Case Information
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF : PENNSYLVANIA
v.
DARLENE M. GALL
Appellant No. EDA 2016 : Appeal from the Judgment of Sentence April 14, 2016 In the Court of Common Pleas Lehigh County Criminal Division at No(s): CP-39-SA-0000024-2016 BEFORE: OTT, SOLANO, and JENKINS, JJ. FILED MAY 05, 2017
MEMORANDUM BY OTT, J.: Darlene M. Gall appeals from judgment of sentence entered April 14, 2016, Lehigh County Court of Common Pleas. On December 16, 2015, at the conclusion of summary trial, trial court Gall guilty one count of criminal trespass/simple trespasser.' court sentenced to pay fine costs. On appeal, Gall raises two issues: (1) there insufficient support conviction; (2) the court erred by finding her defense of justification by necessity was irrelevant. After thorough review of the submissions the parties, the certified record, relevant case law, we affirm the judgment of sentence. ' 18 Pa.C.S. 3503(b.1)(1)(iii).
The facts pertaining case are as follows: On July 14, 2015, Gall trespassed her neighbor's, Gloria Hieter's, property located at 2558 Columbus Drive, Emmaus, Pennsylvania. She then used an electric chain saw cut down a tree limb, approximately 20 25 feet in length, from an apple tree was located the neighbor's property transported it back to her own where left it in her driveway. admitted cut down the limb, but claimed she did so because blocking her use of an easement and she drive past without it scratching the roof of her vehicle.2 She also stated she was concerned about the possibility of an ambulance being able reach her by means other than driveway.
The trial court set forth the procedural history follows:
On December 16, 2015, after a summary trial, Magisterial District Judge Daniel C. Trexler [Gall] guilty of one count of Criminal Trespass/Simple Trespasser, violation of 18 Pa.C.S.A [§] 3503([b].1)(1)(iii), a Summary Offense at NT -108- 2015, Citation No. Y0028584-3. sentenced to pay fine of $50 court costs the amount [of] $154.00 for a total $204.00. On January 15, 2015, [Gall] filed Notice of Appeal from Summary Criminal Conviction.
On April 14, 2016, after de novo summary appeal hearing, this Court found [Gall] guilty of the charge of Criminal [Trespass]/Simple Trespasser violation Pa.C.S.A. [§] ([b].1)(1)(iii), Summary Offense. appeared hearing represented counsel, Craig B. Neely, Esquire. The Commonwealth, through the Lehigh County District easement grassy nature, paved. Gall has separate driveway goes to house.
-2 Attorney's Office, presented testimony and support of the foregoing citation issued [Gall] under Pa.C.S.A. §3503(b.1)(1)(iii), criminal trespass/simple trespasser. The alleged criminal trespass occurred on the premises of 2558 Columbus Dr., Emmaus, Lehigh County, Pennsylvania 18049, neighboring property [Gall]'s property located at 4551 Oak Hill Rd[.], Emmaus, PA 18049. [Gall] allegedly intruded onto her neighbor's where she allegedly cut down a branch from her neighbors' tree [Gall] alleged was protruding onto the right-of-way that she used access own on July [Gall] was guilty of the offense following the 14, bench trial was sentenced same day to pay fine the amount of $50.00 to pay costs of prosecution.
[Gall] filed Notice Appeal to the Superior Court of Pennsylvania on May 13, 2016, which incorrectly noted date of the Order entered matter May 14, 2016. Counsel for [Gall], Craig B. Neely, Esquire notified the Court of his mistake letter May 16, 2016, he filed corrected Notice of Appeal May 16, 2016. By Order of Court dated May 19, 2016, [Gall] was [o]rdered file Concise Statement Matters Complained within twenty-one days of the Order. timely filed her Concise Statement of Matters Complained of Appeal.
Trial Court Opinion, 1-2.3
In Gall's first issue, she complains there insufficient evidence to convict of criminal trespass/simple trespasser because Commonwealth "did not establish [] 'not do so' when entered the Heiter premises It merits mention while the court's Rule 1925(a) opinion dated July 15, 2016, it timestamped filed three days later.
-3 cut the branch that was blacking her private lane." Gall's Brief at 4.4
Specifically, states: the variations
The Trial Court's analysis focused between the crimes of Simple Trespass and Defiant Trespass, and concluded that "... while the burden of showing posting or indirect or direct notice against trespassing, an element of the crime of defiant trespass, 18 Pa.C.S.A. [§] 3503(b), not an element of simple trespassing." Trial Court 1925(a) Opinion, at 7. The Trial Court's Opinion ignores the predicate language conviction for either defiant trespass or simple trespass that is part of the definition of both crimes, namely "A person commits an offense if, knowing that he not licensed or do so, he enters or remains any place ..." The Trial Court's decision holds that the Commonwealth does not need to prove that [Gall] actual knowledge that she was not or permitted upon H[ie]ter property, which contrary the explicit language [] Pa.C.S.A. [§] 3503(b.1.)[.]
