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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

PATRICK DANIEL TILLIO, JR.

                         Appellant                   No. 3495 EDA 2015


          Appeal from the Judgment of Sentence October 29, 2015
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0004226-2015


BEFORE: BOWES, PANELLA AND FITZGERALD,* JJ.

CONCURRING MEMORANDUM BY BOWES, J.:                   FILED APRIL 26, 2017

      While I agree with my colleague Judge Panella that affirmance of the

conviction is warranted, I disagree with the employed waiver rationale.

Rather, I agree with my learned colleague Judge Fitzgerald that Appellant’s

sole claim on appeal is not waived due to a defective Pa.R.A.P. 1925(b)

statement.   I find, however, that Appellant waived the affirmative defense

asserted on appeal by failing to raise it at trial. I therefore concur in Judge

Panella’s affirmance of the conviction for the following reasons.

      Following a bench trial, Appellant was found guilty of one count of

defiant trespass, 18 Pa.C.S. § 3503(b)(1)(i), graded as a summary offense.

Appellant subsequently filed a Pa.R.A.P. 1925(b) concise statement that

erroneously stated he was convicted of 18 Pa.C.S. § 3503(b.1)(ii), which is


* Retired Senior Judge specially assigned to the Superior Court.
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the crime of simple trespass, and challenged the sufficiency of the evidence.

As the trial court recognized in its opinion, the statement cited the wrong

crime and referenced elements of the simple trespass crime which are not

elements of defiant trespass.   The Commonwealth did not challenge the

deficiencies of the statement, and the trial court elected to the address the

claim.

     Unlike Judge Panella, writing for the majority, I would not deem

Appellant’s claim waived due to his erroneous statutory citation.           I

acknowledge that, with respect to challenges to sufficiency, we have found

waiver even where, as here, the Commonwealth failed to object and the trial

court addressed the claim. “The fact that the Commonwealth did not object

to the defect and the trial court addressed the sufficiency of the evidence

issue in the alternative is of no moment.” Commonwealth v. Roche, ---

A.3d ---, 2017 WL 34931 (Pa.Super. 2017) (published opinion) (citing

cases).

     However, our Supreme Court has also observed that a less strict

approach may be justified in some cases. In Commonwealth v. Laboy,

936 A.2d 1058 (Pa. 2007), the Court stated:

     It may be possible in more complex criminal matters that the
     common pleas court may require a more detailed statement to
     address the basis for a sufficiency challenge. Here, however, the
     common pleas court readily apprehended Appellant's claim and
     addressed it in substantial detail.




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Id. at 1060. Herein, the facts of this case are straightforward and Appellant

was convicted of only one crime; therefore, there was no possible confusion

as to which crime Appellant was appealing.      Additionally, the trial court

readily apprehended Appellant’s claim and addressed it despite these

deficiencies.    Thus, I agree with Judge Fitzgerald that waiver is not

warranted on the facts herein.

      However, I would hold that Appellant failed to preserve the argument

advanced on appeal, that his conviction cannot be sustained because his

mere presence in the parking lot satisfied a defense to this charge.      To

sustain a conviction for defiant trespass, the Commonwealth must establish

that Appellant

      1) entered or remained upon property without a right to do so;
      2) while knowing that he had no license or privilege to be on
      the property; and 3) after receiving direct or indirect notice
      against trespass.

Commonwealth v. Namack, 663 A.2d 191, 194 (Pa.Super. 1995)

(emphasis in original).   Appellant claims that the conviction cannot stand

because he satisfied the statutory affirmative defense codified at §

3503(c)(2), applicable where “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.”      Appellant maintains

that his presence in a vehicle, which was parked in a lot that is open to the

public on the business’s property, meets this defense, as the parking lot was



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open to the public and he was barred only from entering the business

offices.

      [Appellant]'s mere presence in the parking lot satisfied all the
      "lawful conditions" allowing him to remain therein, satisfying the
      affirmative defense to Defiant Trespass defined at 18 Pa.C.S. §
      3503(c)(2). The parking lot was open to the public, without any
      signage indicated that entrance was prohibited. [Appellant]’s
      passive presence in a car was not belligerent in anyway nor was
      it unusual. At no time did he threaten, attack or provoke any
      employee or tenant of the apartment complex.

      . . . Although the record indicates that he was specifically
      told to leave the office and not return, this statement
      totally omits any mention of the parking lot and is specific
      to the office.

Appellant’s brief at 8 (emphasis added).

      Appellant did not present this affirmative defense to the fact-finder.

“The statutory defense in section 3503(c)(2) provides a defendant with an

affirmative defense.   An affirmative defense is defined as one where the

defendant admits his commission of the act charged, but seeks to justify or

excuse it.”    Commonwealth v. White, 492 A.2d 32, 35-36 (Pa.Super.

1985). Appellant did not admit the commission of the act charged at trial.

He testified in his defense and denied that he was informed he was barred

from the premises.

      Q. Okay. And did people – did anybody from Tall Tree Villages
      ever tell you [that] you could not return there?

      A. No.

      Q. Did the people ever tell you [that] you could not return
      there?


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     A. We talked to the police –

     Q. Did you – listen to the question.

     A. Yeah.

     Q. Did the police ever tell you [that] you could not return there?

     A. Here’s what the police told us.

     Q. Did the police ever tell you not –-

     A. No. No.

N.T., 10/29/15, at 35.

     On appeal, Appellant now pivots and concedes that his privilege to

enter the premises was revoked, but claims that the revocation was strictly

limited to the business offices. “Although the record indicates that he was

specifically told to leave the office and not return, this statement totally

omits any mention of the parking lot and is specific to the office.”

Appellant’s brief at 10. Therefore, Appellant agrees that he was barred from

some portion of the property, but claims that the parking lot was “open to

members of the public” and that his revocation was limited to the business

offices, meaning that he ”complied with all lawful conditions imposed on

access to or remaining in the premises.” 18 Pa.C.S. § 3503(c)(2). In other

words, he challenges the scope of the revocation, not that a revocation

occurred.

     The Commonwealth is required to prove beyond a reasonable doubt

that this defense does not apply, as invoking this defense admits that the



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crime has been committed.      White, supra.   Since Appellant did not raise

this defense at trial, the Commonwealth could not be expected to meet that

burden. Moreover, the fact that Appellant was on the parking lot would not

necessarily establish the defense even if properly invoked. The record does

not establish the extent to which the parking lot remained open to all

members of the public, as opposed to residents, their guests, and potential

residents.   The record’s silence on these matters is unsurprising given

Appellant’s failure to invoke the defense.

      Therefore, I do not agree with the dissent, which faults the

Commonwealth for failing to prove the crime beyond a reasonable doubt.

For the foregoing reasons, I concur in the disposition affirming judgment of

sentence.




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