No. 189 Harrisburg, 1980, Appeal from Judgment of Sentence of the Court of Common Pleas, Criminal Division, Dauphin County, Nos. 1296, 1396a, 1396b, C.D. 1979.
John M. Glace, Assistant Public Defender, Harrisburg, for appellant.
William A. Behe, Deputy District Attorney, Harrisburg, for Commonwealth, appellee.
Brosky, Wieand and Montemuro, JJ.
[ 300 Pa. Super. Page 219]
Appellant was convicted of burglary following a non-jury trial. Post-trial motions were denied and appellant was sentenced to a term of two (2) to five (5) years imprisonment.
[ 300 Pa. Super. Page 220]
Appellant's sole contention on this appeal is that the evidence was insufficient to sustain his conviction of burglary in that the Commonwealth failed to prove beyond a reasonable doubt that appellant was neither licensed nor privileged to enter the premises in question. For the reasons stated below, we affirm the judgment of sentence.
The offense of burglary is defined in 18 Pa.C.S.A. § 3502 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.
Under this section, a person who is licensed or privileged to enter the premises is not a burglar even though he intends to commit a crime therein. Commonwealth v. Knight, 276 Pa. Super. 348, 363, 419 A.2d 492, 499 (1980); Commonwealth v. Starkes, 268 Pa. Super. 108, 407 A.2d 853 (1979); Commonwealth v. Cost, 238 Pa. Super. 591, 362 A.2d 1027 (1976); Commonwealth v. Danzy, 234 Pa. Super. 633, 340 A.2d 494 (1975); see Jarvis, Pennsylvania Crimes Code and Criminal Law, Comments to § 3502; Annotation, 93 A.L.R.2d 531 (1964) (Consent). It was the Commonwealth's burden in the instant case to prove beyond a reasonable doubt that appellant was not licensed or privileged to enter the building. Commonwealth v. Starkes, supra; Commonwealth v. Stanton, 239 Pa. Super. 47, 50, 362 A.2d 355, 357 (1976) reversed on other grounds, 479 Pa. 521, 388 A.2d 1053 (1978).
"In testing a sufficiency of evidence claim we first accept as true all the evidence upon which the finder of fact could properly have reached its verdict, and then, after giving the Commonwealth the benefit of all reasonable inferences arising from that evidence, we ask whether the evidence and the inferences arising from it are sufficient in law to prove beyond a reasonable doubt that defendant is guilty of the crimes ...