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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :    IN THE SUPERIOR COURT OF
                                               :         PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    NADON ESTES                                :
                                               :
                       Appellant               :    No. 380 WDA 2019


       Appeal from the Judgment of Sentence Entered, February 5, 2019,
              in the Court of Common Pleas of Allegheny County,
            Criminal Division at No(s): CP-02-CR-0005116-2018.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY KUNSELMAN, J.:                           FILED JANUARY 13, 2020

        Nadon Estes appeals from the judgment of sentence imposed following

his conviction for defiant trespass.1 We affirm.

        The relevant facts are as follows.         Estes’s grandmother lived in an

apartment in the East Hills Community apartment complex at 2302 Wilner

Drive, in Pittsburgh, Pennsylvania. In November of 2017, a notice of defiant

trespass was issued against Estes by the complex management. The trespass

notice in question identified Estes as a black male with brown skin, a thin

build, and a high-top hairstyle.         Agent Michael Gressem, who supervises

security at the apartment complex, personally served the trespass notice on

Estes on November 17, 2017. The trespass notice specifically identified the


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1   18 Pa.C.S.A. § 3503(b)(1)(i).
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apartment at 2302 Wilner Drive; however, it additionally stated that Estes was

excluded from the entire complex for the rest of his life, including all

apartments, buildings, parking lots, and streets.

       Two months later, on January 19, 2018, Agent Gressem, accompanied

by complex security guard Mark Strunk, responded to a complaint regarding

unknown persons inside the apartment at 2302 Wilner Drive. Upon arrival at

the apartment, Agent Gressem and Mr. Strunk immediately recognized Estes

based on their previous encounters with him, and because of his distinctive

flat-top hairstyle. Mr. Strunk also recognized Estes because his grandmother’s

apartment was located across the hallway from the complex’s security office,

and in the past, he had seen Estes on a daily basis. Mr. Strunk, who knew

that Estes had been served with a notice of defiant trespass, placed him in

handcuffs, and called Pittsburgh police to make an arrest.

       Estes was thereafter arrested and charged with defiant trespass.2    A

non-jury trial took place on February 5, 2019. At trial, the Commonwealth

presented the testimony of Agent Gressem, Mr. Strunk, and the arresting

officer, Detective Nicole Rapinski. Estes presented the testimony of his aunt,

Chemere Estes, who stated that Estes’s father, Vernon Nadon Estes, also goes

by the name “Nadon Estes,” and that, at one point, he was not supposed to

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2 Estes was initially charged pursuant to 18 Pa.C.S.A. § 3503(b)(1)(ii).
However, prior to trial, the Commonwealth amended the defiant trespass
charge to reflect that it was based on § 3503(b)(1)(i).



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be on the property.3 Ms. Estes further testified that, on the day of Estes’s

arrest, she had asked him to come to the apartment to help her clean out her

mother’s apartment. Ms. Estes’s mother, who is also Estes’s grandmother,

had been hospitalized for three months, and Ms. Estes testified that she took

care of her mother’s apartment during this time period.

       Estes also testified in his defense, and admitted that he had worn a high-

top hairstyle in the past. He claimed that he was at the apartment complex

at the request of Ms. Estes on the date of his arrest. He further testified that

he believed that he was permitted to be on complex property.              At the

conclusion of trial, the court found Estes guilty of defiant trespass. Estes filed

a timely notice of appeal.         Both Estes and the trial court complied with

Pa.R.A.P. 1925.

       Estes raises the following issue for our review:

       Whether the evidence is insufficient to support Mr. Estes’s
       conviction for defiant trespass when the Commonwealth failed to
       disprove beyond a reasonable doubt Mr. Estes’s affirmative
       defense that he reasonably believed that he had been given
       permission to enter the property by someone licensed to do so?

Estes’s Brief at 5 (unnecessary capitalization omitted).

       Our standard of review of a sufficiency claim is as follows:

             [W]e evaluate the record in the light most favorable to the
       verdict winner giving the prosecution the benefit of all reasonable
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3 Ms. Estes did not identify the time period during which Estes’s father was
not supposed to be at the apartment, or whether complex management had
issued him a defiant trespass notice. Nor did she provide a physical
description of Estes’s father.

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      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it establishes each
      material element of the crime charged and the commission thereof
      by the accused, beyond a reasonable doubt. Nevertheless, the
      Commonwealth need not establish guilt to a mathematical
      certainty. [T]he facts and circumstances established by the
      Commonwealth need not be absolutely incompatible with the
      defendant’s innocence. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super. 2013) (citations

and quotation marks omitted). The finder of fact is free to believe all, part,

or none of the evidence presented, and determines the credibility of the

witnesses. Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013)

(en banc).

      The crime of defiant trespass is set forth in 18 Pa.S.C.A. § 3503(b)(1),

which provides, in pertinent part: “[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[.]”   Defiant trespass contains an element of intent or mens rea;

thus, a person committing that offense must know he is not privileged to enter

the premises. Commonwealth v. White, 174 A.3d 61 n.1 (Pa. Super. 2017).

