J-S68033-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,                 :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
           Appellee                           :
                                              :
               v.                             :
                                              :
GLENN W. SIMINICK,                            :
                                              :
           Appellant                          :   No. 320 WDA 2016

                  Appeal from the Order February 5, 2016,
              in the Court of Common Pleas of Mercer County,
            Criminal Division, at No(s): CP-43-CR-0000416-2015


COMMONWEALTH OF PENNSYLVANIA,                 :   IN THE SUPERIOR COURT OF
                                              :         PENNSYLVANIA
           Appellee                           :
                                              :
               v.                             :
                                              :
GLENN W. SIMINICK,                            :
                                              :
           Appellant                          :   No. 487 WDA 2016

           Appeal from the Judgment of Sentence March 4, 2016,
              in the Court of Common Pleas of Mercer County,
            Criminal Division, at No(s): CP-43-CR-0000416-2015

BEFORE:     SHOGAN, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                    FILED NOVEMBER 17, 2016

      In   these    consolidated   appeals,   Glenn   W.   Siminick   (Appellant)

challenges his conviction for the summary offense of defiant trespass. 1 We

affirm.


1
 Appellant purports to appeal from the orders entered on February 5, 2016
and March 9, 2016, which denied his post-trial and post-sentence motions,

*Retired Senior Judge assigned to the Superior Court.
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        On December 18, 2014, Appellant was charged at CP-43-CR-0000416-

2015     (416-2015)   with   defiant   trespass,   graded   as   a   third-degree

misdemeanor, stemming from an incident that occurred on September 10,

2014, when Appellant was accused of being present unlawfully on the

grounds of Buhl Park in Hermitage, Mercer County.           Appellant was also

charged with misdemeanor defiant trespass at CP-43-CR-0000415-2015

(415-2015), with respect to an identical incident that occurred on October 6,

2014.

        Both cases proceeded to separate non-jury trials, which were heard on

January 25, 2016.      Case number 415-2015 was heard in the morning.

Following the presentation of the Commonwealth’s case-in-chief, Appellant

moved for judgment of acquittal, which was granted. Trial Court Opinion,

5/3/2016, at 2. Shortly thereafter, the trial court heard testimony on case

number 416-2015. At the close of evidence in that trial, the trial court found

Appellant guilty of defiant trespass, graded as a summary offense.



respectively. It is well-settled that “an appeal from an order denying a post-
trial motion is procedurally improper because a direct appeal in a criminal
proceeding lies from the judgment of sentence.” Commonwealth v.
Preacher, 827 A.2d 1235, 1236 (Pa. Super. 2003) (citation omitted).
Accordingly, we quash as improperly filed the appeal from the February 5,
2016 order denying Appellant’s written post-sentence motion, docketed at
320 WDA 2016. Because the issues raised in that appeal are identical to
those raised in the appeal docketed at 487 WDA 2016, such quashal does
not affect our examination of Appellant’s substantive claims. Further, we
have changed the caption of the appeal docketed at 487 WDA 2016 to
comply with Preacher.


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      On March 4, 2016, Appellant was sentenced to a 90-day period of

unsupervised probation, plus costs.     On March 8, 2016, Appellant filed a

post-sentence motion, which was denied on March 9, 2016. This timely-filed

appeal followed.    Both Appellant and the trial court complied with the

mandates of Pa.R.A.P. 1925.

      Appellant raises two issues for our review.

      1. Whether the Commonwealth should have been collaterally
         estopped from re-litigating the notice issue in a second trial
         after a final order was entered on that specific issue in the
         first trial.

      2. Whether the evidence adduced at trial was insufficient as a
         matter of law to convict [Appellant] of the charge for which
         he was found guilty.

Appellant’s Brief at 9 (unnecessary capitalization omitted).

      Appellant’s first issue, regarding collateral estoppel, “is a pure question

of law. Therefore, our standard of review is de novo, and our scope of review

is plenary.” Commonwealth v. Barger, 956 A.2d 458, 461 (Pa. Super.

2008) (citation omitted).

      In order to understand Appellant’s argument on appeal, we provide

the following by way of background. At Appellant’s first trial on January 25,

2015, case number 415-2015, the Commonwealth proffered the testimony

Daniel Davis, Esquire, an assistant district attorney, who was present at a

prior court proceeding when Appellant was “told by Judge Fagley that he was

not to be in Buhl Park and [Appellant] acknowledged that he was not allowed



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to be in Buhl Park.” N.T., 1/25/2016 (morning), at 4.      However, the trial

court sustained Appellant’s objection to Attorney Davis’ testimony as

inadmissible hearsay. Id. at 13. The Commonwealth then called two more

witnesses, Debra Fait, a part-time grant writer for Buhl Park who testified

that she called the police to report Appellant’s presence in the park on

October 6, 2014, and responding Hermitage Police Officer James Thomas

Rogerson. Id. at 15-40.        At the conclusion of the Commonwealth’s

testimony, Appellant moved for judgment of acquittal and the following

exchange occurred.

