Commonwealth v. Carter

City оf York is therefore in complete harmony fee. today. result we reach modified. modi- Court As

Order the Commonwealth fied, order affirmed.

MANDERINO, J., participate did not in the consideration or decision of this case. Pennsylvania

COMMONWEALTH CARTER, Appellant. James Pennsylvania COMMONWEALTH BOZARTH, Appellant. Charles COMMONWEALTH DULANEY, Appellant.

Robert Pennsylvania. Supreme Court of Argued Nov. 1977.

Decided Nov. Assn, Phila., Defender, Lerner, Defender Benjamin DeMasse, Defender, Packel, Chief, Elaine John W. Asst. Div., Appeals Philadelphia, appellants. for Goldblatt, F. Emmett Dist. H. Fitzpatrick, Atty., Steven Law, Stiles, Dist. Asst. Dist. Deputy Atty. for Michael R. Chief, Div., Barthold, Phil- Atty., McLaughlin Appeals Gaele adelphia, for appellee. O’BRIEN, ROBERTS, POM- EAGEN, J., and

Before C. PACKEL, NIX, JJ. EROY, MANDERINO THE COURT OPINION OF ROBERTS, Justice. was indicted appellant each proceedings,

In unrelаted including offenses, but including burglary, multiple sitting court Each was tried before a trespass.1 alia, convicted, for the inter jury without a and each the convic- trespass. Only unindicted offense of criminal Superior appealed. were tions for criminal We allowances granted upheld Court each conviction.2 judg- 1978, this reversed the On October Court appeal.3 follow. opinions would ments of sentence and noted order.4 opinion This is in accordance tres is whether criminal presented single issue includ is a lesser 3503(a)(l)(Supp.l978), pass, 18 Pa.C.S.A. § 3502(a). We hold that ed offense of 18 Pa.C.S.A. burglary, § Therefore, deprived these convictions it is not. we conclude which are to defend opportunity of the notice and appellants Constitutions. Federal and guaranteed by the theft, attempted burglary, Appellant indicted for 1. James Carter was conspiracy. generally possessing criminal of crime and instruments conspiracy, Appellant recklessly endangering Bozarth was indicted for criminal Charles threats, possessing person, terroristic another Appellant burglary. Du- generally Robert crime instruments of taking disposi- by laney tion, burglary, or indicted for theft unlawful was conspiracy. property by receiving and criminal theft stolen Carter, 376, (1975) Pa.Super. 344 A.2d 899 2. v. 236 Commonweаlth Hoffman, result; Watkins, J., (plurality opinion, P. concurred in JJ., joined). J., Spaeth, dissenting opinion which Jacobs and filed a 702, (1975) Bozarth, Pa.Super. 65 237 v. Commonwealth JJ., (Jacobs, Spaeth, dissenting). Commonwealth Hoffman and 739, (Jacobs, (1976) Dulaney, Pa.Super. Hoffman 238 JJ., dissenting). Spaeth, Appellate pursuant Jurisdiction appeal Court hearWe this II, 204(a), 31, 1970, July 17 P.S. art. § Act P.L. Act of of 211.204(a) (Supp.1978). § 29, 1978, September for reassigned to the writer on 4. This case was expressing opinion of a purpose preparing the views an of majority of this Court. he is one notice that gives for burglary Indictment following criminal statute: violating accused or building if he enters a burglary person guilty “A structure, рor- occupied secured or separately or occupied therein, unless a crime thereof, with to commit tion intent to or public time open are at premises enter.” licensed or to privileged actor is of this is not an element 3502(a). 18 Pa.C.S.A. Scienter § charge thus, against one defending crime and he (albeit falsely) have no reason to establish would occupied structure building his in a or presence believed could a belief or evidence such licensed. Yet privileged criminal of a charge a basis provide acquittal as defines criminal The Crimes Code trespass. follows: if, he is not knowing that

“A commits an offense person so, enters entrance gains or do he or privileged licensed any or remains in subterfuge surreptitiously occupied secured or structure, separately occupied thereof.” portion Therefore, with the agree we 3503(a)(1).

