Commonwealth v. Wanner , 2017 Pa. Super. 81 ( 2017 )

J. A03040/17
2017 PA Super 81COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CRYSTAL LYNN WANNER, :
:
Appellant : No. 1098 MDA 2016
Appeal from the Judgment of Sentence June 14, 2016
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-SA-0000100-2016
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
OPINION BY DUBOW, J.: FILED MARCH 28, 2017
Appellant, Crystal Lynn Wanner, appeals from the June 14, 2016
Judgment of Sentence imposed in the Cumberland County Court of Common
Pleas following her conviction at a bench trial of one count of Defiant
Trespass – Actual Communication.1 After careful review, we affirm.
The trial court summarized the facts underlying this case as follows:
On January 26, 2016, [Appellant and her co-defendant] rang the
doorbell of a fur shop known as Charles Exclusive Furriers.
When the shop owner came to the door, they told her [that]
they were curious about the shop’s products. She allowed them
to enter. After entering the shop, they began touching the furs
[and] asking questions about the furrier process. Suddenly,
their “tone” changed, as they began referencing the Bible and
asking the shop owner if she thought she was God. At that
1
18 Pa.C.S. § 3503(b)(1)(i). Although not relevant to the instant case, we
note that our Supreme Court recently held that Sections 3503(b.1)(1)(iv)
and (b.1)(2), regarding secondary metals, were enacted in violation of the
Pennsylvania Constitution’s single-subject rule and are, therefore,
unconstitutional. See Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016).
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point, the shop owner asked them to leave. She repeated the
request multiple times but they would not go.
Something akin to a scuffle occurred as the owner attempted to
usher [Appellant and her co-defendant] from the shop area into
the lobby. During the scuffle, [Appellant] thrust her cell phone
into the shop owner’s face. The owner somehow got possession
of both [Appellant and her co-defendant’s] phones as she
ushered them outside the shop and into the lobby. Another
scuffle ensued after they were all in the lobby as the owner tried
to lock the shop door behind her. After she was eventually able
to get the door locked, she ran up the steps to the office to call
the police. [Appellant and her co-defendant] ran screaming
behind her. They were still in the lobby when the police arrived.
Trial Court Opinion, filed 9/15/16, at 1-2 (unpaginated) (footnotes with
citations to the record omitted).
Appellant and her co-defendant were charged with Defiant Trespass –
Actual Communication, graded as a summary offense.2 On March 31, 2016,
Cumberland County Magisterial District Judge Elizabeth S. Beckley found
Appellant and her co-defendant guilty of Defiant Trespass – Actual
Communication, and sentenced Appellant to pay fines, costs, and restitution
in the amount of $419.
Appellant and her co-defendant filed timely appeals, and on June 14,
2016, the Cumberland County Court of Common Pleas held a trial de novo.
President Judge Edward E. Guido found Appellant and her co-defendant
2
Defiant Trespass – Actual Communication is defined as follows: “A person
commits an offense if, knowing that he is not licensed or privileged to do so,
he enters or remains in any place as to which notice against trespass is
given by . . . actual communication to the actor[.]” 18 Pa.C.S. §
3503(b)(1)(i).
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guilty of Defiant Trespass – Actual Communication, and sentenced both
defendants to 90 days of probation as well as the cost of prosecution and a
$200 fine.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
On appeal, Appellant purports to raise a single issue, namely, “Did
Appellant have the mens rea to commit the crime of trespass?” Appellant’s
Brief at 4. However, the Argument portion of Appellant’s Brief raises two
distinct theories of relief, improperly jumbled into a single argument
section.3 The two issues actually raised are as follows: (i) Appellant is
entitled to relief under an applicable affirmative defense to Defiant Trespass;
and (ii) the evidence was insufficient to establish the offense of Defiant
Trespass because Appellant lacked the requisite mens rea. We address each
argument in turn.
3
“The argument shall be divided into as many parts as there are questions
to be argued; and shall have at the head of each part—in distinctive type or
in type distinctively displayed—the particular point treated therein, followed
by such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a).
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Affirmative Defense
Appellant avers that there is a statutory affirmative defense to Defiant
Trespass that is applicable in the instant case.4 Appellant’s Brief at 8-11.
Appellant waived this claim by failing to raise it before the trial court and
preserve it in her Pa.R.A.P. 1925(b) Statement.
“Issues not raised in the lower court are waived and cannot be raised
for the first time on appeal.” Pa.R.A.P. 302(a). This requirement bars an
appellant from raising “a new and different theory of relief” for the first time
on appeal. Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super.
1983).
In addition, our Supreme Court has made it clear that “[a]ny issues
not raised in a [Rule] 1925(b) [S]tatement will be deemed waived.”
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation and
quotation omitted). See also Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b)]
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
the judge”).
In the instant case, Appellant failed to raise the affirmative defense at
any point during her trial de novo. Moreover, her Rule 1925(b) Statement
4
“It is a defense to prosecution under this section that . . . the premises
were at the time open to members of the public and the actor complied with
all lawful conditions imposed on access to or remaining in the premises[.]”
18 Pa.C.S. § 3503(c)(2).
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preserved only the following two issues, neither of which includes the
affirmative defense:
There is no criminal culpability in that the evidence was legally
insufficient to support a criminal conviction for Trespass, beyond
a reasonable doubt, in that [Appellant]:
1. Did not have the mens rea to commit said crime and;
2. That [Appellant] left the fur shop, which had been locked and
secured by the employee, and remained in an outside vestibule
of the locked shop waiting for the police because the shop
employee had physically confiscated her cell phone for the
purpose of making her stay at the scene.
