J   -S90013-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                    :     IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA

                 v.


    DARLENE M. GALL

                         Appellant                  :     No. 1468 EDA 2016

               Appeal from the Judgment of Sentence April 14, 2016
                  In the Court of Common Pleas of Lehigh County
               Criminal Division at No(s): CP-39-SA-0000024-2016



BEFORE:       OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                                              FILED MAY 05, 2017

        Darlene M. Gall appeals from the judgment of sentence entered on

April 14, 2016, in the Lehigh County Court of Common Pleas. On December

16, 2015, at the conclusion of             a   summary trial, the trial court found Gall

guilty of one count of criminal trespass/simple trespasser.'                    The court

sentenced Gall to pay         a   fine and costs.       On appeal, Gall raises two issues:

(1) there was insufficient evidence to support her conviction; and (2) the

court erred       by finding       her defense of justification        by necessity was

irrelevant.    After    a   thorough review of the submissions by the parties, the

certified record, and relevant case law, we affirm the judgment of sentence.




'    18 Pa.C.S. §     3503(b.1)(1)(iii).
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        The facts pertaining to the case are as follows: On July 14, 2015, Gall

trespassed on her neighbor's, Gloria Hieter's, property located at 2558

Columbus Drive, Emmaus, Pennsylvania.           She then used an electric chain

saw and cut down      a   tree limb, approximately 20 to 25 feet in length, from

an apple tree    that was located on the neighbor's property and transported it

back to her own property where she left it in her driveway.            Gall admitted

she cut down the limb, but claimed she did so because it was blocking her

use of an easement and she could not drive past the tree without it

scratching the roof of her vehicle.2 She also stated she was concerned about

the possibility of an ambulance being able to reach her property by means

other than her driveway.

        The trial court set forth the procedural history as follows:

              On December 16, 2015,      after a summary trial, Magisterial
        District Judge Daniel C. Trexler found [Gall] guilty of one count
        of Criminal Trespass/Simple Trespasser, in violation of 18
        Pa.C.S.A [§] 3503([b].1)(1)(iii), a Summary Offense at NT -108-
        2015, Citation No. Y0028584-3. [Gall] was sentenced to pay a
        fine of $50 and court costs in the amount [of] $154.00 for a total
        of $204.00. On January 15, 2015, [Gall] filed a Notice of Appeal
        from Summary Criminal Conviction.

              On April    14, 2016, after a de novo summary appeal
        hearing, this Court found [Gall] guilty of the charge of Criminal
        [Trespass]/Simple Trespasser in violation of 18 Pa.C.S.A. [§]
        ([b].1)(1)(iii), a Summary Offense. [Gall] appeared for the
        hearing and was represented by counsel, Craig B. Neely,
        Esquire. The Commonwealth, through the Lehigh County District


2   The easement is grassy in nature, not paved.             Gall has    a   separate
driveway that goes to her house.


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        Attorney's Office, presented testimony and evidence in support
        of the foregoing citation issued to [Gall] under 18 Pa.C.S.A.
        §3503(b.1)(1)(iii), for criminal trespass/simple trespasser. The
        alleged criminal trespass occurred on the premises of 2558
        Columbus Dr., Emmaus, Lehigh County, Pennsylvania 18049, a
        neighboring property to [Gall]'s property located at 4551 Oak
        Hill Rd[.], Emmaus, PA 18049. [Gall] allegedly intruded onto her
        neighbor's property where she allegedly cut down a branch from
        her neighbors' tree that [Gall] alleged was protruding onto the
        right-of-way that she used to access her own property on July
        14, 2015. [Gall] was found guilty of the offense following the
        bench trial and was sentenced that same day to pay a fine in the
        amount of $50.00 and to pay the costs of prosecution.