18 Pa.C.S.A. § Hoffman dissenting opinion Judge has a scienter Carter “the crime of burglary, the crime of prove not requirement necessary offense.” lesser included thus cannot be as a categorized (1975) (dissenting A.2d Pa.Super. Cook JJ.).5 Cf. joined by Spaeth, Jacobs and opinion (malicious State, 258 Ind. (1972) 284 N.E.2d degree offense of second lesser trespass burglary). any offense

These convictions for an indiсtment which there was no charged and for not, therefore, 1) criminal whether under the 5. We need decide felony degree trespass convic- section of a second the Crimes Code knowingly trespasses, do so but does not tion could stand where ‍‌‌​‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​‌​​‌​‌​​‌‍one by whether, 2) concealment, entry, by subterfuge surreptitious or other support to the criminal if sufficient the indictment were charge, a determination be remanded for case should failing available to whether counsel was ineffective adduce defense. 278

violate due process. Hamling States, v. United 87, 418 U.S. 94 S.Ct. (1974) (“Our L.Ed.2d 590 prior cases indicate that an indictment is sufficient if it . contains thе elements of the offense charged fairly informs a defendant of charge which he must against Arkansas, defend Cole v. .”), . 333 U.S. 68 S.Ct. 514, 92 Accord, L.Ed. 644 (1948). I, (right Pa.Const. art. 9§ of accused “to demand the nature and cause of the accusa- tion against him.”); g., People Keatts, e. 54 Mich.App. (1974) (conviction N.W.2d for crime not charged and not included in those charged denies due proc- ess).

The Pennsylvania Rules of Criminal Procedure embody the same principle. 213(c) Rule provides: “In all court cases tried on an indictment the issues at trial shall be defined such indictment.” Rosenhoover, Cf. Commonwealth v. 339, 342-3, Pa.Super. (1975) (Under Pa.R. Crim.P. 213(b)(5), indictment must set forth substantially the language statute, applicable assure notice of the charges.) This principle where, must control even as here, there is some evidence in each record relevant additional element of scienter in trespass. We will not permit the accidental presence some scienter evidence to cure the denial of process due presented here.

Accordingly, orders of the Court Superior affirming the judgments of sentence of criminal reversed and judgments of sentence vacated.

Former Justice Packel participate did not in the decision of this case.

LARSEN, J., did not participate consideration or decision of this case.

MANDERINO, J., joins the Opinion Court and filed a concurring opinion.

POMEROY, J., filed a dissenting opinion, in which O’BRIEN, J., joins. Justice,

MANDERINO, concurring. further note that would majority opinion but join I 3502(a) 18 Pa.C.S.A. burglary, § is indicted for one who to other necessary as the may defense not aware that a trespass, criminal in the crime of elements contained than the elements which are different 3503(a)(1) § Pa.C.S.A. breaking trespass does not involve burglary. Criminal subterfuge surrepti- instead, it entering, encompasses and A ac- person on the remaining premises. tious means of a defense prepare has no reason to cused of burglary subterfuge surrepti- that he did not enter by establish Therefore, a conviction of criminal remain. tiously not of his accused only under these circumstances denies the also of to defend. opportunity of notice but his right Justice, POMEROY, dissenting. who practitioners supposed

To those lower courts and had 1.07(4)of willing that this to be guided Court solving Institutes’ Penal Code1 the American Law Model lesser of- in the area of problems presented The fenses, surprise. majori- will a today's decision come as but it also fails only not does not refer to Model ty ascertaining of a test provide other formulation any one included in another. when offense is to be deemed to be I here reached disagree Because both with the result a more con- believe that involved deserves problem treatment, obliged sidered I am to dissent. holds, language upon comparison

The Court defining burglary sections two Crimes Code lesser is not a trespass, criminal latter been former, having hence that the appellants, of that trespass, not be convicted charged is that in the criminal crime. basis of this conclusion e., of “scienter”—i. requirement there is a trespass offense knowledge by trespasser entry that an Draft, Proposed 1962. Official unlicensed or unprivileged element рresent ‍‌‌​‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​‌​​‌​‌​​‌‍not in the —an offense of burglary.2

Appellants’ argument seeking the result which the Court reaches is framed in accordance with the Pennsylvania doc trine of merger offenses, which doctrine long has been used to determine whether one offense includes another.3 In Commonwealth ex Ashe, rel. v. Moszczynski 102, 343 Pa. 21 (1941), A.2d 290 a case on which appellants heavily rely, this Court reiterated the test when one determining criminal offense into merges another:

