No. 434 October Term, 1978, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Trial Div., of Phila. County at Nos. 366, 368 July 1977.
Elaine DeMasse, Assistant Public Defender, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Cercone, President Judge, and Spaeth and Cavanaugh, JJ.
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This is an appeal from judgments of sentence for attempted burglary and criminal trespass. Appellant argues that the evidence was insufficient to sustain either of his convictions. We have concluded that the evidence was sufficient to sustain the conviction of attempted burglary, but insufficient to sustain the conviction of criminal trespass. We therefore affirm the judgment of sentence for attempted burglary and vacate the judgment of sentence for criminal trespass.*fn1
In deciding the sufficiency of evidence, we must first accept as true all the evidence upon which the trier of fact could properly have based the verdict, and then ask whether that evidence, with all reasonable inferences from it, was sufficient to prove guilt beyond a reasonable doubt. Commonwealth v. Fortune, 456 Pa. 365, 367, 318 A.2d 327, 328 (1974); Commonwealth v. Petrisko, 442 Pa. 575, 579-89, 275 A.2d 46, 49 (1971). However, guilt must be proved and not conjectured. Commonwealth v. Wilson, 225 Pa. Superior Ct. 513, 312 A.2d 430 (1973). So regarded, the evidence may be summarized as follows.
Minnie Jaffe lived with her husband at 1611 Pine Street, Philadelphia. The house had a back yard, about 12 feet deep. There was no furniture in the yard; only a central air conditioner and some plants. The yard was enclosed by a fence 10 or 11 feet high, with a door that opened onto an alley, which runs parallel to Pine Street and leads to Smedley Street, which is at right angle to Pine Street. On June 28, 1977, at about 3:55 a. m., Mrs. Jaffe heard noises in the alley, like the "[r]attling of a trash can." N.T. 10. She was in her bedroom at the back of the house, half awake. After a few minutes, she heard the door in the fence open. She jumped out of bed and looked out into the back yard. It was very dark in the yard and all she could see was the door
[ 297 Pa. Super. Page 110]
in the fence standing open; she could see that because light from the alley came through the open door. The door had been locked. She turned on her light and called the police, who arrived "almost immediately." N.T. 11.
Officer Vincent Monacelli testified that he was among the police who responded to Mrs. Jaffe's call. He drove east on Pine, made a left turn onto Smedley, and went about 50 feet to where the alley in back of the Jaffe house intersects with Smedley. He got out of his car and saw appellant "coming out of the rear yard door at 1611 Pine Street," two houses away from where he stood. N.T. 20, 22-23. Assisted by other officers, he took appellant into custody. He then examined the door in the fence and found the lock "knocked off the hinges" with wood splinters lying around. N.T. 20. He did not find "anything that might be called a tool" either on appellant or in the area. N.T. 23-24.
Appellant testified that he was walking home, intoxicated, on Smedley Street. He denied walking in the alley or being in the Jaffe yard. He said that when he was arrested, he was walking on Smedley, past the alley, towards Pine. N.T. 32-33.
The crime of burglary is defined as follows:
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 to the public or the actor is licensed or privileged to enter.
The crime of attempt is defined as follows:
A person commits an attempt when, with the intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. 18 Pa.C.S. § 901(a).
The Commonwealth therefore had to prove two distinct intents on the part of appellant: the intent to enter "a building or occupied ...