(observing that defiant trespass under 18 Pa.C.S.A. § 3503(b)(1) includes an

element of intent or mens rea, similar to the crime of criminal trespass under

§ 3503(a)(1)).    Thus, in order to establish a violation under subsection

3503(b)(1)(i), it is necessary to prove that the defendant: (1) entered or


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remained upon property without a right to do so; (2) while knowing that he

had no license or privilege to be on the property; and (3) after receiving direct

or indirect notice against trespass. See Commonwealth v. Wanner, 158

A.3d 714, 718 (Pa. Super. 2017).

      A defense to this crime is established when the defendant demonstrates,

inter alia, that he or she “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.A. § 3503(c)(3).

      Estes challenges the sufficiency of evidence regarding his mens rea to

commit criminal trespass. He asserts that his aunt had dominion and control

over his grandmother’s apartment while she was hospitalized. Estes argues

that he reasonably believed that he was permitted to be on the complex

grounds when his aunt invited him to come to his grandmother’s apartment.

Estes asserts that, once he presented evidence at trial of his reasonable belief

that he was permitted at the East Hills Community apartment complex, the

Commonwealth bore the burden of disproving his affirmative defense beyond

a reasonable doubt.     Estes argues that the Commonwealth failed to offer

sufficient evidence to disprove his “reasonable belief” affirmative defense. He

additionally claims that, in finding Estes guilty, the trial court improperly relied

on its disbelief of Estes’s testimony rather that any affirmative form of proof.

      “[The] 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


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to the sufficiency of the evidence.” Commonwealth v. Namack, 663 A.2d

191, 194 (Pa. Super. 1995).4 Notably, “wholly circumstantial evidence” can

be sufficient for the Commonwealth to sustain its burden. Commonwealth

v. Pennix, 176 A.3d 340, 343 (Pa. Super. 2017).          Thus, we focus on the

evidence from which Estes’s mens rea could be inferred.

       Here, the trial court, sitting as fact finder, could have reasonably

inferred from the circumstances that Estes was aware that he did not have a

license to be on East Hills Community property. The Commonwealth provided

the testimony of Agent Gressem, who identified Estes at trial, and stated that

he personally served Estes with the trespass notice on November 17, 2017.

N.T. Trial, 2/5/19, at 27-28. The trespass notice, which was admitted into

evidence, provided a physical description of Estes, including his distinctive

flat-top hairstyle. Id. at 20. The trespass notice also indicated that Estes was

prohibited from being at the East Hills Community apartment complex,

including all apartments, buildings, parking lots, and streets. Id. at 22.

       While Estes testified that he believed he was allowed on the premises,

and his aunt testified that she invited him there on the date in question, the

trial court, sitting as fact-finder, did not find Estes’s belief to be reasonable.


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4 Estes devotes much of his brief to a discussion regarding burdens of proof.
While he initially argues that, once an affirmative defense under § 3503(c)(3)
is raised, the Commonwealth must disprove the affirmative defense beyond a
reasonable doubt, he ultimately concedes that the affirmative defense under
§ 3503(c)(3) negates the mens rea element of defiant trespass. See Estes’s
Brief at 24 n.2 (noting that “the two issues are necessarily intertwined”).

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See Trial Court Opinion, 4/29/19, at 5 (“The [c]ourt was not persuaded that

the invitation by [Estes’s] aunt, who was neither the occupant nor lessee of

the apartment, created a reasonable belief of permission to enter.”). As the

trier of fact, the trial court was free to disbelieve Estes’s testimony offered in

support of an affirmative defense under § 3503(c)(3). See Commonwealth

v. Thompson, 778 A.2d 1215, 1219 (Pa. Super. 2001).

       Instead, the court found the Commonwealth’s evidence and arguments

to be credible and persuasive. See Trial Court Opinion, 4/29/19, at 5 (noting

“the credible testimony of Agent Gressem, who testified that it was in fact

[Estes] who was personally served with the notice”). When viewed in the light

most favorable to the Commonwealth, the evidence was more than sufficient

to establish that Estes (1) entered or remained upon property without a right

to do so; (2) while knowing that he had no license or privilege to be on the

property; and (3) after receiving direct or indirect notice against trespass.

See Wanner, 158 A.3d at 718. Thus, Estes’s sufficiency challenge fails.5

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5 Estes’s reliance on Commonwealth v. Sherlock, 473 A.2d 629 (Pa. Super.
1984), and Namack, supra, is unavailing, as those cases are legally and
factually distinguishable. In Sherlock, this Court ruled that the trial court
erred in refusing to instruct the jury regarding the affirmative defense under
§ 3503(c)(3) where the property owner told the defendant to leave the
premises, but the owner’s daughter, who lived on the premises, granted him
license to enter the property. Unlike Sherlock, this appeal involves no claim
of error regarding a jury instruction. In Namack, this Court ruled that the
evidence was insufficient to support defendant’s conviction for defiant trespass
where he presented evidence that he and his family had used a trail across
his neighbor’s property for many years, and his attorney advised him that he



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       In sum, viewing the evidence and all reasonable inferences drawn in

favor of the Commonwealth, we find that the evidence was sufficient for the

trial court to conclude that Estes possessed the requisite mens rea for the

crime of defiant trespass.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/13/2020




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had a legal right to use    the trail despite his neighbor’s protests. Here, unlike
in Namack, Estes did         not present any evidence that he was told by an
attorney that, despite       being served with a defiant trespass notice from
complex management,          he was nevertheless authorized to be on complex
property.

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