Judges Opinions, — April 18, 2018 13:22 — 0 Comments

Commonwealth of Pennsylvania vs. Paul A. Brown No. CP-38-CR-0000718-2017

Criminal Action-Law-Defiant Trespass-Neighbors-Writ of Habeas Corpus-Preliminary Hearing-Prima Facie Case-Grading

Defendant, who was charged with one (1) count of Defiant Trespass pursuant to Title 18 Pa.C.S. § 3503(B)(1)(i) as a third degree misdemeanor after entering property that the owner previously had notified him verbally and in writing that he had no permission to enter to rake leaves with the owner’s child while the owner was away from home, filed an Omnibus Pretrial Motion seeking to quash and/or to dismiss the charge and to reduce the grading of the charge.

1. A petition for writ of habeas corpus is the proper vehicle for a defendant who has been bound over for court to attack the establishment of a prima facie case.
2. The preliminary hearing is intended to protect the accused from unlawful detention.
3. At the preliminary hearing, the Commonwealth must establish at least a prima facie case that a crime has been committed and the defendant is the one who committed it. The proof must be such that if the evidence were presented at trial and accepted as true, the judge would be warranted in allowing the case to go to the jury.
4. In reviewing whether a prima facie case has been established, the court must take the facts proven by the Commonwealth at the preliminary hearing and determine whether the sum of those facts fits the statutory definition of the crimes charged.
5. To meet its burden, the Commonwealth may utilize the evidence produced at the preliminary hearing and may submit additional proof.
6. To establish a prima facia case of defiant trespass, the Commonwealth must prove that Defendant entered or remained upon the property without a right to do so with knowledge that he or she had no license or privilege to be there and after receiving direct or indirect notice against trespass.
7. The Commonwealth presented sufficient evidence to establish a prima facie case in support of the charge when testimony was presented at the preliminary hearing that Defendant entered the property, Defendant knew that he had no license or privilege to be on the property after having received verbal and written notice of the same and no trespassing signs were posted on the property Defendant entered.
8. Section 3503(B)(2) provides that defiant trespass constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person and otherwise is a summary offense.
9. The grading of a defiant trespass charge is dependent upon a violator’s actions after he or she is found to be in violation of the statute.
10. Mere violation of a previous warning, without a refusal to leave once the defendant has entered the property, is insufficient to increase the grading of a defiant trespass charge to a misdemeanor.
11. A previously communicated notification from a party that entry is not permitted in the first place cannot be the basis for enhanced grading of a defiant trespass charge.
12. Since the facts presented at the preliminary hearing establish that Defendant was not instructed to leave the property after he had entered the property and had assisted the owner’s child with leaf collection, there is no basis upon which to charge him with Defiant Trespass graded as a misdemeanor of the third degree, which must be reduced to a summary offense.

L.C.C.C.P. No. CP-38-CR-0000718-2017, Opinion by John C. Tylwalk, President Judge, September 22, 2017.

IN THE COURT OF COMMON PLEAS OF LEBANON COUNTY
PENNSYLVANIA
CRIMINAL DIVISION NO. CP-38-CR-718-2017

COMMONWEALTH OF PENNSYLVANIA
v.
PAUL A. BROWN

ORDER OF COURT
AND NOW, this 22nd day of September, 2017, upon consideration of Defendant’s Omnibus Pre-Trial Motion, the Briefs submitted by the parties, the evidence adduced and the materials provided for our consideration on June 21, 2017 in lieu of a hearing, it is hereby Ordered as follows:
1. Defendant’s Petition for Writ of Habeas Corpus/Motion to Quash Information and Dismiss Charges is DENIED;
2. The grading of Defendant’s Defiant Trespass charge is reduced from a misdemeanor of the third degree to a summary offense;
3. A Summary Nonjury Trial before this Court is scheduled for October 16, 2017 at 8:30 a.m. in Courtroom 1.

BY THE COURT:

JOHN C. TYLWALK, P.J.
APPEARANCES:

