J.A13015/14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                            Appellee        :
                                            :
                    v.                      :
                                            :
THOMAS J. HYLAND,                           :
                                            :     No. 2104 EDA 2013
                            Appellant       :


          Appeal from the Judgment of Sentence Entered July 8, 2013
             In the Court of Common Pleas of Montgomery County
                       No(s).: CP-46-SA-0000145-2013

BEFORE: ALLEN, MUNDY, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.:                   FILED SEPTEMBER 10, 2014

        Appellant, Thomas J. Hyland, appeals from the judgment of sentence

entered in the Montgomery County Court of Common Pleas, ordering him to

pay a fine of $369.45 for a summary conviction of defiant trespass.1

Appellant raises five issues on appeal, four of which challenge the sufficiency

of the evidence and one whi

proffered expert testimony. We affirm.




*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3503(b).
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                                                                        2
Valley Forge Casino                                                         and

               See Exs. C-1, D-5.    Two months later, on October 15, 2012,

Appellant returned to the Casino, at which time a security supervisor

detained him and called the Pennsylvania State Police.     Appellant left the

Casino after talking with the trooper. The trooper subsequently mailed him

a citation charging him with defiant trespass.

      The magisterial district court found Appellant guilty. Appellant filed a

timely appeal for a trial de novo in the Court of Common Pleas, which was

held on June 20, 2013. On July 8, 2013, the trial court found him guilty of

defiant trespass and imposed a fine. This appeal followed.3

      Appellant presents five questions for review, which we have reordered

as follows:

         Did the trial court err in convicting [Appellant] of defiant
         trespass where the Commonwealth failed to prove beyond
         a reasonable doubt that [Appellant] knew he was not
         licensed to be at the subject property?

         Did the trial court err in convicting [Appellant] of defiant
         trespass where the subject property is open to the public
         and [Appellant] complied with all lawful conditions?




2



                           See N.T., 6/20/13, at 72.
3

1925(b) statement of errors complained of on appeal.



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          strong policy of protecting the public from casino gaming
          abuses?

          Did the trial court err in convicting [Appellant] of defiant
          trespass where he was returning to the subject property
          for the lawful purpose of retrieving funds lawfully due to
          him under Pennsylvania law?

          Did the trial court err in convicting the [Appellant] of

          proffered expert testimony and the exclusion was highly
          prejudicial?



                                                          as follows. He first

claims that the Commonwealth failed to prove that he knew that he was not

licensed or privileged to enter the Casino because he (1) did not receive

copies of the eviction notices, (2) was in possession of his membership card

to the Casino, and (3) was not placed on the list of excluded persons
                                                                    4
                                                                         Second,

he argues that the Commonwealth failed to disprove his affirmative defense

that the Casino was open to the public and that he abided by all lawful

conditions for accessing the Casino. In support of this argument, Appellant

asserts that (1) the Casino violated public policy by evicting him for



redeem his chips, and (3) suggests that the Casino retaliated against him for




4
    See 4 Pa.C.S. § 1514.



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due.

       The standards governing our review of the sufficiency of the evidence

are as follows:

          In evaluating a challenge to the sufficiency of the
          evidence, we must determine whether viewing the
          evidence in the light most favorable to the verdict winner,
          together with all reasonable inferences therefrom, the trier
          of fact could have found that each and every element of
          the crimes charged was established beyond a reasonable
          doubt. The facts and circumstances established by the
          Commonwealth need not preclude every possibility of
          innocence. However, any questions or doubts are to be
          resolved by the factfinder, unless the evidence is so weak
          and inconclusive that as a matter of law, no probability of
          fact may be drawn from the circumstances. The trier of
          fact is free to believe all, part or none of the evidence.

Commonwealth v. Johnson, 818 A.2d 514, 517 (citations omitted).

       The criminal trespass statute provides, in relevant part:

             (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:

                                  *    *    *




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               (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. § 3503(b)(1)(i), (c)(2).

      As to the sufficiency of the evidence to prove a violation under

subsection (b)(1)(i), our review reveals that the trial court, sitting as the

finder of fact in the trial de novo, credited evidence that a security

supervisor at the Casino, Manar Makhoul, presented eviction notices to

Appellant on August 7 and August 18, 2012. Those eviction notices stated,




                        -1, D-5. Although Appellant did not sign the notices,



w[ould] be permanently evicted from the property and if he returned he



spoke with Appellant on August 18th and verbally reminded him of his prior

eviction. Id. at 9.

      Appellant, testifying in his own defense, denied receiving the notices.

Id. at 61, 64.   He acknowledged that he deliberately tried not to interact

with casino personnel because of the harassment he suffered as a skilled

blackjack player.     Id. at 65.   He conceded, however, that when he was

leaving the Casino on August 18th, he heard security personnel tell him,




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              Id. at 64.

       We thus conclude there was sufficient evidence for the trial court to

find   that    adequate    notice   against   trespass   was   given   by   actual

communication to Appellant.         See 18 Pa.C.S. § 3503(b)(1)(i).    The court

                                                    Johnson, 818 A.2d at 517.

