J. S31035/17


                               2017 PA Super 201

COMMONWEALTH OF PENNSYLVANIA             :      IN THE SUPERIOR COURT OF
                                         :            PENNSYLVANIA
                    v.                   :
                                         :
MICHAEL BLAUSER, JR.,                    :         No. 1638 WDA 2016
                                         :
                         Appellant       :


          Appeal from the Judgment of Sentence, September 27, 2016,
               in the Court of Common Pleas of Clearfield County
                Criminal Division at No. CP-17-CR-0000451-2016


BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.


OPINION BY FORD ELLIOTT, P.J.E.:                      FILED JUNE 28, 2017

        Michael Blauser, Jr., appeals from the judgment of sentence of

September 27, 2016, following his conviction of one count of defiant

trespass.1 Appointed counsel, Michael S. Marshall, Esq., has filed a petition

for leave to withdraw as counsel together with an Anders brief.2        After

careful review, we deny permission to withdraw and remand for preparation

of an advocate’s brief on appellant’s behalf.

        The facts of this case, as gleaned from the notes of testimony of the

jury trial held on August 24, 2016, may be summarized as follows:




1
    18 Pa.C.S.A. § 3503(b)(1)(i).
2
 See Anders v. California, 386 U.S. 738 (1967), and Commonwealth v.
McClendon, 434 A.2d 1185 (Pa. 1981).
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      At approximately 10:30 p.m. on the night of April 16, 2016, Zack Park

(“Park”) was working as a shift supervisor at a Sheetz store in DuBois when

his attention was drawn to appellant.      (Notes of testimony, 8/24/16 at

16-17, 43.)    Appellant had been standing next to a merchandise rack for

approximately 30-45 minutes without purchasing anything. (Id. at 17-18,

22, 31.)   Park described it as a small rack containing cards “that you can

put, like, your tax return on them and things like that.”    (Id. at 19, 31.)

Appellant was studying the cards and writing things down on a notepad.

(Id. at 19, 31.) Earlier, appellant had asked to take pictures of the cards

and was told it was against store policy. (Id. at 67-68.) It did not appear

to Park that appellant intended to actually purchase anything. (Id. at 31.)

      Park explained to appellant that he would have to leave if he was not

going to buy anything. (Id. at 20.) Appellant responded that he was going

to buy a lot of things but then continued to linger around the card rack.

(Id.) Park asked appellant to leave several times but he refused. (Id. at

20-21.) Park testified that Sheetz has a “no-loitering” policy that applies to

customers “without a legitimate purpose.”       (Id. at 22, 33-34; Defense

Exhibit A.) There are no-loitering signs posted outside the doors. (Id. at

23; Commonwealth’s Exhibit 2.)      Eventually, Park contacted store security

and then the police. (Id. at 25.)

      Corporal Randall L. Young and Corporal Orlando Prosper of the City of

DuBois Police Department responded to the scene.         (Id. at 44-45, 56.)



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Corporal Young testified that he asked appellant numerous times to leave

the store and he refused. (Id. at 48-49.) Appellant repeatedly asked why

he had to leave, and Corporal Young explained that the store has a

no-loitering policy. (Id. at 50.) Finally, after appellant was asked to leave

at least five times, Corporal Young advised him that if he continued to refuse

to leave the store he would be arrested for trespassing. (Id. at 49-50.)

      Appellant continued to argue and refused to leave the store. (Id. at

50.) At that point, Corporal Young placed his hand on appellant’s back and

escorted him outside.    (Id.)   Appellant was not yet under arrest.       (Id.)

While standing outside, both Corporal Young and Corporal Prosper pleaded

with appellant to leave the property.   (Id. at 50-51, 60.)   They explained

that it was in appellant’s best interests to comply. (Id.) Appellant remained

argumentative and insisted that he had the right to remain on the premises.

(Id. at 51, 54, 60.) Finally, after approximately 17 minutes of negotiating

with appellant, he was placed under arrest. (Id. at 51.)

