Commonwealth v. Jacobs , 247 Pa. Super. 373 ( 1977 )

JACOBS, Judge:

Appellant Bruce Jacobs was arrested on August 14, 1975, and charged with burglary, attempted theft by unlawful taking and possession of an instrument of crime. These charges grew out of an incident on the same day in which the appellant was arrested by a Philadelphia Housing Police Officer who was conducting a stakeout of Apartment A-6 in the Norris Apartments. The apartment was recently vacated and contained only a refrigerator, stove, and sink. Around 10:40 p. m., the police officer heard the noise of metal on metal coming from the lock on the outside part of the door. After a few minutes the door opened and appellant walked in with a screwdriver in his pocket. Appellant was immediately arrested by the officer who emerged from the closet with his gun drawn. At trial and after the Commonwealth rested its case, the lower court sustained the appellant’s demurrer to the charge of attempted theft by unlawful taking on the ground that there was no overt act on the part of the appellant. The Commonwealth has not appealed from that ruling. The appellant was found guilty on indictment number 244 charging the crime of burglary¹ and indictment number 245 charging possession of an instrument of crime.² Following post-trial motions the appellant was sentenced to four to ten years imprisonment on the burglary charge and two to five years imprisonment on the possession charge, sentences to run concurrently. This appeal followed.

Appellant raises several allegations of error on this appeal.³ He first contends that the evidence was insufficient to prove the crime of burglary. Appellant’s indictment charged him with entry without permission into an apartment with the intent to commit the crime of theft therein. It is axiomatic that in criminal trials the proof offered by the Commonwealth must measure up to the charge made in the indictment. Commonwealth v. Lambert, 226 Pa.Super. 41, 313 A.2d 300 (1973), citing Commonwealth v. Aurick, 342 Pa. 282, 291, 19 A.2d 920, 924 (1941); see, Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960); Commonwealth v. Simione, 447 Pa. 473, 291 A.2d 764 (1972) (bill of particulars). Therefore, appellant could insist that the Commonwealth prove he entered the apartment with the intent to commit a theft. See Commonwealth v. Bruce, 230 Pa.Super. 507, 326 A.2d 628 (1974); Commonwealth v. Freeman, 225 Pa.Super. 396, 313 A.2d 770 (1973). In determining whether the evidence was sufficient to sustain the verdict of guilty on the burglary charge we must read the entire record and consider the facts, and all reasonable inferences arising therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Blevins, 453 Pa. 481, 309 A.2d 421 (1973); Commonwealth v. Allen, 227 Pa.Super. 157, 324 A.2d 437 (1974); Commonwealth v. Lynch, 227 Pa.Super. 316, 323 A.2d 808 (1974). It is equally true that the Commonwealth does not have to establish guilt to a mathematical certainty and may in a proper case rely wholly on circumstantial evidence. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973). Commonwealth v. Larkins, 235 Pa.Super. 19, 341 A.2d 204 (1975). Nevertheless, when the evidence is viewed in this light it is clear that the Commonwealth did not advance sufficient evidence in order to sustain the burglary conviction.

Burglary is defined by the Act of December 6, 1972, P.L. 1482, No. 334, § 1, 18 Pa.C.S. § 3502 (1973): “(a) A person is guilty of burglary if he enters a building or occupied structure, or separately secured or occupied portion thereof, with intent to commit a crime therein . . .” (Emphasis added.)

The specific intent required to make out the charge of burglary may be found in the defendant’s words or conduct or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Freeman, supra. However, when actions are relied on they must bear a reasonable relationship to the commission of the crime, i. e. be sufficiently proximate to the alleged intended crime to constitute one of the natural series of acts required for its commission. Commonwealth v. Freeman, supra; Commonwealth v. Ellis, 349 Pa. 402, 37 A.2d 504 (1944); Commonwealth v. Reynolds, 208 Pa.Super. 366, 222 A.2d 474 (1966). In the case at bar the only fact from which an intent to steal could possibly be inferred is appellant’s unlawful entry into the apartment. On this point, we have expressly held that evidence of intentional entry into an occupied building is by itself insufficient to support an inference of an intent to steal. Commonwealth v. Freeman, supra 225 Pa.Super. at 399, 313 A.2d at 772. The Commonwealth did not produce any additional evidence that the appellant had, at the time he entered the apartment, the intent to commit a theft. The conclusion is thus inescapable that absent such evidence on which an inference to steal could reasonably be based, the Commonwealth has simply failed to meet its burden of proof. Commonwealth v. Larkins, supra, in that it failed to prove that the appellant entered the apartment with the intent to commit a theft as set forth in the indictment. The judgment of sentence on indictment number 244 charging burglary must, therefore, be reversed and the verdict of guilty vacated.