               [Gall] filed a Notice of Appeal to the Superior Court of
        Pennsylvania on May 13, 2016, which incorrectly noted the date
        of the Order entered in this matter as May 14, 2016. Counsel
        for [Gall], Craig B. Neely, Esquire notified the Court of his
        mistake by letter on May 16, 2016, and he filed a corrected
        Notice of Appeal on May 16, 2016. By Order of Court dated May
        19, 2016, [Gall] was [o]rdered to file a Concise Statement of
        Matters Complained of within twenty-one days of the Order.
        [Gall] timely filed her Concise Statement of Matters Complained
        of on Appeal.

Trial Court Opinion, 7/15/2016, at 1-2.3

        In Gall's first issue, she complains there was insufficient evidence to

convict     her   of   criminal   trespass/simple   trespasser   because    the

Commonwealth "did not establish that [Gall] knew that she was [] 'not

licensed or privileged to do so' when she entered upon the Heiter premises




3  It merits mention that while the court's Rule 1925(a) opinion was dated
July 15, 2016, it was timestamped and filed three days later.


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to cut the branch that was blacking her private lane."        Gall's Brief at 4.4

Specifically, she states:

               The Trial Court's analysis focused on the variations
        between the crimes of Simple Trespass and Defiant Trespass,
        and concluded that "... while the burden of showing posting or
        indirect or direct notice against trespassing, is an element of the
        crime of defiant trespass, 18 Pa.C.S.A. [§] 3503(b), it is not an
        element of simple trespassing." Trial Court 1925(a) Opinion, at
        7. The Trial Court's Opinion ignores the predicate language to a
        conviction for either defiant trespass or simple trespass that is
        part of the definition of both crimes, namely - "A person
        commits an offense if, knowing that he is not licensed or
        privileged to do so, he enters or remains in any place ..." The
        Trial Court's decision holds that the Commonwealth does not
        need to prove that [Gall] had actual knowledge that she was not
        licensed or permitted to enter upon the H[ie]ter property, which
        is contrary to the explicit language of [] 18 Pa.C.S.A. [§]
        3503(b.1.)[.]

              The Commonwealth offered no evidence, and [Gall] offered
        no testimony, indicating [she] was ever informed that she was
        not permitted on the Hieter property, and [she] did not testify


4    We note that Gall stated this issue somewhat differently in her concise
statement:

        The Commonwealth offered no evidence that there was any
        posting or notice that [Gall] was not permitted on the premises.
        [Gall] only entered upon the premises of the alleged victim to
        remove the tree branch that was completely blocking the right-
        of-way, which amounted to her maintaining the right-of-way so
        that she could use the right-of-way and ensure that emergency
        vehicles could access her premises in the event of a health
        emergency or an emergency that imperiled her property.

Defendant's Concise Statement of Matters Complained of on Appeal,
6/6/2016, at ¶ 2. Nevertheless, we will overlook this slight transgression,
and will decline to find waiver. See Pa.R.A.P. 1925(b)(4)(vii)("Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.").


                                       -4
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        that she had any knowledge that she was not licensed or
        privileged to be there. Consequently, no evidence was before
        the Court to indicate that [Gall] "knew" that she could not enter
        upon the H[ie]ter property.

               The Legislature explicitly states in 18 Pa.C.S.A. [§]
        3503(b.1.) that [Gall] must know that she was not licensed or
        privileged to enter upon the H[ie]ter property.         Here, the
        Commonwealth offered no evidence that could directly, or by
        reasonable inference, establish that [Gall] knew that she was not
        permitted on the premises.

               The Trial Court attempts to use the differences between
        the defiant trespass and simple trespass statutes to support its
        finding of guilt for simple trespass without any evidence of [Gall]
        knowing that she was not permitted on the Hieter property.
        Trial Court 1925(a) Opinion, at 7.       [Gall] acknowledges that
        there are differences between the two crimes, but the
        distinctions do not impact consideration of [Gall]'s claims.

