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COMMONWEALTH PENNSYLVANIA v. CARMELO VAZQUEZ (02/03/84)

submitted: February 3, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
CARMELO VAZQUEZ, JR., APPELLANT



No. 3529 Philadelphia, 1982, Appeal from the Judgment of Sentence entered November 26, 1982, Court of Common Pleas, Berks County, Criminal Division at No. 81161901.

COUNSEL

William F. Ochs, Jr., Public Defender, Reading, for appellant.

Charles M. Guthrie, Jr., Assistant District Attorney, Reading, for Commonwealth, appellee.

Cirillo, Beck and Johnson, JJ.

Author: Johnson

[ 328 Pa. Super. Page 88]

Following a jury trial, defendant-appellant was found guilty of burglary*fn1 and criminal trespass.*fn2 He was subsequently fined and sentenced to a period of not less than one year nor more than four years on the former count, and

[ 328 Pa. Super. Page 89]

    fined and sentenced to not less than six months nor more than twenty-four months for the latter count. Appellant then promptly brought an appeal to this court.

Appellant raises three issues on review. First, that the evidence was not sufficient to warrant a conviction on the charge of burglary. Second, that the evidence was not sufficient to warrant a conviction on the charge of criminal trespass. Third, that the trial court erred in defining theft in its charge to the jury.

In considering appellant's first two contentions, this court must view the evidence in the light most favorable to the Commonwealth, as verdict winner. Commonwealth v. Martin, 481 Pa. 515, 393 A.2d 23 (1978). We must also accept as true all evidence and reasonable inferences upon which, if believed, the jury could have properly based its verdict, and determine whether such evidence and inferences are sufficient in law to prove guilt beyond a reasonable doubt. Commonwealth v. Stockard, 489 Pa. 209, 413 A.2d 1088 (1980); Commonwealth v. Biggs, 320 Pa. Super. 265, 467 A.2d 31 (1983).

The opinion issued by the Honorable Thomas J. Eshelman completely and satisfactorily reports the facts as follows:

"[S]ometime during the early evening hours of August 11, 1981, the defendant appeared at the apartment of Jeff Foster, located at 208 North Tenth Street, Reading, Berks County, Pennsylvania. Upon his arrival, the defendant was confronted by Lisa Horn, who was then the only occupant of the apartment. Defendant questioned Miss Horn on the whereabouts of Mr. Foster and was told that the individual was out for the evening. The defendant then departed. Shortly thereafter, Miss Horn also left the apartment, locking the door behind her, and returned to her residence at 206 North Tenth Street.

The testimony also discloses that approximately twenty minutes after the foregoing incident, Miss Horn heard Mr. Foster's dog barking. She returned to the premises and asked who was inside. Upon such inquiry, a ...


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