J-S71024-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

DISSENTING STATEMENT BY FITZGERALD, J.:                FILED APRIL 26, 2017

        I respectfully disagree with the majority’s suggestion that Appellant’s

defective Pa.R.A.P. 1925(b) statement results in waiver.       Moreover, I am

unable to accept the majority’s alternative reasons for rejecting Appellant’s

sufficiency of the evidence challenge. Rather, I would reverse the judgment

of sentence in this case.

        First, Appellant’s Rule 1925(b) statement is clearly defective as

counsel cites and provides additional argument based on the wrong

subsection of the criminal trespass statute.           However, because the

underlying proceedings were straightforward, the trial court was able to

discern and address Appellant’s sole intended issue on appeal without

difficulty. Cf. Commonwealth v. Laboy, 936 A.2d 1058, 1060 (Pa. 2007);


*
    Former Justice specially assigned to the Superior Court.
J-S71024-16


Trial Ct. Op., 3/28/16, at 2.     Because the defects in the Rule 1925(b)

statement do not hamper appellate review, I would not find his issue

waived.1

      Second, as to the sufficiency of the evidence, it is apparent that the

trial court found determinative Appellant’s own testimony that officers told

him “to go back to Lower Merion.” See N.T., 10/29/15, at 43-44; Trial Ct.

Op. at 4. In my view, that testimony, when read in light of the remaining

trial record, does not support the court’s conclusion that there was “actual

communication” that Appellant’s mere presence inside a car in the parking

lot would constitute defiant trespass.2 See 18 Pa.C.S. § 3503(b)(1)(i) (“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[.]”).

      Thus, I would reverse Appellant’s conviction for defiant trespass and

respectfully dissent.




1
 Moreover, this appeal involves a summary conviction for     which Appellant
was sentenced to time served. The majority’s suggested       waiver analysis
would deny Appellant his right to pursue his sole issue on   appeal as there
would be no further remedy for counsel’s ineffectiveness     under the Post
Conviction Relief Act, 42 Pa.C.S. §§ 9541-9546.
2
  Indeed, aside from the considerable hearsay problems that arose due to
the Commonwealth’s failure to call any of the police officers involved in
communicating to Appellant or his father, the Commonwealth only presented
evidence that the officers told Appellant “not to come to the office anymore.”
N.T., 10/29/15, at 11.



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