J-S53001-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             : IN THE SUPERIOR COURT OF
                                          :       PENNSYLVANIA
                   Appellee               :
                                          :
             v.                           :
                                          :
WILLIAM SEBON SHAW, JR.,                  :
                                          :
                   Appellant              : No. 8 WDA 2013

          Appeal from the Judgment of Sentence November 28, 2012,
                    Court of Common Pleas, Fayette County,
              Criminal Division at No. CP-26-CR-0001425-2011

BEFORE: DONOHUE, OLSON and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                         FILED AUGUST 21, 2014

       William Sebon Shaw, Jr. (“Shaw”) appeals from the November 28,

2012 judgment of sentence entered by the Fayette County Court of Common

Pleas following his conviction of defiant trespass.1 After careful review, we

affirm.

       The trial court summarized the factual and procedural histories of this

case as follows:

             The Fayette County Housing Authority (FCHA) is a
             duly established municipal authority with its mission
             to provide a safe and healthy physical environment
             for eligible low income citizens. The FCHA owns and
             operates numerous multi-unit residential apartment
             complexes in Fayette County and specifically owns
             and operates the multi-unit residential apartment
             complex known as Snowden Terrace in Brownsville,
             Fayette County, Pennsylvania. (N.T. 3) All tenants
             residing in Snowden Terrace are subject to the


1
    18 Pa.C.S.A. § 3503(b)(1)(i).

*Retired Senior Judge assigned to the Superior Court.
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          provisions contained in a lease with the FCHA which
          includes a booklet containing the ‘FCHA Residential
          Lease Agreement, Terms and Conditions.’ (N.T. 7)
          The FCHA lease provides the Authority with the right
          to terminate for offering shelter to persons on the
          Authority’s defiant trespass list.[FN] The FCHA
          maintains a ‘defiant trespass’ list of persons who are
          barred from entry into the Housing Authority
          complex onto property owned and maintained by the
          Authority. (N.T. 4) Individuals are placed on the
          defiant trespass list by a Housing Administrator
          employed by the Authority for reasons which include
          buying or attempting to buy or sell drugs, harassing
          tenants or staff, vandalism and other illegal activities
          carried out on the premises of the FCHA. (N.T. 21)
          ______________________
          [FN]
               The terms and conditions for termination of the
          lease include, inter alia, the following:

          XIV. Termination of the lease.

          (a) This lease may be terminated for serious or
          repeated violations of material terms of the lease, …

          Such serious or repeated violation of terms shall
          include but not be limited to:

                               [*    *     *]

          (12) If a tenant knowingly houses, boards, or tries to
          offer shelter to anyone known to the tenant as being
          on the FCHA’s Defiant Trespass list;

                          [*   *           *]
          ______________________

          Any individual placed on the defiant trespass list is
          personally served a written notice that they are
          barred from the premises and that entry onto the
          premises of the authority will result in the filing of
          defiant trespass charges. (N.T.20) Persons whose
          names are on the Authority's defiant trespass list
          and who enter into the Housing Authority complex



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            are subject to being arrested by the police for
            Defiant Trespass in accordance with 18 Pa.C.S.A.
            §3503(b).

            On May 10, 2011, [Shaw], a 26-year-old adult male,
            was observed sitting on the porch of the residence at
            418 Clover Street in Snowden Terrace in violation of
            the defiant trespass order personally served on him
            by the housing administrator of the housing
            complex. (N.T.3) It is stipulated that [Shaw] was on
            the Authority’s defiant trespass list, had been placed
            on the list for a valid reason and was personally
            served with notice against trespass on the
            authority’s property. (N.T. 4, 6, 17)

            The residential unit at 418 Clover Street was under
            lease by the Authority to Barbara Harris, [Shaw]’s
            mother, with the specific occupants to be Barbara
            Harris and Charlene Shaw, Barbara’s 30-year-old
            daughter. (N.T. 4, Com. Exhibit 2) After having
            observed [Shaw] on the premises of the Housing
            Authority in violation of the defiant trespass order
            issued by the Authority, [t]he Brownsville borough
            [p]olice filed a criminal complaint charging [Shaw]
            with Defiant Trespass, a third degree misdemeanor.

            Following a hearing on the Omnibus Pretrial Motion
            filed by [Shaw][,] the Honorable Judge Steve
            Leskinen reduced the degree of the offense to a
            summary.

Trial Court Opinion, 5/3/13, at 1-4 (majority of footnote omitted).

      The case proceeded to a bench trial before the Honorable Ralph C.

Warman, Senior Judge, at which Shaw stipulated that he was on the

Authority’s defiant trespasser list and had received actual notice thereof, as

stated supra.   The Commonwealth also stipulated that, if called to testify,

Shaw’s mother would state that Shaw was present at her apartment at




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Snowden Terrace with her permission, and that he was aware that he had

his mother’s permission to be there.

      The trial court convicted Shaw of defiant trespass and sentenced him

to pay a $300.00 fine and the cost of prosecution. This timely appeal

followed, and both Shaw and the trial court complied with Rule of Appellate

Procedure 1925. Shaw raises one issue for our review:

            Whether the evidence was legally insufficient to
            establish that [Shaw] was not licensed or privileged
            to enter upon or remain on his mother’s porch or to
            rebut the statutory defense presented by [Shaw], as
            contained at 18 Pa.C.S.A. Section 3503 (c)(3), that
            he reasonably believed that a person empowered to
            license access to the apartment in question, namely
            his mother, the tenant, would have licensed him to
            enter or remain on the property?

Shaw’s Brief at 5.