The Commonwealth offered no evidence, offered no testimony, indicating [she] ever informed that she was permitted Hieter property, [she] did not testify We note stated issue somewhat differently concise statement: Commonwealth offered there any
posting or notice permitted premises. [Gall] only entered the premises of the alleged victim remove the branch completely blocking the right- of-way, which amounted to her maintaining right-of-way so use right-of-way ensure emergency vehicles could access her premises the event of health emergency an emergency imperiled property.
Defendant's Concise Statement of Matters Complained Appeal, ¶ 2. Nevertheless, we will overlook this slight transgression, will decline find waiver. See Pa.R.A.P. 1925(b)(4)(vii)("Issues included in Statement and/or raised accordance provisions of this paragraph (b)(4) are waived.").
-4 that she any knowledge that she not licensed or privileged to be there. Consequently, no evidence before the Court to indicate that "knew" that she could not enter upon the H[ie]ter property.
The Legislature explicitly states [§] Pa.C.S.A. 3503(b.1.) [Gall] must know that she was or H[ie]ter property. Here, the Commonwealth offered no evidence directly, by reasonable inference, establish permitted the premises.
The Trial Court attempts use the differences between defiant trespass simple trespass statutes support its finding of guilt for simple trespass without any evidence of [Gall] knowing permitted the Hieter property. Trial Court 1925(a) Opinion, at [Gall] acknowledges that there are differences between the two crimes, but the distinctions do impact consideration of [Gall]'s claims. at 5-6.
Our standard of review when considering a challenge the sufficiency of the evidence well -settled: whether viewing all the evidence
The standard we apply ... admitted at trial light most favorable verdict winner, there sufficient evidence to enable the fact -finder find every element of the crime beyond reasonable doubt. In applying [the above] test, we may not weigh evidence substitute our judgment the fact -finder. In addition, we note facts circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding defendant's guilt may be resolved by the fact -finder unless the evidence so weak inconclusive matter law probability of fact may be drawn from the combined circumstances. Commonwealth may sustain its burden of proving every element of the crime beyond reasonable doubt means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all actually received must be considered. Finally, the [trier] fact while passing upon credibility of witnesses and
-5 weight of the evidence produced, free to believe all, part
or none of evidence. Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa. Super. 2016) (citations omitted), appeal denied, , [218 WAL 2016] (Pa. Nov. 22, A.3d 2016).
The crime of criminal trespass/simple trespasser defined, relevant part, as follows:
(b.1) Simple trespasser.
(1) A person commits an offense if, knowing he or do so, he enters or remains any place for purpose of:
(iii) defacing or damaging the premises; [] (2) An offense under paragraph (1)(iv) constitutes first degree misdemeanor. An offense under paragraph (1)(i), (ii) (iii) constitutes summary offense.
18 Pa.C.S 3503(b.1)(1)(iii), (2). defenses criminal trespass are codified follows:
(c) Defenses. It defense to prosecution under this section that:
(1) building or occupied structure involved an offense under subsection (a) of section abandoned; (2) the premises were at the time open members of the public actor complied all lawful conditions imposed access to or remaining premises; or -6
(3) the actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him to enter or remain. 18 Pa.C.S. 3503(c).
Here, the trial court found the following:
[Gall] was cited criminal trespass for entering her neighbor's property damaging her neighbor's apple tree on July 14, [Gall] acknowledged that knew that the base of the tree from which she was cutting the branch was on her neighbor's property. [Gall] acknowledged entering the neighbor's property with the knowledge that it was her neighbor's property for the specific purpose of cutting off her neighbor's tree branch. [Gall] acknowledged fact cutting off her neighbor's tree branch. [trial c]ourt from circumstantial that the Commonwealth had proven beyond reasonable doubt that [Gall] was not licensed or be on neighbors' cut down apple branch.
