No. 254 March Term, 1979, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, of Dauphin County, No. 530 CD 1979.
Arthur K. Dils, Harrisburg, for appellant.
Marion E. MacIntyre, First Assistant District Attorney, Harrisburg, for Commonwealth, appellee.
Price, Wieand and Lipez, JJ.
[ 298 Pa. Super. Page 196]
Anthony Hankerson was tried before a jury and convicted of theft by unlawful taking*fn1 and burglary.*fn2 Following trial, the trial court vacated the conviction for theft by unlawful taking*fn3 and sentenced Hankerson for burglary. On appeal, Hankerson argues that the evidence was insufficient to sustain the verdict and that the Commonwealth's cross-examination of character witnesses concerning appellant's prior arrests was error. Although we find the evidence sufficient to support appellant's conviction for burglary, we are constrained to vacate the judgment of sentence and remand for a new trial in accordance with Commonwealth v. Scott, 496 Pa. 188, 436 A.2d 607 (1981).
In evaluating the sufficiency of the evidence, "we must view the evidence in the light most favorable to the Commonwealth as verdict winner, accept as true all the evidence and reasonable inferences upon which, if believed, the jury could properly have based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt." Commonwealth v. Parker, 494 Pa. 196, 198, 431 A.2d 216, 217 (1981). Accord: Commonwealth v. Watson, 494 Pa. 467, 470, 431 A.2d 949, 950 (1981); Commonwealth v. Burns, 490 Pa. 352, 354, 416 A.2d 506, 507 (1980); Commonwealth v. Kichline, 468 Pa. 265, 271, 361 A.2d 282, 285-286 (1976).
The record in the instant case, when so viewed, reveals that Thomas Kepler was the owner of a three unit apartment building at 1816 Green Street, Harrisburg. Two of the apartments were vacant and under renovation, and radiators had been disconnected and stored in the building while the owner negotiated for their sale to an area businessman.
[ 298 Pa. Super. Page 197]
Also stored in one of the apartments was a car battery owned by Kepler. On March 2, 1979, at approximately 2:00 p. m., Mrs. Rackley, who lived across the street from 1816 Green Street, observed two men enter the main door to the building. They reappeared shortly thereafter, carrying radiators and a car battery which they placed in a shopping cart. Mrs. Rackley called Kepler's office and watched the two men as they pushed the shopping cart down the street. Although Kepler's office notified the police, by the time the police arrived the men had disappeared. However, the shopping cart, radiators and battery were discovered a few blocks from the apartment building. Mrs. Rackley accompanied the police as they patrolled the immediate area, and a few minutes later, as appellant was walking along the street, Mrs. Rackley identified him as one of the two men she had seen removing the items from the building. After appellant had been placed under arrest, it was discovered that the door to one of the apartments had been broken and radiators and battery removed from the apartment. It was also established at trial that appellant had not been authorized to enter the apartment building. Appellant testified in his own behalf and denied entering the building or removing the radiators or battery.
The crime of burglary is defined in 18 Pa.C.S. § 3502 as follows:
(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 to ...