No. 1773 October 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, at No. 1085 July Term, 1978
Marc Alan Krefetz, Philadelphia, for appellant.
Eric I. B. Beller, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Hester, DiSalle and Popovich, JJ.
[ 290 Pa. Super. Page 430]
Following a non-jury trial, appellant, Sandor Turner, was convicted of attempted burglary,*fn1 and possessing instruments of crime.*fn2 Post-verdict motions were denied and appellant was sentenced to serve a term of imprisonment of one to five years for attempted burglary and three years probation for possessing instruments of crime, the sentences to run concurrently.
In this direct appeal appellant argues that (1) the evidence was insufficient to sustain a conviction for attempted burglary; (2) trial counsel was ineffective for failing to object to appellant's improper conviction of both attempted burglary and possessing instruments of crime; and (3) because of his failure to obtain a continuance, thus preventing appellant from securing the presence of a defense witness.
[ 290 Pa. Super. Page 431]
We affirm the judgment of sentence for attempted burglary; and vacate judgment of sentence for possessing instruments of crime.
Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner, see Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973), the following facts were established at trial:
At approximately 3:00 on the afternoon of May 18, 1978, a city detective observed appellant walking down Warnock Street, in the City of Philadelphia. Appellant stopped in front of a residence, looked in both directions, stepped onto the porch, and proceeded to the front door. After ringing the doorbell, knocking twice, and looking under the curtains of the front door window, appellant returned to the street and again looked in both directions. He then returned to the front door and, with "a screwdriver, or an instrument that appeared to be a screwdriver," began prying at the door while butting it with his shoulder. (N.T. 11/28/78, p. 5-8) Appellant walked to the street a second time, looked in both directions, returned to the front door, and resumed his activities. When police sirens could be heard approaching the vicinity, appellant abandoned his endeavors and proceeded to a nearby alley. The detective followed appellant to the alley and heard the sound of metal objects dropping. A police officer who also was observing appellant testified that he retrieved two screwdrivers and a hammer from the alley immediately after appellant's exit. Both the detective and complainant testified that they found fresh pry marks in the area of the door lock. The complainant further testified that appellant had not been given permission to enter her home.
Appellant first argues that the evidence was insufficient to sustain his conviction for attempted burglary. The Crimes Code provides, in pertinent 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). An attempt is committed when "with intent ...