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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

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.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED DECEMBER 08, 2017

        Michael Blauser, Jr., appeals from the September 27, 2016 judgment

of sentence of 131 to 365 days’ imprisonment imposed after a jury found

him guilty of one count of defiant trespass.1 After careful review, we vacate

appellant’s judgment of sentence and remand for a new trial.

        The relevant facts and procedural history of this case may be

summarized as follows.       On the evening of April 16, 2016, Zack Park

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

Pennsylvania, 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




1   18 Pa.C.S.A. § 3503(b)(1)(i).
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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.) Park testified that it did not appear to him 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.)

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



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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 was subsequently charged with one count each of defiant

trespass and resisting arrest.2     The charge of resisting arrest was nolle

prossed prior to trial. On August 24, 2016, appellant proceeded to a jury

trial. At the close of the Commonwealth’s case-in-chief, appellant sought to

call his sister, Jamie Moore (“Moore”), to testify that appellant frequently

purchases pre-paid electronic cards similar to the ones he was examining in

the Sheetz store. (Id. at 65.) According to defense counsel, Moore would

also testify that appellant has a habit of being very meticulous when it

comes to his purchases and that he spends an inordinate amount of time

examining items for sale.      (Id.)   The trial court concluded that Moore’s


2   18 Pa.C.S.A. § 5104.


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proffered testimony was irrelevant and denied appellant’s request to call her

as a witness. (Id. at 66.) In reaching this decision, the trial court reasoned

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 comply. (Id.; see

also trial court opinion, 12/29/16 at 3.)

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

of defiant trespass.   On September 27, 2016, the trial court sentenced

appellant to 131 to 365 days’ imprisonment, with immediate parole.         No

post-sentence motions were filed, and this timely appeal followed on

October 25, 2016.3 Thereafter, appointed counsel, Michael S. Marshall, Esq.

(“Attorney Marshall”), requested leave to withdraw in accordance with

Anders    v.   California,   386   U.S.     738   (1967),   Commonwealth    v.

McClendon, 434 A.2d 1185 (Pa. 1981), and their progeny.           On June 28,


3  The record reflects that on October 26, 2016, the trial court ordered
appellant to file a concise statement of errors complained of on appeal, in
accordance with Pa.R.A.P. 1925(b), within 21 days. Appellant filed his
Rule 1925(b) statement on December 21, 2016, and on December 29, 2016,
the trial court filed its Rule 1925(a) opinion. As the trial court correctly
notes in its opinion, appellant’s Rule 1925(b) statement was untimely. (Trial
court opinion, 12/29/16 at 1.) However, under Rule 1925, appellant’s
untimely concise statement does not result in waiver were counsel filed the
untimely Rule 1925(b) statement, and it is unnecessary to remand since the
trial court addressed 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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2017, this court denied Attorney Marshall’s petition to withdraw on the basis

that the appeal was not “wholly frivolous,” and remanded for the preparation

of an advocate’s brief on appellant’s behalf.        See Commonwealth v.

Blauser, 166 A.3d 428, 434 (Pa.Super. 2017).

      Attorney Marshall complied and filed an advocate’s brief wherein he

raises the following interrelated issues on appellant’s behalf:

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

            [2.]   Whether the evidence presented at trial was
                   sufficient to sustain appellant’s conviction for
                   Defiant Trespass[?]

Appellant’s brief at 4.   The Commonwealth, in turn, filed a supplemental

brief on August 28, 2017.

      “[T]he admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court clearly

abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa.Super. 2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citation

omitted). “An abuse of discretion is not merely an error of judgment; rather

discretion is abused when the law is overridden or misapplied, or the

judgment exercised is manifestly unreasonable, or the result of partiality,


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prejudice, bias, or ill will, as shown by the evidence or the record.”

Commonwealth v. Antidormi, 84 A.3d 736, 745 (Pa.Super. 2014),

appeal denied, 95 A.3d 275 (Pa. 2014) (citation 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, in turn, governs evidence of habit

and routine practice and provides as follows:

           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.




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      Instantly,   appellant   was    found   guilty   of   defiant   trespass,   a

misdemeanor of the third degree, which provides, in relevant part, as

follows:

            (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) sets forth 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).

      This court addressed a similar situation in Commonwealth v. White,

492 A.2d 32 (Pa.Super 1985).         White involved a former employee of the

Ford Aerospace Plant in Montgomery County who was convicted of defiant

trespass after he refused to leave the premises. White, 492 A.2d at 34. In

White, a panel of this court reversed a defendant’s conviction for defiant

trespass because the gate area of the Ford plant in question where appellant



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was arrested 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.”   White, 492 A.2d at 36 (internal quotation marks omitted).      In

reaching this conclusion, the White court noted that the mere fact that the

defendant’s invitation to be on the premises was revoked was not sufficient

to remove him from the protections of the affirmative defense to defiant

trespass set forth in 18 Pa.C.S.A. § 3503(c)(2). Id.

     Likewise, in the instant matter, we agree with appellant that Moore’s

proposed testimony would have likely bolstered an affirmative defense to the

charge of defiant trespass under Section 3503(c)(2), and precluding its

admission on the basis of relevancy was clearly in error. (See appellant’s

brief at 9-11.)   Moore’s testimony that appellant frequently purchases

pre-paid electronic cards similar to the ones he was examining in Sheetz and

has a habit of being very meticulous when it comes to items he is

considering purchasing was relevant to establishing he had a legitimate

purpose for being there on the day in question.    (See notes of testimony,

8/24/16 at 65-66.) As we noted in our prior opinion:

                 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


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            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 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.)

Blauser, 166 A.3d at 433-434 (citations to notes of testimony and quotation

marks in original.)

      Based    on     the   foregoing    reasoning,   we   vacate   appellant’s

September 27, 2016 judgment of sentence and remand this matter for a

new trial so that appellant may be afforded the opportunity to properly

introduce evidence in support of his affirmative defense to the charge of

defiant trespass.




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      Judgment of sentence vacated.     Case remanded for a new trial.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 12/8/2017




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