ROWLEY, President Judge:
Peter Melnyczenko appeals from the judgment of sentence entered after a jury found him guilty of attempted burglary, loitering and prowling at night time, and possessing instruments of crime. After denying appellant’s post-verdict motions, the trial court sentenced him to an aggregate term of imprisonment of five to ten years. Appellant did not file a [365]*365direct appeal at that time. However, he subsequently filed a petition for post-conviction relief, and he was granted leave to appeal nunc pro tunc. This direct pro se appeal was then filed.
In this appeal, appellant raises five issues: (1) whether sufficient evidence was presented to sustain his conviction for attempted burglary; (2) whether sufficient evidence was presented to sustain his conviction for loitering and prowling at night time; (3) whether the trial court erred in refusing to instruct the jury on “mere presence”; (4) whether the Commonwealth failed to exercise due diligence in bringing him to trial within the applicable time period set forth in Pa. R.Crim.P. 1100; and (5) whether the prosecutor committed misconduct in his closing argument. After reviewing the record and thoroughly considering the parties’ arguments, we affirm the judgment of sentence.
The factual circumstances leading to appellant’s arrest and conviction were set forth by the trial court as follows:
[0]n April 21, 1987, at 7:47 p.m., defendant left his home in West Reading, Pennsylvania, and drove approximately twenty miles to the Borough of Ephrata, in Lancaster County. He was followed by several unmarked police cars and was being watched from a State Police helicopter. After driving slowly down several residential streets, he parked his car at an apartment complex, turning his lights out. Helicopter surveillance ceased because it had grown too dark to continue. Mr. Melnyczenko then walked a short distance and disappeared from police view into the yards of a row of houses, reappearing some six or seven minutes later. Mr. Melnyczenko was then startled when an Ephrata Borough police car pulled out of a nearby driveway. He crossed the street, again disappeared from police view behind houses, and came out less than a minute later. Mr. Melnyczenko began running behind a group of homes. Shortly thereafter, he was arrested. He was dressed in dark clothing, and carrying a heavy gauge screwdriver, a ten-inch pry bar, two flashlights, a knit cap, and a pair of gloves. The temperature was approximately 70 degrees [366]*366Fahrenheit. No direct evidence of an attempted break-in of any of the houses was found.
Trial Court Opinion (Buckwalter, J.), 7/19/88, at 1-2.
In his first issue, appellant contends that the evidence was not sufficient to support the conviction for attempted burglary. He argues that his actions, namely, walking through back yards while in possession of a pry bar, a large screwdriver, two flashlights, and gloves, do not constitute a substantial step toward commission of a burglary. Appellant also emphasizes the testimony at trial which reveals that there was no indication that he attempted to break into any houses.
Under the Crimes Code, a person commits criminal attempt “when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a). Compared to the prior “overt act” test, the Crimes Code definition “broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before actual commission of the crime.” Commonwealth v. Gilliam, 273 Pa.Super. 586, 589-90, 417 A.2d 1203, 1205 (1980).
Appellant has cited, and our research has disclosed, no cases which hold that reconnoitering an area while in the possession of burglary tools, such as we have in this case, is insufficient, in the absence of a physical attempt to enter, to prove a substantial step toward commission of a burglary. To the contrary, this Court in Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d 322 (1982), held that the evidence was sufficient to support the conviction of attempted burglary where, as here, there was no evidence that the defendant had tampered with a door or window of a building or occupied structure.
Cases in which the Supreme Court and this Court have held that the evidence was insufficient to prove attempted burglary, such as Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973), and Commonwealth v. McCrea, 308 Pa.Super. 284, 454 A.2d 132 (1982), do not require a different result. In each [367]*367of those cases, the evidence disclosed physical damage to a building that suggested an attempt had been made to effect an illegal entry therein. The holdings in each of those cases was that the evidence was insufficient to connect the accused to the damage. Those cases do not hold, and we decline to do so here, that a defendant cannot be convicted of attempted burglary until he physically tampers with a building or occupied structure. In the present case, the evidence referred to by the trial court and quoted above, when taken in its entirety, warrants a conclusion that appellant was reconnoitering the area both with the intent to burglarize a residence and with sufficient means to carry out his intent. With those actions, appellant took a substantial step toward commission of the crime of burglary. Accordingly, sufficient evidence was presented to sustain the conviction for attempted burglary.