      Shaw challenges the sufficiency of the evidence presented to convict

him of defiant trespass. “Whether sufficient evidence exists to support the

verdict is a question of law; our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Murray, 83 A.3d 137, 151 (Pa.

2013). We must “determine whether, when viewed in a light most favorable

to the verdict winner, the evidence at trial and all reasonable inferences

therefrom is sufficient for the trier of fact to find that each element of the

crimes    charged    is   established    beyond    a    reasonable    doubt.”

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014).




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      The Pennsylvania Crimes Code defines defiant trespass, in relevant

part, as follows: “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.A. § 3503(b)(1)(i).      Shaw asserts that the trial court erred by

failing to find that he had satisfied his burden of proving a defense to that

crime, namely that he “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); see Shaw’s Brief at 9,

12. Specifically, he states, “the invitation of his mother, as the tenant of the

apartment in question, negates the evidence necessary to sustain a

conviction.” Shaw’s Brief at 12.

      There is no Pennsylvania case law addressing the issue raised.        The

trial court relies upon Williams v. Nagel, 643 N.E.2d 816 (Ill. 1994), in

support of its finding that because the lease restricted Shaw’s mother from

“attempting to offer shelter” to anyone on the defiant trespass list, her

invitation to Shaw was not valid. Thus, according to the trial court, Shaw

“could not reasonably have believed that [her] invitation” permitted him to

enter the property.   Trial Court Opinion, 5/3/13, at 16-19.     Shaw cites to

several cases from other jurisdictions to support his argument to the

contrary.   See Shaw’s Brief at 11, 15-16 (citing State v. McCave, 805

N.W.2d 290 (Neb. 2011); Commonwealth v. Nelson, 909 N.E.2d 42



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(Mass. App. 2009); In re Jason Allen D., 733 A.2d 351 (Md. App. 1999),

overruled on other grounds by In re Antoine M., 907 A.2d 158 (Md. 2006);

State v. Dixon, 725 A.2d 920 (Vt. 1999); Bean v. U.S., 709 A.2d 85 (D.C.

1998); State v. Blair, 827 P.2d 356 (Wash. App. 1992); L.D.L. v. State,

569 So. 2d 1310 (Fla. Dist. Ct. App. 1990); State v. Hoyt, 304 N.W.2d 884

(Minn. 1981)).

      As stated above, the affirmative defense raised by Shaw to the crime

of defiant trespass was that he “reasonably believed” that he was permitted

on the property by virtue of his mother’s invitation.   See 18 Pa.C.S.A. §

3503(c)(3). In the context of another affirmative defense – self-defense –

our Supreme Court has explained that “[t]he requirement of a reasonable

belief encompasses two aspects, one subjective and one objective.”

Commonwealth v. Mouzon, 53 A.3d 738, 752 (Pa. 2012). The subjective

element requires that the defendant “acted out of an honest, bona fide

belief[.]”   Id.   The objective element contemplates that the defendant’s

honest belief must be reasonable in light of the information and facts

available to the defendant. Id.

      The record before us reveals that Shaw did not testify at trial.   The

only evidence he presented in his defense was in the form of a stipulation by

the Commonwealth that Shaw’s mother invited him to come to her

apartment, which she leased from the Housing Authority, and that Shaw was

“aware” of her invitation. N.T., 11/28/12, at 4-5. Shaw also stipulated to



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the Commonwealth’s evidence that he was on the Housing Authority’s

“defiant trespass” list, was on the list for a valid reason, had actual notice of

his inclusion of that list, and that this barred him from entry onto property

owned by the Housing Authority. Id. at 3-4. Shaw presented no evidence

that his presence on Housing Authority property was based on an actual,

bona fide belief that his mother’s invitation overrode the prohibition set forth

by the Housing Authority.     We note that in the cases of our sister states

relied upon Shaw that are factually similar and are predicated on comparable

laws to section 3503 and(b)(1)(i) and (c)(3),2 the defendant presented

evidence of his subjective belief that he or she was permitted on the

property in question.   See, e.g., In re Jason Allen D., 733 A.2d at 357

(defendant testified that he was told he was permitted to be on the premises

if he was visiting a resident); Hoyt, 304 N.W.2d at 892 (finding the

defendant’s claim of right was bona fide based upon her testimony).



2
   Several of the cases cited by Shaw are factually or legally inapposite to
the case before us. See, e.g., Bean, 709 A.2d at 86 (the defendant “was
not unconditionally barred” from the property in question and was permitted
to be on the property “for a legitimate reason, e.g., in order to visit a
tenant”); Blair, 827 P.2d at 359 n.4 (same); McCave, 805 N.W.2d at 314-
18 (issue before the court was whether the trial court erred by excluding
statements as hearsay); Dixon, 725 A.2d at 923 (the State proceeded
“solely on the theory that only the nonconsent of the landlord was needed
for a conviction,” and did not argue that the landlord imposed “reasonable
regulations” to protect “the premises themselves or [] other tenants,” which
the court suggested may have led to a different result); Nelson, 909 N.E.2d
at 45 (no “reasonable belief” required, just a blanket, case law created-
prohibition against the landlord excluding another from a tenant’s residential
apartment and the common areas leading thereto).


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      The evidence presented by the Commonwealth, viewed in the light

most favorable to the Commonwealth, reveals that Shaw was on the

Housing Authority’s property with actual knowledge that he was prohibited

from being there. We therefore agree with the trial court that the evidence

was legally sufficient to convict Shaw of defiant trespass.3

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/21/2014




3
   “We are not limited by the trial court’s rationale and may affirm its
decision on any basis.” Commonwealth v. Hunter, 60 A.3d 156, 162
(Pa. Super. 2013) (citation omitted).



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