[Gall] essentially argues she did not know she was not privileged or onto her neighbor's property, she was permitted property for purpose removing personal hazard health, she did have the specific intent of defacing or damaging premises. alleges the Commonwealth presented evidence
that, "there any posting or notice permitted premises." However, while burden showing posting or indirect direct notice against trespassing, an element of the crime defiant trespass, 18 Pa.C.S.A. § 3503(b), an element of simple trespassing. See Corn. v. Bennett, 124 A.3d 327 (Pa. Super. 2015) (Evidence that defendant, who been informed multiple times he was be victim's property, whom apprehended twice, sufficient support defiant trespass conviction.); Com v. Namack, 663 A.2d (Pa. Super. 1995) (In order to establish crime of defiant trespass it is necessary prove that defendant: entered or remained property without right to do so; while knowing that he had license or privilege be property; after receiving direct or indirect notice against trespass); Corn. v. Hagan, 654 A.2d 541 (Pa. Super. 1995); Com. v. Sherlock, 473 A.2d 629 (Pa. Super. 1984). Pennsylvania Legislature placed requirement demonstrating that had been posted or that the defendant had actual or indirect notice 18 Pa.C.S.A. § 3503(b), but chose add that element 18 Pa.C.S.A. § 3503(b.1), when it created the offense of simple trespasser October 27, 1995. See 1995 Pa. Legis. Serv. Act 1995-53 (S.B. 223). When interpreting statutes, "where Congress includes particular language one section of statute but omits in another is generally presumed that Congress acts it ..., intentionally purposely the disparate inclusion or in exclusion." Keene Corp. v. United States, 508 U.S. 200, 208 (1993), quoting Russello v. United States, 464 U.S. 16, 23 (1983). also, Hamdan v. Rumsfeld, U.S. 557, 578 (2006) ("A familiar principle of statutory construction ... that a negative inference may be drawn from the exclusion of language from one statutory provision included other provisions of the same statute."). Thus, the Court concludes [Gall's contention] ... meritless the Commonwealth required to produce evidence of any posting or actual notice to [she] permitted the premises prior to July 14,
Trial Court Opinion, at 4-8. Additionally, court explained:
Intent may be proved circumstantial evidence. Proof a defendant's knowledge of his lack of license or privilege enter onto may also be inferred from circumstantial evidence. Commonwealth v. Gordon, 477 A.2d 1342, 1348 (Pa. Super. 1984). In Commonwealth v. Gordon, the Pennsylvania Superior Court the evidence sufficient to show Defendant's knowledge he lacked a license privilege building, when "the fact he be inferred from the evidence of the time manner his entry." at 1348. In Gordon, the [d]efendant entered locked school building at night using force. Id. 1347-1348.
Here, Ms. H[ie]ter testified drives past easement, which left, go work. Mr. Goldman testified that he heard the chainsaw and large cracking sound and saw [Gall]'s truck going by, towing this huge branch from Ms. H[ie]ter's property around 11:30 am on July 14, July 14, 2015, was a Tuesday. It was permissible the Court to infer [Gall]'s choice choosing to cut down the branch at time Ms. H[ie]ter would not have been home, that knew to Ms. H[ie]ter's she was licensed or privileged property to cut down branch. Ms. H[ie]ter also testified that she never approached about the branch nor did she receive any correspondence from [Gall] requesting she remove the tree branch. Additionally, [Gall] testified that:
THE WITNESS: I had to do what I do.
THE COURT: Okay. Well, so here we are on the trespass, and so there's consequence of that.
THE WITNESS: But there nothing there to say I couldn't go up there. There nothing there, no signs or nothing. They posted, actually, their signs into my - may easement, other words, with I say something?
THE WITNESS: There time when they encroached my easement there, trying take it me, it cost me thousands of dollars court establish I had the right road. They were pushing dirt my - they built shed foot over their property line without permit, and I have -
MS. H[IE]TER: That's irrelevant.
[THE COMMONWEALTH]: It's okay. THE WITNESS: -- other way explain need go on there just take care it myself. N.T., 37:25-28:15. As the Court stated in counsel]'s argument that
response [defense Commonwealth not proven she was or privileged be property, "The problem I have seems all too aware of where the easement line where where isn't. She acknowledges went four steps onto her neighbor's property." N.T., 4/14/16, at 44:19-23. Considering all testimony the light most favorable the Commonwealth[,] the Court concludes the Commonwealth proved beyond reasonable doubt through circumstantial evidence [Gall] knew was licensed onto her neighbor's cut down the apple tree branch. Furthermore, has already been stated above, has been quite forthright about entry onto Ms. H[ie]ter's land having sole destructive purpose of removing the apple branch was hanging the easement. Trial Court Opinion, 7/15/2016, at 12-14 (some citations omitted).
We agree with trial court's well -reasoned analysis. First, with respect to her claim trial court improperly focused on variations between simple trespasser defiant trespasser, we note the court's discussion the two subsections was because Gall relied the wrong provision of the criminal trespass statute her concise statement. Compare 18 Pa.C.S. § 3503(b.1) (the crime Gall charged with) 18 Pa.C.S. 3503(b). As indicated above, Gall's concise statement, she alleged the Commonwealth presented "there any that posting or notice [she] permitted premises." Defendant's Concise Statement of Matters Complained Appeal, '11 2. trial court merely pointing out the different elements required simple trespasser defiant trespasser and explaining how element of posting or giving notice not necessary to prove the crime of simple trespasser.
