J-S48016-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

AUDREY OGDEN

                            Appellant                 No. 32 MDA 2017


          Appeal from the Judgment of Sentence September 21, 2016
              In the Court of Common Pleas of Dauphin County
              Criminal Division at No: CP-22-CR-0006922-2015


BEFORE: OTT, STABILE, and PLATT, * JJ.

MEMORANDUM BY STABILE, J.:                        FILED OCTOBER 16, 2017

        Appellant, Audrey Ogden, appeals from the September 21, 2016

judgment of sentence entered in the Court of Common Pleas of Dauphin

County (“trial court”) sentencing her to three months of unsupervised

probation and fines for defiant trespass and disorderly conduct.1         Upon

review we affirm.

        The trial court summarized the factual and procedural history of the

matter as follows.

               Officer Ryan Fetzer was the sole Commonwealth witness at
        trial. On September 24, 2015, he was dispatched to the plasma
        center in the Uptown Plaza for an unruly customer who was
____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
1   18 Pa.C.S.A. § 3503(b)(1)(i) and 18 Pa.C.S.A. § 5503(a)(4), respectively.
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     trespassing and would not leave. He testified, over a hearsay
     objection, that an employee of the center informed him that a
     customer was being unruly and has been refusing to leave for
     approximately an hour prior to his arrival. Fetzer’s testimony
     was permitted to explain his subsequent course of conduct.

           Per Fetzer’s understanding, initially there was confusion
     over whether [Appellant] was allowed to donate that day and
     thus be present in the center, but ultimately it was confirmed
     that she was permitted to donate. That is to say, she initially
     had permission to be there. He did not observe her doing
     anything illegal.

            Fetzer went to the back of the center to where [Appellant]
     was sitting. He made contact and instructed her that the center
     wanted her to leave and that she wasn’t allowed on the
     premises. [Appellant] refused to answer, she was sitting in a
     chair, not hooked up to any equipment, on her phone with her
     computer open on her lap. He requested that she hang up the
     phone and speak with him several times and asked her to leave.
     She finally hung up the phone, told Fetzer that she did not have
     to listen to him and that the police and plasma center were
     doing something illegal. “So she continued to sit there. And
     then that’s when I told her, ‘Listen. The plasma center had
     called. They requested that you leave.’”

           He specifically asked her several times to leave – it took
     her at least 10 minutes to finally leave. Once [Appellant] began
     to pack up and leave, Fetzer told her that he would not handcuff
     her outside, but that he needed to speak to her. He specifically
     told her several times that she was not free to leave once they
     exited the building.

            Upon exiting the building, [Appellant] began quickly
     walking away from him.         Fetzer called out to her and
     commanded her to stop several times but she continued to
     ignore him. Fetzer grabbed the handle on the back of her
     backpack to stop her from leaving. She began screaming and
     yelling at him. Appellant then began flailing her arms and trying
     to get away. She was yelling obscenities so loudly that people
     began to come out [(sic)] the various stores in the Uptown Plaza
     to see the commotion. His back up arrived and together they
     handcuffed [Appellant] while she continued to be uncooperative
     and yell.


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            [Appellant] also testified at trial.   She explained the
      procedure when donating. Regular clients enter the center,
      register at an electronic kiosk and wait for a nurse to call you
      back.    A nurse checks to make sure that your levels are
      acceptable for donation. Only those permitted to donate are
      allowed in the back. As a regular donor, [Appellant] went
      through the usual routine on the date in question and was told
      she was fine to donate so she went back to the medical area to
      wait.

            She waited and was called back to review her medical
      form. The nurse on duty told her that she was only allowed to
      give a blood sample. [Appellant] explained that she had been
      cleared and when the nurse disagreed [Appellant] asked to see a
      manager. The nurse identified the manager and [Appellant] sat
      down and waited to be called to the donation area. She was
      called back and while she sat there she picked up her chart,
      looked through it and found the page where it said she was
      reinstated to donate and took a picture of it. Some nurses
      where [(sic)] taking the picture and took the chart away and told
      her she wasn’t allowed to take pictures; though they did admit
      she was permitted to donate that day and that a mistake had
      been made. At that point, Appellant took out her cell phone and
      laptop and attempted to file a formal complaint.

            At this point, Officer Fetzer arrived. [Appellant] claims
      that she did respond to his questions while in the center. Per
      her recollection he arrived, told her she needed to get off the
      phone and she kept telling him that she was not on the phone
      and asking him if he needed her to leave.

            Before she was able to pack up her stuff, he said “Well I’m
      about to snatch you in a second.” She felt threatened and told
      him that wasn’t necessary. She asked him again if he was
      asking her to leave and he said yes. She was trying to explain
      what was going on when he told her to shut her mouth. When
      she got outside, she went to unlock her bicycle when he grabbed
      her backpack which scared her due to the previous threat. She
      began to call for help. She wanted the people already outside to
      watch what was happening because she didn’t understand why
      he grabbed her.

Trial Court Opinion, 2/2/17, at 1-4 (internal citations omitted).



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      A bench trial was held on September 21, 2016, at the conclusion of

which Appellant was found guilty of summary defiant trespass and summary

disorderly conduct. The trial court sentenced Appellant the same date. On

November 10, 2016, Appellant filed a pro se application for leave to appeal

nunc pro tunc. The trial court granted said motion on December 13, 2016.

