*1 contribution statutory above liability impose cannot at .” 231 . . . the employer demanded 550. at 426, 332 A.2d to the third liability bar against that a
Nevertheless, we held
joinder:
against
a bar
necessarily
was not
party
the issue of
between
a distinction
must draw
“we
and that of
to contribution
defendant
original
anof
right
a determination
defendant
original
of the
the right
unfounded as
him was
brought against
the suit
negligent.”
defendant —was
original
employer—not
550.
also Hinton
427, 332 A.2d at
See
at
189,
I would affirm Pennsylvania COMMONWEALTH JACOBS, Appellant. Bruce Pennsylvania. Superior Court of 22, 1976. June Submitted April Decided *3 Packel, Defender,
John W. Assistant Public Philadelphia, for appellant. Goldblatt, H.
Deborah E. Glass and Assistant Dis- Steven trict Philadelphia, appellee. Attorneys, WATKINS, JACOBS,
Before President and Judge, HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.
JACOBS, Judge: 14, 1975, Bruce Jacobs was arrested on
Appellant August and with theft unlawful charged burglary, attempted and of an instrument of crime. These taking possession out of incident same in which charges grew day was arrested Police by Philadelphia Housing who was a stakeout of conducting Apartment Officer A-6 in the Norris was vacat- Apartments. recently stove, ed and contained refrigerator, sink. m., Around 10:40 officer heard the noise p. police metal from the lock on the metal on outside coming part the door. After a few minutes door opened appel- lant walked in with a screwdriver in his pocket. Appellant was arrested officer who from immediately emerged with his drawn. At trial after gun closet *4 case, the rested its lower court sustained the Commonwealth to the of charge demurrer theft appellant’s attempted by unlawful on the that there was no taking ground overt act on the of the The appellant. Commonwealth has not part from that was found appealed ruling. appellant guilty 244 on indictment number the crime of charging burglary1 245 and indictment number of an instru- charging possession Code, 6, 1972, 1482, 334, 1. The Crimes Act of Dec. P.L. No. 18 (1973). 3502 Pa.C.S. §
377 ment of crime.2 motions the Following post-trial appellant was sentenced to four to ten on years imprisonment and two to five on the burglary charge years imprisonment sentences to run possession charge, This concurrently. ap- followed. peal raises several
Appellant
allegations
error on this
He first contends that the evidence was insuffi
appeal.3
cient to
the crime of
prove
burglary. Appellant’s indictment
him with
without
into an
charged
permission
apart
ment with the intent to commit the crime of theft therein.
It is axiomatic that
criminal trials the
offered
proof
the Commonwealth must measure
to the
made in
up
Lambert,
the indictment.
226 Pa.Super.
Commonwealth
41,
(1973),
Aurick,
A.2d 421
Allen,
Commonwealth v. Lynch, 227 Pa.Super.
316,
Burglary
P.L.
No.
3502 (1973):
Pa.C.S.
§
A
if he enters a
“(a)
build
person
structure,
or
secured or occu
ing
occupied
separately
thereof, with intent
to commit a crime there
pied portion
in .
added.)
.
.” (Emphasis
intent
specific
required
to make out
be found in the
burglary may
defendant’s words or conduct
or from the attendant
circumstances
with all rea-
together
Freeman,
inferences therefrom. Commonwealth v.
sonable
However, when actions
supra.
are relied on
must bear
they
a reasonable
to the
relationship
crime,
commission of the
i. e.
be
to the
sufficiently proximate
alleged intended crime to
constitute one of the natural series of acts required for its
Freeman,
commission. Common-
supra;
Ellis,
wealth 349 Pa.
However, while evidence insufficient sup the is to on of the it was port finding guilt burglary charge, of trespass. sufficient to a verdict for criminal support guilty Carter, v. Commonwealth In
(1975), we held that
the crime of
for which the
burglary,
tried,
appellant was indicted and
includes the lesser offense
of criminal
It
is
of
trespass.4
therefore
strength
Carter that
of
on
judgment
sentence
indictment number
reversed,
charging
appellant
the
with
is
the verdict
burglary
of
vacated and the case remanded with
guilty
directions
enter a
of
verdict of
criminal
guilty
trespass
impose
sentence thereon. See Commonwealth v.
Lynch,
Pa.Su
Freeman,
per. 316,
“Yes. Ladies and gentlemen the as I jury, instructed you before and as I again, will instruct the you defendant is not required to present any evidence. You not may draw any inference not favorable the defendant be- cause the not presented defendant has or any witnesses any other manner.”
