decided: June 13, 1979.
COMMONWEALTH OF PENNSYLVANIA
Nos. 19 and 20 SPECIAL TRANSFER DOCKET, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County January Term, 1975, Nos. 1572, 1573, 1575.
Allan M. Tabas, Philadelphia, for appellant.
Robert B. Lawler, Assistant District Attorney, Chief, Appeals Division, for Commonwealth, appellee.
Hoffman, Eagen and Hess, JJ.*fn*
Author: Per Curiam
[ 267 Pa. Super. Page 47]
Arriving home from work, Betty Harris discovered her basement in disarray, a television set and table lamp missing, and her babysitter, Theodore Williams, dead from gunshot wounds to the head. Subsequent police investigation uncovered the murder weapon, lamp, and television in appellant's residence. He was convicted of burglary, robbery and murder of the first degree.
Appellant contends, inter alia,*fn1 that there was insufficient evidence to sustain the burglary conviction because there
[ 267 Pa. Super. Page 48]
was no showing that appellant entered the Harris residence "with the intent to commit a crime therein," 18 Pa.C.S.A. § 3502(a). We agree and vacate the judgment of sentence upon the burglary conviction.
Burglary requires a specific intent to commit a crime within the entered structure, Commonwealth v. Bable, 248 Pa. Super. 496, 375 A.2d 350 (1977), and specific intent to do an act cannot be inferred solely from the commission of that act. Specific intent may be inferred from the accused's words and conduct attendant to the entry. Commonwealth v. Nutter, 256 Pa. Super. 111, 389 A.2d 626 (1978); Commonwealth v. Jacobs, 247 Pa. Super. 373, 372 A.2d 873 (1977). However, we feel that the fact that the accused commits a crime within the structure entered is, without more, insufficient to prove his intent to commit a crime at the time of entry. See State v. Johnson, 11 Ariz.App. 478, 479, 466 P.2d 29, 30 (1970); State v. Keys, 244 Or. 606, 614, 419 P.2d 943, 947 (1966).
Here, there is no evidence that appellant entered the Harris residence surreptitiously or by force. In fact, there is no evidence at all regarding the manner of entry by appellant. We know nothing about the circumstances regarding appellant's entry. We reject the Commonwealth's argument that specific intent to commit a crime can be inferred solely from the commission of a crime within the entered structure. Because there is no evidence from which it may be inferred that appellant entered the Harris residence with the intent to commit a crime therein, the evidence is insufficient to sustain the burglary conviction.
Appellant was sentenced to life imprisonment on the murder conviction and concurrent sentences of 10 to 20 years on the robbery and burglary convictions, both to run consecutively to his life sentence. Appellant has also been sentenced to death upon another first degree murder conviction.
[ 267 Pa. Super. Page 49]
Under these circumstances, it would be judicially inexpedient to remand for resentencing upon the remaining convictions under Commonwealth v. Lockhart, 223 Pa. Super. 60, 296 A.2d 883 (1972). Commonwealth v. Moore, 261 Pa. Super. 92, 101-102, 395 A.2d 1328, 1333 (1978).
*fn* Chief Justice Michael J. Eagen of the Supreme Court of Pennsylvania and Judge Warren K. Hess of the Court of Common Pleas of Berks County, Pennsylvania, are sitting by designation.