No. 1409 October Term, 1979, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, entered on June 13, 1979, on Bills No. 1806-07, August Term 1978.
Louis J. Presenza, Philadelphia, for appellant.
Eric B. Henson, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, Wickersham and Lipez, JJ. Lipez, J., concurs in the result.
[ 278 Pa. Super. Page 80]
On June 28, 1978 defendant, in the company of two other men, parked an automobile near the AME Zion Church's seminary located at 1200 North Broad Street in Philadelphia (N.T. 32-33). Defendant and his co-defendant David Tennant, entered the building through a rear window and
[ 278 Pa. Super. Page 81]
passed various items of value through the window to the third man standing outside (N.T. 33-34). After the three men moved these items into their car, two police officers, who had observed the entire event from an unmarked police car, arrested the defendants (N.T. 32, 35). Defendant was tried on April 10, 1979 before the Honorable Michael E. Wallace of the Court of Common Pleas of Philadelphia, sitting without a jury, on Informations Nos. 806 & 807, August Session, 1978, charging defendant with burglary, theft by unlawful taking, theft by receiving stolen property, and criminal conspiracy and was convicted of the charges of burglary and criminal conspiracy but acquitted of the theft charges. Post-verdict motions were filed on April 18, 1979 and denied by Judge Wallace on June 13, 1979. Defendant was sentenced to six to twenty-three months imprisonment for burglary (No. 806) and three years consecutive probation for criminal conspiracy (No. 807). This appeal followed.*fn1
Defendant poses the STATEMENT OF QUESTION INVOLVED as follows:
"Was not the Court's verdict finding the Appellant guilty of Criminal Conspiracy and Burglary against the evidence, the weight of the evidence, and contrary to law, as the defense of abandonment presented by the Appellant was a full and complete defense to the said offenses?"
The crime of burglary is defined in this manner:
"(a) Offense defined. -- 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 ...