Dissenting Opinion by
Hoffman, J.:Appellant contends that it was improper to convict him of criminal trespass, 18 Pa. C.S. §3503(a),1 on an indictment charging burglary, 18 Pa.C.S. §3502,2 on the theory that criminal trespass is not a lesser included offense of the crime of burglary. We have held that a conviction for a crime not charged in the indictment is proper only if the offense is included within the offense actually charged. See Commonwealth v. Nace, 222 Pa. *383Superior Ct. 329, 295 A.2d 87 (1972). We must determine, therefore, whether the crime of burglary “necessarily involves” the crime of criminal trespass. See Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 104, 21 A.2d 920 (1941).
Under the Crimes Code “[a] person is guilty of burglary if he enters a building or occupied structure. .. 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.” Criminal trespass of a building or occupied structure is committed when “[a] person ... knowing that he is not licensed or privileged to do so, . . . enters or gains entrance by subterfuge or surreptitiously remains in any building or occupied structure . . .” (Emphasis added).
The Commonwealth argues that §3503 (a) creates three distinct forms of criminal trespass: (1) any unlicensed or unprivileged entry; (2) an entrance gained by subterfuge; and (3) surreptitiously remaining within the building. The facts of the present case .bring it within the first of the three situations. Appellant, on the other hand, contends that there are only two situations constituting criminal trespass on the theory that “subterfuge” modifies both “enters” and “gains entrance.”
The Commonwealth notes that both the burglary and criminal trespass sections of the Crimes Code were modeled after the relevant Model Penal Code versions. In support of its argument, the Commonwealth cites the following comment by the drafters of the Model Penal Code: “[S]ome statutes and judicial decisions go so far as to create a presumption that an unexplained breaking and entering is made with the intent to commit a crime. We believe that it is unnecessary to create a statutory presumption here. If there is a reasonable doubt as to the criminal purpose of the intruder it should be enough to convict him of criminal trespass under Section 221.2, Model Penal Code T.D. No. 11 . . .” The Pennsylvania *384version of criminal trespass, however, differs significantly from the Model Penal Code definition: “A person commits an offense, if knowing that he is not licensed or privileged to do so, he enters or surreptitiously remains in any building or occupied structure . . .” Thus, the Pennsylvania legislature added the phrase “gains entrance by subterfuge” when it enacted §3503(a). This supports the Commonwealth’s argument that “subterfuge” does not modify “enters.” If appellant’s interpretation were accepted, there would have been no reason for the legislature to have added “gains entrance,” unless there are situations where one can “gain entrance” without “entering.” Thus, §3503 (a) creates three distinct forms of criminal trespass.3
The Majority states that the essential elements of the crime of criminal trespass “are unlicensed or unprivileged entry into a building or occupied structure . . .” Were this statement factually correct, the criminal trespass committed in the instant case would clearly be included within the crime of burglary. The criminal trespass statute, however, states that the crime is committed when “[a] person . . . knowing that he is not licensed or privileged to do so . . . enters . . . any building . . .” *385(Emphasis added). The burglary statute, on the other hand, provides that the crime occurs when a person enters a building with criminal intent “unless . . . the actor is licensed or privileged to enter.” It would seem, therefore, 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.4
I would reverse the judgment of sentence and discharge the appellant.
Jacobs and Spaeth, JJ., join in this dissenting opinion.
. Act of Dec. 6, 1972, P.L. 1482, No. 334, §1, 18 Pa.C.S. §3503(a).
. Act of Dec. 6, 1972, supra, 18 Pa.C.S. §3502.
. This conclusion is reached with a great deal of reluctance. The narrow issue presented by the instant case is whether criminal trespass (in the situation where the defendant enters a building knowing he has no license or privilege to do so) constitutes a lesser included offense of burglary. For reasons to be discussed infra, I conclude that it does not. But I am forced to accept the conclusion that “subterfuge” does not modify “enters.” Thus, §3603 (a) prohibits, in part, an unlawful entry not amounting to a burglary because of the absence of criminal intent. The difficult consequence is that our legislature has made the crime of criminal trespass a felony of the second degree, see §3503 (b), which carries a maximum penalty of ten years’ imprisonment. 18 Pa.C.S. §1103 (2). Under the Model Penal Code section, a criminal trespass of this type is a petty misdemeanor, unless it is committed in a dwelling at night, *385in which case it is a misdemeanor. Similarly, the former unlawful entry statute, 18 P.S. §4901.1, carried a maximum penalty of one year imprisonment, a $500 fine, or both.
It is apparent that our legislature was concerned with the situation where a person enters a building by ruse (hence the inclusion of “gains entrance by subterfuge”). It is equally apparent that the legislature wished to prohibit unlawful entries not amounting to burglary. Unfortunately, the legislature included both crimes in the same subsection and authorized the same maximum penalty for each. It is difficult to believe that the legislature actually intended to punish unlawful entry with a maximum term of ten years’ imprisonment. I urge the legislature to remove unlawful entry from the criminal trespass section and to create a separate crime of unlawful entry which authorizes a more realistic maximum penalty.
. The prior burglary statute, 18 P.S. §4901, Act of June 24, 1939, P.L. 872, §901, did not mention the absence of license or privilege. Thus, there are no cases interpreting the language contained in the new version. On its face, however, the statute would allow a conviction if the actor was in fact not licensed or privileged, even if he believed that he was. One could not be convicted of criminal trespass, however, if he believed that he was privileged or licensed to enter. We can determine whether there are any limitations to the defense of lack of scienter at the appropriate time.