It is hornbook law person that a with a crime is charged under no duty to take stand or produce the evidence of his innocence but the may stand mute protected presumption of innocence and its demand that the Commonwealth sustain burden of proving his a reasonable doubt. guilt beyond Judges Hoffman, In Spaeth that case opinion the writer of this dissented. Miller, However, the situation unlike we held that it was reversible error
Miller, wherein supra, the it could draw an jury court to instruct for the lower to call from the defendant’s failure wit- guilt inference of gave in. this case nesses, immediately the lower court had that the defendant no jury instruction to cautionary This cau- evidence witnesses. any obligation produce correct instruction, subsequent and the tionary need witness- any not produce lower court from be drawn that no adverse inference could es and cured so, to do completely of the appellant failure remark. improper 244 charging of sentence on indictment number
Judgment reversed, the verdict of is vacated *7 to enter a verdict of of remanded with directions case sentence thereon. impose Nothing criminal and trespass challenge judgment raised on this appeal been having 245 charging possession on indictment number of of sentence crime, the sentence on that judgment of of an instrument affirmed.5 is accordingly count HOFFMAN, J., a and concurring dissenting opinion files SPAETH, J., joins. in which
PRICE, J., in which VAN der dissenting opinion files a VOORT, J., joins.
HOFFMAN, and concurring dissenting: Judge, JACOBS that opinion Judge I with the agree plurality criminal requisite failed to prove Commonwealth case. in the instant See necessary burglary intent to prove A.2d 316, 227 323 808 Pa.Super. Commonwealth v. Lynch, disposition supported by of the case is court 5. The of this CERCONE, J., join WATKINS, Judge, in as follows: President and J., HOFFMAN, J., by SPAETH, concurring joined opinion; in a this is dissenting opinion supports the conviction of which reversal of and trespass; burglary sentencing remand for criminal but would not on VOORT,. dissenting opinion PRICE, J., J., joined by VAN der is in a which, agreeing included trespass criminal a lesser while burglary, burglary not reverse the conviction. of would offense
381 Freeman, 396, 770 (1973). In both remanded for Freeman and the Court Lynch, unlawful a lesser resentencing charge entry, of included under the offense to the of Penal burglary Code, 901; 1939, Act of June P.L. P.S. 4901. § § However, view, in the crime criminal as my trespass Code, 6, 1972, defined Crimes Act of December P.L. 334, 1; No. 18 Pa.C.S. not included within § § offense of burglary, Pa.C.S. 3502. Carter, (1975), A.2d 899 allocatur xli granted, 236 Pa.Super. (dissenting opinion by HOFF- MAN, SPAETH, inJ. which and JJ. joined). Ap- JACOBS was not with and charged criminal could not pellant trespass been I Therefore, have convicted thereof. would reverse order appellant discharged. SPAETH, J., this joins opinion.
PRICE, Judge, dissenting: Appellant was convicted of possession of an burglary instrument crime. indictment charged the unauthorized into with the commit the crime of theft.1 I agree that Commonwealth v. Carter, (1975) was decided evidence correctly that the in this case was sufficient to I support conviction for criminal would trespass. agree with the decision remand for majority’s sentencing except *8 belief my that the evidence was sufficient for the jury infer that entered the appellant with the to commit a reason, theft. For this I would affirm the judgment of sentence on the and charge burglary must dissent from the majority’s decision to remand. pointed It should be out that the Commonwealth could have avoid- problem ed the in immediate this case if the indictment had not specified appellant upon gaining what crime intended to commit jurisdictions may entrance. require While other the indictment crime, specify Pennsylvania, statute, requires only the intended substantially the language indictment “the crime in the prohibiting assembly prescribing of the act of the and the crime punishment.” (19 261). Act of March P.S. P.L. § on this court’s opinion primarily
The relies Freeman, officers observed the defend- two police In that case surveillance manner. set They up in a suspicious ant acting distance, some observed him and, him for following after Because of an apartment building. enter the basement of unable to discern the method were their the officers position, later, few the A minutes which was achieved. entry The officers approached building. defendant left the Although to flee. he attempted arrested him after the officers have jimmied, been door appeared basement arrest, his appellant At the time of tools. found no burglary despite in his possession stolen goods did not have any have the basement which could were items in that there fact facts, the court concluded that these On away. been carried rela- not bear such a reasonable actions did defendant’s to infer that jury the crime of theft to permit tionship intent at the time of entertained a larcenous the defendant entry. consistent with other cases in
The result in Freeman is have been reversed when the which convictions burglary the mere of the defendant in a “presence evidence was intent, criminal whose own lacked building, explanation where no evidence was to show that contrary produced entry was with the intent to commit crime within.” any made 420, 424, McLaughlin, cases, In most of these Freeman-type or was leaving the defendant had left under building which did not indicate or fear of flight appre- circumstances or the hension, breaking there was no evidence of while inside. e. Common- g., commission of crime See any Larkins, wealth v. 235 Pa.Super. case, In the instant v. McLaughlin, supra. into immediately upon breaking was apprehended not extend Freeman to this situa- I would apartment.
tion. of a building consists of offense of therein. 19 to commit a crime Pa.C.S.
with the intent
888 3502. “The to make out a specific required burgla- ry be found in words conduct or charge may appellant’s from the attendant circumstances with all together reasona- ble Atkins, inferences therefrom. v. 282 206, 375, 212, A.2d 377-8 If law the intent, definite required proof and substantive it is gener- it would ally agreed be almost to convict impossible without facts disclosing a culmination the intent. 13 Am.Jur.2d 52 (1964). Burglary §
The
notes that
the
majority
because
evidence was insuffi-
cient to sustain appellant’s conviction of burglary it is not
necessary
appellant’s
decide
remaining contention that
the dismissal of
attempted
theft charge precluded Ms
conviction for burglary.