However, while the evidence is insufficient to support a finding of guilt on the burglary charge, it was sufficient to support a verdict of guilty for criminal trespass. In Commonwealth v. Carter, 236 Pa.Super. 376, 344 A.2d 899 (1975), we held that the crime of burglary, for which the appellant was indicted and tried, includes the lesser offense of criminal trespass.⁴ It is therefore on the strength of Carter that judgment of sentence on indictment number 244 charging the appellant with burglary is reversed, the verdict of guilty vacated and the case remanded with directions to enter a verdict of guilty of criminal trespass and impose sentence thereon. See Commonwealth v. Lynch, 227 Pa.Super. 316, 323 A.2d 808 (1974); Commonwealth v. Freeman, 225 Pa. Super. 396, 313 A.2d 770 (1973).

Appellant’s final argument is that a mistrial should have been granted when counsel for the Commonwealth argued to the jury that the testimony of certain Commonwealth witnesses who were not called at trial either by the Commonwealth or defense would have been unfavorable to the defense. The lower court sustained defense counsel’s objection and cautioned the jury in the following manner:

“Yes. Ladies and gentlemen of the jury, as I instructed you before and as I will instruct you again, the defendant is not required to present any evidence. You may not draw any inference not favorable to the defendant because the defendant has not presented any witnesses or any other manner.”

It is hornbook law that a person charged with a crime is under no duty to take the stand or produce evidence of his innocence but may stand mute protected by the presumption of innocence and demand that the Commonwealth sustain its burden of proving his guilt beyond a reasonable doubt. Commonwealth v. Miller, 205 Pa.Super. 297, 208 A.2d 867 (1965). However, unlike the situation in Commonwealth v. Miller, supra, wherein we held that it was reversible error for the lower court to instruct the jury that it could draw an inference of guilt from the defendant’s failure to call witnesses, the lower court in. this case immediately gave a cautionary instruction to the jury that the defendant had no obligation to produce any evidence or witnesses. This cautionary instruction, and the subsequent correct charge of the lower court that the appellant need not produce any witnesses and that no adverse inference could be drawn from the failure of the appellant to do so, completely cured the improper remark.

Judgment of sentence on indictment number 244 charging burglary is reversed, the verdict of guilty is vacated and the case remanded with directions to enter a verdict of guilty of criminal trespass and impose sentence thereon. Nothing having been raised on this appeal to challenge the judgment of sentence on indictment number 245 charging possession of an instrument of crime, the judgment of sentence on that count is accordingly affirmed.⁵

HOFFMAN, J., files a concurring and dissenting opinion in which SPAETH, J., joins. PRICE, J., files a dissenting opinion in which VAN der VOORT, J., joins.

1 . The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 3502 (1973).

2 . The Crimes Code, Act of Dec. 6, 1972, P.L. 1482, No. 334, 18 Pa.C.S. § 907 (1973).

3 . Appellant also contends that the dismissal by the lower court of the attempted theft charges precluded his conviction for burglary. Since we hold that the evidence in this case was insufficient to sustain appellant’s conviction of burglary it will not be necessary for us to decide that point.

4 . In that case Judges Hoffman, Spaeth and the writer of this opinion dissented.

5 . The disposition of this case is supported by a majority of the court as follows: WATKINS, President Judge, and CERCONE, J., join in this opinion; HOFFMAN, J., is joined by SPAETH, J., in a concurring and dissenting opinion which supports reversal of the conviction of burglary but would not remand for sentencing on criminal trespass; PRICE, J., is joined by VAN der VOORT,. J., in a dissenting opinion which, while agreeing that criminal trespass is a lesser included offense of burglary, would not reverse the burglary conviction.