Id. at 5-6.
        Our standard of review when considering     a   challenge to the sufficiency

of the evidence is well -settled:

        The standard we apply ... is whether viewing all the evidence
        admitted at trial in the light most favorable to the verdict winner,
        there is sufficient evidence to enable the fact -finder to find every
        element of the crime beyond a reasonable doubt. In applying
        [the above] test, we may not weigh the evidence and substitute
        our judgment for the fact -finder. In addition, we note that the
        facts and circumstances established by the Commonwealth need
        not preclude every possibility of innocence.             Any doubts
        regarding a defendant's guilt may be resolved by the fact -finder
        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. The Commonwealth may sustain its burden of
        proving every element of the crime beyond a reasonable doubt
        by means of wholly circumstantial evidence.            Moreover, in
        applying the above test, the entire record must be evaluated and
        all evidence actually received must be considered. Finally, the
        [trier] of fact while passing upon the credibility of witnesses and


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        the weight of the evidence produced, is free to believe all, part
        or none of the evidence.

Commonwealth v. Beasley, 138 A.3d 39, 45                    (Pa. Super. 2016) (citations

omitted), appeal denied,                A.3d        ,   [218 WAL 2016] (Pa. Nov. 22,

2016).

        The crime of criminal trespass/simple trespasser is defined, in relevant

part, as follows:

        (b.1) Simple 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
        for the purpose of:



              (iii) defacing or damaging the premises; []



        (2) An offense under paragraph (1)(iv) constitutes a first degree
        misdemeanor. An offense under paragraph (1)(i), (ii) or (iii)
        constitutes a summary offense.

18 Pa.C.S §       3503(b.1)(1)(iii), (2). The defenses for criminal trespass are

codified as follows:

        (c)   Defenses.
        section that:
                             -   It   is a   defense to prosecution under this


              (1) a building or occupied structure involved in an offense
              under subsection (a) of this section was abandoned;

              (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; or



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           (3) the actor reasonably believed that the owner of the
           premises, or other person empowered to license access
           thereto, would have licensed him to enter or remain.

18 Pa.C.S. § 3503(c).

        Here, the trial court found the following:

        [Gall] was cited for criminal trespass for entering her neighbor's
        property and damaging her neighbor's apple tree on July 14,
        2015. [Gall] acknowledged that she knew that the base of the
        tree from which she was cutting the branch was on her
        neighbor's property.        [Gall] acknowledged entering the
        neighbor's property with the knowledge that it was her
        neighbor's property for the specific purpose of cutting off her
        neighbor's tree branch. [Gall] acknowledged in fact cutting off
        her neighbor's tree branch.        The [trial c]ourt found from
        circumstantial evidence that the Commonwealth had proven
        beyond a reasonable doubt that [Gall] knew she was not
        licensed or privileged to be on her neighbors' property to cut
        down the apple tree branch.



              [Gall] essentially argues that she did not know that she
        was not privileged or licensed to enter onto her neighbor's
        property, that she was permitted on the property for the purpose
        of removing a personal hazard to her health, and that she did
        not have the specific intent of defacing or damaging the
        premises.



        [Gall] alleges that the Commonwealth presented no evidence
        that, "there was any posting or notice that [Gall] was not
        permitted on the premises." However, while the burden of
        showing posting or indirect or direct notice against trespassing,
        is an element of the crime of defiant trespass, 18 Pa.C.S.A. §
        3503(b), it is not an element of simple trespassing. See Corn. v.
        Bennett, 124 A.3d 327 (Pa. Super. 2015) (Evidence that
        defendant, who had been informed multiple times that he was
        not to be on victim's property, and whom was apprehended on
        the property twice, was sufficient to support defiant trespass
        conviction.); Com v. Namack, 663 A.2d 191 (Pa. Super. 1995)