MEGAN RYLAND-TANNER, ESQUIRE FOR THE COMMONWEALTH
ASSISTANT DISTRICT ATTORNEY

MICHAEL BECHTOLD, ESQUIRE FOR PAUL A. BROWN
BUZGON DAVIS LAW OFFICES

OPINION, TYLWALK, P.J., SEPTEMBER 22, 2017.
Defendant is charged with one count of Defiant Trespass, graded as a third-degree misdemeanor, pursuant to 18 Pa.C.S.A. §3503(B))1)(i):
(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). The Information alleges that Defendant entered a residential property located at 547 East Maple Street in Cleona (“the property”) on November 16, 2016 after having previously been told to stay off the premises by the owner verbally and by a letter sent via certified mail.
With regard to grading, Section 3503 provides:
(2) Except as provided in paragraph (1)(v), an offense under this subsection constitutes a misdemeanor of the third degree if the offender defies an order to leave personally communicated to him by the owner of the premises or other authorized person. … Otherwise it is a summary offense.
18 Pa.C.S.A. §3503(B)(2).
After a Preliminary Hearing was conducted on April 20, 2017, the matter was bound over for Court by Magisterial District Judge John Ditzler. Defendant has filed an Omnibus Pre-Trial Motion which includes a Petition for Writ of Habeas Corpus/Motion to Quash Information and Dismiss Charges and a challenge to the grading of the Defiant Trespassing charge as a third-degree misdemeanor. At the time scheduled for the hearing on the Pre-Trial Motion on July 26, 2017, the parties submitted the transcript of the Preliminary Hearing for our consideration in lieu of a hearing. Both parties have filed Briefs and the matter is now before us for disposition.
At the Preliminary Hearing, DeAnn Feeser, one of the owners of 547 East Maple Street, testified that she has lived at that address for twenty-six years and was living there on November 16, 2016 with her husband, Charles, and her twenty-one-year-old daughter, Jerika. She explained that the family’s relationship with Defendant has been strained due to his having called the police on eighteen occasions when the Feesers were having an addition constructed on their home. In October 2015, she told Defendant to stay off her property after a “shouting match” involving herself, Defendant, and Defendant’s daughter. She also sent a no-trespass letter, via certified mail, to Defendant in October of 2015 informing Defendant that he was to stay off the premises of 547 East Maple Street and another property she owns in Cleona. Feeser indicated that she had received the return receipt from that letter. Since that time, Feeser never granted Defendant permission to be on the property. Feeser also posted no trespassing signs in various locations on the premises and Defendant has to pass these signs on the route from his home to the property.
Feeser explained that during the week prior to November 16, 2016, she and her husband had been away on vacation. While they were gone, Jerika and their son, Jarrett, had been staying at the home to care for the family pets. Feeser had never told Jerika or Jarrett about the no-trespass letter she had sent to Defendant.
On November 16, 2016, when she and her husband were on their way home from the airport, Feeser received a text message from Jerika informing her that Defendant had come to the front door and had asked if he could help clean up their leaves for the Borough’s leaf collection which was the next morning. Feeser testified that she told Jerika that Defendant was not permitted on the property and instructed her to tell him to leave; however, Jerika replied that it was too late as Jarrett was already outside raking leaves with him.
Jerika testified that on November 16, 2016, Defendant came to the front door at 7:00 p.m. offering to help with the leaves for the next days’ pickup. As soon as she answered the door, Jarrett had appeared and agreed to meet Defendant in the back of the home. Jerika sent the text message to her mother because she knew that her parents and Defendant were not on good terms. Jerika testified that she did not give Defendant permission to be on the property, but she never asked him to leave.
Jarrett testified that he was staying with his sister while his parents were away on vacation and that he considered himself to be in charge of the household during his parents’ absence. He first encountered Defendant after Jerika had already opened the front door. He agreed to meet Defendant in the back of the home in order to rake leaves after Defendant informed him that the Borough collection was the next day. Defendant had gone around the house and the two met in the back alley behind the property’s fenced-in backyard. They raked the leaves from a strip of grass behind a shed on the property where Jarrett had previously made a pile. The two raked the leaves through the alley to the pickup location. At the time, Jarrett had no knowledge that Defendant was not permitted to be on the premises.
A petition for Writ of Habeas Corpus is the proper vehicle for a defendant who has been bound over for court to attack the Commonwealth’s establishment of a prima facie case. Commonwealth v. Morman, 541 A.2d 356 (Pa. Super. 1988). The Pennsylvania Superior Court has discussed the purpose of a preliminary hearing and the concept of a “prima facie case”:
A creature of statute, the preliminary hearing is intended to protect the accused from unlawful detention. To that end, the prosecution must establish at least a prima facie case that a crime has been committed and that the accused is the one who committed it. The Commonwealth’s burden at this stage falls short of proof beyond a reasonable doubt. The proof need only be such that, if the evidence were presented at trial and accepted as true, the trial judge would be warranted in allowing the case to go to the jury.
Case law provides a mechanical standard of review:
Our function is to take the facts proven by the Commonwealth at the preliminary hearing and to determine whether the sum of those facts fits within the statutory definition of the types of conduct declared by the Pennsylvania legislature in the Crimes Code to be illegal conduct. If the proven facts fit the definition of the offenses with which the [defendant is] charged, then a prima facie case was made out as to such … offenses. If the facts do not fit the statutory definitions of the offenses charged against [the defendant] the [the defendant] is entitled to be discharged.