      Appellant wanted to call his sister, Jamie Moore (“Moore”), to testify

that appellant frequently purchases pre-paid electronic cards of the sort he

was examining in the Sheetz store. (Id. at 65.) Moore would also testify

that appellant has a habit of being very meticulous when it comes to his

purchases.   (Id.)   According to defense counsel, Moore would testify that

appellant spends an inordinate amount of time examining items for sale.




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(Id.) The trial court rejected Moore’s proffered testimony as irrelevant and

denied appellant’s request to call Moore as a witness. (Id. at 66.)

      Following a one-day jury trial, appellant was found guilty of one count

of defiant trespass.   (Id. at 90.)       On September 27, 2016, appellant was

sentenced to 131 days to one year of incarceration, with immediate parole.

(Docket #15, 16.)      No post-sentence motions were filed, and this timely

appeal followed on October 25, 2016. On October 26, 2016, appellant was

ordered to file a concise statement of errors complained of on appeal within

21   days   pursuant     to   Pa.R.A.P.    1925(b).    Appellant    complied   on

December 21, 2016, and on December 29, 2016, the trial court filed a

Rule 1925(a) opinion.3

      In his Anders brief, Attorney Marshall reviewed the following issue

before concluding that the instant appeal was wholly frivolous:

                   Whether the trial court erred by refusing to
            allow appellant’s sister to testify on his behalf at trial
            as to (1) that appellant commonly used “bank cards”
            like the ones that he was examining in the Sheetz
            store and (2) that appellant habitually took an
            inordinate amount of time to make purchasing
            decisions, which testimony could have been relevant

3
  As the trial court points out, appellant’s Rule 1925(b) statement was
untimely.    (Trial court opinion, 12/29/16 at 1.)      However, under the
amended version of Rule 1925, appellant’s untimely concise statement does
not result in waiver, and it is unnecessary to remand since the trial court did
address the merits of the issue raised on appeal. See Commonwealth v.
Thompson, 39 A.3d 335, 340 (Pa.Super. 2012), citing Commonwealth v.
Burton, 973 A.2d 428, 433 (Pa.Super. 2009) (en banc) (“When counsel
has filed an untimely Rule 1925(b) statement and the trial court has
addressed those issues we need not remand and may address the merits of
the issues presented.”).


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           and probative as to whether or not appellant lawfully
           remained upon the Sheetz property[?]

Anders brief at 4.

     Counsel having filed a petition to withdraw, we reiterate that “[w]hen

presented with an Anders brief, this court may not review the merits of the

underlying issues without first passing on the request to withdraw.”

Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing

Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007)

(en banc) (citation omitted).

           In order for counsel to withdraw from an appeal
           pursuant to Anders, certain requirements must be
           met, and counsel must:

           (1)   provide a summary of the procedural
                 history and facts, with citations to the
                 record;

           (2)   refer to anything in the record that
                 counsel believes arguably supports the
                 appeal;

           (3)   set forth counsel’s conclusion that the
                 appeal is frivolous; and

           (4)   state counsel’s reasons for concluding
                 that the appeal is frivolous.      Counsel
                 should articulate the relevant facts of
                 record, controlling case law, and/or
                 statutes on point that have led to the
                 conclusion that the appeal is frivolous.

Id., quoting Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009).

           If counsel does not fulfill the aforesaid technical
           requirements of Anders, this Court will deny the
           petition to withdraw and remand the case with


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            appropriate instructions (e.g., directing counsel
            either to comply with Anders or file an advocate’s
            brief on Appellant’s behalf). By contrast, if counsel’s
            petition and brief satisfy Anders, we will then
            undertake our own review of the appeal to determine
            if it is wholly frivolous. If the appeal is frivolous, we
            will grant the withdrawal petition and affirm the
            judgment of sentence.           However, if there are
            non-frivolous issues, we will deny the petition and
            remand for the filing of an advocate’s brief.

