J. A03040/17
                            2017 PA Super 81


COMMONWEALTH OF PENNSYLVANIA             :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
                 v.                      :
                                         :
                                         :
CRYSTAL LYNN WANNER,                     :
                                         :
                       Appellant         :     No. 1098 MDA 2016

           Appeal from the Judgment of Sentence June 14, 2016
           In the Court of Common Pleas of Cumberland County
            Criminal Division at No(s): CP-21-SA-0000100-2016

BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.

OPINION BY DUBOW, J.:                             FILED MARCH 28, 2017

     Appellant, Crystal Lynn Wanner, appeals from the June 14, 2016

Judgment of Sentence imposed in the Cumberland County Court of Common

Pleas following her conviction at a bench trial of one count of Defiant

Trespass – Actual Communication.1 After careful review, we affirm.

     The trial court summarized the facts underlying this case as follows:

     On January 26, 2016, [Appellant and her co-defendant] rang the
     doorbell of a fur shop known as Charles Exclusive Furriers.
     When the shop owner came to the door, they told her [that]
     they were curious about the shop’s products. She allowed them
     to enter. After entering the shop, they began touching the furs
     [and] asking questions about the furrier process. Suddenly,
     their “tone” changed, as they began referencing the Bible and
     asking the shop owner if she thought she was God. At that

1
 18 Pa.C.S. § 3503(b)(1)(i). Although not relevant to the instant case, we
note that our Supreme Court recently held that Sections 3503(b.1)(1)(iv)
and (b.1)(2), regarding secondary metals, were enacted in violation of the
Pennsylvania Constitution’s single-subject rule and are, therefore,
unconstitutional. See Leach v. Commonwealth, 141 A.3d 426 (Pa. 2016).
J. A03040/17


      point, the shop owner asked them to leave. She repeated the
      request multiple times but they would not go.

      Something akin to a scuffle occurred as the owner attempted to
      usher [Appellant and her co-defendant] from the shop area into
      the lobby. During the scuffle, [Appellant] thrust her cell phone
      into the shop owner’s face. The owner somehow got possession
      of both [Appellant and her co-defendant’s] phones as she
      ushered them outside the shop and into the lobby. Another
      scuffle ensued after they were all in the lobby as the owner tried
      to lock the shop door behind her. After she was eventually able
      to get the door locked, she ran up the steps to the office to call
      the police. [Appellant and her co-defendant] ran screaming
      behind her. They were still in the lobby when the police arrived.

Trial Court Opinion, filed 9/15/16, at 1-2 (unpaginated) (footnotes with

citations to the record omitted).

      Appellant and her co-defendant were charged with Defiant Trespass –

Actual Communication, graded as a summary offense.2 On March 31, 2016,

Cumberland County Magisterial District Judge Elizabeth S. Beckley found

Appellant and her co-defendant guilty of Defiant Trespass – Actual

Communication, and sentenced Appellant to pay fines, costs, and restitution

in the amount of $419.

      Appellant and her co-defendant filed timely appeals, and on June 14,

2016, the Cumberland County Court of Common Pleas held a trial de novo.

President Judge Edward E. Guido found Appellant and her co-defendant



2
  Defiant Trespass – Actual Communication is defined 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. §
3503(b)(1)(i).



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guilty of Defiant Trespass – Actual Communication, and sentenced both

defendants to 90 days of probation as well as the cost of prosecution and a

$200 fine.

      Appellant timely appealed. Both Appellant and the trial court complied

with Pa.R.A.P. 1925.

      On appeal, Appellant purports to raise a single issue, namely, “Did

Appellant have the mens rea to commit the crime of trespass?” Appellant’s

Brief at 4.    However, the Argument portion of Appellant’s Brief raises two

distinct theories of relief, improperly jumbled into a single argument

section.3     The two issues actually raised are as follows: (i) Appellant is

entitled to relief under an applicable affirmative defense to Defiant Trespass;

and (ii) the evidence was insufficient to establish the offense of Defiant

Trespass because Appellant lacked the requisite mens rea. We address each

argument in turn.




3
  “The argument shall be divided into as many parts as there are questions
to be argued; and shall have at the head of each part—in distinctive type or
in type distinctively displayed—the particular point treated therein, followed
by such discussion and citation of authorities as are deemed pertinent.”
Pa.R.A.P. 2119(a).




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J. A03040/17


                               Affirmative Defense

      Appellant avers that there is a statutory affirmative defense to Defiant

Trespass that is applicable in the instant case.4    Appellant’s Brief at 8-11.

Appellant waived this claim by failing to raise it before the trial court and

preserve it in her Pa.R.A.P. 1925(b) Statement.

      “Issues not raised in the lower court are waived and cannot be raised

for the first time on appeal.” Pa.R.A.P. 302(a). This requirement bars an

appellant from raising “a new and different theory of relief” for the first time

on appeal.     Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super.

1983).

      In addition, our Supreme Court has made it clear that “[a]ny issues

not raised in a [Rule] 1925(b) [S]tatement will be deemed waived.”

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005) (citation and

quotation omitted).    See also Pa.R.A.P. 1925(b)(4)(ii) (“The [1925(b)]

Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for

the judge”).

      In the instant case, Appellant failed to raise the affirmative defense at

any point during her trial de novo. Moreover, her Rule 1925(b) Statement


4
  “It is a defense to prosecution under this section that . . . 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(c)(2).