Appellant, through counsel, filed a notice of appeal nunc pro tunc on

December 29, 2016. On January 3, 2017, the trial court directed Appellant

to file a concise statement of errors complained of on appeal.        Appellant

complied on January 24, 2017, and the trial court issued a Pa.R.A.P. 1925(a)

opinion on February 2, 2017.

      Appellant raises two issues on appeal, which we repeat verbatim.

      I.    Was not the evidence insufficient to establish the offense
            of defiant trespass occurring a plasma donation center
            when there was no competent evidence that an employee
            of the plasma donation center ordered [Appellant] to leave
            the premises?

      II.   Did not the court err in overruling [Appellant’s] objection
            to the admission of out-of-court statements of employees
            of the plasma donation center when such statements
            constituted hearsay not subject to any exception?

Appellant’s Brief at 4 (some capitalization omitted) (sic).

      Appellant’s first claim is a challenge to the sufficiency of the evidence.

It is well established that

      our standard of review of sufficiency claims requires that we
      evaluate the record in the light most favorable to the verdict
      winner giving the prosecution the benefit of all reasonable
      inferences to be drawn from the evidence. Evidence will be
      deemed sufficient to support the verdict when it established each

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      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. 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 can be
      drawn from the combined circumstances.

      … Significantly, we may not substitute our judgment for that of
      the fact finder; thus, so long as the evidence adduced, accepted
      in the light most favorable to the Commonwealth, demonstrates
      the respective elements of a defendant’s crimes beyond a
      reasonable doubt, the appellant’s convictions will be upheld.

Commonwealth v. Kitchen, 162 A.3d 1140, 1143-44 (Pa. Super. 2017)

(quoting Commonwealth v. Tukhi, 149 A.3d 881, 886-87 (Pa. Super.

2016) (internal citations omitted)). To establish that Appellant was guilty of

defiant trespass the Commonwealth must prove that Appellant “1) entered

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

[s]he had no license or privilege to be on the property; and 3) after

receiving direct or indirect notice against trespass.”   Commonwealth v.

Wanner, 18 A.3d 714, 718 (Pa. Super. 2017) (emphasis in original)

(quoting Commonwealth v. Namack, 663 A.2d 191, 194 (Pa. Super.

1995)).

      Appellant asserts that there needed to be evidence presented that the

plasma donation center asked her to leave, in addition to Officer Fetzer’s

testimony. Essentially, Appellant is challenging the notice element of defiant

trespass.   Appellant fails to cite any authority for the proposition that the

officer’s testimony that he asked her to leave is insufficient to meet the

notice element; therefore, Appellant has waived this claim.    See Pa.R.A.P.


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2119; see also Commonwealth v. Kearney, 92 A.3d 51, 66 (Pa. Super.

2014). Nevertheless, we will address the merits of Appellant’s sufificency of

the evidence claim.

      On a challenge to the sufficiency of the evidence, we view the

evidence in the light most favorable to the Commonwealth. In the matter

sub judice, Appellant was informed by Officer Fetzer that she was

unauthorized to be at the plasma donation center. When viewed in the light

most favorable to the Commonwealth, Officer Fetzer’s testimony that he

asked Appellant to leave is sufficient to establish, at the least, Appellant had

indirect notice against trespass. Thus, Appellant’s sufficiency claim fails.

      Next, Appellant challenges the trial court’s admission of Officer Fetzer’s

testimony explaining his course of conduct.      Specifically, Appellant claims

that Officer Fetzer’s testimony, that an employee of the plasma center

informed him Appellant was unruly and refused to leave, constituted

hearsay. Our standard of review for an evidentiary ruling is well established.

      The admissibility of evidence is solely within the discretion of the
      trial court and will be reversed only if the trial court has abused
      its discretion. An abuse of discretion is not merely an error of
      judgment, but is rather the overriding or misapplication of the
      law, or the exercise of judgment that is manifestly unreasonable,
      or the result of bias, prejudice, ill-will or partiality, as shown by
      the record.

Commonwealth v. Biesecker, 161 A.3d 321, 329 (Pa. Super. 2017)

(quoting Commonwealth v. Mickel, 142 A.3d 870, 874 (Pa. Super. 2016)).




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      In the matter sub judice, Officer Fetzer testified, over a hearsay

objection, that an employee of the center informed him that a customer was

being unruly and has been refusing to leave for approximately an hour prior

to his arrival.    This testimony was used to establish Officer Fetzer’s

subsequent conduct.        “It is well established that certain out-of-court

statements offered to explain the course of police conduct are admissible

because they are offered not for the truth of the matters asserted but rather

to show the information upon which the police acted.” Commonwealth v.

Trinidad, 96 A.3d 1031, 1037 (Pa. Super. 2014) (citing Commonwealth v.

Weiss, 81 A.3d 767, 806 (Pa. 2013) (quoting Commonwealth v. Chmiel,

889 A.2d 501, 532 (Pa. 2005)). The trial court admitted the testimony of

Officer Fetzer to explain his subsequent conduct, namely, informing

Appellant that she was required to leave the premises, and not for the truth

of the matter asserted, that the plasma donation center asked Appellant to

leave. Therefore, the trial court did not err when admitting such testimony.

Appellant’s claim fails.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/16/2017




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