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        (In order to establish crime of defiant trespass it is necessary to
        prove that defendant: entered or remained upon the property
        without right to do so; while knowing that he had no license or
        privilege to be on property; and after receiving direct or indirect
        notice against trespass); Corn. v. Hagan, 654 A.2d 541 (Pa.
        Super. 1995); Com. v. Sherlock, 473 A.2d 629 (Pa. Super.
        1984). The Pennsylvania Legislature placed the requirement of
        demonstrating that the property had been posted or that the
        defendant had actual or indirect notice in 18 Pa.C.S.A. §
        3503(b), but chose not to add that element in 18 Pa.C.S.A. §
        3503(b.1), when it created the offense of simple trespasser on
        October 27, 1995. See 1995 Pa. Legis. Serv. Act 1995-53 (S.B.
        223). When interpreting statutes, "where Congress includes
        particular language in one section of a statute but omits it in
        another ..., it is generally presumed that Congress acts
        intentionally and purposely in the disparate inclusion or
        exclusion." Keene Corp. v. United States, 508 U.S. 200, 208
        (1993), quoting Russello v. United States, 464 U.S. 16, 23
        (1983). See also, Hamdan v. Rumsfeld, 548 U.S. 557, 578
        (2006) ("A familiar principle of statutory construction ... is that a
        negative inference may be drawn from the exclusion of language
        from one statutory provision that is included in other provisions
        of the same statute."). Thus, the Court concludes that [Gall's
        contention] ... is meritless as the Commonwealth was not
        required to produce evidence of any posting or actual notice to
        [Gall] that [she] was not permitted on the premises prior to July
        14, 2015.

Trial Court Opinion, 7/15/2016, at 4-8. Additionally, the court explained:

        Intent may be proved by circumstantial evidence.        Proof of a
        defendant's knowledge of his lack of license or privilege to enter
        onto property may also be inferred from circumstantial evidence.
        Commonwealth v. Gordon, 477 A.2d 1342, 1348 (Pa. Super.
        1984). In Commonwealth v. Gordon, the Pennsylvania Superior
        Court found that the evidence was sufficient to show Defendant's
        knowledge that he lacked a license or privilege to enter a
        building, when "the fact that he knew could be inferred from the
        evidence of the time and manner of his entry." Id. at 1348. In
        Gordon, the [d]efendant had entered a locked school building at
        night using force. Id. at 1347-1348.

             Here, Ms. H[ie]ter testified that she drives past the
        easement, which is on her left, to go to work. Mr. Goldman

                                        - 8 -
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        testified that he heard the chainsaw and the large cracking
        sound and saw [Gall]'s truck going by, towing this huge branch
        from Ms. H[ie]ter's property around 11:30 am on July 14, 2015.
        July 14, 2015, was a Tuesday. It was permissible for the Court
        to infer by [Gall]'s choice in choosing to cut down the branch at
        a time Ms. H[ie]ter would not have been home, that [Gall] knew
        she was not licensed or privileged to enter Ms. H[ie]ter's
        property to cut down the branch. Ms. H[ie]ter also testified that
        she was never approached about the tree branch nor did she
        receive any correspondence from [Gall] requesting that she
        remove the tree branch. Additionally, [Gall] testified that:

          THE WITNESS: I had to do what I could do.

          THE COURT: Okay. Well, so here we are on the trespass,
          and so there's a consequence of that.

          THE WITNESS:       But there was nothing there to say I
          couldn't go up there. There was nothing there, no signs or
           nothing.   They posted, actually, their signs into my
           easement, in other words, with the - may I say
           something?

          THE WITNESS:     There was time when they encroached on
          my easement there, trying to take it on me, and it cost me
          thousands of dollars in court to establish that I had the
          right to that road. They were pushing dirt on my - they
          built a shed a foot over their property line without a
          permit, and I have no -

           MS. H[IE]TER: That's irrelevant.

           [THE COMMONWEALTH]:       It's okay.

          THE WITNESS: -- other way to explain the need to go on
          there and just take care of it myself.

