Commonwealth v. Turner

• Decision Date: 18 September 1981
• Parties: COMMONWEALTH of Pennsylvania v. Sandor TURNER, Appellant.
• Court: Pennsylvania Superior Court

434 A.2d 827

290 Pa.Super. 428

COMMONWEALTH of Pennsylvania v. Sandor TURNER, Appellant.

Superior Court of Pennsylvania.

September 18, 1981

Argued Jan. 19, 1981.

Marc Alan Krefetz, Philadelphia, for appellant.

Eric I. B. Beller, Asst. Dist. Atty., Philadelphia, for Commonwealth, appellee.

Before HESTER, DiSALLE and POPOVICH, JJ.

POPOVICH Judge:

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.

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, 453 Pa 467, 309 A.2d 408 (1973), the following facts were established at trial:

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 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, 265 Pa.Super. 225, 401 A.2d 1182 (1979); Commonwealth v. Madison, 263 Pa.Super. 206, 397 A.2d 818 (1979).

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, 419 A.2d 6, 9 (1980). In the instant case, we have the testimony of a city detective who observed appellant attempting to pry open the front door of the house. The fresh pry marks on the door, appellant's periodic checks to ensure that his conduct was unobserved, and his abandonment of his endeavors when police sirens were heard in the vicinity, all support the inference that appellant intended to effectuate an unauthorized entry into the house. We note that any one of the foregoing findings, viewed as an isolated occurrence, would be insufficient to sustain a conviction. See Commonwealth v. Goodman, 465 Pa. 367, 350 A.2d 810 (1976) (flight from scene of crime insufficient evidence to sustain a conviction); Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973) (lack of evidence connecting appellant with damaged screen precludes conviction for attempted burglary); Commonwealth v. Beauford, --- Pa.Super. ---, 428 A.2d 1000 (1981) (mere presence at scene of crime presents insufficient evidence to sustain a guilty verdict). Nevertheless, we find that the totality of the above circumstances enabled the fact finder to conclude, beyond a reasonable doubt, that appellant intended to enter the house.

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, 265 Pa.Super. at 235, 401 A.2d at 1187. Likewise, the fact that appellant attempted to enter a residence directly supports the inference that he intended to commit theft. See Commonwealth v. Morgan, supra, (one ordinarily expects a residence to contain items of value that can be removed by a single individual).

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 of illegality of sentence can never be waived, ^[5] see Commonwealth v. Brunner, 243 Pa.Super. 55, 364 A.2d 446 (1976), appellant need not have alleged that trial counsel was ineffective. Instantly, appellant was convicted and sentenced for attempted burglary and possessing instruments of crime; a result clearly illegal under 18 Pa. C.S.A. § 906; and Commonwealth v. Jackson, 280 Pa.Super. 522, 421 A.2d 845 (1980). Section 906 of the Crimes Code prohibits a conviction for more than one inchoate crime when the conduct engaged in is designed to end in the commission of only one crime. Here, appellant's possession of a screwdriver and his subsequent use of it in an attempt to gain unauthorized entry into a residence was clearly "conduct designed to culminate in the commission of the same crime" burglary of the house. 18 Pa. C.S.A § 906; Commonwealth v. Jackson, supra.

We agree that appellant was improperly convicted of both attempted burglary and...