“The true test of whether one criminal offense has is merged (as in another is sometimes stated) whether the two criminal acts are ‘successive in the same steps transaction’ but in- it is whether one crime necessarily another, as, volves for example, rape fornication, involves and robbery involves both assault larceny. When one of two criminal acts committed successively not a other, necessary ingredient of the there may be a both.” 343 Pa. at conviction and sentence for 104-05, 21 A.2d at 921 (emphasis in original). Commonwealth v. Sparrow,

See also 490, 501-07, 471 Pa. 370 Hill, Commonwealth (1977); A.2d 712 349, 453 Pa. 310 Appellants also contend that another of the elements of criminal surreptitious entry lingering building is a or or structure, present burglary. which also is not in the definition of Although majority argument, does not address this I find it merit, Court, Superior without in as did the entire for the reasons stated opinions 387, Pa.Super. filed in that court. See 236 at 344 id., (plurality opinion); 383-84, Pa.Super. A.2d 899 899 236 344 A.2d (dissenting opinion). merger adopted by 3. The doctrine of this Court because the jeopardy double tionally clause of the constitution has tradi applied only capital g., been offenses. E. Commonwealth Baker, 105, (1964). jeopardy 413 Pa. The double Constitution, course, yet clause of the United States had not been applied Maryland, 794, to the states. Benton v. 395 U.S. 89 S.Ct. 2056, (1969). generally 23 L.Ed.2d 707 See Commonwealth v. Cam 233, pana, 45, 432, 452 (plurality opinion Pa. 304 A.2d 436-67 243— Roberts, id., J.); 269, J., (Pomeroy, 452 Pa. at 304 A.2d at 446 remanded, dissenting), vacated and 414 U.S. 94 S.Ct. 38 (1973), remand, denied, L.Ed.2d 44 on сert. (1974). U.S. 94 S.Ct. 41 L.Ed.2d 1139 Comber, 374 Pa. (1973); A.2d ap- this traditional (1953). referring Without A.2d 343 has, majority proach citing Moszczynski, or even does not a new test: one crime explicitly, effect if not added unless the elements “necessarily involve” another precisely in the statute in offense are set forth greater of the lesser offense. as are the elements same fashion forth, rele- sets them Although majority opinion are for re- vant sections of the Crimes Code convenience here. 3502 of the Crimes 18 Pa.C.S. peated (1973), defines as follows: burglary § “A if he enters a or person guilty structure, occupied separately occupied por- securеd thereof, therein, tion crime unless with intent to commit a the premises open the are at the time or public actor is or to enter.” privileged licensed section of succeeding Criminal is defined in the next terms: following 18 Pa.C.S. § if, he is not person knowing “A commits an offense so, entrance gains licensed or to do he enters or privileged building or remains in subterfuge surreptitiously any structure, secured or occupied separately occupied portion thereof.”

The expression provi- dissimilar modes of of these similar sions are the focus of the statute controversy. burglary of if one as provides guilty speci- that оne is acts licensed or fied the statute “unless . the actor is privileged added.) trespass, to enter.” Criminal (Emphasis alia, however, enter, inter specifies “knowing that one must (Emphasis that he is not licensed or to do so.” privileged hand, added.) that, legisla- Thus it on the one appears ture has made license or to enter a privilege and if this element burglary charge, affirmative defense to a of evidence the Common- permission suggested by prove beyond wealth must the absence of that element Rose, See, v. 457 Pa. reasonable e. Commonwealth g., doubt. Demmitt, v. 456 (1974); 321 A.2d 880 Commonwealth 463 (1974); Cropper, Pa. Commonwealth

282 for criminal prosecution In a (1975).

