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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JENNIFER LYNN WHITE
Appellant No. 971 EDA 2015
Appeal from the Judgment of Sentence March 4, 2015
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001720-2014
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED APRIL 08, 2016
Jennifer Lynn White appeals from the judgment of sentence imposed
on March 4, 2015, in the Court of Common Pleas of Chester County. On
December 16, 2014, at the conclusion of a bench trial, the court convicted
White of two counts of possession of a controlled substance (clonazepam
and alprazolam), two counts of possession of drug paraphernalia, and one
count of criminal trespass (defiant trespasser).1 The court sentenced White
to a term of two months to 11½ months’ imprisonment and one year
probation. On appeal, White raises suppression and sufficiency issues. After
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1
35 P.S. §§ 780-113(a)(16) and (a)(32), and 18 Pa.C.S. § 3503(b)(1)(i),
respectively.
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a thorough review of the submissions by the parties, the certified record,
and relevant law, we affirm.
The underlying facts in this matter are taken from the suppression
hearing, as forth by the trial court:
On August 13, 2013, [White] was in a McDonald’s restaurant
located at 1820 E. Lincoln Highway in Caln Township, Chester
County. Carolyn Ortega, the manager of the McDonald’s,
observed [White] having a verbal argument with a female friend.
Ms. Ortega heard [White] use obscenities, which was disturbing
to both the customers and the employees. Ms. Ortega asked
[White] to leave the property. [White] responded that she was
on public property and Ms. Ortega could not make her leave.
[White] continued her argument with her friend. Ms. Ortega
asked [White] to leave a second time. [White] then exited the
restaurant, but returned and began a verbal argument with one
of the employees, again using profanity. Ms. Ortega observed
that [White] was loud, rude and aggressive. [White] then left
the store and Ms. Ortega contacted the Caln Township police.
After [White] left the store, Ms. Ortega observed [White] in
the parking [lot] on the McDonald’s surveillance camera.
[White] was lying on the sidewalk, with her top raised, exposing
the top half of her body. Approximately 20 minutes later,
Sergeant Steven Parkinson of the Caln Township Police
Department arrived. Ms. Ortega asked Sergeant Parkinson to
remove [White] from the McDonald’s property and tell her that
she was not permitted to return to the property. Ms. Ortega
personally told [White] to leave the property and informed her
that she was not permitted to return to the property. Sergeant
Parkinson also told [White] she was no longer permitted on the
property and that she must leave and not return, or she could be
arrested for trespassing. Sergeant Parkinson testified that he
told [White] she could not be on any part of the property and
[White] appeared to understand what he meant by that. [White]
eventually left the premises, but told Ms. Ortega that she could
not stop her from coming onto the property.
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On January [31], 2014, during the morning hours, Ms.
Ortega was on duty as the McDonald’s manager and saw White
in a vehicle in the McDonald’s parking lot. [White] was in the
passenger seat of a green SUV which entered the McDonald’s
parking lot several time[s] that morning. Ms. Ortega did not
observe [White] get out of her car or go inside the restaurant on
January 31, 2014, nor did she see [White] driving the vehicle.
Ms. Ortega did not confront [White] when she saw her in the
vehicle because she had safety concerns based upon [White]’s
past aggressive behavior.
Later that morning, Sergeant Parkinson conducted a
routine property check at McDonald’s. Sergeant Parkinson
testified that this McDonald’s was located in a high-crime area
where he has made numerous arrests for crimes involving drugs
and public drunkenness, and has received numerous complaints
about loitering. Sergeant Parkinson went inside and Ms. Ortega
told him that [White] had been on the property earlier in the
morning. When Sergeant Parkinson returned to his vehicle, he
saw a green vehicle with [White] in the passenger seat enter and
circle through the McDonald’s parking lot. Sergeant Parkinson
conducted a traffic stop based upon the fact that [White] had
been told previously she was not permitted to enter the
property. Sergeant Parkinson then arrested [White] for criminal
trespass.
Trial Court Opinion, 6/3/2015, 2-4 (record citations omitted). During the
search incident to arrest, the sergeant discovered two amber pill bottles,
containing 17 clonazepam tablets (2 milligrams each) and 1 alprazolam
tablet (2 milligrams).2 White was also charged with two counts of
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2
Specifically, Sergeant Parkinson testified:
One of the pill bottles was marked for Jennifer White, and
the label stated that it should have contained clonazepam, one
milligram. In that pill bottle I found two pills -- or three pills.
(Footnote Continued Next Page)
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possession of a controlled substance and two counts of possession of drug
paraphernalia.
