Com. v. Hyland, T. ( 2014 )

J.A13015/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
THOMAS J. HYLAND, :
: No. 2104 EDA 2013
Appellant :
Appeal from the Judgment of Sentence Entered July 8, 2013
In the Court of Common Pleas of Montgomery County
No(s).: CP-46-SA-0000145-2013
BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED SEPTEMBER 10, 2014
Appellant, Thomas J. Hyland, appeals from the judgment of sentence
entered in the Montgomery County Court of Common Pleas, ordering him to
pay a fine of $369.45 for a summary conviction of defiant trespass.1
Appellant raises five issues on appeal, four of which challenge the sufficiency
of the evidence and one whi
proffered expert testimony. We affirm.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3503(b).
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2
Valley Forge Casino and
See Exs. C-1, D-5. Two months later, on October 15, 2012,
Appellant returned to the Casino, at which time a security supervisor
detained him and called the Pennsylvania State Police. Appellant left the
Casino after talking with the trooper. The trooper subsequently mailed him
a citation charging him with defiant trespass.
The magisterial district court found Appellant guilty. Appellant filed a
timely appeal for a trial de novo in the Court of Common Pleas, which was
held on June 20, 2013. On July 8, 2013, the trial court found him guilty of
defiant trespass and imposed a fine. This appeal followed.3
Appellant presents five questions for review, which we have reordered
as follows:
Did the trial court err in convicting [Appellant] of defiant
trespass where the Commonwealth failed to prove beyond
a reasonable doubt that [Appellant] knew he was not
licensed to be at the subject property?
Did the trial court err in convicting [Appellant] of defiant
trespass where the subject property is open to the public
and [Appellant] complied with all lawful conditions?
2
See N.T., 6/20/13, at 72.
3
1925(b) statement of errors complained of on appeal.
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strong policy of protecting the public from casino gaming
abuses?
Did the trial court err in convicting [Appellant] of defiant
trespass where he was returning to the subject property
for the lawful purpose of retrieving funds lawfully due to
him under Pennsylvania law?
Did the trial court err in convicting the [Appellant] of
proffered expert testimony and the exclusion was highly
prejudicial?
as follows. He first
claims that the Commonwealth failed to prove that he knew that he was not
licensed or privileged to enter the Casino because he (1) did not receive
copies of the eviction notices, (2) was in possession of his membership card
to the Casino, and (3) was not placed on the list of excluded persons
4
Second,
he argues that the Commonwealth failed to disprove his affirmative defense
that the Casino was open to the public and that he abided by all lawful
conditions for accessing the Casino. In support of this argument, Appellant
asserts that (1) the Casino violated public policy by evicting him for
redeem his chips, and (3) suggests that the Casino retaliated against him for
4
See 4 Pa.C.S. § 1514.
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due.
The standards governing our review of the sufficiency of the evidence
are as follows:
In evaluating a challenge to the sufficiency of the
evidence, we must determine whether viewing the
evidence in the light most favorable to the verdict winner,
together with all reasonable inferences therefrom, the trier
of fact could have found that each and every element of
the crimes charged was established beyond a reasonable
doubt. The facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. However, any questions or doubts are to be
resolved by the factfinder, unless the evidence is so weak
and inconclusive that as a matter of law, no probability of
fact may be drawn from the circumstances. The trier of
fact is free to believe all, part or none of the evidence.
Commonwealth v. Johnson, 818 A.2d 514, 517 (citations omitted).
The criminal trespass statute provides, in relevant part:
(b) Defiant trespasser.
(1) 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:
(i) actual communication to the actor[.]
* * *
(c) Defenses. It is a defense to prosecution under
this section that:
* * *
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(2) 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(b)(1)(i), (c)(2).
As to the sufficiency of the evidence to prove a violation under
subsection (b)(1)(i), our review reveals that the trial court, sitting as the
finder of fact in the trial de novo, credited evidence that a security
supervisor at the Casino, Manar Makhoul, presented eviction notices to
Appellant on August 7 and August 18, 2012. Those eviction notices stated,
-1, D-5. Although Appellant did not sign the notices,
w[ould] be permanently evicted from the property and if he returned he
spoke with Appellant on August 18th and verbally reminded him of his prior
eviction. Id. at 9.
Appellant, testifying in his own defense, denied receiving the notices.
Id. at 61, 64. He acknowledged that he deliberately tried not to interact
with casino personnel because of the harassment he suffered as a skilled
blackjack player. Id. at 65. He conceded, however, that when he was
leaving the Casino on August 18th, he heard security personnel tell him,
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Id. at 64.
