502(a) of the new Crimes Code, ". . . unless the premises are at the time open to the public . . .", substantively changes the former law of burglary in this Commonwealth, and whether the Commonwealth has the burden of proving, as an element of the offense, that the premises were not open to the public at the time of the entry. We conclude that the Commonwealth, to make out the crime of burglary, must show, as an element of the offense, the fact that the premises were not open to the public at the time of the entry, regardless of the actor's intent at the time of his entry onto the premises. In this light, the trial judge's charge on burglary was clearly erroneous in that it permitted the jury to reach a finding of guilt based solely upon the defendant's intent at the time of entry and ignored the limiting phrase of the statute, ". . . unless the premises are at the time open to the public . . . ." On the basis of the foregoing and following discussion, we reverse appellant's conviction for burglary.*fn5

[ 238 Pa. Super. Page 600]

Prior to the enactment of 18 Pa.C.S. § 3502, Section 901, of the Penal Code, Act of June 24, 1939, P.L. 872, 18 P.S. § 4901, defined the crime of burglary as follows:

"Whoever, at any time, wilfully and maliciously, enters any building, with intent to commit any felony therein, is guilty of burglary . . . ." (Emphasis added).

In Commonwealth v. Schultz, 168 Pa. Superior Ct. 435, 79 A.2d 109, allocatur refused, 168 Pa. Superior Ct. xxiv, cert. denied, 342 U.S. 842 (1951) a case decided under Section 901 of The Penal Code, Act of June 24, 1939, P.L. 872, 18 P.S. § 4901, the defendants contended that they could not ". . . be convicted of burglary because their entry into the taverns was an entry into a business place at the implied invitation of the owners, and not a wilful and malicious entry as defined by the statute." Commonwealth v. Schultz, supra at 440, 79 A.2d at 111.

In rejecting the defendants' contention, it was held: "The entry is wilful and malicious, or felonious, within the statute [Act of June 24, 1939, P.L. 872, § 901, 18 P.S. § 4901], when made with the intent to commit a felony in the building. The fact that the building entered was a store, tavern, or restaurant, and open to the public, does not prevent the crime from being burglary if the entry is wilful and malicious, that is, made with ...


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