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submitted: January 19, 1981.


No. 550 OCTOBER TERM, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, County of Philadelphia, at Nos. 330 and 331 September Term, 1978


Robert Rubin, Philadelphia, for appellant.

Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Hester, DiSalle and Popovich, JJ.

Author: Popovich

[ 295 Pa. Super. Page 245]

After a non-jury trial held on February 27, 1979, the appellant was found guilty of attempted burglary and possession of an instrument of crime. On the same day, sentence, which consisted of three (3) years probation for the former offense and a concurrent two (2) years probation for the latter, was imposed. On appeal, appellant questions (1) the sufficiency of the evidence, (2) trial counsel's effectiveness, and (3) the legality of the sentence. We affirm in part; and, because we agree that the sentence imposed was illegal, we vacate judgment as to the possession charge.

Before reaching the merits of appellant's claims, we need to determine the scope of review to be given this case. Initially, we note that trial counsel dispensed with the filing of written post-trial motions and orally argued the insufficiency of the evidence.*fn1 More particularly, of the three issues raised on appeal, only the sufficiency question was passed

[ 295 Pa. Super. Page 246]

    upon by the post-verdict motions court. The second and third issues were not raised in the post-verdict proceedings*fn2 and not considered by the post-verdict motions court. Nonetheless, we find that said issues are cognizable on appeal. The reason is, as for the effectiveness of counsel issue, inasmuch as it is unrealistic to expect trial counsel to argue his own ineffectiveness, see Commonwealth v. Dancer, 460 Pa. 95, 331 A.2d 435 (1975); Commonwealth v. Cooke, 288 Pa. Super. 205, 431 A.2d 360 (1981); Commonwealth v. Jennings, 285 Pa. Super. 295, 427 A.2d 231 (1981), and this being the first occasion in which the appellant is represented by counsel other than whose stewardship is being challenged, we cannot fault him for failing to raise the issue sooner. Commonwealth v. Via, 455 Pa. 373, 316 A.2d 895 (1974); Commonwealth v. Cooke, supra; Commonwealth v. Jennings, supra. As to the propriety of inquiring into the validity of the sentence, the same result obtains since a question as to the legality of the sentence is never waived, despite the fact that it was not raised in the court below. See Commonwealth v. Walker, 468 Pa. 323, 362 A.2d 227 (1976); Commonwealth v. Paige, 287 Pa. Super. 133, 429 A.2d 1135 (1981); Commonwealth v. Lawton, 272 Pa. Super. 40, 414 A.2d 658 (1980).

[ 295 Pa. Super. Page 247]

Turning now to the merits of appellant's claims, we start with the sufficiency of the evidence argument. In evaluating such contention, we must view the facts in a light most favorable to the verdict winner, giving such party the benefit of all reasonable inferences arising therefrom. Then, we ask whether the evidence and the reasonable inferences arising from it is sufficient in law to prove beyond a reasonable doubt that the accused is guilty of the crime or crimes of which he has been convicted. Commonwealth v. Herman, 271 Pa. Super. 145, 412 A.2d 617 (1979). Guilt does not have to be established to a mathematical certainty, Commonwealth v. Lewis, 276 Pa. Super. 451, 419 A.2d 544 (1980); however, mere conjecture or surmise is not enough either. Id.; Commonwealth v. Lovette, 271 Pa. Super. 250, 413 A.2d 390 (1979).