We thus conclude there was sufficient evidence for the trial court to
find that adequate notice against trespass was given by actual
communication to Appellant. See 18 Pa.C.S. § 3503(b)(1)(i). The court
Johnson, 818 A.2d at 517.
was sufficient
evidence for the trial court to conclude that Appellant entered the Casino on
October 15, 2012, knowing that he was evicted, even though he remained in
possession of his membership card and even if he did not sign or receive
copies of the Ca See N.T. at 64-65.
insufficient to rebut his affirmative defenses under Subsection 3503(c)(2).
Appellant asserts that his conviction must be vacated under the principles
set forth in Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981). In
support, Appellant relies on , 445 A.2d
ssuance of the evictions was
unlawful and against public policy. Appellant suggests that we adopt New
his eviction for advantage playing constituted an improper condition on his
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right to access the Casino. For the reasons that follow, we conclude no relief
is due.
In Tate, the Pennsylvania Supreme Court considered whether a
private college properly excluded non-student protestors from distributing
leaflets before, during, a
union building. Tate, 432 A.2d at 1384-85. The protestors were warned
not to distribute the leaflets without a permit, but the college subsequently
denied them a permit. Id. at 1385. At the end of the symposium, the
protesters continued to distribute leaflets outside the entrance of the student
union building and were arrested and convicted of defiant trespass. Id.
The Tate Court, when discussing the affirmative defense to defiant
trespass, concluded the campus was open to the public. Id. at 1386. The
Court further determined that although the college maintained a permit
permit. Id. at 1387.
Id.
(footnote omitted). The Court thus framed the issue in that appeal as
condition with which [the protestors] were obligated to comply or otherwise
Id. (footnote
omitted).
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In reversing the convictions, the Tate Court concluded that the
controversy surrounding the symposium and its speakers implicated the
Id. at 1390. The Tate
ct
Id. Because the college failed to articulate any
standards for permitting or excluding the exercise of those constitutional
Id. at 1391. Accordingly, the Court
vacated the convictions for defiant trespass. Id.
In Uston, the New Jersey Supreme Court considered whether a casino
Uston, 445 A.2d at 371. In that case,
the New Jersey Casino Control Co
Id. Thereafter, a casino obtained preliminary approval from the
Commission to ban card counters. Id. at 372. Immediately after receiving
because he was a professional card counter, and the Commission upheld the
Id.
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The New Jersey intermediate appellate court reversed the
d the New Jersey Supreme Court affirmed. Id.
The New Jersey Supreme Court determined the New Jersey Casino Control
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common law right [the casino may have had] to exclude [the plaintiff]
being a card counter. Id. at 372-73 (citing, inter alia, N.J.S.A. 5:12-70
(requiring Commission to establish rules of authorized games and odds),
5:12-
Commission alone has the authority to exclude
Id.
at 372.
With respect to the plaintiff, the Uston Court opined that his gaming
was conducted according to the rules promulgated by the Commission and
rules. Id.
of the regul Id. Thus, the Court
Id.
The Uston Court, in dicta, observed that the cas
right to exclude is substantially limited by a competing common law right of
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Id. at 372. The Court asserted that
rty owners open their premises to the general public in the
pursuit of their own property interests, they have no right to exclude people
unreasonably[, but have] a duty not to act in an arbitrary or discriminatory
manner toward persons who come on their p Id. at 375.
Nevertheless, the Court did not suggest that a ban on advantage playing
was illegitimate and unreasonable. Id.
decide whether the Casino Control Act empowers the Commission to exclude
card coun Id.
affirmative defense under 18 Pa.C.S. § 3503(c)(2) must fail because the
Casino was not open to the public. However, the trial evidence only
established that access to the gaming floor of the Casino was limited and
secured by turnstiles through which an individual passed by swiping a
membership or access card. See N.T. at 5-
but noting Casino had dining and hotel accommodations), 8-9 (noting
A
enter the gaming floor on October 15, 2012, he was stopped by the
turnstiles and went to a service desk outside the gaming floor. N.T. at 68,
69. No evidence was produced to show that areas outside the gaming floor
were limited access or otherwise not open to the public. Thus, his conviction
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for defiant trespass was based on his presence in an area outside the
restricted access gaming floor. Therefore, we conclude that Appellant was in
an area open to the public under Subsection 3503(c)(2). Thus, we must
review his arguments that the evictions by the Casino constituted an
unlawful condition on his access.5
Appellant correctly observes that the New Jersey Act and
1904, announced policies of protecting the public
when authorizing and regulating table games. See 4 Pa.C.S. § 1102(1)
purposes are secondary is to protect the public through the regulation and
policing of all activities involving gaming and practices that continue to be
unlawf -
the regulation and control of such casino facilities by the State rests in the
public confidence and trust in the credibility and integrity of the regulatory
process and of casino ope
contains other provisions that are similar to those in the New Jersey Act.
