J-S77006-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA


                       v.

LIBBY ANN SAMANTHA BELGRAVE

                            Appellant                    No. 390 MDA 2016


            Appeal from the Judgment of Sentence January 19, 2016
               In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0001890-2014


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.

MEMORANDUM BY PANELLA, J.                           FILED DECEMBER 02, 2016

        Appellant, Libby Ann Samantha Belgrave, appeals from the judgment

of sentence entered in the Dauphin County Court of Common Pleas, Criminal

Division, following her jury trial conviction for criminal trespass.1 We affirm.

        The trial court set forth the facts of this case as follows:

        In August [2012], [the c]ourt, by the Honorable Bruce Bratton,
        awarded Mr. Belgrave [(Appellant’s former husband)] sole
        custody of their two children. Mr. Belgrave resides with the
        children and his companion, Ms. Tasha Gillis in an apartment at
        1417 Market Street, Harrisburg. Judge Bratton’s [o]rder directed
        that [Appellant] exercise visitation under supervision at the
        Harrisburg YWCA.



____________________________________________



    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3503(b)(1)(i).
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        On the morning of March 3, 2014, [Appellant] appeared at Mr.
        Belgrave’s apartment. [Appellant] banged on the door, cursed,
        and demanded to see the children and accused Mr. Belgrave of
        kidnapping them. Mr. Belgrave told [Appellant] to stay away. Mr.
        Belgrave closed the door and called the police. Police arrived and
        ordered [Appellant] to leave and not return to the apartment
        building. Police gave Mr. Belgrave a card which documented the
        warning to [Appellant]. [The police] instructed Mr. Belgrave to
        [give] the card to police should [Appellant] return. Even after
        police ordered her to leave, [Appellant] lingered on the sidewalk.

        Later that day, [Appellant] returned to the apartment and
        knocked on the door. As Ms. Gillis opened the door, [Appellant]
        began screaming about the children. Ms. Gillis told [Appellant] to
        leave. [Appellant] grabbed Ms. Gillis by the neck and scratched
        her with either keys or her nails and inflicted a mark near Ms.
        Gillis’ eye. A neighbor intervened. Ms. Gillis called police as
        [Appellant] drove away in a U-Haul. The U-Haul hit a school
        vehicle then pulled away without stopping.

        Officer Brandon Yeager of the Harrisburg City Police responded
        to the apartment while other officers located [Appellant]. Officer
        Yeager observed a scratch and minor swelling on Ms. Gillis.

        Officer Yeager met with [Appellant] at 6th and Woodbine Streets
        where other officers located her. He observed no injuries on
        [Appellant].

Trial Court Opinion, filed 5/26/16, at 2-3 (internal citations to the record

omitted).

        Procedurally, the Commonwealth charged Appellant with simple

assault and criminal trespass.2 Following Appellant’s failure to appear for her

preliminary hearing and the issuance of a bench warrant for her arrest,

Appellant entered a plea of “not guilty.” The court held a jury trial and the

____________________________________________


2
    18 Pa.C.S.A. §§ 2701(a)(1), 3503(b)(1)(i), respectively.



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jury convicted Appellant of criminal trespass, but was hung as to whether

Appellant committed simple assault. The court sentenced Appellant to 12

months of probation, to pay a fine of $250.00, to complete a psychological

examination and 6 classes of an anger management program, and to avoid

contact with Ms. Gillis and Mr. Belgrave’s residence.

      Appellant filed a post sentence motion arguing the jury’s verdict was

against the weight of the evidence. The court denied Appellant relief.

Appellant filed a timely notice of appeal.

      Appellant raises two issues for our review:

      WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS
      INSUFFICIENT TO SUSTAIN THE CONVICTION OF [] APPELLANT
      FOR DEFIANT TRESPASS?