In his next issue, appellant contends that the evidence was insufficient to sustain the conviction for loitering and prowling at night time. That offense is defined as follows: “Whoever at night time maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor of the third degree.” 18 Pa.C.S. § 5506. Appellant argues that there is insufficient evidence to prove the elements of night time, maliciousness, and loitering or prowling. For the following reasons, we conclude that sufficient evidence was presented to sustain the conviction.
Night time is defined as the time between sunset and sunrise. 1 Pa.C.S. § 1991. Police Officer Mark Pellicciotti, who was observing appellant from a helicopter, testified that he lost visual contact of appellant because it was dark. He also testified that appellant turned his headlights off after he stopped his car. Corporal James A. Nettles, who was conducting surveillance from an unmarked van, also testified that appellant was driving with his headlights on and that it was getting dark. This was sufficient evidence from which the jury could conclude that it was night.
[368]*368Appellant also argues that there was no evidence that he acted maliciously. As discussed above, the evidence was sufficient to prove that appellant was reconnoitering the area both with the intent and the means to burglarize a residence. This is sufficient evidence to prove that he acted maliciously.
Additionally, appellant contends that sufficient evidence is lacking to prove that he loitered or prowled. “To loiter is to stand around or move slowly about; to spend time idly; to saunter; to delay; to linger; to lag behind.
Free access — add to your briefcase to read the full text and ask questions with AI
ROWLEY, President Judge:
Peter Melnyczenko appeals from the judgment of sentence entered after a jury found him guilty of attempted burglary, loitering and prowling at night time, and possessing instruments of crime. After denying appellant’s post-verdict motions, the trial court sentenced him to an aggregate term of imprisonment of five to ten years. Appellant did not file a [365]*365direct appeal at that time. However, he subsequently filed a petition for post-conviction relief, and he was granted leave to appeal nunc pro tunc. This direct pro se appeal was then filed.
In this appeal, appellant raises five issues: (1) whether sufficient evidence was presented to sustain his conviction for attempted burglary; (2) whether sufficient evidence was presented to sustain his conviction for loitering and prowling at night time; (3) whether the trial court erred in refusing to instruct the jury on “mere presence”; (4) whether the Commonwealth failed to exercise due diligence in bringing him to trial within the applicable time period set forth in Pa. R.Crim.P. 1100; and (5) whether the prosecutor committed misconduct in his closing argument. After reviewing the record and thoroughly considering the parties’ arguments, we affirm the judgment of sentence.
The factual circumstances leading to appellant’s arrest and conviction were set forth by the trial court as follows:
[0]n April 21, 1987, at 7:47 p.m., defendant left his home in West Reading, Pennsylvania, and drove approximately twenty miles to the Borough of Ephrata, in Lancaster County. He was followed by several unmarked police cars and was being watched from a State Police helicopter. After driving slowly down several residential streets, he parked his car at an apartment complex, turning his lights out. Helicopter surveillance ceased because it had grown too dark to continue. Mr. Melnyczenko then walked a short distance and disappeared from police view into the yards of a row of houses, reappearing some six or seven minutes later. Mr. Melnyczenko was then startled when an Ephrata Borough police car pulled out of a nearby driveway. He crossed the street, again disappeared from police view behind houses, and came out less than a minute later. Mr. Melnyczenko began running behind a group of homes. Shortly thereafter, he was arrested. He was dressed in dark clothing, and carrying a heavy gauge screwdriver, a ten-inch pry bar, two flashlights, a knit cap, and a pair of gloves. The temperature was approximately 70 degrees [366]*366Fahrenheit. No direct evidence of an attempted break-in of any of the houses was found.
Trial Court Opinion (Buckwalter, J.), 7/19/88, at 1-2.
In his first issue, appellant contends that the evidence was not sufficient to support the conviction for attempted burglary. He argues that his actions, namely, walking through back yards while in possession of a pry bar, a large screwdriver, two flashlights, and gloves, do not constitute a substantial step toward commission of a burglary. Appellant also emphasizes the testimony at trial which reveals that there was no indication that he attempted to break into any houses.