      [APPELLANT’S COUNSEL]: For defiant trespass, Your Honor, it is
      required that my client had notice that he was not supposed to
      be in the area where he is alleged to have been. There has been
      nothing shown today that my client actually had that notice,
      nothing in writing. There was no testimony presented today that
      anybody orally told him that he wasn’t allowed to be there he
      said he supposedly was. [sic] So he didn’t have the requisite
      notice. Therefore, he cannot be a defiant trespasser.

      THE COURT: Well, you’re partially correct.      His own words
      incriminate himself where he admits [to Officer Rogerson] that
      he knew he was not allowed to trespass. So, he had notice. The
      problem is the statute that they cite him with, the specific
      subsection, requires actual communication to the actor.[2] That is
      what we don’t have.

Id. at 40-41.




2
  The statute at issue states “[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.” 18 Pa.C.S. § 3503(b)(1)(i).


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     Accordingly, the trial court granted Appellant’s motion, acknowledging

that the Commonwealth “ha[d] not presented any evidence that notice not

to trespass was given to [Appellant] by actual communication.” Id. at 41.

     Later that afternoon, the court heard testimony with respect to case

number 416-2015, which involved an alleged instance of trespass at Buhl

Park on September 10, 2014. Prior to trial, Appellant’s counsel raised the

collateral estoppel argument advanced herein and moved for judgment of

acquittal. N.T., 1/25/2016 (afternoon), at 3-6. The trial court denied the

motion. Id. at 5-6.   The Commonwealth then presented the testimony of

William A. Watson, Assistant Chief Park Ranger, who testified that, in June of

2013, he personally told Appellant he was not permitted in Buhl Park;

Charles Mehalko, director of safety and security at Buhl Park, who testified

that he was instructed to write a report each time he observed Appellant in

the park and those reports were eventually turned over to the Board of

Trustees who sent a letter to Appellant banning him from the park; and

Jeffrey Paul, a maintenance employee and part-time park ranger, who

testified that, per his employer’s instructions, he reported to his supervisor

Appellant’s presence in the park on September 10, 2014. Id. at 49-92.

Appellant’s motion for judgment of acquittal was denied, id. at 92-93, and

Appellant then testified in his own defense and denied being in the park on

September 10, 2014, id. at 96-97.      At the conclusion of trial, the court




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found Appellant guilty of a summary offense, finding that Appellant “knew

that he shouldn’t be in the park on that day in September and that the only

way he could have known was by some form of actual communication,”

although there was no proof that communication came from the owner of

the park. Id. at 112-13.

      Appellant argues that trial court erred in denying his motion for

judgment of acquittal because the Commonwealth was collaterally estopped

from litigating the second defiant trespass case.

      The doctrine of collateral estoppel is a part of the Fifth
      Amendment’s guarantee against double jeopardy, which was
      made applicable to the states through the Fourteenth
      Amendment. The phrase “collateral estoppel,” also known as
      “issue preclusion,” simply means that when an issue of law,
      evidentiary fact, or ultimate fact has been determined by a valid
      and final judgment, that issue cannot be litigated again between
      the same parties in any future lawsuit. Collateral estoppel does
      not automatically bar a subsequent prosecution, but rather, it
      bars redetermination in a second prosecution of those issues
      necessarily determined between the parties in a first proceeding
      that has become a final judgment.

             Traditionally, Pennsylvania courts have applied the
      collateral estoppel doctrine only if the following threshold
      requirements are met: 1) the issues in the two actions are
      sufficiently similar and sufficiently material to justify invoking the
      doctrine; 2) the issue was actually litigated in the first action;
      and 3) a final judgment on the specific issue in question was
      issued in the first action. An issue is actually litigated when it is
      properly raised, submitted for determination, and then actually
      determined. For collateral estoppel purposes, a final judgment
      includes any prior adjudication of an issue in another action that
      is sufficiently firm to be accorded conclusive effect.




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Commonwealth v. Holder, 805 A.2d 499, 502–03 (Pa. 2002) (citations

and footnotes omitted; emphasis in original).