Examined in light of these principles, the record reveals the following: On August 31, 1978, at approximately 2:00 a. m., Officer Raymond Spraggins of the Philadelphia Police Department received a radio call of a "burglary in progress" at 20th and Walnut Streets in Philadelphia, Pennsylvania. The officer proceeded to 2003 Walnut Street, where he observed the appellant standing a foot from the door of a pet shop. Officer Spraggins walked up behind the appellant, looked over his shoulder and observed him "hunched over the lock, with a screwdriver, prying at the lock on the door." (N.T. 10) The officer also noticed that a large plate glass window had been broken. The officer removed the screwdriver from appellant's hand and asked him what he was doing. According to the officer, appellant answered that "he was waiting for a bus." (N.T. 11) Further, upon closer examination of the entrance, the officer detected that there "was fresh damage to the window of the door" and "marks around the lock and on the door." (N.T. 12)

At trial, the parties stipulated that if Ms. Peggy Chambers, an owner of the store, were to testify she would have stated that "she did not give [appellant] permission to attempt to enter the store or break the window, and that her partner . . . did not either." (N.T. 8) Appellant, after

[ 295 Pa. Super. Page 248]

    taking the stand, remarked that on the evening in question he was walking home and sought shelter from the rain in the alcove of the pet shop; when the rain let up, he proceeded on his way. However, upon traveling but a short distance, he "heard a big crash," returned to the store and noticed that the window had been broken. Before he had a chance to contact the authorities, Officer Spraggins arrived on the scene. Appellant also admitted having the screwdriver in his possession, but denied using it in an attempt to pry open the door to the establishment.

Given the disparity in the accountings of the witnesses, it was for the trier of fact to decide which version was credible. Commonwealth v. Borris, 247 Pa. Super. 260, 372 A.2d 451 (1977). It being within the province of the trier of fact to believe all, part or none of the evidence presented, and to draw all reasonable inferences therefrom, Commonwealth v. Harrison, 289 Pa. Super. 126, 432 A.2d 1083 (1981), it is obvious that the trial judge, as the arbiter of fact here, believed the Commonwealth's witness. In fact, he stated that "after observing the demeanor of the witnesses during the trial, [he] found the testimony of Officer Spraggins to be most credible, while that of Aczel was just not believable." (Trial Court Opinion at 2) The Court finds no reason to alter the ruling on this point.

[ 295 Pa. Super. Page 249]

Under the Pennsylvania Crimes Code, "[a] person is guilty of burglary if he enters a building . . . with the 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." 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). In charging attempted burglary, the Commonwealth was not required to specify in the indictment what crime the accused allegedly intended to commit. Commonwealth v. Thompson, 274 Pa. Super. 44, 417 A.2d 1243 (1979). However, since the Commonwealth did specify such crime, i. e., theft, it was required to prove the requisite intent for that crime. Commonwealth Page 249} v. Lewis, supra. Thus, proof of two distinct intents was necessary: the intent to enter the building and the intent to commit theft after entering. Commonwealth v. Morgan, 265 Pa. Super. 225, 401 A.2d 1182 (1979).

Appellant submits that because "there was no entry and nothing was taken, although the broken window would have permitted entry," the Commonwealth failed to establish the intent to commit a theft, and points to Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973) in support of such averment. (Appellant's Brief at 15) We cannot agree.

Initially, it is to be noted that "[p]roof of intent is often difficult," and the means by which such element is to be established depends upon the facts of a given case. Commonwealth v. Willetts, 277 Pa. Super. 538, 419 A.2d 1280 (1980). As for the relevancy of Commonwealth v. Stanley, supra, to the case at bar, we find appellant's reliance thereon to be misplaced. To explicate, in Stanley, a police officer received information to proceed to a particular address. When he was approximately 12, 13 stores away from the location, he observed the accused coming out of the doorway of a store, then walking to a construction site nearby and placing something on a sand pile. The officer apprehended the accused, and upon bringing him back to the scene he noticed that the screen protecting the window in the doorway had been pried away. The officer also checked the sand pile and recovered a screwdriver. Our Supreme Court reversed the conviction for attempted burglary on the basis that:

"there [was] nothing to indicate that [the appellant] used [the screwdriver] to bend back the screen. The record [was] devoid of any evidence connecting appellant with the screen. There was no showing that anyone saw appellant tampering with the window . . . . [A]lso . . . there was no evidence to show that the screwdriver was the ...

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