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decided: December 17, 1982.


No. 80-3-440, Appeal from the Order of the Superior Court of Pennsylvania, dated October 19, 1979, Special Transfer Docket, at Nos. 148 & 149, insofar as it Arrests the Judgments of Sentence imposed on Information Nos. 2047 (burglary) and 2048 (criminal conspiracy) December Sessions, 1975. Philadelphia County, Crim. Division


Eric B. Henson, Deputy Dist. Atty., Steven J. Cooperstein, Asst. Dist. Atty., for appellant.

Stanley Shingles, Philadelphia, for appellee.

Roberts, Nix, Larsen, Flaherty, McDermott and Hutchinson, JJ. O'Brien, C.j., did not participate in the consideration or disposition of this case. Hutchinson, J., joins in this dissenting opinion.

Author: Flaherty

[ 499 Pa. Page 392]


In a trial by jury in the Court of Common Pleas of the First Judicial District, the appellee, defendant Jon Kennedy, was convicted of voluntary manslaughter, burglary, conspiracy, and possession of an instrument of crime. On appeal to the Superior Court, a new trial was ordered as to voluntary manslaughter, and judgments of sentence were arrested with respect to burglary, conspiracy, and possession of an instrument of crime.*fn1 In the instant appeal, the Commonwealth seeks review of the Superior Court's decision only insofar as it relates to that Court's having arrested, on insufficiency of evidence grounds, the judgments of sentence on burglary and conspiracy.

It is well established that the test of sufficiency of the evidence is whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could reasonably have determined all elements of the crime to have been established beyond a reasonable doubt. Commonwealth v. Coccioletti, 493 Pa. 103, 425 A.2d 387 (1981). The evidence, read in this manner, establishes the following.

On November 1, 1975, the defendant, Jon Kennedy, accompanied by one Robert Williams, drove Shirley Jones, a babysitter who had agreed to oversee defendant's two children that day, to an apartment building in the City of Philadelphia where defendant resided. Williams, Jones, and defendant entered the latter's second floor apartment, whereupon they discovered that the apartment's electrical power had been cut off. Defendant then went downstairs to the first floor apartment of his seventy year old landlord, Rinaldo Capellupo, and told him to restore the electrical power. Defendant returned upstairs, and, when electrical service resumed, dispatched Williams to inform Capellupo

[ 499 Pa. Page 393]

    that the apartment was no longer without electricity. Thirty minutes later, Williams had still not returned from this errand, and defendant went downstairs. Shortly thereafter, Jones, who had remained in defendant's second floor apartment, heard loud cursing and arguing emanating from the first floor. After calling out an inquiry as to what was happening below, Jones moved to the top of the staircase and noticed that the commotion arose from the first floor hallway, near the door to Capellupo's apartment, where Capellupo, Williams, and defendant were standing. Jones demanded that the confrontation be ceased, but the argument continued and Williams then struck Capellupo, whereupon Jones retreated into defendant's apartment. An affray ensued which continued into Capellupo's apartment. Defendant and Williams, both of whom had been drinking, viciously beat Capellupo, fracturing his skull, breastbone, eleven of his ribs, and bursting his right lung. Capellupo subsequently died of these injuries, but prior to doing so indicated to police only that he had been robbed by a tenant. In statements given to police, the defendant, claiming pre-existing animosity as the motive for his participation in the beating, admitted to breaking a cigarette stand over Capellupo's head, and to kicking Capellupo three or four times while inside the latter's apartment. Physical evidence discovered in the apartment corroborated that a fight had occurred therein.

With regard to sufficiency of the evidence to establish guilt of burglary, defendant contends that the Commonwealth failed to meet its burden of proving that he entered Capellupo's apartment with the intention of committing a crime. The crime of burglary must be accompanied by specific intent. Commonwealth v. Graves, 461 Pa. 118, 126, 334 A.2d 661, 665 (1975). The Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S.A. § 3502(a) (1973), defines the offense of burglary as follows: "A person is guilty of burglary if he enters a ...

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