Appeal from the Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal Trial Division, at Indictment Nos. 244-245 September Session, 1975.
John W. Packel, Assistant Public Defender, Philadelphia, for appellant.
Deborah E. Glass and Steven H. Goldblatt, Assistant District Attorneys, Philadelphia, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ. Hoffman, J., files a concurring and dissenting opinion in which Spaeth, J., joins. Price, J., files a dissenting opinion in which Van der Voort, J., joins.
[ 247 Pa. Super. Page 376]
Appellant Bruce Jacobs was arrested on August 14, 1975, and charged with burglary, attempted theft by unlawful taking and possession of an instrument of crime. These charges grew out of an incident on the same day in which the appellant was arrested by a Philadelphia Housing Police Officer who was conducting a stakeout of Apartment A-6 in the Norris Apartments. The apartment was recently vacated and contained only a refrigerator, stove, and sink. Around 10:40 p. m., the police officer heard the noise of metal on metal coming from the lock on the outside part of the door. After a few minutes the door opened and appellant walked in with a screwdriver in his pocket. Appellant was immediately arrested by the officer who emerged from the closet with his gun drawn. At trial and after the Commonwealth rested its case, the lower court sustained the appellant's demurrer to the charge of attempted theft by unlawful taking on the ground that there was no overt act on the part of the appellant. The Commonwealth has not appealed from that ruling. The appellant was found guilty on indictment number 244 charging the crime of burglary*fn1 and indictment number 245 charging possession of an instrument
[ 247 Pa. Super. Page 377]
of crime.*fn2 Following post-trial motions the appellant was sentenced to four to ten years imprisonment on the burglary charge and two to five years imprisonment on the possession charge, sentences to run concurrently. This appeal followed.
Appellant raises several allegations of error on this appeal.*fn3 He first contends that the evidence was insufficient to prove the crime of burglary. Appellant's indictment charged him with entry without permission into an apartment with the intent to commit the crime of theft therein. It is axiomatic that in criminal trials the proof offered by the Commonwealth must measure up to the charge made in the indictment. Commonwealth v. Lambert, 226 Pa. Super. 41, 313 A.2d 300 (1973), citing Commonwealth v. Aurick, 342 Pa. 282, 291, 19 A.2d 920, 924 (1941); see, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972) (bill of particulars). Therefore, appellant could insist that the Commonwealth prove he entered the apartment with the intent to commit a theft. See Commonwealth v. Bruce, 230 Pa. Super. 507, 326 A.2d 628 (1974); Commonwealth v. Freeman, 225 Pa. Super. 396, 313 A.2d 770 (1973). In determining whether the evidence was sufficient to sustain the verdict of guilty on the burglary charge we must read the entire record and consider the facts, and all reasonable inferences arising therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Allen, 227 Pa. Super. 157, 324 A.2d 437 (1974); Commonwealth v. Lynch, 227 Pa. Super. 316, 323 A.2d 808 (1974). It is equally true that the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on
[ 247 Pa. Super. Page 378]
circumstantial evidence. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973). Commonwealth v. Larkins, 235 Pa. Super. 19, 341 A.2d 204 (1975). Nevertheless, when the evidence is viewed in this light it is clear that the Commonwealth did not advance sufficient evidence in order to sustain the burglary conviction.
Burglary is defined by the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3502 (1973):
"(a) 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 ...