White filed an application for suppression of evidence on November 7,
2014. A hearing was held three days later. On November 12, 2014, the
court denied motion. The matter proceeded to trial. On December 16,
2014, the trial court, sitting without a jury, found White guilty of all charges.
On March 4, 2015, the court sentenced White to a term of two months to
11½ months’ imprisonment for one count of possession of a controlled
_______________________
(Footnote Continued)
Two of the pills were marked with T-e-v-a, 834, I believe. I
have used the drugs.com, which was referred to me by the
Attorney General’s office, to preliminarily identify drugs or
prescription medication. It identified them as clonazepam, two
milligrams. A third pill was in that pill bottle. It was marked
GG249. It was a bar-shaped pill. Later using the drugs.com
website, it was identified as alprazolam.
So none of the three drugs in that actual pill bottle were
the drugs that were supposed to be contained in that pill bottle,
according to the labeling.
…
The second pill bottle had a label on it stating it was
prescribed to a Freddie Self. In that pill bottle, the label stated it
was to contain clonazepam, two milligrams. And in the pill bottle
there were 15 pills marked T-e-v-a, 834, which were
clonazepam, two milligrams….
All the pills in both pill bottles were controlled substances.
N.T., 12/16/2014, at 43-44.
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substance, and a consecutive term of one year probation for one count of
possession of drug paraphernalia.3 This appeal followed.4
In White’s first argument, she contends the trial court erred in denying
her application for suppression by finding that Sergeant Parkinson had
probable cause to place her under arrest for the crime of criminal trespass.
Specifically, she states that while she was told she was no longer permitted
on the premises of the McDonald’s, the property in question was never
defined or delineated. White’s Brief at 8. Moreover, White argues:
Where a [d]efendant was advised to “get off the property” but
the property in question was never defined or delineated, the
Court found that “no conditions were ever imposed upon the
defendant’s being on the parking lot; and it seems unlikely that
any conditions for such action would have been ‘lawful’, in view
of the public nature of the parking lot.” Commonwealth v.
Herlihy, 42 Pa. D&C 3d 545, (Court of Common Pleas of
Pennsylvania, Chester County, 1987). The McDonalds’ parking
lot … is a public lot. It is surrounded by other business on both
sides with no physical barriers that prevent members of the
public to walk across the McDonalds lot should they choose to do
that. Members of the public also do not need to obtain
permission to walk across the McDonald’s parking lot, they are
free to walk on this public property.
Id. at 8-9 (record citation omitted).
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3
No further penalty was imposed on the remaining charge.
4
On April 7, 2015, the trial court ordered White to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). White filed
a concise statement on April 28, 2015. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on June 3, 2015.
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This Court’s well-settled standard of review of a denial of a motion to
suppress evidence is as follows:
[An appellate court’s] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court’s factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression court’s
factual findings are supported by the record, [the appellate court
is] bound by [those] findings and may reverse only if the court’s
legal conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court’s legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts.
Thus, the conclusions of law of the courts below are subject to []
plenary review.
Commonwealth v. Jones, 988 A.2d 649, 654 (Pa. 2010) (internal citations
and quotation marks omitted), cert. denied, 562 U.S. 832 (2010).
Here, as stated above, White contends the officer did not have
probable cause to arrest her for criminal trespass (defiant trespasser) under
Subsection 3503(b)(1)(i).
To be lawful, an arrest must be supported by probable cause to
believe that a crime has been committed by the person who is to
be arrested. Commonwealth v. Holton, 2006 PA Super 234,
906 A.2d 1246, 1249 (Pa. Super. 2006). A police officer must
make a common sense decision whether there is a fair
probability that a crime was committed by the suspect. Id.
Whether probable cause exists is a highly fact-sensitive inquiry
that must be based on the totality of the circumstances as
viewed through the eyes of a prudent, reasonable, cautious
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police officer guided by experience and training.
Commonwealth v. Clark, 558 Pa. 157, 164, 735 A.2d 1248,
1252 (1999); Holton, supra at 1249; Commonwealth v.
Nobalez, 2002 PA Super 255, 805 A.2d 598, 600 (Pa. Super.
2002). “[P]robable cause does not involve certainties, but rather
the factual and practical considerations of everyday life on which
reasonable and prudent [human beings] act.” Commonwealth
v. Wright, 2005 PA Super 35, 867 A.2d 1265, 1268 (Pa.Super.
2005), appeal denied, 583 Pa. 695, 879 A.2d 783 (2005), cert.
denied, 546 U.S. 1104, 126 S. Ct. 1047, 163 L. Ed. 2d 879
(2006) (citation and internal quotation omitted).
Commonwealth v. Wells, 916 A.2d 1192, 1195 (Pa. Super. 2007).
