No. 428 January Term, 1976, No. 501 January Term, 1976, No. 522 January Term, 1976, Appeals from the Orders of the Superior Court as of October Term, 1974, No. 1181, and October Term, 1975, Nos. 999 and 1243, Affirming the Judgments of Sentence of the Court of Common Pleas, of Philadelphia, Trial Division, Criminal Section, as of February Sessions, 1974, Nos. 663 and 635, August Sessions, 1974, Nos. 94 and 97, and October Sessions, 1974, No. 658.
Defender Assn. of Phila., Benjamin Lerner, Defender, Elaine DeMasse, Asst. Defender, John W. Packel, Chief, Appeals Div., Philadelphia, for appellants.
F. Emmett Fitzpatrick, Dist. Atty., Steven H. Goldblatt, Deputy Dist. Atty. for Law, Michael R. Stiles, Asst. Dist. Atty., Chief, Appeals Div., Gaele McLaughlin Barthold, Philadelphia, for appellee.
Eagen, C. J., and O'Brien, Roberts, Pomeroy, Nix, Manderino and Packel, JJ. Larsen, J., did not participate in the consideration or decision of this case. Manderino, J., joins the Opinion of the Court and filed a concurring opinion. Pomeroy, J., filed a dissenting opinion, in which O'Brien, J., joins.
In unrelated proceedings, each appellant was indicted for multiple offenses, including burglary, but not including criminal trespass.*fn1 Each was tried before a court sitting without a jury and each was convicted, inter alia, for the unindicted offense of criminal trespass. Only the convictions for criminal trespass were appealed. The Superior Court upheld each conviction.*fn2 We granted allowances of appeal.*fn3 On October 5, 1978, this Court reversed the judgments of sentence and noted that opinions would follow. This opinion is in accordance with that order.*fn4
The single issue presented is whether criminal trespass, 18 Pa.C.S.A. § 3503(a)(1)(Supp.1978), is a lesser included offense of burglary, 18 Pa.C.S.A. § 3502(a). We hold that it is not. Therefore, we conclude these convictions deprived appellants of the notice and opportunity to defend which are guaranteed by the Federal and Pennsylvania Constitutions.
Indictment for burglary gives one notice that he is accused of violating the following criminal statute:
"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."
18 Pa.C.S.A. § 3502(a). Scienter is not an element of this crime and thus, one defending against a burglary charge would have no reason to establish that (albeit falsely) he believed his presence in a building or occupied structure was privileged or licensed. Yet evidence of such a belief could provide a basis for an acquittal of a charge of criminal trespass. The Crimes Code defines criminal trespass as follows:
"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, or separately secured or occupied portion thereof."
18 Pa.C.S.A. § 3503(a)(1). Therefore, we agree with the dissenting opinion of Judge Hoffman in Commonwealth v. Carter that "the crime of criminal trespass has a scienter requirement not necessary to prove the crime of burglary, and thus cannot be categorized as a lesser included offense." 236 Pa. Super. 376, 385, 344 A.2d 899, 903 (1975) (dissenting opinion joined by Jacobs and Spaeth, JJ.).*fn5 Cf. Cook v. State, 258 Ind. 667, 284 N.E.2d 81, 83 (1972) (malicious trespass not a lesser included offense of second degree burglary).
These convictions for an offense not included in any offense charged and for which there was no indictment
violate due process. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) ("Our prior cases indicate that an indictment is sufficient if it . . . contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend . . . ."), Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). Accord, Pa.Const. art. I, § 9 (right of accused "to demand the nature and cause of the accusation against him."); e. g., People v. Keatts, 54 Mich.App. 618, 221 N.W.2d 455, 457 (1974) (conviction for crime not charged and not included in those charged denies due process).
The Pennsylvania Rules of Criminal Procedure embody the same principle. Rule 213(c) provides: "In all court cases tried on an indictment the issues at trial shall be defined by such indictment." Cf. Commonwealth v. Rosenhoover, 236 Pa. Super. 339, 342-3, 344 A.2d 562, 563 (1975) (Under Pa.R.Crim.P. 213(b)(5), indictment must set forth substantially the language of the applicable statute, to assure notice of the charges.) This principle must control even where, as here, there is some evidence in each record relevant to the additional element of scienter in criminal trespass. We will not permit the accidental presence of some scienter evidence to cure the denial of due process presented here.
Accordingly, orders of the Superior Court affirming the judgments of sentence of criminal trespass reversed and ...