No. 1565 Philadelphia 1980, Appeal from Judgment of Sentence of the Court of Common Pleas of Philadelphia County, Criminal at No. 1254-56 July 1979.
James Murray Lynn, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, Beck and Johnson, JJ. Johnson, J., concurred in the result.
[ 312 Pa. Super. Page 376]
This is an appeal from judgments of sentence for burglary, criminal trespass, and simple assault. We have concluded that the convictions for burglary and criminal trespass merge, and accordingly we vacate the judgment of sentence for criminal trespass. Otherwise, we affirm.
The testimony was that appellant secretly entered a woman's apartment; that when discovered, he refused to identify himself; that he had "a hankie on his face and a pair of gloves and a rope around his neck," N.T. 11/9/79 at 12; that when the woman began screaming, he came toward her and put his hand over her mouth to stop her screaming; and that eventually he ran off. Id. at 13.
[ 312 Pa. Super. Page 377]
Appellant argues that criminal trespass is a lesser included offense of burglary, and that therefore the lower court erred in sentencing him on both criminal trespass and burglary. It is settled, however, that criminal trespass is not a lesser included offense of burglary. Commonwealth Page 377} v. Carter, 482 Pa. 274, 393 A.2d 660 (1978) (unlike burglary, criminal trespass has scienter requirement); Commonwealth v. Cardogan, 297 Pa. Super. 405, 409 n. 2, 443 A.2d 1185, 1187 n. 2 (1982) ("For purposes of indictment, governed by a comparison-of-the-elements test, criminal trespass is not a lesser included offense of burglary, and must be indicted separately . . . ."); Commonwealth v. Crocker, 280 Pa. Super. 470, 421 A.2d 818 (1980) (ibid.).
Appellant further argues that the "offenses merged and appellant could not be sentenced on both charges [of criminal trespass and burglary]." Brief for Appellant at 8.*fn1 In effect, appellant's argument is identical to the one made in Commonwealth v. Crocker, supra, where the "[a]ppellant's argument [was] that by sentencing him for both burglary and criminal trespass the lower court impermissibly twice sentenced him for the same criminal act." Id., 280 Pa. Super. at 474, 421 A.2d at 820. In Crocker we noted that
in merger of sentences cases, we focus not only on the similarity of the elements of the crimes but also, and primarily, on the facts proved at trial, for the question is whether those facts show that in practical effect the defendant committed a single criminal act, in which case there will be merger and only a single sentence may be imposed, or more than a single act, in which case there will be no merger and a sentence may be imposed for each act.
Id., 280 Pa. Super. at 475, 421 A.2d 820-821 ...