Pa. must show hand, the Commonwealth trespass, on the other to enter as privilege of license or of the absence knowledge Thus acquittal. suffer an its case in chief or part in the Common- evidence producing burdens of differing the burden chief, from distinguished as wealth’s case be, in,4 for the seem to the evidence is once all persuasion crimi- idea that dispositive against majority’s purposes, While burglary. included offense nal is a lesser it theory,5 this jurisdictions in some support there bemay as a hard-and-fast not, adopted been knowledge, to my has I do believe In particular, not rule in this Commonwealth. espouses majority apparently which approach the. has this Court approach be reconciled with the can An examination criminal homicide. taken in the area of of lesser includ- question with the dealing two cases leading clear. this point should make ed offenses of murder A.2d 1189 Polimeni, Pa. In Commonwealth Court) and announcing judgment (1977) (opinion (1977) Garcia, A.2d determined of the Court majority (plurality opinion), a lesser as regarded should be manslaughter opinion The lead crime of murder. included offense of the included of the lesser on grounded in Polimeni6 was reaching its law in to the common fense doctrine as known was conceptual basis conclusion, that such a but noted The 437-39, 378 A.2d at 1193-94. 474 Pa. at “arguable:” (2d Cleary E. generally 336-337 ed. on Evidence §§ 4. See McCormick 1940). (3d ed. 1972); ‍‌‌​‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​‌​​‌​‌​​‌‍Wigmore, 2485-2489 §§ et IX J. Evidence al. 5. See Included Offenses: ysis Offenses Barnett, (1976) . ^[1975] Lesser for in Detroit Practitioners, The Lesser-Included Offense in general, Included Offenses Michigan, College D. A Herculean Task 5 Koenig, ^[1975] Conn.L.Rev. Law Review in Detroit The Kansas, Many-Headed 255 Doctrine: 41; College 15 (1972); for B. Washburn George, A Present Law Review Note, Michigan Hydra Lesser L. Journal 40 The Doctrine Day of Lesser Included Courts, 35; Anal- J. writer, by joined by Mr. opinion, present was authored This Chief Justice EAGEN.

283 its view that part, lead in was of the opinion Garcia7 question light should be resolved in of Section primarily 460-61, 474 Pa. at 1.07(4) of the Model Penal Code. points present purposes differing A.2d at 1205. For points as well as the emphasis opinions, in the two What is im are not disagreement,8 particularly important. two opinions here that the five subscribers to the portant 1.07(4) of the Model guided were to be Section prepared by Code,9 the two opinions Penal and that both recognized ROBERTS, opinion, by joined by Mr. 7. This authored Mr. Justice Justice O’BRIENand Mr. Justice MANDERINO. involuntary opinion 8. The lead in Garcia set forth the view manslaughter always jury must at the defend- submitted request any prosecution opinion ant’s in for criminal homicide. The issue, because, Garcia, in it was not Polimeni reservеd this as in presented by It man- case. was there stated that slaughter jury upon request should be submitted to the “at least presented where evidence is that at on which a verdict of trial 442, rationally serious 474 Pa. less offense could be based.” (footnote omitted). question 378 A.2d at 1196 This continues to generally opinions divide the Court. See in v. Thomas, 292, (1978). 482 Pa. opinion 1.07(4) 9. The not been Polimeni noted that Section had however, incorporated “not, in our Crimes but did consider disapprobation this a mark of doctrine of of the Model of the Code formulation n.6, A.2d at lesser-included offenses.” 474 Pa. at 438 by” opinion “guided 1193 n.6. The in Garcia stated that it was 460, 1.07(4), apparеntly 474 Pa. at 378 A.2d at 1205. This ROBERTS, reflected the opinion, view of Mr. Justice the author Garcia available, provision view that the Model Code was the best a previously expressed as follows: statute, rule, “[M]y research has no uncovered propounds determining case3 which a standard for an of- when “3 Ashe, 102, Moszczynski But cf. Commonwealth ex rel. 343 Pa. (1941) (quoting legal encyclopedia, appar 21 A.2d ently approval).” greater articulation of within a offense. best fense is included view, 1.07(4) standard, my in section found such American Law Institute’s adopt I Model Penal Code: ... would Pennsylvania.6” 1.07(4) Common- as the law of section past for answers to look hesitated in the “6This Court has not by prepared questions law to codifications our resolved Korvette, Inc., g., See Gilbert Law e. the American 457 Pa. Institute. (1974), n.25, n.25 100 & 611-12 & ” therein; cases cited (1975) Moore, A.2d wealth 324— omitted). (additional J., concurring) footnotes (Roberts, while dif offenses, manslaughter, murder and ques the essential elements, had in common fering in their state of mind. tion of the defendant’s 1.07(4)of the Model Penal Code provides: Permitted. A de- “(4) of Included Offense Conviction in an offense included fendant of an convicted offense in the indictment charged information]. [or An when: offense is so included than the same or less

(a) proof It is established establish thе commission all the facts required charged; offense commit