      DID THE TRIAL COURT ABUSE ITS DISCRETION WHEN IT
      DENIED APPELLANT’S MOTION FOR A NEW TRIAL BASED ON
      THE WEIGHT OF THE EVIDENCE FOR THE OFFENSE [OF]
      DEFIANT TRESPASS BECAUSE THE VERDICT WAS SO CONTRARY
      TO THE EVIDENCE TO SHOCK ONE’S SENSE OF JUSTICE?

Appellant’s Brief, at 8.

      Appellant first challenges the sufficiency of the evidence. A challenge

to the sufficiency of evidence implicates the following principles:

      The standard we apply in reviewing the sufficiency of the
      evidence 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

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

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citations

omitted).

       The Pennsylvania Crimes Code provides the following definition for

criminal trespass:

          § 3503. Criminal trespass

                                       *       *   *

              (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;

                                       *       *   *

18 Pa.C.S.A. § 3503(b)(1)(i).3

____________________________________________


3
  We recognize that subsections (b.1)(1)(iv) and (b.1)(2) of 18 Pa.C.S.A. §
3503 Criminal trespass were recently declared unconstitutional in Leach
v. Commonwealth, 141 A.3d 426 (Pa. 2016) (holding that 18 Pa.C.S.A. §
3503(b.1)(1)(iv), (b.1)(2) violates the single-subject rule of Article III,
Section 3 of the Pennsylvania Constitution). However, we note the holding in
(Footnote Continued Next Page)


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       Appellant argues the Commonwealth failed to establish the elements

of criminal trespass because the Commonwealth did not present evidence

that   Appellant   entered       Mr.    Belgrave’s   residence.   Instead,   Appellant

emphasizes that she stood on the sidewalk while requesting to see her

children and the Commonwealth failed to demonstrate that Appellant could

not be standing on the sidewalk while requesting to see her children.

Appellant further maintains the Commonwealth failed to produce a court

order indicating Appellant was prohibited from visiting her children at Mr.

Belgrave’s residence. Thus, Appellant claims insufficient evidence supports

her conviction for criminal trespass because she was permitted to be at Mr.

Belgrave’s residence.

       Instantly, the trial court addressed this issue as follows:

       [Appellant] received actual notice of the prohibition from
       returning. Earlier that day, Mr. Belgrave told [Appellant] to leave
       and not return. Police also told [Appellant] to stay away and
       provided Mr. Belgrave with a note evidencing their warning to
       her. [Appellant] acted in defiance of such actual communication
       by returning to the premises later the same day.

       [Appellant] having received notice against trespass by actual
       communication, the Commonwealth was not required to prove,
       as [Appellant] suggests, that a [c]ourt [o]rder barred her from
       the premises.

Trial Court Opinion, filed 5/26/16, at 4 (internal citations to the record

omitted).
                       _______________________
(Footnote Continued)

Leach does not affect our disposition in the instant case because Appellant
was sentenced under subsection (b)(1)(i).



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       The record supports the trial court’s reasoning. Appellant’s claim that

she was permitted to be at Mr. Belgrave’s residence was obviously rejected

by the members of the jury who were the sole judges of credibility at trial.

See Hansley, 24 A.3d at 416.

       Appellant next contends the court improperly instructed the jury to

consider that the police contacted Appellant, stated she was prohibited from

returning to Mr. Belgrave’s residence, and gave a card to Mr. Belgrave

documenting Appellant’s notice of prohibition as a basis for the charge of

criminal trespass. Appellant complains the court did not state the jury should

first determine Mr. Belgrave’s credibility and then determine whether to

believe the police contacted Appellant. Appellant further complains the

Commonwealth failed to question Mr. Belgrave regarding whether the police

actually contacted Appellant and failed to introduce an incident report

detailing these events. Based on the foregoing and in light of the fact that

the jury was hung regarding Appellant’s simple assault charge, Appellant

asserts her criminal trespass verdict shocks one’s sense of justice.4 Appellant

concludes this Court should vacate Appellant’s sentence and order her a new

trial. We disagree.
____________________________________________


4
  We note Appellant objects to the trial court’s issuance of an instruction in
the context of a weight-of-the-evidence claim, which we observe has been
properly preserved for appellate review. However, to the extent Appellant’s
argument may be construed as an objection to the trial court’s instruction in
and of itself, that claim is waived for Appellant’s failure to object to the jury
instructions. See Pa.R.A.P. 302(b).



