Following a non-jury trial, appellant, Sandor Turner, was convicted of attempted burglary, 1 and possessing instruments of crime. 2 Post-verdict motions were denied and appellant was sentenced to serve a term of imprisonment of one to five years for attempted burglary and three years probation for possessing instruments of crime, the sentences to run concurrently.
In this direct appeal appellant argues that (1) the evidence was insufficient to sustain a conviction for attempted burglary; (2) trial counsel was ineffective for failing to object to appellant’s improper conviction of both attempted burglary and possessing instruments of crime; and (3) because of his failure to obtain a continuance, thus preventing appellant from securing the presence of a defense witness.
*431 We affirm the judgment of sentence for attempted burglary; and vacate judgment of sentence for possessing instruments of crime.
Viewing the evidence in the light most favorable to the Commonwealth, as verdict winner,
see Commonwealth v. Stanley,
At approximately 3:00 on the afternoon of May 18,1978, a city detective observed appellant walking down Warnock Street, in the City of Philadelphia. Appellant stopped in front of a residence, looked in both directions, stepped onto the porch, and proceeded to the front door. After ringing the doorbell, knocking twice, and looking under the curtains of the front door window, appellant returned to the street and again looked in both directions. He then returned to the front door and, with “a screwdriver, or an instrument that appeared to be a screwdriver,” began prying at the door while butting it with his shoulder. (N.T. 11/28/78, p. 5-8) Appellant walked to the street a second time, looked in both directions, returned to the front door, and resumed his activities. When police sirens could be heard approaching the vicinity, appellant abandoned his endeavors and proceeded to a nearby alley. The detective followed appellant to the alley and heard the sound of metal objects dropping. A police officer who also was observing appellant testified that he retrieved two screwdrivers and a hammer from the alley immediately after appellant’s exit. Both the detective and complainant testified that they found fresh pry marks in the area of the door lock. The complainant further testified that appellant had not been given permission to enter her home.
Appellant first argues that the evidence was insufficient to sustain his conviction for attempted burglary. The Crimes Code provides, in pertinent part, that “[a] person is guilty of burglary if he enters a building . . . with intent to commit a crime therein.” 18 Pa. C.S.A. § 3502(a). An attempt is committed when “with intent to commit a specific crime, [a person] does any act which constitutes a substantial
*432
step toward the commission of that crime.”
Id.
§ 901(a). The Commonwealth’s information charged appellant with attempted burglary with the intent to commit theft. When the information specifies theft as the crime which appellant intended to commit once inside the premises, proof of two distinct intents on the part of appellant are necessary. The Commonwealth must establish the intent to enter the house and the intent to commit theft after entry.
Commonwealth v. Morgan,
Appellant argues that because the detective failed to testify as to
damage to the lock itself,
3
the evidence was insufficient to establish the requisite intent to enter the building. Specifically, appellant contends that had he “intended to enter the premises, he would have had to tamper with the lock or break it off the door.” Brief for Appellant at 10. The evidence of fresh pry marks, appellant argues, is sufficient only to support an inference that he intentionally tried to damage the door and, therefore, could be charged with a crime no greater than criminal mischief.
4
We disagree. It is a well-known principle that specific intent to commit a crime “may be found in [appellant’s] conduct, or from the attendant circumstances together with all reasonable inferences therefrom.”
Commonwealth v. Tingle,
275, Pa.Super. 489, 495,
Appellant’s actions in ringing the front doorbell, knocking twice, and looking under the curtains all suggest that he wanted to ensure that the house was unoccupied. One could easily draw the inference that appellant’s intent was “to commit theft, rather than some other crime requiring the presence of a victim.”
Commonwealth v. Morgan,
From a review of all the evidence we are satisfied that the fact finder could find, beyond a reasonable doubt, that appellant intended to enter the house with the intent to commit theft therein. Accordingly, we affirm the judgment of sentence for attempted burglary.
Appellant’s second issue on appeal addresses trial counsel’s ineffectiveness for allowing appellant to be convicted improperly of two inchoate crimes. Because the issue
*434
of illegality of sentence can never be waived,
5
see Commonwealth v. Brunner,
We agree that appellant was improperly convicted of both attempted burglary and possessing instruments of crime and, therefore, have the option of either remanding for resentencing, or amending the sentence directly. 42 Pa.C.S.A. § 706 (1981);
Commonwealth v. Eberts,
Finally, appellant argues that counsel’s failure to obtain a delay by requesting that the trial judge recuse himself, prevented appellant from securing the presence of a defense witness whose testimony would have corroborated
*435
appellant’s version of the facts. Appellant contends that this alleged error constitutes ineffective assistance of counsel. When ineffective assistance of counsel is alleged, this court must first ascertain whether the abandoned claim is of arguable merit.
See Commonwealth v. Hubbard,
For the following reasons, we find appellant’s argument is frivolous.
Appellant would have us find, on appeal, that counsel was ineffective for failing to request that the judge recuse himself despite a record showing that appellant
voluntarily
and
knowingly
waived his right to have the judge disqualified. Here, the trial judge, sitting as suppression judge, indicated prior to trial that the subject evidence was admissible. Therefore, the trial judge heard nothing at the suppression hearing that he would not have heard at trial. The fact finder was not exposed to highly prejudicial or inadmissible evidence and, therefore, appellant suffered no bias.
See Commonwealth v. Lee,
In any event, trial counsel
did request a continuance,
and the court denied its request. Appellant had failed to establish that the witness could be procured, nor did he establish with any certainty the content of the witness’s testimony. The trial court found that even if the witness’s testimony would corroborate appellant’s version of the facts, it would be cumulative and, therefore, the court deemed the witness unessential to appellant’s defense. (Trial Court Opinion at 6, Record No. 7) In
Commonwealth v. Plath,
Judgment of sentence for possessing instruments of crime is vacated; and judgment of sentence for attempted burglary is affirmed.
Notes
. 18 Pa. C.S.A §§ 901(a), 3502(a) (1973).
. Id § 907(a).
. Appellant relies on the following direct testimony to support his contention:
BY MR. MICHELMAN:
Q. Did you notice anything about the lock itself?
A. I did not notice anything about the lock itself, no, sir. (N.T. 11/28/78, p. 12).
We find appellant has erroneously relied on the above testimony, especially in light of the witness’s statement that: “There were fresh pry marks on the door.” (N.T. 11/28/78, p. 11).
. 18 Pa. C.S.A. § 3304 (1973).
. We note that the trial court incorrectly opined that, because appellant failed to raise this issue in post-verdict motions, it was waived.
. Attempted burglary is a felony of the second degree, 18 Pa. C.S.A. §§ 905, 3502(a), and possessing instruments of crime is a misdemean- or of the first degree, 18 Pa. C.S.A § 907.