No. 1024 Philadelphia, 1980, Appeal from the Judgment of Sentence of April 14, 1980, Court of Common Pleas, Philadelphia County, Nos. 1794-1795 June Term, 1979, Criminal Division.
Eric L. Lilian, Philadelphia, for appellant.
Gaele McLaughlin Barthold, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Wieand and Johnson, JJ.
[ 299 Pa. Super. Page 519]
After a non-jury trial, Appellant was convicted of Burglary*fn1 and Criminal Trespass.*fn2 Post-verdict motions were denied, and Appellant was sentenced to a five-year period of probation and was ordered to pay both costs and ten dollars
[ 299 Pa. Super. Page 520]
($10.00) to the Victims Fund. This is an appeal from the judgment of sentence.
For the following reasons, we vacate the judgment of sentence and remand.
Appellant was found inside an unoccupied row house that was owned by the Philadelphia Housing Development Corporation. The plywood over a basement window had been removed, and the window had been forced open. Plumbing fixtures and pieces of copper tubing were piled near the front door. The police found Appellant bending a piece of copper tubing in the kitchen, and they proceeded to arrest Appellant.
Appellant raises two issues. First, did the Commonwealth sustain its burden of proof (a) concerning ownership of the house, and (b) that Appellant lacked permission to enter the house? Second, was trial counsel ineffective for failing to file a timely post-verdict motion that would have preserved the issue of whether or not the Commonwealth proved due diligence at the Rule 1100(c)*fn3 hearing held February 26, 1980?
In considering Appellant's first issue, we begin with the following principle:
To evaluate the sufficiency of 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 ...