Appeal From Order Docketed March 30, 1989 Court of Common Pleas, Criminal Division, Philadelphia County, No. 00826 July Term, 1988.
Anna M. Durbin, Ardmore, for appellant.
Norman Gross, Asst. Dist. Atty., Philadelphia, for Com., appellee.
Cavanaugh, Olszewski and Hoffman, JJ.
[ 389 Pa. Super. Page 215]
Appellant, Joseph D'Alonzo, appeals from a conviction following a non-jury trial. At trial a demurrer was sustained as to a burglary charge and he was adjudged not guilty of a charge of criminal conspiracy and theft. The court found him guilty of criminal trespass and defiant trespasser. Following denial of post-verdict motions, appellant was given a sentence of probation. His appeal attacks the sufficiency of the evidence to support the guilty verdict. We agree with appellant and reverse.
The Commonwealth called two witnesses. The testimony admitted into evidence when reviewed in a light most favorable to the verdict winning Commonwealth*fn1 was that at about 9:15 P.M. on Sunday, May 8, 1988, witness Bocella came into contact with appellant D'Alonzo near the Girard School at 18th & Snyder Ave. in Philadelphia. D'Alonzo's truck was parked nearby. D'Alonzo and a companion were seen to enter into the schoolyard at the Girard School. The companion, Johnny Russo, carried a hammer. Later the appellant was observed together with Russo loading boxes into the truck. The other witness, the building engineer of the Girard School, found evidence of a break-in on Monday morning at a steel gate which was at an ash pit that was used at one time and found evidence of vandalism in the school building. Tools and a hand truck were missing. The
[ 389 Pa. Super. Page 216]
steel gate that was ripped open was described as an old-fashioned cellar gate.
Appellant was convicted of the following defined crimes: Criminal Trespass -- Buildings and occupied structures. 18 Pa.C.S.A. 3503(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 ...