(b) it or solicitation to attempt consists of an an offense otherwise or to commit charged therein; (c) charged only it differs the offense from or risk of respect injury injury less serious kind person, same interest or a lesser public property suffices to establish its commission.” culpability (a) The draftsmen of the as Model Code describe subsection that “a lesser included in a providing necessarily offense is charge greater necessary if the to establish proof greater will of establish element of the necessity every 1.08(4), lesser offense . .” Model Penal Code § (Tentative 5, 1956).10 No. commentary at 40-41 Draft (a) (b), ‍‌‌​‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​‌​​‌​‌​​‌‍of which my judgment, the latter 10. In both subsections here, As we law. with in issue are in accord Sparrow, supra, 471 Pa. at stated Commonwealth at 718-19: altogether merger are not decisions on the doctrine “Our however, limited general, rule has been In harmonious. ' merely de- effect involved were in where the offenses situations grees proved both. principal the same facts crime and of the same attempt to merger] example that of . An obvious [of offense; merges offense, completed the former commit an and the ' Ashe, 293 Russo v. ex rel. into Pa. and latter. See also Commonwealth (felonious to maim with intent assault 142 A. 317 [1928] murder); disfigure, merges with intent to assault into felonious Ashe, Commonwealth ex rel. Shaddock rape aggra- (1941) (assault battery intent to commit rape); battery merge into vated assault and subsection, which view that this of the Garcia in was opinion of the allocation rather than evidence on trial grounded to its evidence, support lent of production of the burdens in- a lesser was manslaughter conclusion not- expressed This view of murder.11 cluded offense Code were Model to the commentators withstanding that the be said it cannot “conceptually point careful out that all оf the ... killing of an intentional upon proof estab- been necessarily killing have negligent elements of a Thomas, v. Id. at 41. also Commonwealth lished.” See of (opinion 1122, (1978) 1127-1128 312, 323-325, Pa. 393 A.2d affirmance). POMEROY, J., in of support evidentiary of the importance ignores The majority in each evidence there was here. It concedes that question element scienter to the cases now before us relevant of the of this the presence characterizes trespass, in criminal but ante at Court, as “accidental.” Opinion evidence scienter of view, however, presence 278.12 It is my battery (assault Nelson, (1973) in A.2d 369 452 Pa. battery). bear resisting mergеs These cases into assault and arrest Russo, supra, that ‘where in of the doctrine out the formulation distinct crimes set transaction, grow of the same out forth an indictment] [in only penalty only degree, can be differing one in at 318.” imposed 142 A. 293 Pa. at after conviction.’ Comber, also, supra; g., Commonwealth See e. Commonwealth McCusker, (1950); ex rel. Commonwealth 70 A.2d Ashe, Moszczynski supra. at 1207-08. 11. 474 Pa. at argument candidly, evidence Appellants, make no 12. more beyond presence a reasonable scienter to establish was insufficient prosecu- three in each of these doubt. A brief review of the evidence presence determining whether aid the reader tions which, believed, in these cases scienter would establish evidence if was “accidental”. Carter, along awith appellant was arrested No. James at City building in the of a vacant co-defendant inside the sub-cellar police, both January Philadelphia In statements on building they entered admitted that and his co-defendant Carter property stealing pipes, purpose the owner for the testified that neither defendant building, permission to enter had contended, not, aban- premises defense as the and that the were doned. Bozarth, after appellant also was convicted at No. Charles conspiracy. The evidence non-jury trial of criminal evidence in these accidental; cases was anything was, but it rather, evidence that was essential to enable the Common- wealth to over a prevail demurrer to the burglary charges. Stated another way, I believe that the allocation of the burdens of production in the two offenses is so similar as to make them functionally since the equivalent, required burglary prosecutions to establish a volitional into a entry as well as an intent to commit a crime It therein.13 is true that the states of mind to be es- (volitional tablished entry vis-a-vis entry with knowledgе same, lack of license or are privilege) but and mind involved in murder neither are the states of May early morning hours of that on the Bozarth’s trial established co-defendant, Myers, the entered one Michael Bozarth and a asleep Quinlan Quinlan apartment while locked on the couch. nearby, They of one Thomas awoke, kept gun Quinlan he reached for a which intruders, recognized, he leave. whom and demanded appeared Quinlan approached what with refused and Bozarth chest, Quinlan Quinlan in the a knife. shot Bozarth once to whereupon to be apartment. intruders ran from the 522) by Dulaney (appellant at No. at the trial of Robert The evidence jury, a he was observed a established that which was also without City Philadelphia approximately police of officer inside a bar in the closing September time. officer well after 4:10 A.M. on ceiling through opening appellant of climb observed the bar. The officer Dulaney subsequently pursued him on and arrested nearby building of the was connected with that the roof of a which bar. Code, 302(c), provides 302(c) 18 Pa.C.S. § 13. Section of the Crimes “[wjhen culpability material element sufficient to establish a law, prescribed is established if such element of an offense is not a recklessly respect intentionally, knowingly person or acts by, example, entry building one who has Thus into a thereto.” burglary, hypnotized since be said to constitute been cannot any building “knowingly” entering the actor cannot be said to be more than he can be said to be “knowing not licensed or that he is trespass See also privileged statute. to do so” under the criminal 301(a), 301(a) which 18 Pa.C.S. § of the Crimes guilty his provides person unless not of an offense is “[a] voluntary act or the liability includes a on conduct which is based capable.” physically It perform an of which he is omission to may act burglary, objected guilty but not but be that one-could bе found building, “recklessly” entering trespass, upon proof a criminal difficulty apparent than real. See 18 Pa.C.S. this is more State, 302(b)(3); Day n. 1 302(b)(2), 532 S.W.2d §§ (Tex.Crim.App. 1975). criminal these manslaughter. Yet since involuntary effect were in offenses offenses “the involved homicide the same crime and degrees principal of the same merely Sparrow, supra, both.” Commonwealth proved facts voluntary A.2d at Pa. at included offenses deemed lesser manslaughter have been punisha- into a cannot be entry Since an murder.14 entry or unless the burglary trespass as either ble it is and since legal justification, shown to without burglary to avoid a to contend that оne who seeks specious evi- point suggestion fail to out a conviction would license source, dence, presence from whatever test does “elements” I conclude that the majority’s privilege, between criminal provide distinction con- being from prevent to the former burglary sufficient of the latter. a lesser included offense sidered clearly also (c) Model formulation Code Subsection is a lesser that criminal finding supports . in that only it . . since “differs burglary, same . risk of injury serious injury a less It its commission.” . suffices establish property involves a serious crime of self-evident that the of others perhaps persons prоperty threat likelihood, of the if not possibility, because it involves the crime and more heinous commission of another perhaps the hand, on the other Criminal property. trespass, on the if any and little a less threat to property involves serious a simply crime is persons. to The essence of that threat course, Voluntary long manslaughter, a has been considered matter, it re- included As a definitional lesser offense murder. presence quires showing by “a sudden the Commonwealth passion resulting provocation,” Pa.C.S. intense from serious 2503(a), simply present in Simi- murder. elements which are § larly, in vain for mention one search the murder statute act,” integral doing of which is act” “lawful the “unlawful Compare involuntary manslaughter. 2502 with § 18 Pa.C.S. in facts must show these 2504. Since the Commonwealth § Pa.C.S. conviction, manslaughter but need not in order obtain order to murder, variety quaere manslaughter can be said prove of either how majority’s murder under the to be a lesser rationale. intrusion into knowingly unpermitted re- surreptitious maining within a building of another. This difference in the degree of seriousness of the two offenses is reflected in the fact that the legislature designated has as a burglary felony of the first whereas criminal degree, trespass felony is a degree. second Thе in took a plurality opinion Garcia similar view with respect to criminal homicide: malice is based on the disregard of an extremely

