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decided: November 22, 1976.



Donald R. Marsh, Indiana, Court-appointed, for appellant.

W. Thomas Malcolm, Indiana, for appellee.

Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.

Author: Cercone

[ 243 Pa. Super. Page 313]

This is a direct appeal, after a non-jury trial, from appellant's conviction on two counts of burglary. The sole issue raised in this appeal relating to both burglary convictions, is appellant's contention that the evidence was insufficient to sustain the court's finding of guilt on these two charges.

The facts are as follows. On the night of December 28, 1974, two Pennsylvania State Police Troopers were on routine patrol in the vicinity of Route 286 in Indiana County. At approximately 4:30 A.M. in the morning they approached the intersection of Route 286 and Warren Road and at that time noticed a car parked in the Arco Station with an individual sitting behind the steering wheel. The troopers pulled into the Arco Station to investigate and at that time observed two individuals inside the gas station in the garage area running toward the garage door. By the time the troopers parked their vehicle the two subjects in the garage area were crawling on their hands and knees out a window of the garage door. The windowpane of this glass garage door had been broken out and pieces of glass were scattered around inside the garage. One subject got away and has never been apprehended or identified; however, appellant,

[ 243 Pa. Super. Page 314]

Mr. Brosko, was apprehended just as he crawled out through the garage door window and was attempting to flee from the scene. Located immediately in front of the broken garage door, the troopers found a cloth money bag with the name Consolidated Vending Company on the front of it. Inside this money bag were various statements of receipts from vending machines of a "Skat" service station, located approximately 1/4 of a mile from this Arco Service Station, also on Route 286. By this time, other state troopers had arrived at the Arco station and as a result of the receipts found in the cloth money bag, they proceeded immediately to the Skat Service Station and found that it had been burglarized also. The individual who was first observed in the car parked alongside the Arco station was apprehended and, pursuant to a search warrant of his vehicle, a Sears radio with an adding machine cord wrapped around it was discovered. Subsequent investigation of the burglary of the Skat Service Station, along with the testimony of its manager, indicated that a plate glass window was smashed, the face of a cigarette machine was kicked in, and a Sears radio, a cord from an adding machine and a cloth money bag containing receipts from the vending machines were missing. As mentioned above, this Skat Service Station is located only about a quarter of a mile from the Arco station and was burglarized within a few hours earlier on the same night.

Appellant testified to the effect that he walked into the Arco Service Station from a party nearby. He stated that he did not see anyone else in the vicinity and was merely attempting to get a coke from the vending machine when the police arrested him. He denies entering the station, being observed in the station, crawling out of the garage door window of the station or attempting to flee the station. He testified that he saw the radio sitting beside the coke machine and placed it in the car parked alongside the service station because his friend

[ 243 Pa. Super. Page 315]

    was sleeping in the car and he assumed that his friend would wake up and drive him home. He did not know whose radio it was or how it happened to be sitting in front of the Arco Service Station at 4:30 in the morning, stating only that he thought it was broken and that he would take it home and try to fix it.

[ 243 Pa. Super. Page 316]

Based upon the above facts it is clear that sufficient evidence was presented to support appellant's conviction of burglary of the Arco Service Station. The elements of the offense of burglary are defined as the entry of a building or occupied structure thereof, with the 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. 18 Pa.C.S. 3502. The specific intent required to make out a burglary charge may be found in appellant's words, conduct, or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Atkins, 232 Pa. Super. 206, 335 A.2d 375 (1975); Commonwealth v. Carroll, 412 Pa. 525, 194 A.2d 911 (1963). In the instant case, appellant was found inside the Arco Service Station at 4:30 A.M., at a time when the premises were not open to the public and appellant was not licensed or privileged to enter. Appellant was then observed running to the door, crawling on his hands and knees, exiting through the broken glass area through which a forced entry was effected, and then attempting to flee on foot. An aluminum door leading to a back office within the Arco premises was damaged in an apparent effort to open it, and immediately outside the broken glass door was found a cloth bag with receipts from the vending machines of another service station located nearby which was determined to have been also burglarized shortly beforehand. This evidence is clearly sufficient to sustain the inference that ...

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