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Burglary is defined as the act of entering or occupying a structure with intent to commit a crime therein. 18 Pa. Con. Stat. Ann. § 3502. This intent must be formed contemporaneous to the entering.
Appellant James Magnum broke into the residence of his former girlfriend, and threatened her and her then current boyfriend with a knife. The boyfriend jumped out of a second-floor window and summoned the police from a payphone. Meanwhile, the ex-girlfriend fled from appellant and hid in the basement. When appellant found the ex-girlfriend in the basement, he continued his threats. When the police arrived, appellant eventually released the ex-girlfriend unharmed. Appellant was charged with and convicted of burglary, making terroristic threats, criminal trappers, possessing an instrument of crime, unlawful restraint, and simple assault. The Commonwealth appealed, contending that the trial court failed to take into account the mandatory deadly weapon enhancement when imposing sentence. Appellant, in his cross-appeal, argued that the evidence was insufficient to sustain a verdict finding him guilty of burglary.
Affirming appellant's burglary conviction, the court held that, under the totality of circumstances test, the evidence was sufficient to infer that appellant had a felonious intent when he entered the victim's home. Anent the issue on sentencing, the court noted that when a deadly weapon was used during the commission of an offense, 12 and 24 months were added to the minimum and maximum guideline sentencing range, respectively. While a trial court may depart from the guidelines, it must first have considered a range which included the mandatory deadly weapon enhancement. The court concluded that because the trial court failed to consider the guidelines, the sentence had to be vacated and the cause remanded for resentencing.