Appellant Robert Dulaney was indicted for burglary, theft by unlawful taking or disposition, theft by receiving stolen property and criminal conspiracy.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).
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. 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).
Crimes Code, 18 Pa.C.S.A. § 3903(b)(2) (1973). See alsoCommonwealth v. Carter, 236 Pa. Super. 376, 384 n. 3, 344 A.2d 899, 900 (1975) (dissenting opinion by HOFFMAN, J.). Similarly, it is difficult to justify the legislative decision to make one who steals property of another valued at less than $50.00 guilty of a third degree misdemeanor while at the same time making one who causes loss to another by criminal mischief in the amount of less than $500.00 guilty of only a summary offense.
Thus, criminal trespass is not a lesser included offense of burglary. See Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660, 661 (Pa. 1978) (adopting a dissenting opinion stating 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.") (quoting Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899, 903 (Pa. Super. Ct. 1975)); see also State v. Ocheltree, 170 W. Va. 68, 289 S.E.2d 742, 745 (W.Va. 1982) ("In this jurisdiction, as in Pennsylvania, '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.'") (quoting Carter, 393 A.2d at 661)).
1972, Dec. 6, P.L. 1482, No. 334, § 1, eff. June 6, 1973, 18 Pa.C.S.A. § 3502. As we said in Commonwealth v. Carter, 236 Pa. Super. 376, at 378, 344 A.2d 899 at 900 (1975), reversed on other grounds, 482 Pa. 274, 393 A.2d 660 (1978): The language of the "Crimes Code" regarding burglary comes from the "Model Penal Code", section 221.1.
The court called this an attempted rather than a completed burglary. In Commonwealth v. Carter (1975), 236 Pa. Super. 376, 344 A.2d 899, rev'd on other grounds (1978), 482 Pa. 274, 393 A.2d 660, and State v. Crow (Tenn. 1974), 517 S.W.2d 753, glass in or next to doors had been broken. In both cases, the courts reached the conclusion that the defendants' hands had intruded through the holes to reach the locks.
It has been held that "entry" is accomplished in the event that any part of the intruder's body enters the structure. See Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975); Commonwealth v. Myers, 223 Pa. Super. 75, 297 A.2d 151 (1972). Because we find that the evidence was sufficient to establish the crime of burglary on the indictment at No. 1313 C.D. 1973, we cannot find that trial counsel was ineffective for failing to object to the court's charge to the jury with respect to the elements of burglary, and for failing to raise the same argument on direct appeal.
In essence, its argument is that the theft of an automobile necessarily involves the theft of its contents and further that the appellant was not unfairly surprised when convicted of the attempted theft of the car's contents. It is well-settled that upon an indictment for a particular crime, the defendant may be convicted of a lesser offense included within it. Commonwealth v. McLaren, 441 Pa. 522, 271 A.2d 281 (1970); Commonwealth v. Soudani, 398 Pa. 546, 159 A.2d 687, cert. denied, 364 U.S. 886, 81 S.Ct. 177, 5 L.Ed.2d 107 (1960); Commonwealth v. Ackerman, 239 Pa. Super. 187, 361 A.2d 746 (Price, J., filed 3/29/76); Commonwealth v. Wilds, 240 Pa. Super. 278, 362 A.2d 273 (Hoffman, J., filed 3/29/76); Commonwealth v. Melnyczenko, 238 Pa. Super. 203, 358 A.2d 98 (1976); Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975); Commonwealth v. White, 232 Pa. Super. 176, 335 A.2d 436 (1975); Commonwealth v. Nace, 222 Pa. Super. 329, 295 A.2d 87 (1972). The essential inquiry thus becomes whether the greater offense of attempted theft of an automobile, a felony of the third degree, "necessarily involves," the lesser offense of theft of the contents of the automobile, a misdemeanor of the third degree in this case.
The other two crimes charged were theft by unlawful taking and theft by receiving stolen goods, to both of which charges adjudications of not guilty were made. Appellant first raises a Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975, allocatur granted), claim that criminal trespass is not a lesser included offense of the charge of burglary. In this way appellant is attempting to attack the propriety of the conviction.
The proper subsidiary test, for determining whether one offense necessarily involves another, is whether all of the essential elements of the lesser offense are included in the greater. Commonwealth v. Carter, 236 Pa. Super. 376, 344 A.2d 899 (1975); Commonwealth v. Nace, 222 Pa. Super. 329, 295 A.2d 87 (1972). Stated another way, if the essential elements of crime A are also elements of crime B, and if crime A is less culpatory than crime B, then crime A is a lesser included offense of crime B.