See e.g. 4 Pa.C.S. § 1514 (requiring establishment of list of person to be
excluded or ejected from any casino); N.J.S.A. 5:12-71 (same). It is
5
engaging in commerce does not convert a privately owned shopping center
into a public or quasi- W. Pa. Socialist Workers 1982
Campaign v. Conn. Gen. Life Ins. Co., 485 A.2d 1, 8 (Pa. Super. 1984)
(citations omitted).
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axiomatic, however, that the decisions of our sister states are not binding on
this Court, but may be considered persuasive authority.
Bank of Pa. v. Seubert & Assocs., Inc., 807 A.2d 297, 303 (Pa. Super.
2002).
With respect to the Pennsylvania Act, Uston is not persuasive
authority. The Pennsylvania Act and the New Jersey Act analyzed by Uston,
are distinguishable. Former N.J.S.A. 5:12-100(e),6 which governed the
conduct of games by a casino, provided:
All gaming shall be conducted according to rules
promulgated by the commission. All wagers and pay-offs
of winning wagers at table games shall be made according
to rules promulgated by the commission, which shall
establish such minimum wagers and other limitations as
may be necessary to assure the vitality of casino
operations and fair odds to and maximum
participation by casino patrons[.]
See Uston, 445 A.2d at 372-73 (quoting former N.J.S.A. 5:12-100(e))
5:12-
100(e) was critical to the Uston
and not a casino, possessed the authority to exclude card counters. See id.
at 372-73, 376.
authority
6
N.J.S.A. 5:12-100(e) has since been amended. See N.J.S.A. 5:12-100(e)
(eff. Feb. 26, 2013).
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the conduct of table games and the systems of wagering associated with
the Uston See
id. Similarly, the provisions governing the conduct of table gaming by a
See 4 Pa.C.S. §§
13A21-13A22, 13A24.
We further note that no court outside New Jersey has relied on
Uston to abro See
Donovan v. Grand Victoria Casino & Resort, L.P., 934 N.E.2d 1111,
1117-18 (Ind. 2010) (holding Indiana riverboat casino may exclude card
counter); , 791 F.2d 512, 517 (7th
Cir. 1986) (concluding Illinois racetrack retained common law right to
prohibit members of Pennsylvania partnership of expert handicappers from
placing bets). Moreover, aside from dicta in Uston, our review reveals no
authority suggesting that gambling generally or advantage playing
specifically gives rise to a protected interest. See Doug Grant, Inc. v.
Greate Bay Casino Corp., 232 F.3d 173, 189-90 (3d Cir. 2000)
(discussing equal protection claims regarding countermeasures promulgated
after Uston to limit advantages of card counting and noting, inter alia,
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In light of the foregoing, we discern no basis to reach the conclusion
urged by Appellant, namely, that we follow Uston and hold that the Casino
had no right to exclude him as a card counter under the Pennsylvania Act.
condition on his ability to access the Casino warrants no relief.
returned to the Casino to redeem his chips and the Casino was retaliating
under no obligation to review the record in a light most favorable to
Appellant. See Johnson, 818 A.2d at 517. Although Appellant testified
that he returned to the Casino to redeem his chips and that he previously
filed reports with a PGCB officer, it was within the province of the trial court
to discredit that evidence. See id.
Lastly, Appellant challenges the evidentiary ruling of the trial court
that precluded his witness, Michael Riggs, from testifying as an expert.
Appellant proffered that Riggs was a former member of the New Jersey
Division of Gaming Enforcement, was familiar with how the New Jersey Act,
access to casino tab
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knowledge of Pennsylvania gaming was, Appellant proffered that Riggs was
a licensed private investigator in Pennsylvania. Id. at 36-37. The
Commonwealth objected on relevance grounds, and the trial court sustained
the objection. Id. at 39-40.
Appellant presently argues that the trial court erred in refusing to
the
solely on the proffer and without allowing defense counsel the opportunity to
Id. We discern no basis for granting relief.
Decisions regarding admission of expert testimony,
like other evidentiary decisions, are within the sound
discretion of the trial court. We may reverse only if
we find an abuse of discretion or error of law.
A court
specialized knowledge beyond that possessed by a
layperson [if it] will assist the trier of fact to understand
the evidence or to determine a fact in issue, a witness
qualified as an expert by knowledge, skill, experience,
training or education may testify thereto in the form of an
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
Commonwealth v. Venutra, 975 A.2d 1128, 1140 (Pa. Super. 2009)
(some citations omitted).
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from the same fate as his sufficiency argument. As we have concluded
above, Uston is not persuasive authority regarding the treatment of
advant
advantage players were treated in New Jersey was not relevant. Moreover,
as in the trial court, Appellant provides this Court with no basis to conclude
that Riggs possessed any familiarity the treatment of advantage players in
ruling that precluded Riggs from testifying as an expert based on his
expertise in New Jersey.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/10/2014
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