No. 1497 October Term 1977, Appeal from the Judgment of Sentence of the Court of Common Pleas, Trial Division, Criminal Sect., Phila. County, Imposed on Information Nos. 362-363, July Session 1976.
John W. Packel, Assistant Public Defender, Chief, Appeals Division, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, Philadelphia, for Commonwealth, appellee.
Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.
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Appellant was tried by a judge sitting without a jury and was convicted of attempted burglary and tampering with a witness. Post-verdict motions were denied and appellant was sentenced to concurrent sentences of six months to three years in prison. The sole issue on this appeal is whether the evidence was sufficient to sustain the convictions.
In testing the sufficiency of evidence, we proceed in several steps. First, we accept as true all the evidence upon
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which the finder of fact could properly have reached its verdict. Next, we give the Commonwealth the benefit of all reasonable inferences arising from that evidence. And finally, we ask whether the evidence, and the inferences arising from it, are sufficient in law to prove beyond a reasonable doubt that the defendant is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Williams, 468 Pa. 357, 365, 362 A.2d 244, 248 (1976); Commonwealth v. Carbonetto, 455 Pa. 93, 314 A.2d 304 (1974); Commonwealth v. Eiland, 450 Pa. 566, 301 A.2d 651 (1973); Commonwealth v. Burton, 450 Pa. 532, 301 A.2d 599 (1973). This inquiry is bounded by two poles. On the one hand, the Commonwealth "does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence." Commonwealth v. Jacobs, 247 Pa. Super. 373, 372 A.2d 873 (1977); Commonwealth v. Larkins, 235 Pa. Super. 19, 341 A.2d 204 (1975). On the other hand, guilt must be proved; mere conjecture or surmise is not sufficient. Commonwealth v. Moore, 226 Pa. Super. 32, 311 A.2d 704 (1973).
I. The Conviction For Attempted Burglary
On June 7, 1976, at approximately 6:00 p. m., the complainant was taking a shower when she heard someone knocking at her front door. She did not respond. About five minutes later, while dressing in her bedroom, the complainant heard directly beneath her the sound of breaking glass. She looked out of the bedroom window and saw appellant kick in her basement window and then bend down by it. When she knocked on her window and called out to appellant, he looked up, saw her at the window, and ran away. The complainant immediately telephoned the police, who apprehended appellant one and one-half blocks away; he had blood on his trousers.
Attempted burglary is a crime recognized in this Commonwealth. See Commonwealth v. Corbin, 251 Pa. Super. 512, 380 A.2d 897 (1977); see also Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973); Commonwealth v. Moore, supra.
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The Crimes Code defines both burglary and attempt. "A person is guilty of burglary if he enters a building . . . with intent to commit a crime therein." The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 3502(a). "A person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime." Id. § 901(a).
The charge in this case was attempted burglary with the intent to commit theft. Therefore, the Commonwealth was required to prove that appellant attempted entry with the intent to commit theft. See Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972); Commonwealth v. Lambert, 226 Pa. Super. 41, 313 A.2d 300 (1973). Thus, proof of two distinct intents was necessary: the intent to enter the house, and the intent to commit theft after entering. See Commonwealth v. Jacobs, supra; Commonwealth v. Larkins, supra; Commonwealth v. McLaughlin, 230 Pa. Super. 420, 326 A.2d 474 (1974).
A. Was The Evidence Sufficient to Prove That Appellant Intended to Enter the House?
Appellant argues that the evidence was sufficient only to prove criminal mischief. It is true that the acts of breaking a window and running away are consistent with an intent to commit criminal mischief. However, the additional evidence that appellant was seen bending down by the window and ran away only after he was discovered at the window indicates that he intended more than merely to break the window; it supports the reasonable inference that he intended to enter. If appellant's only purpose had been to break the window, he would have had no reason to bend down by it; also he would have had no reason to remain on the scene, but would more likely have fled at once instead of only upon discovery.
The Supreme Court's decision in Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973), does not require a different result. There the defendant, seen by the police near a group ...