Furthermore, a person commits the offense of defiant trespass, “[i]f
knowing that he is not licensed or privileged to do so, he enters or remains
in any place as to which notice against trespass has been given by actual
communication to the actor.” 18 Pa.C.S. § 3503(b)(1)(i). Therefore, “in
order to establish a violation it is necessary to prove that the defendant: 1)
entered or remained upon property without a right to do so; 2) while
knowing that [she] had no license or privilege to be on the property; and 3)
after receiving direct or indirect notice against trespass.” Commonwealth
v. Namack, 663 A.2d 191, 194 (Pa. Super. 1995).5
Here, the trial court found the following:
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5
Additionally, we note that the “crime of defiant trespass thus includes an
element of intent or mens rea. This element of intent, like every other
element of the crime, must be proven beyond a reasonable doubt if the
conviction is to survive a challenge to the sufficiency of the evidence.”
Namack, 663 A.2d at 194 (citations omitted).
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Contrary to [White]’s arguments, the evidence of record
reveals that Sergeant Parkinson had probable cause to arrest
[White] on January 31, 2014. On August 13, 2013, [White] was
lawfully at the McDonald’s restaurant in Caln Township when she
was involved in a disruptive argument with a friend inside the
restaurant. The manager of the restaurant asked [White] to
leave because [she] was loud, aggressive, using profanity and
causing a general disturbance. [White] left, but later returned
and engaged in an argument with an employee, continuing to
use profanity. When [White] left the restaurant the second time,
she went outside the restaurant and lay on the sidewalk,
exposing the top half of her body.
The manager of the McDonald’s called the police, who
quickly responded to the scene. Both the manager and the
police officer verbally communicated to [White] that she was to
leave the premises immediately and that she was not permitted
to return. On January 13, 2014, [White] returned to the
McDonald’s property, knowing that she was not licensed or
privileged to remain on the property, and after receiving direct
verbal notice that she was not permitted to be on the property.
[White] cites the case of Commonwealth v. Herlihy, 42
Pa.D.&C.3d 545 (1987) in support of her arguments that she
was on public property and she was not committing a crime;
therefore, Sergeant Parkinson had no probable cause to arrest
her for criminal trespass. Herlihy is distinguishable from the
case at bar. In Herlihy, the defendant was charged with defiant
trespass, 18 Pa.C.S. § 3503(b), for being in a parking lot. A
week before he was charged, the defendant had been told, by an
administrator for the Women’s Suburban Clinic, located in the
parking lot, to “get off the property.” Herlihy, at 547. The
defendant raised the defense under section 3503(c)(2) that the
parking lot was open to the public and he had complied with all
the lawful conditions imposed on access to or remaining on the
property.
The trial court held that no conditions were ever imposed
upon the [d]efendant’s being in the parking lot. When the
defendant was told to “get off the property”, the “property” in
question was never defined and delineated. Herlihy, at 547.
The Women’s Surburban Clinic was part of a three-building
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retail, commercial and professional complex. Id. When the
defendant was charged with criminal trespass, he was not in the
Women’s Suburban Clinic, but only in the parking lot. The
administrator of the Women’s Suburban Clinic did not place any
restrictions on the defendant with regard to his presence in the
parking lot when she asked him to leave the clinic. Id.
At bar, a parking lot surrounding this McDonald’s
restaurant is owned by McDonald’s. The parking spaces are only
for those members of the public visiting McDonald’s. Although
there is a laundromat on one side of McDonald’s and a dentist’s
office on the other side, these businesses have their own parking
lots and do not share a parking lot with McDonald’s. Exhibits C-
1 through C-3 show that the parking lots for these businesses
are not connected to the McDonald’s parking lot and there would
be no reason for a patron of the laundromat or the dentist’s
office to drive through McDonald’s to get to these businesses.
When [White] was told on August 13, 2013 to vacate the
premises and not return, this included the parking lot. [White]
was in the parking lot when she was told by both Ms. Ortega, the
manager of McDonald’s and Sergeant Parkinson that she was to
leave the premises and she was not permitted to return.
Sergeant Parkinson specifically informed [White] that she was
not permitted to be on the “whole” property. Although Ms.
Ortega and Sergeant Parkinson actually communicated to
[White] that she was not permitted to return to the property,
including the parking lot, [White] returned to McDonald’s
approximately five months later knowing she was not licensed or
privileged to be there. Sergeant Parkinson recognized [White]
from the previous encounter and knew that she was not
permitted on the property. At that time, Sergeant Parkinson
possessed the requisite probable cause to arrest [White] for the
commission of the crime of criminal trespass.
Trial Court Opinion, 6/3/2015, at 5-7 (record citations omitted).