“[W]hen risk high of death or serious bodily harm manslaughter is a lesser included offense of murder in two First, respects. a ‘less . serious risk of injury

suffices to establish its commission.’ Model 1.07(4). Penal Code may persuade evidence the jury § the defendant of murder in all guilty respects except that disregarded risk was not extremely high, but that the risk was still unjustified and that therefore the killing Second, constitutes involuntary manslaughter. ‘a lesser kind of its com- culpability suffices to establish mission.’ Id. The evidence may persuade jury murder, the defendant did not commit because defend- ant did not perceive others, the risk to but others, defendant perceived should have the risk to therefore committed involuntary manslaughter.” (citation 378 A.2d at 1207 omitted). I Although believe that one need not rely on the Model Code’s 1.07(4)(c) in order to determine that criminal is a lesser included offense of I make note burglary, of it because it is manifest to me that the rationale plurality points Garcia to a different result than the majority today reaches. In both criminal homicide 25 of (Chapter Code) Crimes and Chapter 35 of the Crimes (“Burglary Code Intrusions,” Other Criminal in which and crim- inal offenses), are the only ques- fundamental tion, though phrased ways, different is the defendant’s state of mind. I Because find that the state of mind which must be present crime of in- burglary “necessarily volves”15 the state of mind encompassed within criminal trespass to an even greater extent than the mental state essential to murder involves pertains that which to involun- tary manslaughter, I conclude that the legislature, despite inartful drafting, intended that criminal trespass regard- be ed as a lesser included offense of burglary.16

