dissenting:
Appellant was convicted of burglary and possession of an instrument of crime. The burglary indictment charged the unauthorized entry into an apartment with the intent to commit the crime of theft.1 I agree that Commonwealth v. Carter, 236 Pa.Super. 376, 344 A.2d 899 (1975) was decided correctly and that the evidence in this case was sufficient to support a conviction for criminal trespass. I would agree with the majority’s decision to remand for sentencing except for my belief that the evidence was sufficient for the jury to infer that appellant entered the apartment with the intent to commit a theft. For this reason, I would affirm the judgment of sentence on the charge of burglary and must dissent from the majority’s decision to remand.
*382The majority relies primarily on this court’s opinion in Commonwealth v. Freeman, 225 Pa.Super. 396, 313 A.2d 770 (1973). In that case two police officers observed the defendant acting in a suspicious manner. They set up surveillance and, after following him for some distance, observed him enter the basement of an apartment building. Because of their position, the officers were unable to discern the method by which entry was achieved. A few minutes later, the defendant left the building. The officers approached and arrested him after he attempted to flee. Although the basement door appeared to have been jimmied, the officers found no burglary tools. At the time of his arrest, appellant did not have any stolen goods in his possession despite the fact that there were items in the basement which could have been carried away. On these facts, the court concluded that the defendant’s actions did not bear such a reasonable relationship to the crime of theft to permit the jury to infer that the defendant entertained a larcenous intent at the time of entry.
The result in Freeman is consistent with other cases in which burglary convictions have been reversed when the only evidence was the mere “presence of the defendant in a building, whose own explanation lacked criminal intent, and where no contrary evidence was produced to show that entry was made with the intent to commit any crime within.” Commonwealth v. McLaughlin, 230 Pa.Super. 420, 424, 326 A.2d 474, 476 (1974). In most of these Freeman-type cases, the defendant had left or was leaving a building under circumstances which did not indicate flight or fear of apprehension, and there was no evidence of a breaking or the commission of any crime while inside. See e. g., Commonwealth v. Larkins, 235 Pa.Super. 19, 341 A.2d 204 (1975); Commonwealth v. McLaughlin, supra. In the instant case, appellant was apprehended immediately upon breaking into the apartment. I would not extend Freeman to this situation.
The offense of burglary consists of the entry of a building with the intent to commit a crime therein. 19 Pa.C.S. *383§ 3502. “The specific intent required to make out a burglary charge may be found in appellant’s words or conduct or from the attendant circumstances together with all reasonable inferences therefrom. Commonwealth v. Atkins, 282 Pa.Super. 206, 212, 335 A.2d 375, 377-8 (1975). If the law required definite and substantive proof of intent, it is generally agreed that it would be almost impossible to convict without facts disclosing a culmination of the intent. 13 Am.Jur.2d Burglary § 52 (1964).
The majority notes that because the evidence was insufficient to sustain appellant’s conviction of burglary it is not necessary to decide appellant’s remaining contention that the dismissal of the attempted theft charge precluded Ms conviction for burglary. (Majority Opn. 247 Pa.Super. at 377, 372 A.2d at 875, n. 3). It is clear, however, that the test employed by the majority required the prosecution to prove an attempted larceny. The difference between attempt and intent was reiterated in Commonwealth v. Willard, 179 Pa.Super. 368, 116 A.2d 751 (1955).
“[Attempt is defined as] ‘. . .an overt act done in pursuance of an intent to do a specific thing, tending to the end, but falling short of complete accomplishment of it. In the law, the definition must have this further qualification, — that the overt act must be sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution, (emphasis added) So long as acts are confined to preparation only, and can be abandoned before any transgression of the law or other's rights, they are within the sphere of intent and do not amount to attempts.” (emphasis in original) Id. 179 Pa. Super, at 371-2,116 A.2d at 753 quoting Commonwealth v. Eagen, 190 Pa. 10, 21, 42 A. 374, 377 (1899).
The first italicized portion of this quotation sets forth substantially the same test as the majority applies to the requirement of intent. (See Majority Opn. 247 Pa.Super. at 378 — 379, 372 A.2d at 875 — 876). This same language has been quoted in several opinions reversing burglary convic*384tions. See e. g., Commonwealth v. Ellis, 349 Pa. 402, 37 A.2d 504, reversing 154 Pa.Super. 227, 35 A.2d 553 (1944); Commonwealth v. Freeman, supra. In cases similar to Freeman and McLaughlin, supra, it is entirely proper to hold that absent proof of an attempt or near attempt a guilty verdict would be based on mere conjecture or surmise. I would not apply such a rule to the instant case in which appellant’s intent was thwarted by efficient police action. Using the majority’s language, I would hold that appellant’s actions did bear a reasonable relationship to the commission of the crime and did constitute one of the natural series of acts required for its commission. The acts were as proximate to the alleged intended crime as they could have been under the circumstances.