Pa.R.A.P. 1925(b) Statement, filed 7/28/16. Therefore, Appellant waived
her affirmative defense claim by failing to present it to the trial court, and
for failing to include the claim in her Rule 1925(b) Statement.
Mens Rea
Appellant next avers that the evidence was insufficient to establish
that she had the requisite mens rea required to sustain a conviction for
Defiant Trespass. In reviewing the sufficiency of the evidence, our standard
of review is as follows:
The standard of review for a challenge to the sufficiency of
the evidence is to determine whether, when viewed in a
light most favorable to the verdict winner, the evidence at
trial and all reasonable inferences therefrom is sufficient
for the trier of fact to find that each element of the crimes
charged is established beyond a reasonable doubt. The
Commonwealth may sustain its burden of proving every
element beyond a reasonable doubt by means of wholly
circumstantial evidence.
The facts and circumstances established by the
Commonwealth need not preclude every possibility of
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innocence. Any doubt raised as to the accused's guilt is to
be resolved by the fact-finder. As an appellate court, we
do not assess credibility nor do we assign weight to any of
the testimony of record. Therefore, we will not disturb the
verdict unless the evidence is so weak and inconclusive
that as a matter of law no probability of fact may be drawn
from the combined circumstances.
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)
(citations and quotations omitted).
Defiant Trespass is defined, in relevant part, as follows: “A person
commits an offense if, knowing that he is not licensed or privileged to do so,
he enters or remains in any place as to which notice against trespass is
given by . . . actual communication to the actor[.]” 18 Pa.C.S. §
3503(b)(1)(i). “Thus in order to establish a violation it is necessary to prove
that the defendant: 1) entered or remained upon property without a right to
do so; 2) while knowing that he had no license or privilege to be on the
property; and 3) after receiving direct or indirect notice against trespass.
The crime of defiant trespass thus includes an element of intent or mens
rea.” Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995)
(emphasis in original). Therefore, a defendant who entered a property with
a bona fide, good faith, but mistaken belief that he was entitled to be there
cannot be convicted of Defiant Trespass. Id. at 194-95 (reversing a
conviction for Defiant Trespass where appellant’s attorney had advised him
that he was entitled to continue to use a trail on complainant’s property
even over complainant’s objections).
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In her Brief to this Court, Appellant makes two related mens rea
arguments. First, she essentially asks this Court to re-weigh the conflicting
testimony presented at trial, arguing that Appellant lacked the necessary
mens rea to commit Defiant Trespass because “Appellant and her co-
defendant left the fur shop at the request of the complainant . . . .”
Appellant’s Brief at 14. However, the trial court, as fact finder, found
credible the complainant’s testimony that:
[Appellant and her co-defendant] gained access to the premises
on the false pretense that they were customers. It was apparent
that their true reason for being there was to confront the owner
about her business of selling animal furs. When that true
purpose became clear, the owner told them to leave. Despite
multiple commands, they refused. Not only would they not
leave, but [Appellant] began to accost the owner with her cell
phone. They resisted the owner’s efforts to get them out of the
store. They also attempted to prevent her from closing and
locking the door between the lobby and the shop. They
remained in the lobby until the police arrived.
Trial Court Opinion, filed 9/15/16, at 3 (unpaginated) (footnotes with
citations to the record omitted; emphasis added). As the evidence
supporting this conclusion is not “so weak and inconclusive that as a matter
of law no probability of fact may be drawn from the combined
circumstances[,]” we will not disturb the verdict on those grounds.
Vogelsong, supra at 719.
Finally, Appellant relies on Commonwealth v. Burton, 445 A.2d 191(Pa. Super. 1982), to argue that their delay in leaving the shop was excused
by the fact that the shop owner confiscated their phone. This reliance is
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misplaced. In Burton, the landlord of a boarding home told the defendant
to leave and attempted to force the defendant to exit through the back
porch door, which was being blocked by a large dog. Id. at 192. The
defendant told the landlord that he was afraid of the large dog, and
attempted to leave by going through the house towards the front door. Id.
at 193. The landlord chased the defendant, grabbed him, and attempted to
force him back towards the rear door. Id. After a scuffle, Appellant broke
free and escaped through the front door, away from the dog. Id. On
appeal, we found that Appellant attempted to comply with the request to
leave, and that his decision to remain in the house longer in order to leave
through the front door was not “an unexpected action, as no other
reasonable alternative for exit was presented to him.” Id.Appellant attempts to analogize the instant case to Burton, arguing
that the shop owner’s act of confiscating Appellant’s phone made it
reasonable for her to remain in the lobby of the shop until police arrived.
However, as the trial court pointed out:
[T]his argument fails for two reasons. In the first instance, the
crime was complete before the cell phones had been wrested
from [Appellant and her co-defendant]. The owner had revoked
their privilege to remain in the store by telling them to leave
numerous times. However, they refused. Furthermore, [the
trial court, as fact-finder,] did not believe that they refused to
leave only because the owner had taken their phones. It was
clear that their refusal to leave was part of their plan to harass
the shop owner because of her business.
Trial Court Opinion, filed 9/15/16, at 3 (unpaginated).
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Based on all of the foregoing, and viewing the evidence in the light
most favorable to the Commonwealth as verdict winner, we conclude that
the Commonwealth presented sufficient evidence to sustain Appellant’s
conviction for Defiant Trespass where the evidence shows that Appellant and
her co-defendant: (i) remained inside the fur store without the right to do
so; (ii) knowing that they did not have the right to do so; and (iii) after the
owner of the store directly and repeatedly told the two women to leave the
store. Accordingly, Appellant is not entitled to relief on this claim.
Judgment of Sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/28/2017
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