No. 450 Philadelphia 1982, Appeal from the Judgment of Sentence of the Court of Common Pleas, Criminal Division, Philadelphia County, No. 3070 June Term, 1981.
Daniel P. McElhatton, Philadelphia, for appellant.
Jane Cutler Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Rowley, Beck and Montemuro, JJ.
[ 320 Pa. Super. Page 82]
Appellant, Samual Brown, was arrested on April 30, 1981 and charged with burglary,*fn1 criminal conspiracy*fn2 and criminal trespass.*fn3 Appellant was tried without a jury before the Honorable Nicholas A. D'Alessandro, Court of Common
[ 320 Pa. Super. Page 83]
Pleas, Philadelphia County, and was found guilty on all charges. Appellant was sentenced to two (2) to four (4) years imprisonment for burglary; two (2) to four (4) years imprisonment for criminal conspiracy; and six (6) months to one (1) year for criminal trespass; the sentences to be served concurrently.
On April 30, 1981, one Officer John Stankiewicz of the Philadelphia Police Department observed the appellant and two other men climb through a hole in a fence and approach a warehouse owned by the Zion Non-Profit Charitable Trust. The warehouse was located in the vicinity of 12th and Glenwood Streets in Philadelphia. The men tried to open the warehouse door. Eventually, the appellant and one of the other men forced the door open with their shoulders. All three men entered the warehouse. From the outside of the building, Officer Stankiewicz and his partner watched the three men for a few minutes rummaging through goods which were stored inside. After approximately five minutes, the police officers entered the warehouse. The three men immediately ran. One ran out of the building and the appellant and one other remained inside. Following a canine search of the warehouse, the appellant and one of the other men were apprehended by the police.
On appeal it is argued (1) that trial counsel was ineffective for failing to object when the trial court sentenced appellant on the charges of burglary and criminal trespass when both charges stemmed from the same criminal act; and (2) that the evidence was insufficient to support the burglary conviction and that counsel was ineffective in failing to raise this issue in post-trial motions.
The standard of review for each of these arguments is the same. In determining whether counsel was ineffective, our first inquiry is whether the underlying claim which counsel failed to raise is of arguable merit, Commonwealth v. Hubbard, 472 Pa. 259, 372 A.2d 687 (1977), and if so, whether there was some reasonable basis for counsel's action designed to effectuate his client's interests. Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967).
[ 320 Pa. Super. Page 84]
The appellant claims, and the Commonwealth concedes, that counsel was ineffective in failing to object to appellant's sentence for the crime of criminal trespass. We agree with the appellant on the basis of our decision in Commonwealth v. Franklin, 306 Pa. Super. 422, 452 A.2d 797 (1982), in which we held that although criminal trespass is not a lesser included offense of ...