Commonwealth v. Tukhi, 149 A.3d 881, 886 (Pa.Super. 2016), quoting

Commonwealth v. Wrecks, 931 A.2d 717, 720-721 (Pa.Super. 2007)

(citations omitted).

      Upon review, we find that Attorney Marshall has complied with all of

the above technical requirements.      In addition, Attorney Marshall served

appellant a copy of the Anders brief and advised him of his right to proceed

pro se or hire a private attorney to raise any additional points he deemed

worthy of this court’s review.     (Petition to withdraw, 3/3/17, Exhibit A.)

Appellant has not responded to counsel’s motion to withdraw.            As we find

the technical requirements of Anders and Santiago are met, we will

proceed to the issues on appeal. See Tukhi, 149 A.3d at 886 (“Therefore,

we now have the responsibility “‘to make a full examination of the

proceedings and make an independent judgment to decide whether the

appeal is in fact wholly frivolous.’” Commonwealth v. Flowers, 113 A.3d

1246, 1248 (Pa.Super. 2015) (quoting Santiago, 978 A.2d at 354 n.5)”).

            The terms “wholly frivolous” and “without merit” are
            often used interchangeably in the Anders, [sic] brief
            context. Whatever term is used to describe the


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            conclusion an attorney must reach as to the appeal
            before requesting to withdraw and the court must
            reach before granting the request, what is required
            is a determination that the appeal lacks any basis in
            law or fact.

Santiago, 978 A.2d at 355-356, quoting McCoy v. Wisconsin, 486 U.S.

429, 438 n.10 (1988).

      “The admission of evidence is in the sound discretion of the trial judge,

and will not be disturbed on appeal absent a manifest abuse marked by an

error of law.”   Commonwealth v. Brown, 911 A.2d 576, 584 (Pa.Super.

2006), appeal denied, 920 A.2d 830 (Pa. 2007), quoting Commonwealth

v. Brennan, 696 A.2d 1201, 1203 (Pa.Super. 1997) (citations omitted).

            Pennsylvania Rule of Evidence 401 defines relevant
            evidence as “evidence having any tendency to make
            the existence of any fact that is of consequence to
            the determination of the action more probable or less
            probable than it would be without the evidence.”
            Pa.R.E. 401. Building upon this definition, Rule 402
            provides, in full, as follows: “All relevant evidence is
            admissible, except as otherwise provided by law.
            Evidence that is not relevant is not admissible.”
            Pa.R.E. 402. Thus, while the general rule of the
            admissibility of relevant evidence is subject to
            various exceptions, the rule that irrelevant evidence
            is not admissible is categorical. Accordingly, “[t]he
            threshold inquiry with admission of evidence is
            whether the evidence is relevant.” Commonwealth
            v. Collins, 585 Pa. 45, 888 A.2d 564, 577 (2005);
            Commonwealth v. Treiber, 582 Pa. 646, 874 A.2d
            26, 32 (2005); Commonwealth v. Robinson, 554
            Pa. 293, 721 A.2d 344, 350 (1998).

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).

      Pennsylvania Rule of Evidence 406 provides,



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            Evidence of a person’s habit or an organization’s
            routine practice may be admitted to prove that on a
            particular occasion the person or organization acted
            in accordance with the habit or routine practice. The
            court may admit this evidence regardless of whether
            it is corroborated or there was an eyewitness.

Pa.R.E. 406.

      Appellant was found guilty of defiant trespass as a misdemeanor of the

third degree under 18 Pa.C.S.A. § 3503(b)(1)(i), which provides:

            (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[.]

18 Pa.C.S.A. § 3503(b)(1)(i).

      Section 3503(c)(2) provides a defendant with an affirmative defense

to a charge of defiant trespass:

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

                  (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(c)(2). See Commonwealth v. White, 492 A.2d 32,

36 (Pa.Super. 1985) (reversing the defendant’s conviction of defiant

trespass where the gate area of the Ford plant where the incident occurred


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was open to the public and the Commonwealth presented no evidence that

the defendant failed to comply with any lawful condition imposed on his

access to those premises or in any other way “breached the peace”; the

mere fact that the defendant’s invitation to be on the premises was revoked

was not sufficient to remove him from the protection of Subsection (c)(2)).

