COMMONWEALTH of Pennsylvania v. Crystal Lynn WANNER, Appellant
No. 1098 MDA 2016
Superior Court of Pennsylvania.
March 28, 2017
Argued January 25, 2017
158 A.3d 714
BEFORE: LAZARUS, J., STABILE, J., and DUBOW, J.
Appellant‘s trial began on February 19, 2015, after which Appellant testified on her own behalf on February 26-27, 2015. Before the prosecution had finished its cross-examination of Appellant, the trial court was informed on March 2, 2015, that Appellant had been hospitalized for complaints of chest pains. Shortly thereafter, Appellant‘s treating physician informed the trial court that Appellant had undergone a minor procedure, would be treated with medication, and would be able to proceed with her testimony at trial upon being discharged from the hospital.
On March 6, 2015, the parties reconvened before the trial court. Counsel expressed some concern for Appellant‘s health and her ability to withstand cross-examination, but also emphasized his concern that he would bе liable for any harm Appellant sustained from the stress of testifying. The prosecutor shared that he was nearly finished with cross-examining Appellant and confirmed that he would need only fifteen more minutes of testimony. After a short colloquy by the trial court, Appellant admitted that she was feeling well enough to continue cross-examination. The trial court assured Appellant that she could ask for a break if she was not feeling well. The prosecutor then continued with a brief period of cross-examination during which Appellant did not complain of any difficulty.
Based on these facts, we agree with the trial court‘s conсlusion that a mistrial was not warranted. Appellant‘s counsel offered no medical evidence that would suggest that Appellant could not proceed with her testimony; in fact, Appellant‘s treating physician reported that Appellant suffered no damage and could return to the witness stand upon her discharge from the hospital. Appellant agreed to continue with cross-examination as she told the trial court that she “felt better.” N.T. 3/6/15, at 23. Appellant then finished a brief portion of cross-examination, never reporting any problem or asking for a break. Moreover, Appellant does not attempt to argue that her choice to continue with her testimony resulted in any prejudice. Accordingly, we conclude that the trial court properly exercised its discretion in denying Appellant‘s motion for a mistrial.
For the foregoing reasons, we affirm Appellant‘s judgment of sentence.
Affirmed.
Courtney E. Hair, Assistant District Attorney, Carlisle, for Commonwealth, appellee.
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 point, the shop owner asked them to leave. She repeated the request multiple times but they would not go.
Something akin to a scuffle oсcurred 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 shе 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 cо-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, Cumbеrland 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 Cоurt of Common Pleas held a trial de novo. President Judge Edward E. Guido found Appellant and her co-defendant 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 tres-
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, 319 Pa.Super. 13, 465 A.2d 1028, 1032 (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, 585 Pa. 395, 888 A.2d 775, 780 (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 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 а 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 cеll 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 еstablish 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 favorablе 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 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[.]”
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 Trеspass 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 arrivеd.
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
Finally, Appellant relies on Commonwealth v. Burton, 299 Pa.Super. 147, 445 A.2d 191 (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 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 wаs 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 bеlieve 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).
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.