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COMMONWEALTH PENNSYLVANIA v. KEVIN WAGNER (12/06/89)

decided: December 6, 1989.

COMMONWEALTH OF PENNSYLVANIA, APPELLEE,
v.
KEVIN WAGNER, APPELLANT



Appeal from the Order of the Superior Court of Pennsylvania dated June 26, 1987 at No. 1180 Pittsburgh, 1986, affirming the Order of the Court of Common Pleas, Criminal Division of Westmoreland County, dated May 10, 1984 at No. 1867 C 1983, 368 Pa. Super. 644, 531 A.2d 36 (1987).

COUNSEL

Kevin Wagner, I.P.P., Mercer, pro se.

John J. Driscoll, Dist. Atty. and Maria Greco Danaher, Asst. Dist. Atty., Greensburg, for appellee.

Nix, C.j., and Larsen, Flaherty, McDermott, Zappala and Papadakos, JJ. McDermott, J., files an opinion in support of affirmance in which Nix, C.j., and Flaherty, J., join. Zappala, J., files an opinion in support of reversal in which Larsen and Papadakos, JJ., join.

Author: Per Curiam

[ 523 Pa. Page 299]

ORDER

The Court being evenly divided, the order of the Superior Court, 368 Pa. Super. 644, 531 A.2d 36, is affirmed.

[ 523 Pa. Page 300]

OPINION IN SUPPORT OF AFFIRMANCE

McDERMOTT, Justice.

The Opinion in Support of Reversal properly distinguishes burglary from criminal trespass by the intention of the actor. They are also correct that intent can be proven by words or conduct. Commonwealth v. Simpson, 316 Pa. Super. 115, 462 A.2d 821 (1983); Commonwealth v. Russell, 313 Pa. Super. 534, 460 A.2d 316 (1983). I believe the facts of the instant case are sufficient for a jury to find that intent.

When a stranger first tries to enter your garage and then breaks the window of your door, on a given evening, neither you nor a jury should be considered harsh, if you believe he is not an aimless waif bringing compliments of the evening, or a passing sojourner of eccentric ways, or a harmless loiterer in the evening shadows.

Those supporting reversal would have us believe that hiding in your bedroom under such conditions is an unnecessary foolishness in the presence of simple pleasantries. They would see no evil through such jaundiced eyes, hear none in the melodious tinkle of your breaking window, and obviously would say no evil of a man with an umbrella. The jury could find, and did, more sinister reasons afoot. I would leave the ...


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