Commonwealth ex rel. Lagana v. Commonwealth Office of Attorney General, 662 A.2d 1127, 1129 (Pa. Super. 1995), citing Commonwealth v. Lacey, 496 A.2d 1256 (Pa. Super. 1985).
To demonstrate the existence of a prima facie case, the Commonwealth must produce evidence of every material element of the charged offense as well as the defendant’s complicity therein. Commonwealth v. Dantzler, 135 A.3d 1109, 1114 (Pa. Super. 2016). To meet this burden, the Commonwealth may utilize the evidence produced at the preliminary hearing and may also submit additional proof. Id.
In order to establish a prima facie case of this offense, 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. Commonwealth v. Nomack, 663 A.2d 191, 194 (Pa. Super. 1995). This crime involves an element of intent. Id.
After reviewing the Preliminary Hearing transcript, we find the Commonwealth has produced evidence to establish a prima facie case of Defiant Trespassing. The evidence established that Defendant entered the property as Jerika and Jarrett both testified that he had come up the walkway and onto the front porch. After speaking with Jerika and Jarrett, Defendant then went around to the rear of the property. The evidence also indicated that Defendant knew that he had no license or privilege to be on the property and had received appropriate notice. Feeser, the owner of the property, testified that Defendant had no right to enter the premises and that she had previously notified Defendant to stay off the property, both verbally and in writing. There were also no-trespassing signs posted on the property which Defendant would have passed enroute from his own home. Thus, the Commonwealth has presented evidence of the material elements of this offense and Defendant’s complicity.
Defendant complains that he was simply extending a neighborly gesture when he offered to help Feeser’s children with the leaves. The Commonwealth characterizes Defendant’s actions as a surreptitious way to continue the hostilities between himself and the Feesers. We are unable to comment on these arguments as we did not adjudge the credibility of the witnesses and it is not our task to determine the nature of Defendant’s actions in this proceeding. At this point, we must simply examine the Commonwealth’s evidence to support a prima facie case. Having found that it did so, we will deny Defendant’s request for dismissal of the Defiant Trespass charge.
We do agree with Defendant that this offense should be graded as a summary offense rather than a third-degree misdemeanor under the statute. The grading of this offense is dependent upon a violator’s actions after he is found to be in violation of the statute. Commonwealth v. Crosby, 791 A.2d 366 (Pa. Super. 2002) Caselaw indicates that mere violation of a previous warning, without a refusal to leave once a defendant has entered the property, is insufficient to increase the grade of a defiant trespass charge to a misdemeanor. If a defendant refuses to comply with an order to leave once he is found to be in violation of the defiant trespass statute, he must then face the enhanced charges; however, if he complies with an order to leave, the initial violation can be graded only as a summary offense. Id.
In Crosby, the defendant was a van driver who transported mentally disabled clients from their homes to various facilities. The victim was a client whom he would pick up at home, transport to her workshop, and return to her home at the end of the day. The victim’s mother, with whom she lived, had previously instructed the defendant that he was only permitted to help the victim with her house key if she was having a problem unlocking the door upon her return home. When the mother arrived home one day to find the defendant inside the home, she instructed him to leave. The defendant complied with her request. Among other offenses, the defendant was charged with a misdemeanor defiant trespass and was found guilty after a jury trial. On appeal, he argued that the defiant trespass charge should have been graded as a summary. The Commonwealth argued that he had properly been charged with a misdemeanor, citing evidence that his employer had previously instructed him that he was not permitted to enter clients’ homes. The appellate court held that after his compliance with the mother’s directions that he leave the premises, his employer’s instruction did not satisfy the statute and could not be the basis for the enhanced grading:
… A previously communicated rule from a third party employer that entry was not permitted in the first place does not satisfy the statute and cannot be the basis for an enhanced grading of the offense. As a result, appellants’ sentence for defiant trespass must be vacated and the matter remanded for resentencing in accordance (sic) the statutory mandate.
Crosby, 791 A.2d at 372.
In Commonwealth v. Shaw, 2011 WL 12542531 (C.C.P. Fayette Cnty. 2011), the defendant had previously been served with a no-trespass letter by a municipal housing authority with regard to one of its multi-unit apartment complexes. His name had also been placed on a defiant trespass list. He was charged with a misdemeanor defiant trespass after he was observed sitting on the porch of one of the apartments in the complex in violation of the no-trespass letter. Apparently, he was not instructed to leave the premises at that time. The charge was reduced to a summary offense after defendant had filed a pre-trial motion.
We believe the facts of this case are similar to those in Crosby and Shaw. Like Defendant here, the defendants in both cases had been given prior notice that they were not to be in or on the premises when they entered the property. In Crosby the defendant left immediately upon the mother’s direction after he was found to be in violation of her prior instruction that he was only permitted to help the victim with the door. In Shaw, the defendant was not instructed to leave the premises. In both cases, despite the previous instructions that the defendant was not to enter the subject premises, the courts found that their actions constituted only summary offenses. Here, Defendant was not requested to leave the Feeser property on November 16, 2016. Thus, there was no basis upon which to charge him with the enhanced penalty and we find that Defendant’s Defiant Trespass charge should be reduced to a summary offense. Therefore, we will remove Defendant’s name from the October Call of the List and schedule a summary nonjury trial on this charge.

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