                                                                  was sufficient

evidence for the trial court to conclude that Appellant entered the Casino on

October 15, 2012, knowing that he was evicted, even though he remained in

possession of his membership card and even if he did not sign or receive

copies of the Ca                                           See N.T. at 64-65.




insufficient to rebut his affirmative defenses under Subsection 3503(c)(2).

Appellant asserts that his conviction must be vacated under the principles

set forth in Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981).                   In

support, Appellant relies on                                           , 445 A.2d

                                                   ssuance of the evictions was

unlawful and against public policy.       Appellant suggests that we adopt New



his eviction for advantage playing constituted an improper condition on his




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right to access the Casino. For the reasons that follow, we conclude no relief

is due.

      In Tate, the Pennsylvania Supreme Court considered whether a

private college properly excluded non-student protestors from distributing

leaflets before, during, a

union building.   Tate, 432 A.2d at 1384-85.      The protestors were warned

not to distribute the leaflets without a permit, but the college subsequently

denied them a permit.        Id. at 1385.   At the end of the symposium, the

protesters continued to distribute leaflets outside the entrance of the student

union building and were arrested and convicted of defiant trespass. Id.

      The Tate Court, when discussing the affirmative defense to defiant

trespass, concluded the campus was open to the public. Id. at 1386. The

Court further determined that although the college maintained a permit



                                                         permit. Id. at 1387.



                                                                           Id.

(footnote omitted).    The Court thus framed the issue in that appeal as



condition with which [the protestors] were obligated to comply or otherwise

                                                                Id. (footnote

omitted).



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     In reversing the convictions, the Tate Court concluded that the

controversy surrounding the symposium and its speakers implicated the

                                                    Id. at 1390. The Tate

                                                                         ct




                         Id.   Because the college failed to articulate any

standards for permitting or excluding the exercise of those constitutional



                                        Id. at 1391. Accordingly, the Court

vacated the convictions for defiant trespass. Id.

     In Uston, the New Jersey Supreme Court considered whether a casino



                                    Uston, 445 A.2d at 371. In that case,

the New Jersey Casino Control Co



        Id.    Thereafter, a casino obtained preliminary approval from the

Commission to ban card counters. Id. at 372. Immediately after receiving



because he was a professional card counter, and the Commission upheld the

               Id.




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         The    New   Jersey   intermediate   appellate   court     reversed   the

                               d the New Jersey Supreme Court affirmed.        Id.

The New Jersey Supreme Court determined the New Jersey Casino Control

                                                -1 to -

common law right [the casino may have had] to exclude [the plaintiff]

being a card counter.      Id. at 372-73 (citing, inter alia, N.J.S.A. 5:12-70

(requiring Commission to establish rules of authorized games and odds),

5:12-

                                 Commission alone has the authority to exclude

                                                                               Id.

at 372.

         With respect to the plaintiff, the Uston Court opined that his gaming

was conducted according to the rules promulgated by the Commission and



rules.    Id.



of the regul                                               Id. Thus, the Court



                                                              Id.

         The Uston Court, in dicta, observed that the cas



right to exclude is substantially limited by a competing common law right of



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                                      Id. at 372. The Court asserted that

             rty owners open their premises to the general public in the

pursuit of their own property interests, they have no right to exclude people

unreasonably[, but have] a duty not to act in an arbitrary or discriminatory

manner toward persons who come on their p                       Id. at 375.

Nevertheless, the Court did not suggest that a ban on advantage playing

was illegitimate and unreasonable. Id.

decide whether the Casino Control Act empowers the Commission to exclude

card coun       Id.



affirmative defense under 18 Pa.C.S. § 3503(c)(2) must fail because the

Casino was not open to the public.          However, the trial evidence only

established that access to the gaming floor of the Casino was limited and

secured by turnstiles through which an individual passed by swiping a

membership or access card. See N.T. at 5-

but noting Casino had dining and hotel accommodations), 8-9 (noting

A



enter the gaming floor on October 15, 2012, he was stopped by the

turnstiles and went to a service desk outside the gaming floor. N.T. at 68,

69. No evidence was produced to show that areas outside the gaming floor

were limited access or otherwise not open to the public. Thus, his conviction



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for defiant trespass was based on his presence in an area outside the

restricted access gaming floor. Therefore, we conclude that Appellant was in

an area open to the public under Subsection 3503(c)(2).          Thus, we must

review his arguments that the evictions by the Casino constituted an

unlawful condition on his access.5

      Appellant   correctly     observes   that   the    New   Jersey   Act   and



                              1904, announced policies of protecting the public

when authorizing and regulating table games.            See 4 Pa.C.S. § 1102(1)



purposes are secondary is to protect the public through the regulation and

policing of all activities involving gaming and practices that continue to be

unlawf                   -

the regulation and control of such casino facilities by the State rests in the

public confidence and trust in the credibility and integrity of the regulatory

process and of casino ope

contains other provisions that are similar to those in the New Jersey Act.