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      The weight of the evidence is exclusively for the finder of fact
      who is free to believe all, part, or none of the evidence and to
      determine the credibility of the witnesses. An appellate court
      cannot substitute its judgment for that of the finder of fact.
      Thus, we may only reverse the lower court’s verdict if it is so
      contrary to the evidence as to shock one’s sense of justice.
      Moreover, where the trial court has ruled on the weight claim
      below, an appellate court’s role is not to consider the underlying
      question of whether the verdict is against the weight of the
      evidence. Rather, appellate review is limited to whether the trial
      court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (internal

citations omitted).

      Here, the trial court gave the following instruction to the jury:

      [Attorney DeStefano (counsel for Appellant)]: Thank you, Judge.
      May we approach briefly?

      [The court]: Yes.

                                  *    *    *

      (A discussion was held off the record at sidebar.)

                                  *    *    *

      (The following discussion was held on the record at sidebar:)

      [The court]: All right. Counsel has raised the issue that there
      was prior police contact discussed in the opening. I’m going to
      briefly clarify—It would be objectionable; however, what he was
      referring     to,   [Attorney]    Wilson     [(counsel    for    the
      Commonwealth)], was that she in prior times was told not to be
      there, which is the basis for the charge of defiant trespass
      because you can’t be defiant if you haven’t been told, so I’m
      going to indicate to the jury that—and cure what could be a
      defect here. I’m going to tell the jury that the prior contact [has]
      nothing to do with the other charges and so one but that has
      simply to do with the fact that she was told to stay away from
      the property and by coming this time she allegedly, she may


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     have violated that and that forms the basis for the charge of
     defiant trespass.

     [Attorney DeStefano]: Thank you.

     (Discussion at sidebar was concluded.)

                                   *    *    *

     [The court]: Ladies and gentlemen, during the [opening],
     [Attorney] Wilson indicated there was a prior police contact. It
     did not involve other charges. It is the contact of don’t come to
     this house again that forms the basis for the defiant trespass
     because a defiant trespass is you’ve been told stay away and
     you defy that, you come back, allegedly. That’s all we are
     saying. So we want you to understand it’s not because she
     committed other acts. It only is the basis of the defiant trespass,
     being told to stay away, and then allegedly coming back in
     defiance of that warning.

N.T., Trial, 10/8/15, at 11-13. The court addressed Appellant’s issue in its

Rule 1925(a) opinion as follows:

     The [c]ourt properly articulated in its cautionary instruction the
     purpose for which the jury could consider evidence [of the] prior
     police contact, that is, whether [Appellant] received a warning
     which she disregarded. The instruction cured the potential that
     the jury would consider the evidence for an improper purpose. . .
     . Counsel did not object to the adequacy of the cautionary
     instruction.


                                *   *    *
     The weight of the evidence supports the jury’s findings. [T]he
     evidence demonstrated that police and Mr. Belgrave instructed
     [Appellant] to stay away from the premises. The jury could
     easily conclude that she defied that instruction by returning to
     the premises that afternoon.

     Finally, the jury’s inability to reach a verdict charge of [s]imple
     [a]ssault does not call into question the verdict on the charge of
     [d]efiant trespass. It was within the province of the jury to



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      evaluate the credibility of each witness as [his or her] testimony
      related to the two charges. . . .

Trial Court Opinion, at 6-7 (internal citations omitted).

      The trial court did not abuse its discretion in rejecting Appellant’s claim

that the verdict was against the weight of the evidence. See Champney,

832 A.2d at 408.

      Based on the foregoing, we conclude Appellant’s issues are without

merit. Accordingly, we affirm.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/2/2016




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