        See N.T.,   4/14/16, at 37:25-28:15.      As the Court stated in
        response    to    [defense    counsel]'s  argument that      the
        Commonwealth had not proven that [Gall] knew that she was
        not licensed or privileged to be on the property, "The problem I
        have with that is she seems all too aware of where the easement
        line is and where her property is and where her property isn't.
        She acknowledges that she went four steps onto her neighbor's

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        property." See N.T., 4/14/16, at 44:19-23. Considering all the
        testimony in the light most favorable to the Commonwealth[,]
        the Court concludes that the Commonwealth proved beyond a
        reasonable doubt through circumstantial evidence that [Gall]
        knew that she was not licensed or privileged to enter onto her
        neighbor's property to cut down the apple tree branch.
        Furthermore, as has already been stated above, [Gall] has been
        quite forthright about her entry onto Ms. H[ie]ter's land having
        the sole destructive purpose of removing the apple tree branch
        that was hanging in the easement.

Trial Court Opinion, 7/15/2016, at 12-14 (some citations omitted).

        We agree with the trial court's well -reasoned analysis.               First, with

respect to her claim that the trial court improperly focused on the variations

between simple trespasser and defiant trespasser, we note the court's

discussion on the two subsections was because Gall relied on the wrong

provision of the criminal             trespass statute in    her concise statement.

Compare 18 Pa.C.S.           §   3503(b.1) (the crime Gall was charged with) with 18

Pa.C.S. § 3503(b).           As indicated above, in Gall's concise statement, she

alleged the Commonwealth presented no evidence that "there was any

posting    or    notice      that [she]    was   not   permitted   on    the   premises."

Defendant's Concise Statement of Matters Complained of on Appeal,

6/6/2016, at      '11   2.   The trial court was merely pointing out the different

elements        required for simple        trespasser and    defiant trespasser and

explaining how the element of posting or giving notice             is   not necessary to

prove the crime of simple trespasser.

        Furthermore, based on all the evidence presented at trial, it                   is

reasonable to infer that Gall knew she was not licensed or privileged to

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damage the tree on her neighbor's property.       Via counsel, Gall admitted she

cut down the tree limb that was on Hieter's property.        N.T., 4/14/2016, at

10-11.5 Furthermore, as noted above, Hieter took the stand and testified to

the following:

         [Commonwealth]:      Did you have any conversations with Ms.
         Gall? Did she approach you and say, hey, the tree's in my way;
         can you cut it down?

         [Hieter]: No, not at all.

         [Commonwealth]: Did you receive any letter or correspondence
         from her suggesting that the tree's in the way; cut it down?

         [Hieter]: Not at all. She just did it.

         [Commonwealth]: Did she ask your permission to come on the
         property to cut it down?

         [Hieter]: No, she did not.

Id. at   22.

         Both Gall and Hieter's testimony, which the trial court found credible,

clearly established Gall knew she was not licensed or privileged to go on

Hieter's land and remove the limb.           See 18 Pa.C.S   §   3503(b.1)(1)(iii).

Accordingly, the evidence was sufficient to sustain    a   conviction for criminal

trespass/simple trespasser. Therefore, Gall's first issue fails.




5 The investigating officer also testified that Gall told him: "Gall admitted to
me that she walked onto Ms. Hieters' property, used an electric chain saw to
essentially cut the branch down, and then after successfully doing so, she
indicated she towed it back onto her property." Id. at 12.
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         In her second issue, which        is   related to the first, Gall claims the court

erred by ruling the defense of justification by necessity, as codified in 18

Pa.C.S. § 501         et seq.,6 was irrelevant to her case. See Gall's Brief at          7.