     As our Supreme Court has explained,

     In the criminal law arena, the difficulty in applying collateral
     estoppel typically lies in deciding whether or to what extent an
     acquittal can be interpreted in a manner that affects future
     proceedings, that is, whether it reflects a definitive finding
     respecting a material element of the prosecution’s subsequent
     case. We ask whether the fact-finder, in rendering an acquittal in
     a prior proceeding, could have grounded its verdict upon an
     issue other than that which the defendant seeks to foreclose
     from consideration. If the verdict must have been based on
     resolution of an issue in a manner favorable to the defendant
     with respect to a remaining charge, the Commonwealth is
     precluded from attempting to relitigate that issue in an effort to
     resolve it in a contrary way. See Commonwealth v.
     Zimmerman,[] 445 A.2d 92, 96 ([Pa.] 1981) (acquittal on
     simple assault precluded retrial on hung murder charges because
     simple assault was a constituent element of all grades of
     homicide in the case); Commonwealth v. Wallace, [] 602 A.2d
     345, 349-50 ([Pa. Super.] 1992) (Commonwealth’s concession
     that the jury’s acquittal meant appellant did not possess a gun
     collaterally estopped Commonwealth from any subsequent
     prosecution based on appellant’s possession of a gun);
     Commonwealth v. Klinger, [] 398 A.2d 1036, 1041 ([Pa.
     Super.] 1979) (appellant’s acquittal on murder precluded the
     Commonwealth from bringing a subsequent perjury prosecution
     based on appellant’s trial testimony that he did not kill the
     victim), aff’d. sub nom. Commonwealth v. Hude, [] 425 A.2d
     313 ([Pa.] 1980).

           Conversely, where an acquittal cannot be definitively
     interpreted as resolving an issue in favor of the defendant with
     respect to a remaining charge, the Commonwealth is free to
     commence with trial as it wishes. See [Commonwealth v.]
     Buffington, 828 A.2d [1024,] 1033 [(Pa. 2003)] (acquittal of
     rape and IDSI did not establish that Commonwealth failed to
     prove an essential element of sexual assault); [Commonwealth
     v.] Smith, 540 A.2d [246,] 253-54 [(Pa. 1988)] (acquittal of



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     gun possession charge did not collaterally estop Commonwealth
     from proceeding on charges of murder and possession of an
     instrument of crime, as acquittal could have been based on any
     number of reasons); Commonwealth v. Harris, [], 582 A.2d
     1319, 1323 ([Pa. Super.] 1990) (robbery acquittal did not
     preclude retrial on hung charge of aggravated assault), appeal
     denied, [] 597 A.2d 1151 ([Pa.] 1991).

Commonwealth v. States, 938 A.2d 1016, 1021-22 (Pa. 2007) (some

citations and quotation marks omitted).

     Applying the test outlined above, it is clear that the issues in the two

trespass cases are sufficiently similar and sufficiently material to justify

invoking the doctrine. However, we disagree with Appellant that the other

two prongs are met.

     In the first trial, the issue was whether the Commonwealth was able to

prove beyond a reasonable doubt that Appellant was a defiant trespasser on

October 6, 2014. In the second case, the issue was whether Commonwealth

was able to prove beyond a reasonable doubt that Appellant was a defiant

trespasser a month earlier, on September 10, 2014. While similar, these are

two separate issues, and the litigation of the issue raised in the first case

has no bearing on the issue raised in the second. Moreover, the court did not

make a final judgment as to the issue raised in the second case. Rather, in

granting Appellant’s motion for judgment of acquittal, the court only found

that the Commonwealth had failed to meets its burden of proving defiant

trespass with respect to the October 6 incident. In so doing, the court did




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not determine that Appellant did not have notice; rather, it held that the

Commonwealth failed to prove how that notice was communicated. N.T.,

1/25/2016 (morning), at 41 (“[H]e had notice. The problem is the statute

that   they   cite   him   with,   the    specific   subsection,   requires   actual

communication to the actor. That is what we don’t have.”). However, this is

not dispositive of the issue of whether Appellant had received actual

communication a month earlier, or what might have occurred in the ensuing

month between the incidents.             Accordingly, the doctrine of collateral

estoppel does not bar the subsequent prosecution and we conclude that the

trial court did not err in denying Appellant’s motion for judgment of

acquittal.

       Appellant next contends that the evidence is insufficient to support his

conviction.

       Our Pennsylvania Rules of Appellate Procedure and our case law
       set forth the well-established requirements for preserving a
       claim for appellate review. “Issues 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. York, [] 465 A.2d 1028, 1032 ([Pa.
       Super.] 1983).

       Similarly, our Supreme Court has made it clear that “[a]ny
       issues not raised in a [Rule] 1925(b) statement will be deemed
       waived.” Commonwealth v. Castillo, [] 888 A.2d 775, 780
       ([Pa.] 2005) (citation and quotation omitted). See also
       Pa.R.A.P.1925(b)(4)(vii) (“Issues not included in the Statement
       ... are waived.”).




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Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)

      Appellant’s Rule 1925(b) statement raises two claims of error: the

collateral   estoppel   argument   and      a   weight-of-the-evidence   claim.

Accordingly, because he failed to raise his sufficiency-of-the-evidence

argument therein, we find it waived. Id.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/17/2016




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