      Here, the trial court determined that Moore’s proposed testimony

regarding appellant’s meticulous shopping habits would not negate the fact

that appellant was asked to leave the Sheetz property by an authorized

person and refused to leave the premises. (Trial court opinion, 12/29/16 at

3.)   Therefore, the trial court concluded that Moore’s proffered testimony

was irrelevant. (Id.)

      While it is undisputed that appellant was asked to leave the property

many times and refused before finally being placed under arrest by police,

Moore’s proposed testimony would appear to bolster an affirmative defense

under Section 3503(c)(2).     There was no testimony that appellant was

disorderly or causing a breach of the peace except for the fact that he did

not leave the premises immediately upon request. White, 492 A.2d at 35.

The fact that appellant was asked to leave by an authorized representative

of Sheetz and by police is not dispositive. See id. at 34-35 (although the

defendant was asked to leave multiple times by both the company’s

representative and by local police, and refused, his conviction of defiant




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trespass could not stand where he was present at the gate for the explicit

purpose for which the area was open to the public).

     Sheetz’s no-loitering policy includes customers who are at the location

“without a legitimate purpose.”     (Notes of testimony, 8/24/16 at 22;

Defense Exhibit A.)   However, Park testified that appellant appeared to be

closely examining the electronic cards and writing things down in a

notebook. (Id. at 31-32.) In fact, appellant had asked to take pictures of

the cards with his cell phone and was told it was against store policy. (Id.

at 67-68.) Appellant told Park that, “If you just let me take the pictures,

then I can leave and I don’t have to stand here and look at these cards the

whole time.” (Id. at 68.) Appellant indicated that he wanted to copy down

information off the cards and told Park, “buyer beware.”    (Id. at 33, 68.)

Corporal Prosper also testified that appellant explained he was checking out

different cards for sale on the rack, comparing them with one another. (Id.

at 58-59.)

     Moore’s proffered testimony that appellant had a habit of buying

pre-paid electronic cards and was a meticulous shopper, taking an inordinate

amount of time to make a purchase, would support a defense that appellant

had a legitimate purpose for remaining on the premises. Park conceded that

Sheetz’s no-loitering policy was “kind of vague.”     (Id. at 35.)   Moore’s

testimony could have explained why appellant was standing at the card rack

for 30-45 minutes writing things down into a notebook without buying



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anything.   Her testimony also could have bolstered the defense argument

that this case boiled down to someone taking too long to make a purchase

and did not fit within Sheetz’s own definition of loitering. (Id. at 72-73.)

      We determine that on the record before this court, the issue set forth

above is not so lacking in merit that counsel should be permitted to

withdraw. While ultimately, appellant may not be entitled to any relief, we

cannot say that the appeal is “wholly frivolous,” i.e., without any basis in

law or fact. Santiago, 978 A.2d at 355-356; see also Tukhi, 149 A.3d at

890 (“By no means is this Court convinced that Appellant is entitled to relief

on the issue we have identified, nor do we venture to state what relief is

due. However, the claim is not so clearly devoid of merit so as to warrant

classifying this appeal as frivolous.”).

      Since we are denying counsel’s petition, it is necessary to remand for

counsel to file an advocate’s brief.       Appellant’s Sixth Amendment right to

zealous advocacy on a first appeal forecloses this court from simply deciding

the issue on the merits on the basis of counsel’s Anders brief, filed together

with his petition to withdraw. We will grant Attorney Marshall 30 days from

the date of this decision to file an advocate’s brief, and the Commonwealth

30 days thereafter to file a supplemental responsive brief, should it decide

one is warranted. We also direct Attorney Marshall to particularly address

the implications of White and the statutory defense in Section 3503(c)(2).

We will retain panel jurisdiction.



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      Petition to withdraw denied.       Remanded for further proceedings

consistent with this Opinion. Jurisdiction retained.




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