This conclusion is buttressed the fact by legisla- ture expressly stated that it drew in large measure from the Model Penal Code of burglary formulations and criminal in trespаss enacting the statutory issue,17 sections here at which differ from substantially prior law.18 drafters of Model Penal in the commentary to the section of that Code concerning burglary, clearly contemplated that should be treated as a lesser offense of “If burglary: there is reasonable doubt as to the criminal purpose of the intruder it should be enough to convict him of criminal trespass under Section 211.2.” Mod- Ashe, 15. Moszczynski supra, Commonwealth ex rel. 343 Pa. at (emphasis deleted). 21 A.2d at 921 16. I inconsistency would add argument that I see no between an 1.07(4)(c) my based on expressed view in Common Thomas, supra, wealth v. that the Garcia rationale is defective. This my disagreement is because with the Garcia rationale was based on opinion’s view prosecution that evidence in a murder could always by be prove nothing taken a rational trier of fact to more than involuntary manslaughter, argument quite unpersua that I find 323-325,393 sive. See 482 propositions Pa. at 1127 -1128. A.2dat Two seem to me to opinions: be established the Polimeni and Garcia (1) interpreted by the same evidence the fact-finder to states, (2) establish two somewhat different mental difference in purposes thought these controlling mental states is not to be determining involuntary manslaughter whether is a less еr so, included offense of differing murder. If this be then the mental accompanying entry states of a and criminal (viz., entry opposed knowledge volitional as of the lack of privilege license or entry) controlling, in that should not be either. Comments, 17. See Joint State Government Commission of the Gener- Assembly, al (1967), Toll, reprinted Crimes Code §§ Annotated, (1974). Crimes Code Compare at 18 Pa.C.S. § 3502 with (Proposed Model Penal Code 221.1 Official § Draft, 1962), and 18 Pa.C.S. 3503 with Model § Penal Code 221.2 § (Proposed Draft, 1962). Official Toll, supra 18. See note 221.1, (Tent. Draft No. Penal at Commentary

el Code § the 11, 1960). in decision me that Nothing today’s persuades entertained a different view.19 Assembly General matter, Court’s suppose As a I strictly practical trespass convictions conclusion the criminal particular that does to the void20 not mean much either here involved are gener- law discharged are or to the criminal appellants who free to amend the statutes Assembly The General ally. and until majority’s objections, meet the here involved to majority’s the prosecutors easily then can accommodate for both ‍‌‌​‌‌​‌‌​​​​‌​​‌‌‌​​​​‌‌​‌​​‌‌​​‌​​‌‌‌​‌​​‌​‌​​‌‍criminal holding by charging so decision is not quarrel today’s if see fit. with they My Court’s in as it over the much over the results these cases some trial and the with provide failure to the courts bar of these difficult issues. guidance consistent resolution apparent between the majority’s distinguish refusal our decisions in basis of decision and the basis today’s will, fear, add uncer- criminal homicide field I but further It is this concern tainty to this area of our criminal law. prompts that this dissent.

O’BRIEN, J., joins dissenting opinion. in this legislature’s It should noted that modifications be 17, supra, trespass provisions of see note the Model otherwise, majority’s théory. then lend no aid If it were guidelines of lesser Model Code’s for the determination homicide, place in where offenses have no the area of criminal would legislature parts adopt significant Model did not other 308-17; Toll, generally supra Cоde’s See note formulation. Draft, 1962). (Proposed Official Model Penal Code 210.2-210.5 §§ is a lesser included 20. Since I that criminal believe necessarily reject majority’s argument burglary, I they deprived appellants process because convictions of due here might be charge It were not of this in the indictments. informed moreover, these passing, each of the indictments mentioned in “feloniously charged certain did enter” a cases building. that the defendant spell although they arguable did not It thus scienter, provided appellants with but indictments these nonetheless being something they charged than fair more notice that were entry. Pope, A.2d Pa. mere Cf. Commonwealth (1974).

Case Details

Case Name: Commonwealth v. Carter

Court Name: Supreme Court of Pennsylvania

Date Published: Nov 6, 1978

Citation: 393 A.2d 660

Docket Number: 428, 501 and 522

Court Abbreviation: Pa.