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.
[ 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 ...