No. 1438 April Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Please of Butler County, at C.A. No. 125 of 1977, Criminal Division.
Peter H. Shaffer, Butler, for appellant.
Robert F. Hawk, Assistant District Attorney, Butler, for Commonwealth, appellee.
Spaeth, Hoffman and Van der Voort, JJ.
[ 277 Pa. Super. Page 540]
Appellant challenges the sufficiency of the evidence to support his convictions of theft and attempted burglary.*fn1 We agree that appellant's conviction of theft was unsupported by the evidence and, accordingly, reverse and remand for resentencing.
Viewed in the light most favorable to the Commonwealth, Commonwealth v. Tate, 485 Pa. 180, 401 A.2d 353 (1979), the evidence adduced at trial revealed the following: Sometime during the night of February 18, 1977, a yellow van belonging to Wade Snider was stolen from the service station where it had been parked. The van was used by Mr. Snider in his business, Mon-D-Aid & Cleanit Company. When Mr. Snider next saw the van, the interior had been extensively damaged, one of the headlights had been smashed, and some maps and business cards had been removed from the glove compartment.
At approximately 1:00 a. m. on February 19, 1977, Virginia Roxbury was awakened by the sounds of a man hollering and kicking a yellow van which appeared to be disabled outside her home. Ms. Roxbury identified appellant at trial as the man she had seen that night. She immediately reported the disabled vehicle to the police. When she saw appellant approach a garage near her home, Ms. Roxbury called the police again. Before she finished the second call, however, the police arrived. When Officer John Campbell arrived on the scene with his partner, he saw a young man whom he recognized as appellant, standing at the door to the garage near Ms. Roxbury's home striking the padlock with something. The two officers got out of their police car and chased appellant on foot. When they lost sight of him, the
[ 277 Pa. Super. Page 541]
officers began to search the area by car. During the search, they noticed a car with its brake lights on but with no apparent occupants. Upon closer examination of the car, the officers found appellant lying on the floor under the dashboard reaching for the wiring. They then arrested him. They found in his possession a business card from Mon-D-Aid and a map matching Mr. Snider's description of those in the van glove compartment. Officer Campbell returned to the garage area where he found fresh tracks in the snow leading from the yellow van to the garage door and around to the side of the garage where a window pane had been broken. In addition, the officer found a large rock on the ground near the door where appellant had dropped the instrument with which he had been pounding on the lock.
Appellant was charged with attempted burglary, theft by unlawful taking, and attempted theft. A jury found appellant guilty of attempted burglary of the garage and of theft of the yellow van from the service station. The jury acquitted appellant of attempted theft of the car in which he was apprehended. The lower court sentenced appellant to concurrent terms of 2 1/2 to 7 years imprisonment and ordered him to pay the costs of prosecution and restitution. Appellant now appeals from the judgment of sentence.*fn2
Appellant first challenges his conviction for attempted burglary. The Crimes Code provides in relevant part that "[a] person is guilty of burglary if he enters a building . . . with intent to commit a crime therein, . . . ." 18 Pa.C.S.A. § 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. at § 901(a). Thus, the ...