Furthermore, based on all the evidence presented at trial, is reasonable infer she was or privileged damage the tree neighbor's property. Via counsel, Gall admitted she cut down limb Hieter's property. N.T., at 10-11.5 Furthermore, noted above, Hieter took stand testified to following:
[Commonwealth]: Did you have any conversations Ms. Gall? Did she approach you say, hey, tree's my way; can you cut it down?
[Hieter]: No, not at all.
[Commonwealth]: Did you receive any letter or correspondence from her suggesting tree's the way; cut it down?
[Hieter]: Not at all. She just did it.
[Commonwealth]: Did she ask your permission to come cut it down? [Hieter]: No, she did not.
Id. at 22.
Both Gall and Hieter's testimony, which the trial court found credible, clearly established Gall she licensed or go on Hieter's land and remove the limb. 18 Pa.C.S 3503(b.1)(1)(iii). Accordingly, the evidence sufficient sustain conviction for criminal trespass/simple trespasser. Therefore, Gall's first issue fails. investigating officer also testified told him: "Gall admitted
me walked onto Ms. Hieters' property, used an electric chain saw to essentially cut the branch down, then after successfully doing so, she indicated towed it back onto her property."
In her second issue, which related to first, claims the court erred by ruling the defense of justification by necessity, as codified 18 Pa.C.S. § 501 et seq.,6 was irrelevant to her case. Gall's Brief at 7. She states "conduct to avoid 'harm or evil,' namely the harm of being able to receive emergency services at her home," therefore, "was privileged the Hieters' to cut the potentially harmful branch." 9.7 Justification generally defined as follows:
(a) General rule. - Conduct which the actor believes be necessary to avoid harm or evil to himself another is justifiable if:
(1) the harm or evil sought be avoided by such conduct greater than sought be prevented law defining the offense charged;
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing the specific situation involved; and legislative purpose to exclude justification
(3) a claimed does otherwise plainly appear.
(b) Choice evils. - When the actor reckless or negligent bringing about the situation requiring choice harms or evils or appraising the necessity for his conduct, the justification afforded by section unavailable prosecution any offense for which recklessness or negligence, case may be, suffices establish culpability. 18 Pa.C.S.
Moreover, argues:
(Footnote Continued Next Page)
Before we may address the merits of this claim, we note a review of the record reveals Gall did not set forth the justification defense issue in her concise statement. See Defendant's Concise Statement of Matters (Footnote Continued)
[Gall] sought to introduce necessity as a defense of justification, but the Court specifically ruled necessity a defense when the Court stated, "I don't see necessity is a defense. Again, the necessity would be as to why to go onto the property as opposed to cutting limb at the edge of the easement, that's what's in front us today." ... Accordingly, extent the Trial Court, in its [Rule] 1925(a) Opinion, claims it did not preclude [Gall] from offering about her medical conditions, the foundation necessity defense, those conclusions are belied by record, which the Trial Court explicitly declared it would not consider the defense of justification by necessity. [Gall] have been expected attempt offer further testimony her medical conditions when Trial Court explicitly stated that it that it would not consider justification as a defense.
The Trial Court's citation to Jones v. Wagner, 624 A.2d 166 (Pa. Super. 1993), stating law a neighboring landowner can cut off a branch at a line, instructive, as it demonstrates well -settled principle civil law a non - owner of vegetative property, like tree, physically damage the when it intruding onto her property. The privilege absolute. There need be no necessity, emergency, no harm or evil caused the intruding vegetation.
On other hand, case, testified, she needed cut the branch to open private road make it accessible to emergency vehicles. perceived harm real, immediate - medical incident requiring emergency medical treatment can arise suddenly instantaneously. And, acted manner designed relieve the harm. 9-10. Complained of Appeal, 6/6/2016, at 1-7. As such, trial court did not address challenge in its Rule 1925(a) opinion. Rather, the court "[Gall]'s entry alleged analyzed the following issue by Gall: victim's premises sole purpose of maintaining the right-of-way, intentional[ly] deface or damage the alleged victim's property." at In addressing this claim, the court discussed three defenses permitted under the criminal trespass statute. See 18 Pa.C.S 3503(c); see also Trial Court Opinion, 8-10. Accordingly, we find Gall's second issue waived. Pa.R.A.P. 1925(b)(4)(vii)("Issues included Statement and/or raised accordance provisions of this paragraph (b)(4) are waived.").8
Judgment of sentence affirmed.
Judge Jenkins did participate the consideration or decision this case.
Judgment Entered.
Joseph D. Seletyn, Es .
Prothonotary
Date: 5/5/2017
We note unlike the first issue, second claim substantially different from what was raised concise statement therefore, we find waiver necessary.