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COMMONWEALTH PENNSYLVANIA v. DANIEL GRAY (06/01/84)

filed: June 1, 1984.

COMMONWEALTH OF PENNSYLVANIA
v.
DANIEL GRAY, APPELLANT



No. 1371 Philadelphia, 1982, Appeal from the Judgment of Sentence of May 3, 1982, Court of Common Pleas, Bucks County, Criminal Division at Nos. 4675, 4680 of 1981.

COUNSEL

Richard Utman, Jr., Assistant Public Defender, Doylestown, for appellant.

Stephen B. Harris, First Assistant District Attorney, Doylestown, for Commonwealth, appellee.

Spaeth, P.j., and Cirillo and Johnson, JJ. Cirillo, J., filed a dissenting opinion.

Author: Johnson

[ 329 Pa. Super. Page 349]

Appellant was convicted by a jury of burglary,*fn1 criminal trespass*fn2 and conspiracy*fn3 on February 24, 1982 and sentenced under the Youthful Offender Act*fn4 to an indeterminate term, not to exceed 30 months, on both the burglary and conspiracy counts, as well as to pay $100 in restitution. This appeal followed.

The record indicates that on November 5, 1981, at approximately 11:00 p.m. a security guard at Longhorne Motors heard the sound of glass breaking in the area of the garage. He then went to investigate, and as he approached that area he observed a person on the side of the building. At that time the automatic garage door started to open. The door could only be opened from inside the garage door and the garage itself had been locked for the evening.

When the guard approached the garage he noticed a Corvette parked inside the garage. The owner of Longhorne Motors testified that although the Corvette was kept outside during the daytime, it was locked up in the garage at night because of its value (approximately $10,000). The guard further observed a man, later identified as appellant, inside the garage, crouched behind the Corvette. The guard next entered the garage, announced he was armed and asked appellant to come out of the garage. Appellant then started to run and the guard fired five shots into the

[ 329 Pa. Super. Page 350]

    air. Appellant exited through a window in the rear of the building. The window was broken and the iron bars fronting it were separated.

Blood was discovered on the broken glass and on the outside front of the Corvette. When appellant was apprehended he had a deep laceration on his left forearm.

Dawn Landi, appellant's girlfriend, testified for the Commonwealth that she, appellant, and Edmund Gordon, a co-defendant,*fn5 were together on the night in question. The three had been out at a restaurant and were on their way back to Gordon's home in Levittown when Gordon told Landi, who was driving the car, to stop on a side road. Gordon stated that he wished to show appellant a car he wanted to buy (the Corvette). Gordon and appellant then left the vehicle while Landi remained behind in the car with the lights off and the engine running. About 5 or 10 minutes later Gordon returned to the car and told Landi to drive straight ahead. Landi did not see appellant again that evening.

Landi also stated that appellant had a sword in the car that evening. That sword was subsequently found outside the garage near the point of entry.

Appellant raises four issues on appeal: (1) was appellant denied a fair trial where the district attorney was permitted to ask, on voir dire, a question as to whether any potential jurors had ever been convicted of a felony or misdemeanor, (2) whether permitting the Commonwealth to amend the information at the close of the Commonwealth's presentation of its case was an abuse of discretion, (3) whether defense counsel was ineffective for eliciting the criminal conviction of defense witness Gordon on direct examination and whether the trial court abused its discretion in thereafter eliciting the nature of the conviction from the witness, and (4) whether the evidence concerning intent to commit a theft was sufficient.

[ 329 Pa. Super. Page 351]

As to issues (1) and (4), we believe the trial court's opinion adequately addresses the merits of both and, after a review of the record, agree that these issues are without merit.

Appellant's second issue alleges that the trial court erred in permitting the Commonwealth to amend the information charging criminal trespass, section 3503(a)(1)(i), to charge section (a)(1)(ii), after presentation of their case-in-chief.*fn6

The relevant statutory language sets forth:

ยง 3503. Criminal trespass

(a) Buildings and occupied structures. --

(1) A person commits an offense if, knowing that he is not licensed or privileged to do so, he:

(i) enters, gains entry by subterfuge or surreptitiously remains in any building or occupied structure or separately ...


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