She states her "conduct was to avoid                a    'harm or evil,' namely the harm of

not being able to receive emergency services at her home," and therefore,

she "was privileged to enter upon the Hieters' property to cut the potentially

harmful branch." Id. at 9.7

6
     Justification   is   generally defined as follows:

         (a) General rule.
         necessary to avoid
                                    -harm
                                    a
                                      Conduct which the actor believes to
                                          or evil to himself or to another
                                                                                   be
                                                                                   is
         justifiable if:

            (1) the harm or evil sought to be avoided by such conduct
            is greater than that sought to be prevented by the law
            defining the offense charged;

            (2) neither this title nor other law defining the offense
            provides exceptions or defenses dealing with the specific
            situation involved; and

            (3)   a legislative purpose to exclude the justification
            claimed does not otherwise plainly appear.

         (b)     Choice of evils.         -
                                        When the actor was reckless or
         negligent in bringing about the situation requiring a choice of
         harms or evils or in appraising the necessity for his conduct, the
         justification afforded by this section is unavailable in a
         prosecution for any offense for which recklessness or negligence,
         as the case may be, suffices to establish culpability.

18 Pa.C.S. § 503.

    Moreover, she argues:

(Footnote Continued Next Page)


                                                - 12 -
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        Before we may address the merits of this claim, we note       a   review of

the record reveals Gall did not set forth the justification defense issue in her

concise    statement.     See Defendant's       Concise   Statement of Matters
(Footnote Continued)

        [Gall] sought to introduce necessity as a defense of justification,
        but the Court specifically ruled that necessity was not a defense
        when the Court stated, "I don't see that necessity is a defense.
        Again, the necessity would be as to why she had to go onto the
        property as opposed to cutting the limb at the edge of the
        easement, and that's not what's in front of us today." ...
        Accordingly, to the extent that the Trial Court, in its [Rule]
        1925(a) Opinion, claims that it did not preclude [Gall] from
        offering evidence about her medical conditions, the foundation of
        her necessity defense, those conclusions are belied by the
        record, in which the Trial Court explicitly declared that it would
        not consider the defense of justification by necessity. [Gall]
        could not have been expected to attempt to offer further
        testimony on her medical conditions when the Trial Court
        explicitly stated that it found that it would not consider
        justification as a defense.

              The Trial Court's citation to Jones v. Wagner, 624 A.2d 166
        (Pa. Super. 1993), stating the law that a neighboring landowner
        can cut off a branch at a property line, is instructive, as it
        demonstrates a well -settled principle in the civil law that a non -
        owner of vegetative property, like a tree, is privileged to
        physically damage the property when it is intruding onto her
        property. The privilege is absolute. There need be no necessity,
        no emergency, and no harm or evil caused by the intruding
        vegetation.

               On the  other hand, in this case, as [Gall] testified, she
        needed to cut the branch to open her private road to make it
        accessible to emergency vehicles. The perceived harm was real,
        and it was immediate - a medical incident requiring emergency
        medical treatment can arise suddenly and instantaneously. And,
        [Gall] acted in a manner designed to relieve the harm.

Id. at 9-10.


                                       - 13 -
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Complained of on Appeal, 6/6/2016, at             1111   1-7.   As such, the trial court did

not address that challenge in its Rule 1925(a) opinion.                  Rather, the court

analyzed the following issue by Gall:                 "[Gall]'s entry upon the alleged

victim's premises was for the sole purpose of maintaining the right-of-way,

and not to intentional[ly] deface or damage the alleged victim's property."

Id. at    113.        In addressing this claim, the court discussed the three defenses

permitted under the criminal trespass statute.                  See 18 Pa.C.S   §   3503(c);

see also Trial Court Opinion, 7/15/2016, at 8-10.                     Accordingly, we find

Gall's second issue waived.               See Pa.R.A.P. 1925(b)(4)(vii)("Issues not

included         in    the Statement and/or not raised           in   accordance with the

provisions of this paragraph (b)(4) are waived.").8

         Judgment of sentence affirmed.

         Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Es           .


Prothonotary


Date: 5/5/2017


    We note that unlike the first issue, this second claim was substantially
different from what was raised in the concise statement and therefore, we
find that waiver is necessary.


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