No. 2309 October Term 1977, Appeal from Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Trial Division, Criminal Section, Bill of Indictment Nos. 430-431 of September 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. Price, J., concurs in result. Jacobs, former President Judge, and Hoffman, J., did not participate in the consideration or decision in this case.
[ 265 Pa. Super. Page 231]
Appellant was convicted by a jury of attempted burglary and possession of an instrument of crime. His post-verdict motions were denied, and he was sentenced to concurrent terms of two to five years imprisonment.
I. The Conviction for Attempted Burglary
1. Sufficiency of the Evidence
Appellant first argues that the evidence was insufficient to support his conviction of attempted burglary. As noted in Commonwealth v. Madison, 263 Pa. Super. 206, 397 A.2d 818 (1979), which is in many respects similar to this case, we follow several steps in testing the sufficiency of the evidence:
[ 265 Pa. Super. Page 232]
First, we accept as true all the evidence upon 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). Commonwealth v. Madison, supra, 263 Pa. Super. at 209-210, 397 A.2d at 820-821.
When examined in this way, the evidence may be summarized as follows. On September 4, 1974, after dark, at approximately 8:30 P. M., the complainant was awakened from a nap by a ring of his doorbell. He went to the front door, where he observed appellant. However, he did not answer the door, or otherwise make his presence known to appellant. The doorbell rang again, but again the complainant did not answer it or make his presence known to appellant. Appellant then proceeded down the side alley to the back door, after which the complainant heard rattling and grinding noises. He called the police, and within less than five minutes an officer arrived. The officer saw appellant standing before the back door with a pair of wirecutters in his right hand. The officer drew his gun, trained a flashlight on appellant, and ordered him to "freeze". Appellant's
[ 265 Pa. Super. Page 233]
wirecutters, which were admitted into evidence, were a standard cutting tool, not altered in any way. A hole, approximately two inches by two inches, large enough to push one's hand through, had been cut through the screen near the "hook-and-eye" lock that secured the screen door. The screen had been intact when the complainant had seen it earlier that day. A locked wooden door behind the screen door had not been tampered with.
Appellant testified that he had been trying to locate the residence of a friend, whose address he had lost. He had heard someone inside, he maintained, and upon not receiving an answer at the front door had walked to the back to try to catch the attention of the occupant. He explained the noises heard by the complainant as his knocking at the back door.
This Commonwealth recognizes the crime of attempted burglary. 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. 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 Bill of Indictment in this case charges appellant with attempted burglary with intent to commit theft. Accordingly, the Commonwealth was required to prove that appellant attempted entry with the intent to commit theft. 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 on the part of appellant was necessary: the intent to enter the house, and the intent to commit theft after entry. Commonwealth v. Jacobs, 247 Pa. Super. 373, 372 A.2d 873 (1977); Commonwealth v. Larkins, 235 Pa. Super. 19, 341 A.2d 204 (1975).
[ 265 Pa. Super. Page 234]
A. Was the Evidence Sufficient to Prove that Appellant Intended to Enter the House?
We have concluded that the evidence was sufficient to support a reasonable inference by the jury that appellant intended to enter the house. Appellant's actions in ringing the front doorbell before going to the back door suggest that he wanted to ensure that the house was unoccupied before attempting entry. The complainant testified that he heard appellant tampering with the back door. Finally, the arresting officer saw appellant, wirecutters in hand, standing before the screendoor, in which a hole had been cut.
Appellant argues that this evidence was insufficient because the hole in the screen door might have been made earlier in the day, by someone other than appellant, and because the police never recovered the missing piece of screen. This argument, however, goes not to the sufficiency but to the weight of the evidence, for it only points out certain aspects of the evidence that might have led the jury to discount it. The jury's verdict shows that it did not consider those aspects important. That decision was within the jury's prerogative, and will not be disturbed.
None of the cases upon which appellant relies requires a different result.
In Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973), the defendant, seen by police near a group of stores at approximately 10:00 P. M., walked past a nearby construction site and dropped a screwdriver on the ground. Further investigation revealed that a screen to one of the store windows had been partially removed. While the opening in the screen was sufficient to enable a person to enter, the window behind the screen had been boarded up, and there was no evidence that the boarding had been tampered with. The Supreme Court reversed the conviction for attempted burglary, ruling that the evidence was insufficient to connect the defendant with removal of the screen, as he was not seen in the act of removing it, or even near it. Here, in contrast to Stanley, the officer saw appellant standing before the cut screen, wirecutters in hand. Thus
[ 265 Pa. Super. Page 235]
the crucial evidence that was missing in Stanley, testimony placing the defendant by the screen in question, is present here. Moreover, in Stanley, the Supreme Court noted that although the screen had been ripped aside, and the defendant was not interrupted, the boarding behind the screen had not been disturbed. Such evidence, the Court stated, was more indicative of criminal mischief than attempted burglary. Here, the opening in the screen was cut precisely, just wide enough for one's hand to fit through, near the lock on the screendoor. This precision supports the inference that appellant's objective was to open the door, not maliciously to destroy the screen. The fact that the door behind the screen was undisturbed is of no significance, for appellant was interrupted by the police before he could reach it.
Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973), is likewise distinguishable. In Roscioli, the Commonwealth established only the following: that while a burglary was in progress, the defendant was in a telephone booth outside the scene of the crime; that a piece of glass from a window in the burglarized building, through which the burglars had gained entrance, was found near the telephone booth; that the defendant attempted to leave the scene when police arrived; and that the defendant was acquainted with the two individuals committing the burglary nearby. 454 Pa. at 63, 309 A.2d at 396. The Supreme Court held that this evidence only showed the defendant's mere presence at the scene of the crime, and was therefore insufficient to warrant submission of the case to a jury. Here, the Commonwealth's evidence was not merely that appellant was on the scene but that he was at the cut screendoor with ...