J-S23041-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,               : IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                Appellant                   :
                                            :
                     v.                     :
                                            :
JOSEPH EDWARD CAP,                          :
                                            :
                Appellee                    : No. 2217 EDA 2014

                  Appeal from the Order Entered July 1, 2014,
                in the Court of Common Pleas of Lehigh County,
             Criminal Division, at No(s): CP-39-CR-0001154-2014

BEFORE:      DONOHUE, SHOGAN, and STRASSBURGER, JJ.*

MEMORANDUM BY STRASSBURGER, J.:                           FILED JUNE 03, 2015

       The Commonwealth of Pennsylvania (the Commonwealth) appeals

from   the   order    entered   on   July   1,   2014,1   which   dismissed   the

Commonwealth’s charges against Joseph Edward Cap (Cap) as de minimis

pursuant to 18 Pa.C.S. § 312. Upon review, we reverse the order dismissing

the charges and remand for trial.

       We set forth the background of this case as best we can discern from

the certified record.     On October 16, 2013, Officer Richard Seltzer, along

with Sergeant Collins of the Allentown Police Department responded to Maxx

Fitness for a disturbance. When Seltzer arrived, Collins was already there,

and informed Seltzer that Cap was creating a disturbance.            Collins had



1
  The order is dated June 26, 2014, but was not filed and entered on the
docket until July 1, 2014; thus, the 30 day period of time for filing an appeal
began to run on July 1, 2014. Pa.R.A.P. 108(a)(1) and (d)(1).

*Retired Senior Judge assigned to the Superior Court.
J-S23041-15


advised Cap multiple times that “he was no longer welcome at the gym for

the day due to him breaking the dress code.” Affidavit of Probable Cause,

10/18/2013. However, “Cap continued to argue with [police] over him no

longer being welcome at the gym.” Id. Cap was informed by police that “if

he did not leave immediately he would be trespassing as he was warned

multiple times to leave.” Id.

      Cap was arrested and charged with defiant trespass by actual

communication, graded as a misdemeanor of the third-degree. Following a

preliminary hearing, the charge was held for court. The Commonwealth filed

its criminal information and Cap subsequently filed a pre-trial motion

requesting various documents and dismissal of the case. On June 26, 2014,

the trial court sua sponte determined that Cap’s criminal conduct was de

minimis, pursuant to 18 Pa.C.S. § 312, and dismissed the charges.            The

Commonwealth filed a motion for reconsideration, which the trial court

denied. This timely appeal followed.

      On appeal, the Commonwealth presents one question for this Court’s

review: “Did the trial court abuse its discretion in characterizing [Cap’s]

conduct as a de minimis infraction and sua sponte dismissing the charges

against him?” Id. at 4.   We consider this issue mindful of the following.

      A trial court may dismiss charges if it finds the conduct constituting

the offense to be de minimis in nature. The Crimes Code provides:




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     (a) General rule.--The court shall dismiss a prosecution if,
     having regard to the nature of the conduct charged to constitute
     an offense and the nature of the attendant circumstances, it
     finds that the conduct of the defendant:

           (1) was within a customary license or tolerance,
           neither expressly negatived by the person whose
           interest was infringed nor inconsistent with the
           purpose of the law defining the offense;

           (2) did not actually cause or threaten the harm or
           evil sought to be prevented by the law defining the
           offense or did so only to an extent too trivial to
           warrant the condemnation of conviction; or

           (3) presents such other extenuations that it cannot
           reasonably be regarded as envisaged by the General
           Assembly or other authority in forbidding the
           offense.

18 Pa.C.S. § 312.

     “The purpose of this section is to remove petty infractions from the

category of criminal conduct.” Id. (comment).     However, “[a]n offense

alleged to be de minimis in nature should not be dismissed where either

harm to the victim or society in fact occurs.” Commonwealth v. Lutes, 793

A.2d 949, 963 (Pa. Super. 2002); see Commonwealth v. Moses, 504 A.2d

330 (Pa. Super. 1986) (finding conduct of defendant, who punched a ten-

year-old boy in the stomach and took 35¢ in candy money, not de minimis

because the boy was harmed).

     Additionally, we review the trial court’s decision to dismiss these

charges for an abuse of discretion. Commonwealth v. Przybyla, 722 A.2d




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183 (Pa. Super. 1998). “An abuse of discretion is more than just an error in

judgment and, on appeal, the trial court will not be found to have abused its

discretion unless the record discloses that the judgment exercised was

manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-

will.” Lutes, 793 A.3d at 959.

      Instantly, Cap was charged with defiant trespass pursuant to 18

Pa.C.S. § 3503(b)(1)(i), which provides that “[a] person commits [this]

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[.]”       “The purpose of the criminal trespass

statute is to prevent unlawful intrusion onto real property or remainder

thereon or to prevent unlawful breaches of the peace relating to realty.”

Commonwealth v. White, 492 A.2d 32, 36 (Pa. Super. 1985).

      The trial court offered the following written statement of reasons as to

why the charges qualified as de minimis. See 18 Pa.C.S. 312(b) (“The court

shall not dismiss a prosecution under this section without filing a written

statement of its reasons[.]”).

            Having regard to the nature of the conduct charged and
      the nature of the attendant circumstances, [the trial court] found
      that the conduct of [Cap] did not actually cause or threaten
      harm or evil sought to be prevented by the law defining the
      offense or did so only to an extent too trivial to warrant the
      condemnation of the conviction.

Trial Court Opinion, 7/30/2014, at 1-2.



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     The Commonwealth contends, inter alia, that Cap’s conduct “is

precisely the type of harm sought to be avoided by [the statute]…. [Cap’s]

willful refusal to adhere to the Club’s dress code, Club representative

requests to leave, and insistence to defiantly use the Club’s property was

criminal.” Commonwealth’s Brief at 11. “Police intervention was necessary

and ultimately, [Cap] gave police no choice but to arrest him.”    Id.   We

agree with the Commonwealth’s position.

     While the case law is sparse on the subject of what qualifies as a de

minimis infraction for the purposes of the Crimes Code, the conduct at issue

in this case is clearly the harm the defiant trespass statute is designed to

address. Cap remained on the property after being asked to leave by Club

personnel; after being asked to leave by police; and, even after being

threatened with arrest.   Thus, he remained on the property after it was

communicated to him that he was no longer welcome. Such conduct could

be considered more than a trivial infraction. Accordingly, we hold the trial

court abused its discretion by dismissing the Commonwealth’s case as de

minimis.

     Order reversed. Case remanded for proceedings consistent with this

memorandum. Jurisdiction relinquished.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 6/3/2015




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