Commonwealth v. Carter

393 A.2d 660, 482 Pa. 274, 1978 Pa. LEXIS 1095

Opinions

OPINION OF THE COURT

ROBERTS, Justice.

In unrelated proceedings, each appellant was indicted for multiple offenses, including burglary, but not including criminal trespass.¹ Each was tried before a court sitting without a jury and each was convicted, inter alia, for the unindicted offense of criminal trespass. Only the convictions for criminal trespass were appealed. The Superior Court upheld each conviction.² We granted allowances of appeal.³ On October 5, 1978, this Court reversed the judgments of sentence and noted that opinions would follow. This opinion is in accordance with that order.⁴

The single issue presented is whether criminal trespass, 18 Pa.C.S.A. § 3503(a)(l)(Supp.l978), is a lesser included offense of burglary, 18 Pa.C.S.A. § 3502(a). We hold that it is not. Therefore, we conclude these convictions deprived appellants of the notice and opportunity to defend which are guaranteed by the Federal and Pennsylvania Constitutions.

Indictment for burglary gives one notice that he is accused of violating the following criminal statute:

“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, unless the premises are at the time open to the public or the actor is licensed or privileged to enter.”

18 Pa.C.S.A. § 3502(a). Scienter is not an element of this crime and thus, one defending against a burglary charge would have no reason to establish that (albeit falsely) he believed his presence in a building or occupied structure was privileged or licensed. Yet evidence of such a belief could provide a basis for an acquittal of a charge of criminal trespass. The Crimes Code defines criminal trespass as follows:

“A person commits an offense if, knowing that he is not licensed or privileged to do so, he enters or gains entrance by subterfuge or surreptitiously remains in any building or occupied structure, or separately secured or occupied portion thereof.”

18 Pa.C.S.A. § 3503(a)(1). Therefore, we agree with the dissenting opinion of Judge Hoffman in Commonwealth v. Carter that “the crime of criminal trespass has a scienter requirement not necessary to prove the crime of burglary, and thus cannot be categorized as a lesser included offense.” 236 Pa.Super. 376, 385, 344 A.2d 899, 903 (1975) (dissenting opinion joined by Jacobs and Spaeth, JJ.).⁵ Cf. Cook v. State, 258 Ind. 667, 284 N.E.2d 81, 83 (1972) (malicious trespass not a lesser included offense of second degree burglary).

These convictions for an offense not included in any offense charged and for which there was no indictment violate due process. Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 2907, 41 L.Ed.2d 590 (1974) (“Our prior cases indicate that an indictment is sufficient if it . contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend . . . .”), Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948). Accord, Pa.Const. art. I, § 9 (right of accused “to demand the nature and cause of the accusation against him.”); e. g., People v. Keatts, 54 Mich.App. 618, 221 N.W.2d 455, 457 (1974) (conviction for crime not charged and not included in those charged denies due process).

The Pennsylvania Rules of Criminal Procedure embody the same principle. Rule 213(c) provides: “In all court cases tried on an indictment the issues at trial shall be defined by such indictment.” Cf. Commonwealth v. Rosenhoover, 236 Pa.Super. 339, 342-3, 344 A.2d 562, 563 (1975) (Under Pa.R. Crim.P. 213(b)(5), indictment must set forth substantially the language of the applicable statute, to assure notice of the charges.) This principle must control even where, as here, there is some evidence in each record relevant to the additional element of scienter in criminal trespass. We will not permit the accidental presence of some scienter evidence to cure the denial of due process presented here.

Accordingly, orders of the Superior Court affirming the judgments of sentence of criminal trespass reversed and judgments of sentence vacated.

Former Justice Packel did not participate in the decision of this case.

LARSEN, J., did not participate in the consideration or decision of this case. MANDERINO, J., joins the Opinion of the Court and filed a concurring opinion. POMEROY, J., filed a dissenting opinion, in which O’BRIEN, J., joins.

Footnotes

1

. Appellant James Carter was indicted for burglary, attempted theft, possessing instruments of crime generally and criminal conspiracy. Appellant Charles Bozarth was indicted for criminal conspiracy, recklessly endangering another person, terroristic threats, possessing instruments of crime generally and burglary. Appellant Robert Dulaney was indicted for burglary, theft by unlawful taking or disposition, theft by receiving stolen property and criminal conspiracy.

2

. Commonwealth v. Carter, 236 Pa.Super. 376, 344 A.2d 899 (1975) (plurality opinion, Watkins, P. J., concurred in the result; Hoffman, J., filed a dissenting opinion in which Jacobs and Spaeth, JJ., joined). Commonwealth v. Bozarth, 237 Pa.Super. 702, 352 A.2d 65 (1975) (Jacobs, Hoffman and Spaeth, JJ., dissenting). Commonwealth v. Dulaney, 238 Pa.Super. 739, 356 A.2d 823 (1976) (Jacobs, Hoffman and Spaeth, JJ., dissenting).

3

. We hear this appeal pursuant to the Appellate Court Jurisdiction Act of 1970, Act of July 31, 1970, P.L. 673, art. II, § 204(a), 17 P.S. § 211.204(a) (Supp.1978).

4

. This case was reassigned to the writer on September 29, 1978, for the purpose of preparing an opinion expressing the views of a majority of this Court.

5

. We need not, therefore, decide 1) whether under the criminal trespass section of the Crimes Code a second degree felony conviction could stand where one knowingly trespasses, but does not do so by concealment, by subterfuge or other surreptitious entry, and 2) whether, if the indictment were sufficient to support the criminal trespass charge, the case should be remanded for a determination of whether counsel was ineffective for failing to adduce an available defense.