Appeal from the Judgment of Sentence in the Court of Common Pleas of Philadelphia County, Criminal No. 1456 (1455) JUNE TERM, 1981
JoAnne F. Tyler, Philadelphia, for appellant.
Jane C. Greenspan, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.
Spaeth, President Judge, and Beck and Tamilia, JJ. Beck, J., files a concurring opinion. Tamilia, J., files a concurring opinion.
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The judgments of sentence for burglary, receiving stolen property, and criminal trespass are affirmed.
This is an appeal from judgments of sentence for burglary, receiving stolen property and criminal trespass. Appellant argues 1) that the trial court erred in admitting appellant's confession into evidence because the Commonwealth
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did not establish the corpus delicti of burglary by independent evidence; 2) that the guilty verdicts for both theft and burglary were erroneous; and 3) that trial counsel was ineffective in failing to move to suppress appellant's confession. We find appellant's arguments to be without merit. We therefore affirm the judgment of sentence for burglary.
The incident out of which this case arises occurred on November 6, 1980, at the Treadway Motor Inn in Northeast Philadelphia. At approximately 1:00 a.m., two women, Lisa Haley and Judy Kennedy, registered at the inn. The night auditor, Leon Gates, gave them the key to room 217. (N.T. at 28) About twenty minutes later, the women returned to the desk and asked for a larger room. Gates assigned them to room 212, and they returned the key to room 217. (N.T. at 27-29) No one checked room 217 when the key to it was returned. Some time later, however, Gates heard a "rumbling noise" above him, and after calling the police, he went to the landing to investigate. There he and appellant saw each other in the hallway, and appellant turned and walked away in the opposite direction. (N.T. at 30-31) At an unspecified time later in the morning, Gates went to check room 217 and discovered that the television set was missing. (N.T. at 31, 34)*fn1
The next afternoon, at approximately 1:30 p.m., Philadelphia Police Lieutenant Baker executed a valid search warrant at appellant's home. He found a television set there with serial numbers matching that which had been stolen from room 217. Lieutenant Baker arrested appellant and took him to the police station where, after being duly warned of his Miranda rights, appellant signed a statement that read in relevant part:
I went to the Treadway Inn on the Boulevard. I knew a girl named Judy and another girl named Lisa who had gotten a room there; the numbers I don't know. It was a
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one bedroom. The girls changed rooms, and I went back to the first room and took the T.V. and left. (N.T. at 39)
Appellant was charged with two separate counts of theft by receiving stolen property,*fn2 criminal trespass, burglary, and theft.*fn3 At a consolidated proceeding on November 10, 1981, appellant pleaded guilty to the two counts of receiving stolen property, and, after waiving his right to a jury trial, was tried and found guilty of criminal trespass, burglary, and theft. He was sentenced to two to five years for burglary, to be served concurrently with his sentence in an unrelated case, and he received suspended sentences for receiving and criminal trespass; no sentence for theft was imposed. After his post-verdict motions were filed, argued, and denied, he took this appeal.
Before a defendant's confession may be admitted into evidence, the Commonwealth must establish by independent evidence, that is, independent of the confession, that the crime charged in fact occurred (the corpus delicti). See Commonwealth v. Cockfield, 465 Pa. 415, 350 A.2d 833 (1976); Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974); Commonwealth v. Leslie, 424 Pa. 331, 335, 227 A.2d 900 (1967); Commonwealth v. Moyer, 277 Pa. Super. 172, 419 A.2d 717 (1980). The reason for this rule was stated in Commonwealth v. Turza, 340 Pa. 128, 134, 16 A.2d 401, 404 (1940): "The grounds on which the rule rests are the hasty and unguarded character which is often attached to confessions and admissions and the consequent
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danger of a conviction where no crime has in fact been committed."
Crimes may be said to have three aspects: an "occurrence of the specific kind of injury or loss;" "somebody's criminality . . . as the source of the loss," and finally, "the accused's identity as the doer of this crime." 7 J. Wigmore, Evidence § 2072, at 524-25 (Chadbourn rev. 1978) (emphasis omitted). The corpus delicti includes only the first two of these three. Commonwealth v. Ware, 459 Pa. 334, 365, 329 A.2d 258, 274 (1974); Commonwealth v. Herman, 288 Pa. Super. 219, 230, 431 A.2d 1016, 1022 (1981).
Under our Crimes Code, "[a] person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof with intent to commit a crime therein, unless the premises are at the time open to the public or the actor is licensed or privileged to enter." 18 PA.C.S.A. § 3502(a); Commonwealth v. Stasiak, 305 Pa. Super. 257, 264, 451 A.2d 520, 523 (1982). Therefore, on a charge of burglary, before the defendant's confession may be admitted into evidence, the Commonwealth must establish, first, that "a building or occupied structure, or separately secured or occupied portion thereof," not "open to the public" was entered -- Wigmore's "specific kind of injury or loss" -- and second, that the entry was "with intent to commit a crime therein" and was not "licensed or privileged" -- Wigmore's "somebody's criminality . . . as the source of the loss." See Wigmore, supra, at 524-25. This may be done by circumstantial evidence. Commonwealth v. Gonzales, 297 Pa. Super. 66, 73, 443 A.2d 301, 304-05 (1982). Thus, evidence of forced entry, flight, or possession of tools or unauthorized entry, may be sufficient in certain circumstances to establish that a burglary has occurred. See, e.g., Commonwealth v. Wiltrout, 311 Pa. Super. 115, 457 A.2d 520 (1983) (evidence of prying open plywood panels); Commonwealth v. Tingle, 275 Pa. Super. 489, 495, 419 A.2d 6, 9 (1980) (evidence of forced entry and possession of burglary tools); Commonwealth v. Nutter, 256 Pa. Super. 111, 117, 389 A.2d 626, 628-29 (1978) (evidence
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of forced entry, ransacked premises and presence within burglarized premises in possession of "large sturdy screwdriver.") While the Crimes Code definition of burglary has abandoned the common law requirement of "a breaking," nevertheless the cases in which circumstantial evidence establishes a burglary require that there be some evidence of surreptitious entry to establish the element of entry with felonious intent. See Commonwealth v. Crowson, 267 Pa. Super. 46, 48, 405 A.2d 1295, 1296 (1979) (no burglary where "no evidence that [the defendant] entered the . . . residence surreptitiously or by force" and in fact "no evidence at all regarding the manner of entry by appellant.") See also In Re Wood, 277 Pa. Super. 606, 419 A.2d 1316 (1980) (no burglary where defendant resided in house from which car keys were ...