Com. v. Alston

• Decision Date: 28 December 1994
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Garland M. ALSTON, Appellant.
• Court: Pennsylvania Supreme Court

Page 1092

651 A.2d 1092

539 Pa. 202

COMMONWEALTH of Pennsylvania, Appellee, v. Garland M. ALSTON, Appellant.

Supreme Court of Pennsylvania.

Submitted Sept. 20, 1994.

Decided Dec. 28, 1994.

[539 Pa. 205] Lester G. Nauhaus, Public Defender, Shelley Stark, Chief-Appellate Div., Suzanne M. Swan, Appellate Counsel, for appellant.

Robert E. Colville, Dist. Atty., Claire C. Capristo, Deputy Dist. Atty., Kemal A. Mericli, Sandra Preuhs, Asst. Dist. Attys., for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION OF THE COURT

CAPPY, Justice.

The question presented is whether the Commonwealth violated Appellant's rights under the Sixth Amendment to the Constitution of the United States, and Article I, Section 9 of the Pennsylvania Constitution. More specifically, the question is whether the Commonwealth provided Appellant with sufficient notice of all of the elements of the crime of burglary charged, where the Commonwealth's Information failed to specify what particular crime Appellant allegedly intended to commit after his forcible entry into the private residence of another. We hold that in order to secure a conviction for burglary, the Commonwealth is not required to allege or prove what particular crime Appellant intended to commit after his forcible entry into the private residence. Therefore, the Commonwealth's Information cannot be deemed constitutionally defective for failing to provide notice of that which need not have been alleged or proven.

On July 29, 1990, Mr. Leslie Frank was roused from his sleep by unusual noises including the burglar alarm of his residence. While investigating the occurrence, Mr. Frank saw Appellant ascending the stairs from the basement. Upon seeing Mr. Frank, Appellant immediately fled from the premises, and Mr. Frank called the police. Based upon Mr. Frank's description, Appellant was located by the police in close proximity to the residence, detained, and identified by Mr. Frank minutes later. Upon further investigation it was discovered that the locked basement door of Mr. Frank's residence had been damaged as a result of forcible entry. Appellant was subsequently convicted of burglary following a bench trial. Post-trial motions were denied, and Appellant was sentenced to five to ten years imprisonment concurrent with sentences previously imposed on four additional burglary convictions.

Before this Court Appellant claims that trial counsel was ineffective in failing to move to quash the Commonwealth's Information on the basis that it failed to allege a specific crime underlying the burglary charge in violation of the notice requirements of the Sixth Amendment to the Constitution of the United States, and Article I, Section 9 of the Pennsylvania Constitution. We disagree.

In order for Appellant to prevail on a claim of ineffectiveness, he must demonstrate that: (1) the underlying claim is of arguable merit; (2) the particular course chosen by counsel did not have some reasonable basis designed to effectuate his interests; and (3) counsel's ineffectiveness prejudiced him. Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973 (1987). Counsel can never be found ineffective for having elected not to raise a meritless claim. Commonwealth v. Pettus, 492 Pa. 558, 424 A.2d 1332 (1981); Commonwealth v. Giknis, 491 Pa. 215, 420 A.2d 419 (1980). Moreover, we begin with the presumption that trial counsel was not ineffective. Commonwealth v. Miller, 494 Pa. 229, 431 A.2d 233 (1981).

Under Pennsylvania law the crime of burglary is defined as an unauthorized entry with the intent to commit a crime after entry. 18 Pa.C.S. § 3502; ¹ Commonwealth v. Wilamowski, 534 Pa. 373, 633 A.2d 141 (1993). The intent to commit a crime after entry may be inferred from the circumstances surrounding the incident. Commonwealth v. Hardick, 475 Pa. 475, 380 A.2d 1235 (1977); Commonwealth v. Wilamowski, 534 Pa. 373, 633 A.2d 141 (1993). This intent may be inferred from actions as well as words. However, actions must bear a reasonable relation to the commission of a crime.