We accept the trial court’s well-reasoned analysis and agree that
based on the totality of the circumstances as viewed through the eyes of a
reasonable police officer guided by experience and training, Sergeant
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Parkinson possessed probable cause to arrest White as a defiant trespasser.
See Wells, supra. Particularly, we emphasize that White was in the
parking lot when she received verbal communication from both Ortega and
Sergeant Parkinson that she was not permitted to return to the property.
Approximately five months later, she came onto the property, making
several passes through the parking lot, without the right to do so and
knowing that she did not have a license or privilege to be there. See
Namack, supra.6 Accordingly, we conclude White’s suppression issue
warrants no relief.
In White’s second argument, she contends there was insufficient
evidence to convict her of criminal trespass based on her mere presence
and/or involuntary presence. White’s Brief at 9-10. She argues that the
nature of her “conduct as a passive passenger in a car that drove through a
parking lot was a de minimis infraction of the conduct charged.” Id. at 10.
White states, “She was driven onto the parking lot of the McDonald[’]s as a
passenger in a car that never even stopped or parked as it briefly drove
through the lot.” Id. Moreover, she asserts,
[T]he court lacked sufficient evidence to find that [her]
brief, involuntary presence … on the McDonald’s parking lot was
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6
We note White does not raise an argument that the prohibition notice had
gone stale when she returned to the property five months later.
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an intentional action on her part to commit the offense of
[c]riminal [t]respass. She did not walk or drive onto the lot of
her own volition nor did she even remain on the lot in a car for
any longer than it was necessary for the car to exit the lot.
Id.7
With the elements of the crime set forth above, our standard of review
is well-settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder 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. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the finder of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. LaBenne, 21 A.3d 1287, 1289 (Pa. Super. 2011),
quoting Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super.
2010).
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7
It merits mention White does not challenge the sufficiency of the evidence
with respect to the remaining convictions.
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However, before we may address the merits of this issue, we must
determine whether White properly preserved the claim. In her concise
statement, as ordered by the court to file, White identified the following
relevant issue she wished to raise on appeal:
2) Did the trial court verdict of Guilty on the charge of Criminal
Trespass go against the weight and sufficiency of evidence
presented at [White]’s bench trial?
Concise Statement of Matters Complained on Appeal, 4/28/2015.
Rule 1925 requires an appellant “concisely identify each ruling or error
that the appellant intends to challenge with sufficient detail to identify all
pertinent issues[.]” Pa.R.A.P. 1925(b)(4)(ii). “When a court has to guess
what issues an appellant is appealing, that is not enough for meaningful
review.” Commonwealth v. Allshouse, 969 A.2d 1236, 1239 (Pa. Super.
2009) (failure to adequately identify issues “impede[s]” trial court “in its
preparation of a legal analysis which is pertinent to those issues.”).
Here, the court did address White’s sufficiency claim generally but did
not specifically analyze her mere, involuntary presence and de minimis
conduct assertions. Indeed, the trial court found the following:
The testimony of Caroline Ortega and Sergeant Steven Parkinson
given at the suppression hearing and at trial shows that [White]
entered the McDonald’s property without a right to do so,
knowing that she was not licensed or privileged to remain on the
property, and after receiving direct verbal notice that she was
not permitted to be on the property. Both Caroline Ortega and
Sergeant Parkinson communicated to [White] that she was to
immediately leave the property on August 13, 2013 and she was
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never to return to the property, including the restaurant and the
parking lot.
Contrary to [White]’s arguments, the McDonald’s is private
property, owned by McDonald’s, posted with “No Loitering”
signs. The evidence presented suggests [White] was not passing
through the McDonald’s property in order to enter another
property. The parking lot serves only the McDonald’s and does
not provide access to any other businesses. [White] was solely
on the McDonald’s property where she was not permitted to be.
Trial Court Opinion, 6/3/2015, at 8-9.
We note that ordinarily, a defendant waives a sufficiency claim where
she fails to indicate with specificity which element of a crime the
Commonwealth failed to prove. See Commonwealth v. Garland, 63 A.3d
339, 344 (Pa. Super. 2013) (“In order to preserve a challenge to the
sufficiency of the evidence on appeal, an appellant’s Rule 1925(b) statement
must state with specificity the element or elements upon which the appellant
alleges that the evidence was insufficient.”).
Based on the lack of specificity regarding what element of the crime
the Commonwealth failed to establish, we are compelled to conclude White
waived her claim by filing a deficient concise statement.8 Accordingly, her
second argument fails.
Judgment of sentence affirmed.
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8
Nevertheless, if White had not waived the argument, we would have found
there was sufficient evidence to convict her of criminal trespass under
Section 3503(b)(1)(i) based on the trial court’s reasoning.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2016
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