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J. A03040/17


preserved only the following two issues, neither of which includes the

affirmative defense:

      There is no criminal culpability in that the evidence was legally
      insufficient to support a criminal conviction for Trespass, beyond
      a reasonable doubt, in that [Appellant]:

      1. Did not have the mens rea to commit said crime and;

      2. That [Appellant] left the fur shop, which had been locked and
      secured by the employee, and remained in an outside vestibule
      of the locked shop waiting for the police because the shop
      employee had physically confiscated her cell phone for the
      purpose of making her stay at the scene.

Pa.R.A.P. 1925(b) Statement, filed 7/28/16.      Therefore, Appellant waived

her affirmative defense claim by failing to present it to the trial court, and

for failing to include the claim in her Rule 1925(b) Statement.

                                  Mens Rea

      Appellant next avers that the evidence was insufficient to establish

that she had the requisite mens rea required to sustain a conviction for

Defiant Trespass. In reviewing the sufficiency of the evidence, our standard

of review is as follows:

         The standard of review for a challenge to the sufficiency of
         the evidence is to 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. The
         Commonwealth may sustain its burden of proving every
         element beyond a reasonable doubt by means of wholly
         circumstantial evidence.

         The facts and circumstances established by the
         Commonwealth need not preclude every possibility of



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J. A03040/17


         innocence. Any doubt raised as to the accused's guilt is to
         be resolved by the fact-finder. As an appellate court, we
         do not assess credibility nor do we assign weight to any of
         the testimony of record. Therefore, we will not disturb the
         verdict unless the evidence is so weak and inconclusive
         that as a matter of law no probability of fact may be drawn
         from the combined circumstances.

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

(citations and quotations omitted).

      Defiant Trespass is defined, 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. §

3503(b)(1)(i). “Thus in order to establish a violation it is necessary to prove

that the defendant: 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.

The crime of defiant trespass thus includes an element of intent or mens

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

(emphasis in original). Therefore, a defendant who entered a property with

a bona fide, good faith, but mistaken belief that he was entitled to be there

cannot be convicted of Defiant Trespass.        Id. at 194-95 (reversing a

conviction for Defiant Trespass where appellant’s attorney had advised him

that he was entitled to continue to use a trail on complainant’s property

even over complainant’s objections).



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      In her Brief to this Court, Appellant makes two related mens rea

arguments. First, she essentially asks this Court to re-weigh the conflicting

testimony presented at trial, arguing that Appellant lacked the necessary

mens rea to commit Defiant Trespass because “Appellant and her co-

defendant left the fur shop at the request of the complainant . . . .”

Appellant’s Brief at 14.      However, the trial court, as fact finder, found

credible the complainant’s testimony that:

      [Appellant and her co-defendant] gained access to the premises
      on the false pretense that they were customers. It was apparent
      that their true reason for being there was to confront the owner
      about her business of selling animal furs. When that true
      purpose became clear, the owner told them to leave. Despite
      multiple commands, they refused. Not only would they not
      leave, but [Appellant] began to accost the owner with her cell
      phone. They resisted the owner’s efforts to get them out of the
      store. They also attempted to prevent her from closing and
      locking the door between the lobby and the shop.            They
      remained in the lobby until the police arrived.

Trial Court Opinion, filed 9/15/16, at 3 (unpaginated) (footnotes with

citations to the record omitted; emphasis added).               As the evidence

supporting this conclusion is not “so weak and inconclusive that as a matter

of   law   no   probability   of   fact   may   be   drawn   from   the   combined

circumstances[,]” we will not disturb the verdict on those grounds.

Vogelsong, supra at 719.

      Finally, Appellant relies on Commonwealth v. Burton, 445 A.2d 191

(Pa. Super. 1982), to argue that their delay in leaving the shop was excused

by the fact that the shop owner confiscated their phone.            This reliance is



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J. A03040/17


misplaced. In Burton, the landlord of a boarding home told the defendant

to leave and attempted to force the defendant to exit through the back

porch door, which was being blocked by a large dog.          Id. at 192.   The

defendant told the landlord that he was afraid of the large dog, and

attempted to leave by going through the house towards the front door. Id.

at 193. The landlord chased the defendant, grabbed him, and attempted to

force him back towards the rear door. Id. After a scuffle, Appellant broke

free and escaped through the front door, away from the dog.          Id.   On

appeal, we found that Appellant attempted to comply with the request to

leave, and that his decision to remain in the house longer in order to leave

through the front door was not “an unexpected action, as no other

reasonable alternative for exit was presented to him.” Id.

      Appellant attempts to analogize the instant case to Burton, arguing

that the shop owner’s act of confiscating Appellant’s phone made it

reasonable for her to remain in the lobby of the shop until police arrived.

However, as the trial court pointed out:

      [T]his argument fails for two reasons. In the first instance, the
      crime was complete before the cell phones had been wrested
      from [Appellant and her co-defendant]. The owner had revoked
      their privilege to remain in the store by telling them to leave
      numerous times. However, they refused. Furthermore, [the
      trial court, as fact-finder,] did not believe that they refused to
      leave only because the owner had taken their phones. It was
      clear that their refusal to leave was part of their plan to harass
      the shop owner because of her business.

Trial Court Opinion, filed 9/15/16, at 3 (unpaginated).



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J. A03040/17


      Based on all of the foregoing, and viewing the evidence in the light

most favorable to the Commonwealth as verdict winner, we conclude that

the Commonwealth presented sufficient evidence to sustain Appellant’s

conviction for Defiant Trespass where the evidence shows that Appellant and

her co-defendant: (i) remained inside the fur store without the right to do

so; (ii) knowing that they did not have the right to do so; and (iii) after the

owner of the store directly and repeatedly told the two women to leave the

store. Accordingly, Appellant is not entitled to relief on this claim.

      Judgment of Sentence affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/28/2017




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