concurring and dissenting:
I agree with the plurality opinion by Judge JACOBS that the Commonwealth failed to prove the requisite criminal intent necessary to prove burglary in the instant case. See Commonwealth v. Lynch, 227 Pa.Super. 316, 323 A.2d 808 *381(1974); Commonwealth v. Freeman, 225 Pa.Super. 396, 313 A.2d 770 (1973).
In both Freeman and Lynch, the Court remanded for resentencing on the charge of unlawful entry, a lesser included offense to the charge of burglary under the Penal Code, Act of June 24, 1939, P.L. 872, § 901; 18 P.S. § 4901. However, in my view, the crime of criminal trespass as defined by the Crimes Code, Act of December 6, 1972, P.L. 1482, No. 334, § 1; 18 Pa.C.S. § 3503, is not included within the offense of burglary, 18 Pa.C.S. § 3502. Commonwealth v. Carter, 236 Pa.Super. 376, 341 A.2d 899 (1975), allocatur granted, 236 Pa.Super. xli (dissenting opinion by HOFFMAN, J. in which JACOBS and SPAETH, JJ. joined). Appellant was not charged with criminal trespass and could not have been convicted thereof. Therefore, I would reverse and order appellant discharged.
SPAETH, J., joins in this opinion.