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decided: June 8, 1979.


No. 503 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Division of Philadelphia County, Imposed on Bill of Indictment Nos. 2374; 2376-79, January Session, 1977.


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.

Price, Hester and Hoffman, JJ. Hester, J., files a dissenting statement.

Author: Hoffman

[ 268 Pa. Super. Page 110]

Appellant contends inter alia that the evidence was insufficient to prove burglary because appellant entered a private residence with the occupant's consent. We conclude that appellant's contention is correct*fn1 and, accordingly, vacate the judgment of sentence and remand for resentencing.

On January 23, 1977, Philadelphia police arrested appellant on charges stemming from the armed robbery of Ms. Angela Cooper in her home on the previous evening. On June 24-29, 1977, the following testimony was adduced at appellant's jury trial:

On January 22, 1977, at approximately 5:30 p. m., Cooper was in her home; her 5 year old son Larry and 11 year old nephew Christopher were playing in the front room. Hearing

[ 268 Pa. Super. Page 111]

    a knock, Cooper went to the front door where a man she recognized as an acquaintance of Butch, her boyfriend, asked whether Butch was at home. Because she recognized the man and it was cold outside, Cooper opened the door, let the man in, and then closed the door. At that point, she heard others on the porch and, learning that they were with Butch's friend, let in two other men, one of whom was appellant.*fn2 Once inside, the third man aimed a gun at

[ 268 Pa. Super. Page 112]

Cooper and told her, "This is a bust, get in the kitchen." Cooper told Larry and Christopher to go upstairs; appellant and Butch's friend followed them. Cooper and the third man with the gun went into the kitchen where they stayed approximately 10 minutes. Christopher observed appellant and Butch's friend rummaging about upstairs during the same 10 minute period. Christopher watched them go back downstairs. Cooper heard her pocketbook, which contained $110 in cash, being emptied in the front room. Appellant, with Cooper's now empty pocketbook in his hand, went to Cooper and demanded where "the rest" of the money was. After approximately 10 minutes in Cooper's presence, all three men left. Cooper's keys and the $110 were missing from her pocketbook. Cooper and Christopher each identified appellant as one of the three men and testified that they each observed appellant for approximately 10 minutes at close range under good lighting conditions.

The jury returned guilty verdicts on all charges. After denying post-verdict motions, the lower court sentenced appellant to serve the following concurrent terms of imprisonment (1) 6 months to 1 year for simple assault;*fn3 (2) 5 to 10 years for conspiracy;*fn4 (3) 2 to 5 years for possession of an instrument of crime;*fn5 (4) 6 to 12 years for robbery;*fn6 and (5) 3 to 6 years for burglary.*fn7 This appeal followed.

Appellant contends that his burglary conviction must be vacated because the Commonwealth did not prove that his entry into Cooper's home was not licensed or privileged.*fn8

The Crimes Code defines burglary as follows:

[ 268 Pa. Super. Page 113]

"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."*fn9

Prior to the June 6, 1973 effective date of this provision, one who entered premises with an intent to commit a crime was guilty of burglary, regardless of the consent of the owner. See Commonwealth v. Wortham, 235 Pa. Super. 25, 342 A.2d 759, rev'd on other grounds, 471 Pa. 243, 369 A.2d 1287 (1975). However, under Section 3502(a), if a person is permitted to enter the premises he is not a burglar even though he intends to commit a crime.*fn10 See Commonwealth v. Cost, 238 Pa. Super. 591, 362 A.2d 1027 (1976); Commonwealth v. Danzy, 234 Pa. Super. 633, 340 A.2d 494 (1975). "This [change] . . . gets back to the original definition of burglary, which was the breaking and entry of a home at night. The idea that it was an uninvited entry into a residence made it a serious offense." (emphasis added). Jarvis, Pennsylvania Crime Code and Criminal Law, Comments to § 3502. See also Annot. 93 A.L.R.2d 531. Although the Crimes Code does not define the terms license and privilege and no case has previously interpreted the "license or privilege" portion of Section 3502(a),*fn11 the factual

[ 268 Pa. Super. Page 114]

    circumstances of several burglary cases illustrate, we believe properly, unlicensed or unprivileged entry. See Commonwealth v. Jacobs, 247 Pa. Super. 373, 372 A.2d 873 (1977) (entry "without permission: into another's apartment); Commonwealth v. Brosko, 243 Pa. Super. 312, 365 A.2d 867 (1976) (accused not licensed or privileged to enter a closed Arco station at 4:30 a. m.); Commonwealth v. Hunter, 234 Pa. Super. 267, 338 A.2d 623 (1975) (unauthorized entry by former employee through window of electronics plant); Commonwealth v. Atkins, 232 Pa. Super. 206, 335 A.2d 375 (1975) (accused unauthorized to enter fraternity house).

Based upon the above illustrations and the commonplace meanings of the terms,*fn12 we agree with the lower court that the element of license and privilege, in the particular context of the instant case, is quite similar to defense of consent.*fn13 We further agree that, like consent, license and privilege can be vitiated if they are "induced by force, duress or deception." 18 Pa.C.S.A. § 311(c)(4). We disagree, however, that the Commonwealth has shown any deception on appellant's part to gain entry.

The Commonwealth has the burden of proving appellant's unlicensed or unprivileged entry beyond a reasonable doubt. See Commonwealth v. Stanton, 239 Pa. Super. 47, 51, 362 A.2d 355, 357 (1976), reversed on other grounds, 479 Pa. 521, 388 A.2d 1053 (1978); Atkins, supra, 232 Pa. Super. at 211 n. 1, 335 A.2d at 377 n. 1; Hunter, supra. Regarded in the light most favorable to the Commonwealth, the evidence shows that Cooper "let in" the first man because she recognized him as her boyfriend's acquaintance and because it was cold outside. When the first man acknowledged that

[ 268 Pa. Super. Page 115]

    appellant and another man were with him, Cooper opened her door and let them in too. There is no evidence to suggest that any of the three robbers asked to enter in order to visit or to wait for Butch, misrepresented their identity, stated, much less misstated their purpose, or otherwise deceived Cooper into allowing them to enter.*fn14 The only conclusion supportable by the evidence is that Cooper permitted the men to enter because she recognized one man and wished to be hospitable to him and those with him. No evidence suggested that any of the robbers inveigled or deceived Cooper. We hold, therefore, that the evidence was insufficient to prove appellant's unlicensed or unprivileged entry. Accordingly, we must reverse and vacate appellant's judgment of sentence for burglary.

We further order the judgment of sentence for the remaining convictions vacated and the case remanded for resentencing by the lower court. Commonwealth v. Lockhart, 223 Pa. Super. 60, 296 A.2d 883 (1972).

Judgment of sentence vacated and case remanded for resentencing consistent with this opinion.

HESTER, Judge, dissenting:

I dissent. I would affirm on the Opinion of Judge Marutani of the court below. It is obvious that consent to enter the premises involved was obtained by deception. This vitiated the consent to enter.

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