J-A09031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellee                 :
               v.                              :
                                               :
    RACHEL C. ZIEGLER                          :
                                               :
                      Appellant                :       No. 1099 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-0000099-2016


BEFORE:      GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.:                             FILED APRIL 27, 2017

        Appellant, Rachel C. Ziegler, appeals from the judgment of sentence

entered in the Cumberland County Court of Common Pleas, following her

bench trial conviction for the summary offense of defiant trespass—actual

communication.1 We affirm.

        In its opinion, the trial court fully and correctly set forth the relevant

facts of this case as follows:

           On January 26, 2016, [Appellant and co-defendant] rang
           the doorbell at a fur shop known as Charles Exclusive
           Furriers.  When the shop owner came to the door,
           [Appellant and co-defendant] told her they were curious
           about the shop’s products. She allowed them to enter.
           After entering the shop, [Appellant and co-defendant]
           began touching the furs asking questions about the furrier
           process. Suddenly, their “tone” changed, as they began
____________________________________________


1
    18 Pa.C.S.A. § 3503(b)(1)(i).
J-A09031-17


          referencing the Bible and asking the shop owner if she
          thought she was God. At that point, the shop owner asked
          them to leave. She repeated the request multiple times
          but [Appellant and co-defendant] would not go.

          Something akin to a scuffle occurred as the owner
          attempted to usher [Appellant and co-defendant] from the
          shop area into the lobby.          During the scuffle, [co-
          defendant] thrust her cell phone into the shop owner’s
          face.      The owner somehow got possession of both
          [Appellant’s and co-defendant’s] phones as she ushered
          them outside 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 co-defendant] ran
          screaming behind her. [Appellant and co-defendant] were
          still in the lobby when the police arrived.

(Trial Court Opinion, filed September 16, 2016, at 1-2) (internal footnotes

and citations to record omitted).

        Procedurally, the Commonwealth charged Appellant with defiant

trespass—actual communication. On March 31, 2016, the magisterial district

court found Appellant guilty of defiant trespass—actual communication.

Appellant timely filed a notice of summary appeal in the Court of Common

Pleas on April 8, 2016. The court held a bench trial de novo on June 14,

2016.      The court found Appellant guilty of defiant trespass—actual

communication and sentenced her to 90 days’ probation, plus costs and

fines. Appellant timely filed a notice of appeal on July 6, 2016. On July 12,

2016, the court ordered Appellant to file a concise statement of errors

complained of on appeal per Pa.R.A.P. 1925(b), which she timely filed on

July 28, 2016.

                                     -2-
J-A09031-17


      Appellant raises one issue for our review:

         DID APPELLANT HAVE THE MENS REA TO COMMIT THE
         CRIME OF TRESPASS?

(Appellant’s Brief at 4).

      Appellant claims she became a business invitee when the owner

invited Appellant into the fur shop. Appellant maintains that once the owner

asked Appellant to leave, she attempted to exit the shop, but the owner

prevented Appellant from leaving by confiscating her cell phone. Appellant

insists she would have left the shop if the owner had not taken Appellant’s

cell phone. Appellant avers she remained in the vestibule outside the shop

because she was waiting for the police to arrive.        Appellant explains she

remained at the scene until the police arrived because the owner still had

physical possession of Appellant’s cell phone.         Appellant concludes the

Commonwealth failed to produce sufficient evidence to establish she had the

mens rea necessary to commit the crime of defiant trespass.

      In a related argument, Appellant states she was inside the fur shop

lawfully because the shop was open to the public. Appellant continues she

“had complied with all ‘lawful conditions’ for remaining on the premises...”

(Id. at 11). Appellant asserts refusing to leave the shop immediately after

the owner asked her to leave does not rise to a conviction of defiant

trespass.    Appellant concludes Section 3503(c)(2) of the Pennsylvania

Crimes Code provides an affirmative defense that precludes a conviction of

defiant trespass under these circumstances.        For these reasons, Appellant

                                    -3-
J-A09031-17


requests that we overturn her conviction. We disagree.

      As a preliminary matter, generally “[i]ssues 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. Wanner, 2017 PA Super 81, at *2 (filed March 28, 2017) (quoting

Commonwealth v. York, 465 A.2d 1028, 1032 (Pa.Super. 1983)).

Likewise, as a general rule, any issue not raised in a Rule 1925(b) statement

will be deemed waived for appellate review. Commonwealth v. Castillo,

585 Pa. 395, 888 A.2d 775 (2005).

      The Pennsylvania Crimes Code defines defiant trespass and the

relevant affirmative defense as follows:

         § 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;

                                   *    *    *

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

                                   *    *    *


                                       -4-
J-A09031-17


              (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.A.     §   3503(b)(1)(i),         (c)(2).2   “The   crime   of   defiant

trespass…includes an element of intent or mens rea.              …   This element of

intent, like every other element of the crime, must be proven beyond a

reasonable doubt if the conviction is to survive a challenge to the sufficiency

of the evidence.”         Commonwealth v. Namack, 663 A.2d 191, 194

(Pa.Super. 1995).

       A challenge to the sufficiency of the evidence implicates the following

legal 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 evidence is so weak and inconclusive that as a matter
          of law no probability of fact may be drawn from the
____________________________________________


2
  The Pennsylvania Supreme Court has declared Section 3503(b.1)(1)(iv)
and (b.1)(2) unconstitutional as violative of the single subject rule. See
Leach v. Commonwealth et al., ___ Pa. ___, 141 A.3d 426 (2016). This
declaration does not affect the subsections of the statute relevant to the
present case.



                                           -5-
J-A09031-17


          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 [finder] 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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005)

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super.

2003)).

     Instantly, to the extent Appellant raises an affirmative defense for the

first time on appeal, her claim is waived because she failed to raise the

defense in the trial court, and she made no mention of it in her Rule 1925(b)

statement. See Pa.R.A.P. 302(a); Castillo, supra; Wanner, supra; York,

supra.

     After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Edward E.

Guido, P.J., we conclude Appellant’s remaining issue merits no relief.    The

trial court opinion comprehensively discusses and properly disposes of the

question presented. (See Trial Court Opinion, filed September 16, 2016, at

2-3) (finding: Appellant gained access to premises on false pretense she was

customer of fur shop; Appellant’s true reason for entering shop was to

confront owner about selling animal furs; when Appellant’s purpose became

apparent, shop owner told Appellant to leave; despite multiple demands,


                                      -6-
J-A09031-17


Appellant refused to leave; Appellant’s argument that she refused to leave

because shop owner had taken her cell phone fails; crime had occurred

before shop owner took Appellant’s cell phone because owner had already

revoked Appellant’s privilege to remain in shop; Appellant’s refusal to leave

was part of her plan to harass shop owner). Accordingly, we affirm on the

basis of the trial court opinion.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/27/2017




                                    -7-
