Com. v. Tillio, P.

J-S71024-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PATRICK DANIEL TILLIO, JR. :
:
Appellant : No. 3495 EDA 2015
Appeal from the Judgment of Sentence October 29, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004226-2015
BEFORE: BOWES, PANELLA, and FITZGERALD,*JJ.
DISSENTING STATEMENT BY FITZGERALD, J.: FILED APRIL 26, 2017
I respectfully disagree with the majority’s suggestion that Appellant’s
defective Pa.R.A.P. 1925(b) statement results in waiver. Moreover, I am
unable to accept the majority’s alternative reasons for rejecting Appellant’s
sufficiency of the evidence challenge. Rather, I would reverse the judgment
of sentence in this case.
First, Appellant’s Rule 1925(b) statement is clearly defective as
counsel cites and provides additional argument based on the wrong
subsection of the criminal trespass statute. However, because the
underlying proceedings were straightforward, the trial court was able to
discern and address Appellant’s sole intended issue on appeal without
difficulty. Cf. Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007);
*
Former Justice specially assigned to the Superior Court.
J-S71024-16
Trial Ct. Op., 3/28/16, at 2. Because the defects in the Rule 1925(b)
statement do not hamper appellate review, I would not find his issue
waived.1
Second, as to the sufficiency of the evidence, it is apparent that the
trial court found determinative Appellant’s own testimony that officers told
him “to go back to Lower Merion.” See N.T., 10/29/15, at 43-44; Trial Ct.
Op. at 4. In my view, that testimony, when read in light of the remaining
trial record, does not support the court’s conclusion that there was “actual
communication” that Appellant’s mere presence inside a car in the parking
lot would constitute defiant trespass.2 See 18 Pa.C.S. § 3503(b)(1)(i) (“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[.]”).
Thus, I would reverse Appellant’s conviction for defiant trespass and
respectfully dissent.
1
Moreover, this appeal involves a summary conviction for which Appellant
was sentenced to time served. The majority’s suggested waiver analysis
would deny Appellant his right to pursue his sole issue on appeal as there
would be no further remedy for counsel’s ineffectiveness under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
2
Indeed, aside from the considerable hearsay problems that arose due to
the Commonwealth’s failure to call any of the police officers involved in
communicating to Appellant or his father, the Commonwealth only presented
evidence that the officers told Appellant “not to come to the office anymore.”
N.T., 10/29/15, at 11.
-2-