Opinion by
The evidence presented in this non-jury case is not sufficient to support appellant’s conviction of burglary *398 with the intent to commit larceny. The verdict is vacated and the matter remanded for sentencing on the charge of unlawful entry.
The evidence may be summarized as follows: On August 22,1972, at about 10:00 p.m., two police officers were working a plain clothes detail in Center City Philadelphia when they noticed appellant walking west in the 2200 block of Locust Street. Appellant entered and left the vestibules of several buildings on Locust Street. The officеrs followed him on a circuitous route “up Locust to 24th Street where he made a left and went south on 24th Street tо Manning Street, then made a left going east on Manning Street. He then entered an alley which runs north and south betweеn Manning and Spruce Street. He was in the alley for approximately a minute. He proceeded eаst on Manning at 23rd Street where he made a left and went north on 22nd Street and he continued on 22nd Street, south on Locust.” Appellant finally entered an alley at the rear of 254 South 23rd Street. There he opened the gate оf a six-foot fence that enclosed a dirt yard and proceeded to the building, a three-story brown-stone containing six occupied apartments. He went down three steps to the basement door and entered. Bеcause he had his back to the officers, they could not determine the precise means by which he gainеd entry. After a few minutes, he emerged empty-handed. He went to the fence and looked over to the adjacent property. The officers then stepped into the yard, guns and badges drawn. Appellant ran into neаrby bushes, where he was apprehended. The basement door bore scratch marks around the door handle and appeared to have been forced open. No weapons, tools, or stolen articles were found in appellant’s possession. There were tools in the basement but they were not described in the record nor were they admitted into evidence. There were other items in the basement, like furniture and *399 radios, that appellant could have carried away. Access to the rest of the building could be had through thе basement.
At the time of appellant’s arrest and trial (both of which occurred before the effectivе date of the new Crimes Code, 18 Pa. S. §§101
et seq.),
burglary was defined as the wilful and malicious entry into any building with an intent to commit any felony therein. Act of June 24, 1939, P. L. 872, §901, 18 P.S. §4901;
Commonwealth v. Hellner,
Viewing the evidence in the light most favorable to the Commonwealth,
Commonwealth v. Young,
Evidence of intentional entry into an occupied building is by itself insufficient to support an inference of an intent to steal.
Raymond v. State,
55 Wisc. 2d 482,
*400
Although one might infer an intent to commit larceny from appellant’s activities before he arrived at 254 South 23rd Street and from his attempt to avoid apprehension after entry, one might just as easily infer an intent to commit some other crime. As noted in
Commonwealth v. Brown,
Commonwealth v. DelMarmol
It does not follow, however, that appellаnt should be discharged. While the evidence is insufficient to support the inference that he intended to commit larceny, it does show that when he entered 254 South 23rd Street he intended to commit some crime. Under the Act of June 24, 1939, P. L. 872, §901.1, аdded Act of November 19, 1959, P. L. 1518, No. 532, §1, 18 P.S. §4901.1, “Whoever under circumstances or in a manner not amounting to burglary enters a building, or аny part thereof, with intent to commit a crime therein, is guilty of unlawful entry, a misdemeanor. . . .” The crime of
*401
burglary, for wliicli аppellant was indicted aud tried, includes the lesser offense of unlawful entry, and a defendant acquitted of burglary may be found guilty of unlawful entry.
Commonwealth v. Nace,
The judgment of sentence is reversed, the verdict of guilty of burglary vacated, and the cаse remanded with directions to enter a verdict of guilty of unlawful entry and to impose sentence, thereon.