The majority cites Commonwealth v. Freeman, supra, as holding that “evidence .of intentional entry into an occupied building is by itself insufficient to support an inference of an intent to steal.” (Majority Opn. 247 Pa.Super. at 378-379, 372 A.2d at 875-876). First, the evidence in the instant case reveals substantially more than the mere intentional entry of a trespassory nature which the court hypothesized in Freeman. Appellant obviously broke the lock and entered possessing burglary tools. Compare Commonwealth v. McLaughlin, supra; Commonwealth v. Muniem, 225 Pa.Super. 311, 303 A.2d 528 (1973); Commonwealth v. Ellis, supra; with Commonwealth v. Hooks, 450 Pa. 562, 301 A.2d 827 (1973). Similar facts have been held sufficient to permit a jury to infer that a defendant entered a building with the intent to commit a crime therein. E. g., Commonwealth v. Lynch, 227 Pa.Super. 316, 323 A.2d 808 (1974); Commonwealth v. Freeman, supra. Moreover, the majority’s statement enunciates a rule much broader than the facts of the case required. As dicta, the statement should not be read out of the context of the case. Our courts have previously pointed out that the fact that nothing was stolen does not preclude a finding of intent to commit larceny. Such a fact is not legally significant where, as in the instant case, the defendant is apprehended before the intent could have been consummated. See Commonwealth v. Hooks, supra; Commonwealth v. Muniem, supra.
*385In Commonwealth v. Del Marmol, 206 Pa.Super. 512, 214 A.2d 264 (1965), this court held, on similar facts, that a jury could reasonably infer an intent to commit larceny when a defendant was caught in the act of breaking into an apartment. Judge Jacobs, writing for the majority, noted that “[t]he fact that the jury chose ... to infer an intent to commit larceny from the appellant’s unusual and surreptitious activities does not mean that its decision was based on conjecture and surmise . . . . ” Id. 206 Pa.Super. at 517, 214 A.2d at 266. This appears to be in accordance with the view of a majority of jurisdictions which have decided that an unexplained breaking and entering into a building is in itself sufficient to sustain a conviction for burglary with the intent to commit larceny rather than some other crime. “The fundamental theory, in the absence of evidence of other intent or explanation for breaking and entering, is that the usual object or purpose is theft.” 13 Am.Jur.2d § 52, p. 353 n. 18 (1964).
In his dissenting opinion in Commonwealth v. Brown, 226 Pa.Super. 172, 313 A.2d 290 (1973) (affirmed per curiam), Judge Spaeth unsuccessfully attempted to distinguish Del Marmol by the fact that the apartment in the latter case was occupied and, therefore, a “good target for larceny.” It has long been the law that one can be guilty of entering a structure with the intent to commit larceny of certain specific items even though the structure is vacant or only contains other items. See e. g., Commonwealth v. Stefanczyk, 77 Pa. Super. 27 (1921). In addition, the apartment involved in this case was not empty. It had recently been refurbished and contained, at least, a refrigerator, a stove and light fixtures.
My decision is not affected by the fact that the arresting officer was on the scene to guard against vandalism. In my opinion, the reason for the officer’s presence is irrelevant to the issue of intent. In any event, the record indicates that on several occasions fixtures such as stoves had been stolen from vacant apartments. The officer had been assigned to guard the apartment against this type of theft'as well as vandalism.
*386Although a guilty verdict cannot be based on suspicion or conjecture, the Commonwealth is not required to establish guilt to a mathematical certainty. Commonwealth v. Roscioli, 454 Pa. 59, 309 A.2d 396 (1973); Commonwealth v. Muniem, supra. Since I believe that the evidence was sufficient for the jury to find beyond a reasonable doubt that appellant entertained the intent to commit larceny at the time he entered, the fact that he might have had the additional intent to damage the property would not necessitate an acquittal. In my opinion, Commonwealth v. Del Marmol, supra, controls the instant case.
As previously noted, although I agree that the evidence was sufficient to convict appellant of criminal trespass, I would affirm the judgment of sentence on the basis of this dissent.
VAN der VOORT, J., joins this opinion.. It should be pointed out that the Commonwealth could have avoided the immediate problem in this case if the indictment had not specified what crime appellant intended to commit upon gaining entrance. While other jurisdictions may require that the indictment specify the intended crime, Pennsylvania, by statute, requires only that the indictment charge “the crime substantially in the language of the act of assembly prohibiting the crime and prescribing the punishment.” Act of March 31, 1860, P.L. 427, § 11 (19 P.S. § 261).