See e.g. 4 Pa.C.S. § 1514 (requiring establishment of list of person to be

excluded or ejected from any casino); N.J.S.A. 5:12-71 (same).                It is

5

engaging in commerce does not convert a privately owned shopping center
into a public or quasi-              W. Pa. Socialist Workers 1982
Campaign v. Conn. Gen. Life Ins. Co., 485 A.2d 1, 8 (Pa. Super. 1984)
(citations omitted).



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axiomatic, however, that the decisions of our sister states are not binding on

this Court, but may be considered persuasive authority.

Bank of Pa. v. Seubert & Assocs., Inc., 807 A.2d 297, 303 (Pa. Super.

2002).

      With respect to the Pennsylvania Act, Uston is not persuasive

authority. The Pennsylvania Act and the New Jersey Act analyzed by Uston,

are distinguishable.   Former N.J.S.A. 5:12-100(e),6 which governed the

conduct of games by a casino, provided:

         All gaming shall be conducted according to rules
         promulgated by the commission. All wagers and pay-offs
         of winning wagers at table games shall be made according
         to rules promulgated by the commission, which shall
         establish such minimum wagers and other limitations as
         may be necessary to assure the vitality of casino
         operations and fair odds to and maximum
         participation by casino patrons[.]

See Uston, 445 A.2d at 372-73 (quoting former N.J.S.A. 5:12-100(e))

                                                                        5:12-

100(e) was critical to the Uston

and not a casino, possessed the authority to exclude card counters. See id.

at 372-73, 376.



authority



6
  N.J.S.A. 5:12-100(e) has since been amended. See N.J.S.A. 5:12-100(e)
(eff. Feb. 26, 2013).



                                    - 12 -
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the conduct of table games and the systems of wagering associated with




the Uston                                                                     See

id.   Similarly, the provisions governing the conduct of table gaming by a

                                                                See 4 Pa.C.S. §§

13A21-13A22, 13A24.

        We further note that no court outside New Jersey has relied on

Uston to abro                                                                 See

Donovan v. Grand Victoria Casino & Resort, L.P., 934 N.E.2d 1111,

1117-18 (Ind. 2010) (holding Indiana riverboat casino may exclude card

counter);                                                , 791 F.2d 512, 517 (7th

Cir. 1986) (concluding Illinois racetrack retained common law right to

prohibit members of Pennsylvania partnership of expert handicappers from

placing bets). Moreover, aside from dicta in Uston, our review reveals no

authority   suggesting   that   gambling     generally    or   advantage   playing

specifically gives rise to a protected interest.    See Doug Grant, Inc. v.

Greate Bay Casino Corp., 232 F.3d 173, 189-90                     (3d Cir. 2000)

(discussing equal protection claims regarding countermeasures promulgated

after Uston to limit advantages of card counting and noting, inter alia,




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      In light of the foregoing, we discern no basis to reach the conclusion

urged by Appellant, namely, that we follow Uston and hold that the Casino

had no right to exclude him as a card counter under the Pennsylvania Act.



condition on his ability to access the Casino warrants no relief.



returned to the Casino to redeem his chips and the Casino was retaliating



under no obligation to review the record in a light most favorable to

Appellant.   See Johnson, 818 A.2d at 517.        Although Appellant testified

that he returned to the Casino to redeem his chips and that he previously

filed reports with a PGCB officer, it was within the province of the trial court

to discredit that evidence. See id.

      Lastly, Appellant challenges the evidentiary ruling of the trial court

that precluded his witness, Michael Riggs, from testifying as an expert.

Appellant proffered that Riggs was a former member of the New Jersey

Division of Gaming Enforcement, was familiar with how the New Jersey Act,




access to casino tab



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knowledge of Pennsylvania gaming was, Appellant proffered that Riggs was

a licensed private investigator in Pennsylvania.        Id. at 36-37.    The

Commonwealth objected on relevance grounds, and the trial court sustained

the objection. Id. at 39-40.

     Appellant presently argues that the trial court erred in refusing to



                                                                         the




solely on the proffer and without allowing defense counsel the opportunity to

               Id. We discern no basis for granting relief.

           Decisions regarding admission of expert testimony,
           like other evidentiary decisions, are within the sound
           discretion of the trial court. We may reverse only if
           we find an abuse of discretion or error of law.

           A court
        specialized knowledge beyond that possessed by a
        layperson [if it] will assist the trier of fact to understand
        the evidence or to determine a fact in issue, a witness
        qualified as an expert by knowledge, skill, experience,
        training or education may testify thereto in the form of an


        outweighed by the danger of unfair prejudice, confusion of
        the issues, or misleading the jury, or by considerations of
        undue delay, waste of time, or needless presentation of


Commonwealth v. Venutra, 975 A.2d 1128, 1140 (Pa. Super. 2009)

(some citations omitted).



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from the same fate as his sufficiency argument.       As we have concluded

above, Uston is not persuasive authority regarding the treatment of

advant

advantage players were treated in New Jersey was not relevant. Moreover,

as in the trial court, Appellant provides this Court with no basis to conclude

that Riggs possessed any familiarity the treatment of advantage players in



ruling that precluded Riggs from testifying as an expert based on his

expertise in New Jersey.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/2014




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