(Majority Opn. 247
at
875,
A.2d at
3).
clear,
n.
however,
It
that the
test employed by
required
the majority
prosecution
prove
attempted
larceny.
difference between at-
and intent was
tempt
reiterated in Commonwealth Wil-
lard,
“[Attempt defined ‘. . .an overt act done in as] pursuance of an intent to a specific do thing, tending end, but falling short of complete accomplishment of law, it. In the the definition must have this further qualification, overt act be must sufficiently —that proximate to the intended crime to form one of the natural series of acts which the intent full requires its execution, (emphasis added) So long as acts are confined to preparation only, and can be abandoned before any of the law transgression or other's rights, are they within of intent and do not sphere amount to attempts.” 371-2,116 Id. 179Pa. (emphasis original) Super, at at Eagen, quoting A.
The first italicized portion of this quotation sets forth sub-
stantially
same test as the
applies to the
requirement of
(See
intent.
Majority Opn. 247 Pa.Super.
at
tions. Commonwealth See Pa.Super. (1944); 154 504, reversing Freeman, In cases supra. v. similar to Commonwealth supra, entirely it is McLaughlin, proper Freeman an or near proof absent of a attempt attempt hold that mere conjecture would be based on verdict such rule to the apply I would not a instant case surmise. intent was thwarted efficient police in which appellant’s the I would hold Using majority’s language, action. actions did bear a to the appellant’s relationship reasonable the the commission of crime did constitute one of for of acts its commission. The acts required natural series alleged were as to the intended crime as proximate they could have been under circumstances. Freeman, v. as supra, cites Commonwealth intentional into an entry occupied that “evidence
holding .of an of itself insufficient inference support building 247 at (Majority Pa.Super. steal.” Opn. intent 875-876). First, the evidence in the A.2d at 378-379, 372 than the mere more substantially instant case reveals nature which the court trespassory of a intentional Appellant obviously in Freeman. broke hypothesized tools. Compare entered possessing burglary lock and v. v. Commonwealth McLaughlin, supra; Commonwealth (1973); Common- Muniem, Hooks, v. Ellis, with supra; wealth v. Commonwealth facts have held A.2d 827 been Similar entered to infer that a defendant jury sufficient to a permit crime therein. E. g., with the intent to commit a a building v. Lynch, Commonwealth Moreover, the Freeman, supra. Commonwealth a much than enunciates rule broader statement
majority’s
dicta, the statement
of the case
As
required.
the facts
the context of
case. Our
read out of
not be
should
nothing
out
the fact that
pointed
have previously
courts
intent to commit
not
finding
does
preclude
stolen
was
where,
as
legally significant
fact is not
Such
larceny.
case,
the defendant
before
apprehended
instant
have been consummated. See
could
Muniem, supra.
Hooks, supra;
Marmol,
In
v. Del
(1965),
held,
facts,
A.2d 264
this court
on similar
that a jury
could
infer an intent to commit
reasonably
when a
larceny
defendant was
in the act of
caught
into an
breaking
apart-
Jacobs,
ment.
Judge
writing
noted that
majority,
fact that the jury chose ...
to infer an intent
“[t]he
to commit
from the
larceny
appellant’s unusual and surrepti-
tious activities does not mean that its decision was based on
”
conjecture and surmise
.
.
. .
Id.
is theft.” 13 Am.Jur.2d p. n. 18 Brown, In his in Commonwealth v. dissenting opinion (1973) (affirmed curiam), per Del Judge attempted distinguish Spaeth unsuccessfully Marmol the fact that the in the latter case and, therefore, a “good target was It occupied larceny.” has been the law that one can be a long entering structure with the intent to commit of certain larceny spe- cific items even the structure is vacant or though contains other items. See e. Commonwealth v. g., Stefanc- addition, 77 Pa. In zyk, Super. the apartment involved this case was not It had empty. been recently contained, least, refurbished and at refrigerator, a stove fixtures. light decision is not affected the fact that the My arresting officer was on the scene to guard vandalism. In against my the reason for the officer’s opinion, is irrelevant to presence the issue of intent. In event, the record indicates that any on several occasions fixtures such as stoves had been stolen from vacant apartments. The officer had been assigned guard this of theft'as well apartment against as type vandalism. based on suspicion cannot be verdict
Although guilty to establish is not required the Commonwealth conjecture, v. Rosci- certainty. to a mathematical guilt oli, A.2d 396 the evidence was Muniem, I believe supra. Since a reasonable doubt to find beyond the jury sufficient for larceny intent to commit at entertained have had the might that he entered, time the fact he would not necessi- damage property additional intent to v. Del tate an In acquittal. my opinion, Marmol, the instant case. controls supra, I that the evidence noted,
As previously although agree I trespass, was of criminal sufficient convict appellant of this would affirm the of sentence basis judgment dissent. VOORT, J.,
VAN this joins opinion. der Pennsylvania
COMMONWEALTH BRYANT, Appellant. L. Donald *12 Superior Pennsylvania. Court of Dec. 1976.
Submitted Decided April