In Wilamowski, id. we discussed circumstantial proof of the intent element in situations involving attempted burglary. There, we found unacceptable a per se assumption that evidence of a forced opening into an occupied structure automatically gives rise to an inference of intent to commit a crime inside. We held that a "totality of the circumstances" approach is more appropriate when evaluating the Commonwealth's evidence supporting the intent element. We then held that more than merely breaking a door or window is required to support an inference of intent to commit a crime inside. ²

Now, however, Appellant seeks to go one step further than Wilamowski, and asserts that his entry and flight alone are insufficient to support an intent to commit a crime inside unless the Commonwealth can prove what particular crime he intended to commit while in the residence. He claims the Commonwealth's failure to specify a particular crime was a violation of his rights under the Sixth Amendment to the Constitution of the United States, and Article I, Section 9 of the Pennsylvania Constitution. These constitutional provisions require that the accused be provided with sufficient notice to prepare a defense and to ensure that he will not be twice put in jeopardy for the same offense. We find Appellant's argument specious under the Sixth Amendment to the Constitution of the United States. ³ We further hold that Article I, Section 9 of the Pennsylvania Constitution provides no independent basis for relief. Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983).

Once Appellant has entered the private residence by criminal means we can infer that Appellant intended a criminal purpose based upon the totality of the circumstances. Appellant's constitutional right to notice is not violated by such an inference of general criminal intent. The importance and appropriate nature of this manner of proof was perhaps most eloquently described by the Late Justice James T. McDermott in Commonwealth v. Wagner, 523 Pa. 298, 566 A.2d 1194, 1194 (1989), wherein he wrote:

When a stranger first tries to enter your garage, and then breaks the window of your door, on a given evening, neither you nor a jury should be considered harsh, if you believe he is not an aimless waif bringing compliments of the evening, or a passing sojourner of eccentric ways, or a harmless loiterer in the evening shadows.

Those supporting reversal would have us believe that hiding in your bedroom under such conditions is an unnecessary foolishness in the presence of simple pleasantries. They would see no evil through such jaundiced eyes, hear none in the melodious tinkle of your breaking window, and obviously would say no evil of a man with an umbrella. The jury could find, and did, more sinister reasons afoot. I would leave the appellant where they found him, doing what they had every right to believe he was doing, attempting a burglary.

Id. at 299, 566 A.2d at 1194 (1989).

Accordingly, we hold that in order to secure a conviction for burglary, the Commonwealth is not required to allege or prove what particular crime Appellant intended to commit after his forcible entry into the private residence. A conclusion to the contrary would place the police and citizens of this Commonwealth in the dangerous position of having to permit a burglar to take a substantial step towards the commission of a particular crime, potentially risking violence, in order to secure a conviction for burglary. Given this holding, it necessarily follows that the Commonwealth's Information in the matter sub judice cannot be deemed constitutionally defective for failing to provide notice of that which need not have been alleged or proven.

The purpose of an Information or an Indictment is to provide the accused with sufficient notice to prepare a defense, and to ensure that he will not be tried twice for the same act. Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73 (1983); Commonwealth v. Diaz, 477 Pa. 122, 383 A.2d 852 (1978); Commonwealth v. Rolinski, 267 Pa.Super. 199, 406 A.2d 763 (1979). An Indictment or an Information is sufficient if it sets forth the elements of the offense intended to be charged with sufficient detail that the defendant is apprised of what he must be prepared to meet, and may plead double jeopardy in a future prosecution based on the same set of events. Commonwealth v. Bell, 512 Pa. 334, 343, 516 A.2d 1172, 1177 (1986); Commonwealth v. Ohle, 503 Pa. 566, 588, 470 A.2d 61, 73 (1983); Russell v. United States, 369 U.S. 749, 763, 82 S.Ct. 1038, 1046, 8 L.Ed.2d...