Under the Crimes Code, a person commits criminal attempt “when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime.” 18 Pa.C.S. § 901(a). Compared to the prior “overt act” test, the Crimes Code definition “broadens the scope of attempt liability by concentrating on the acts the defendant has done and does not any longer focus on the acts remaining to be done before actual commission of the crime.” Commonwealth v. Gilliam, 273 Pa.Super. 586, 589-90, 417 A.2d 1203, 1205 (1980).
Appellant has cited, and our research has disclosed, no cases which hold that reconnoitering an area while in the possession of burglary tools, such as we have in this case, is insufficient, in the absence of a physical attempt to enter, to prove a substantial step toward commission of a burglary. To the contrary, this Court in Commonwealth v. Cannon, 297 Pa.Super. 106, 443 A.2d 322 (1982), held that the evidence was sufficient to support the conviction of attempted burglary where, as here, there was no evidence that the defendant had tampered with a door or window of a building or occupied structure.
Cases in which the Supreme Court and this Court have held that the evidence was insufficient to prove attempted burglary, such as Commonwealth v. Stanley, 453 Pa. 467, 309 A.2d 408 (1973), and Commonwealth v. McCrea, 308 Pa.Super. 284, 454 A.2d 132 (1982), do not require a different result. In each [367]*367of those cases, the evidence disclosed physical damage to a building that suggested an attempt had been made to effect an illegal entry therein. The holdings in each of those cases was that the evidence was insufficient to connect the accused to the damage. Those cases do not hold, and we decline to do so here, that a defendant cannot be convicted of attempted burglary until he physically tampers with a building or occupied structure. In the present case, the evidence referred to by the trial court and quoted above, when taken in its entirety, warrants a conclusion that appellant was reconnoitering the area both with the intent to burglarize a residence and with sufficient means to carry out his intent. With those actions, appellant took a substantial step toward commission of the crime of burglary. Accordingly, sufficient evidence was presented to sustain the conviction for attempted burglary.
In his next issue, appellant contends that the evidence was insufficient to sustain the conviction for loitering and prowling at night time. That offense is defined as follows: “Whoever at night time maliciously loiters or maliciously prowls around a dwelling house or any other place used wholly or in part for living or dwelling purposes, belonging to or occupied by another, is guilty of a misdemeanor of the third degree.” 18 Pa.C.S. § 5506. Appellant argues that there is insufficient evidence to prove the elements of night time, maliciousness, and loitering or prowling. For the following reasons, we conclude that sufficient evidence was presented to sustain the conviction.
Night time is defined as the time between sunset and sunrise. 1 Pa.C.S. § 1991. Police Officer Mark Pellicciotti, who was observing appellant from a helicopter, testified that he lost visual contact of appellant because it was dark. He also testified that appellant turned his headlights off after he stopped his car. Corporal James A. Nettles, who was conducting surveillance from an unmarked van, also testified that appellant was driving with his headlights on and that it was getting dark. This was sufficient evidence from which the jury could conclude that it was night.
[368]*368Appellant also argues that there was no evidence that he acted maliciously. As discussed above, the evidence was sufficient to prove that appellant was reconnoitering the area both with the intent and the means to burglarize a residence. This is sufficient evidence to prove that he acted maliciously.
Additionally, appellant contends that sufficient evidence is lacking to prove that he loitered or prowled. “To loiter is to stand around or move slowly about; to spend time idly; to saunter; to delay; to linger; to lag behind. To prowl is to rove or wander over in a stealthy manner; to pace or roam furtively.” Commonwealth v. Belz, 295 Pa.Super. 183, 186, 441 A.2d 410, 411 (1982) (citation and internal quotation marks omitted). Trooper Nettles testified that appellant, dressed in dark clothing, walked through the back yards of four or five houses for approximately six or seven minutes. Trooper Nettles also testified that when appellant re-emerged, he was walking very cautiously. Furthermore, as discussed above, sufficient evidence was presented to support the conclusion that appellant was reconnoitering the area with the intent to commit a burglary. It is a reasonable inference that, in doing so, he was wandering through the yards in a stealthy manner. For these reasons, we conclude that sufficient evidence was presented from which the jury could find appellant guilty of loitering or prowling at night.
As for appellant’s final three issues, we have thoroughly reviewed the record and considered his. arguments. After doing so, we conclude that the trial court has adequately discussed and correctly decided those issues in its opinion.
We therefore affirm.
Judgment of sentence affirmed.
BROSKY, J., files a concurring and dissenting opinion.