Concurring and Dissenting Opinion by
Spaeth, J.:I concur in the majority’s conclusion that the evidence was insufficient to support a conviction of burglary. However, I do not think it proper to remand this ease for a new trial.
The scope of our authority to fashion a remedy in cases on appeal before us is set forth in §504 of the Appellate Court Jurisdiction Act of 1970, Act of July 31, P. L. 673, No. 223, art. I, §101, 17 P.S. §211.504, which states: “An appellate court may affirm, modify, vacate, set aside or reverse any order brought before it for review, and may remand the matter and direct the entry of such appropriate order, or require such further proceedings to be had as may be just under the circumstances.”1
There are some cases where it is just to order a new trial after finding that the evidence is insufficient. For example, a new trial is appropriate when the prosecution through no fault of its own has been deprived by the trial judge of the opportunity fully to develop its case. United States v. Howard, 432 F. 2d 1188, 1191 (9th Cir. 1970) (concurring opinion). See also Commonwealth v. Stoffan, 228 Pa. Superior Ct. 127, 323 A. 2d 318 (1974). In the present case, however, no special circumstances appear that warrant our order*466ing a new trial. Nothing suggests that the prosecution will be able to produce a valid conviction for burglary if a new trial is granted. In view of this, it is not just to require appellant to undergo a second trial, nor to require the people of the Commonwealth to pay for it.2
The majority cannot rely on the fact that appellant filed motions for a new trial and in arrest of judgment.3 Such motions are perfunctorily made by defense counsel. (Here they were made orally on the day of trial.) It may be doubted that many counsel explain to their clients that by seeking a new trial they run the risk of being tried again for a crime the Commonwealth did not prove. In the absence of a finding that the defendant was so informed, the fact that a motion for new trial was filed is by itself not enough to make it just to order a new trial.
As the majority suggests, appellant might have been properly convicted of unlawful entry, Act of June 24, 1939, P. L. 872, §901.1, added Nov. 19, 1959, P. L. 1518, No. 532, §1, 18 P.S. §4901.1, which is a lesser included offense of burglary. See Commonwealth v. Freeman, 225 Pa. Superior Ct. 396, 313 A. 2d 770 (1973). Appellant entered Sumner’s store with the intent to carry out a drug sale; at the very least he entered to procure or possess drugs. I see no reason why we should not enter an order remanding the case *467to the lower court with directions to enter a verdict of guilty of unlawful entry and to impose sentence thereon. Commonwealth v. Freeman, id.
Van dee Voort, J., joins in this opinion.Section 504 appears to be patterned after 28 U.S.O. §2106 (1973), which is nearly identical.
Retrial where the conviction has been reversed because of insufficient evidence may impair the defendant’s double jeopardy rights. The law is far from clear. Compare Bryan v. United States, 338 U.S. 552 (1950) with Sapir v. United States, 348 U.S. 373, 374 (1955) (Douglas, J., concurring) and Forman v. United States, 361 U.S. 416 (1960). See generally Comment, Double Jeopardy: A New Trial After Appellate Reversal for Insufficient Evidence, 31 U. Chi. L. Rev. 364 (1964). There is no need to discuss the double jeopardy aspects of the majority’s ruling since, in my opinion, it is incorrect as a matter of statutory law.
Appellant did not ask for a new trial on appeal to this court.