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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1468 EDA 2016
Appeal from the Judgment of Sentence April 14, 2016
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-SA-0000024-2016
BEFORE: OTT, SOLANO, and JENKINS, JJ.
MEMORANDUM BY OTT, J.: FILED MAY 05, 2017
Darlene M. Gall appeals from the judgment of sentence entered on
April 14, 2016, in the Lehigh County Court of Common Pleas. On December
16, 2015, at the conclusion of a summary trial, the trial court found Gall
guilty of one count of criminal trespass/simple trespasser.' The court
sentenced Gall to pay a fine and costs. On appeal, Gall raises two issues:
(1) there was insufficient evidence to support her conviction; and (2) the
court erred by finding her defense of justification by necessity was
irrelevant. After a thorough review of the submissions by the parties, the
certified record, and relevant case law, we affirm the judgment of sentence.
' 18 Pa.C.S. § 3503(b.1)(1)(iii).
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The facts pertaining to the case are as follows: On July 14, 2015, Gall
trespassed on her neighbor's, Gloria Hieter's, property located at 2558
Columbus Drive, Emmaus, Pennsylvania. She then used an electric chain
saw and cut down a tree limb, approximately 20 to 25 feet in length, from
an apple tree that was located on the neighbor's property and transported it
back to her own property where she left it in her driveway. Gall admitted
she cut down the limb, but claimed she did so because it was blocking her
use of an easement and she could not drive past the tree without it
scratching the roof of her vehicle.2 She also stated she was concerned about
the possibility of an ambulance being able to reach her property by means
other than her driveway.
The trial court set forth the procedural history as follows:
On December 16, 2015, after a summary trial, Magisterial
District Judge Daniel C. Trexler found [Gall] guilty of one count
of Criminal Trespass/Simple Trespasser, in violation of 18
Pa.C.S.A [§] 3503([b].1)(1)(iii), a Summary Offense at NT -108-
2015, Citation No. Y0028584-3. [Gall] was sentenced to pay a
fine of $50 and court costs in the amount [of] $154.00 for a total
of $204.00. On January 15, 2015, [Gall] filed a Notice of Appeal
from Summary Criminal Conviction.
On April 14, 2016, after a de novo summary appeal
hearing, this Court found [Gall] guilty of the charge of Criminal
[Trespass]/Simple Trespasser in violation of 18 Pa.C.S.A. [§]
([b].1)(1)(iii), a Summary Offense. [Gall] appeared for the
hearing and was represented by counsel, Craig B. Neely,
Esquire. The Commonwealth, through the Lehigh County District
2 The easement is grassy in nature, not paved. Gall has a separate
driveway that goes to her house.
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Attorney's Office, presented testimony and evidence in support
of the foregoing citation issued to [Gall] under 18 Pa.C.S.A.
§3503(b.1)(1)(iii), for criminal trespass/simple trespasser. The
alleged criminal trespass occurred on the premises of 2558
Columbus Dr., Emmaus, Lehigh County, Pennsylvania 18049, a
neighboring property to [Gall]'s property located at 4551 Oak
Hill Rd[.], Emmaus, PA 18049. [Gall] allegedly intruded onto her
neighbor's property where she allegedly cut down a branch from
her neighbors' tree that [Gall] alleged was protruding onto the
right-of-way that she used to access her own property on July
14, 2015. [Gall] was found guilty of the offense following the
bench trial and was sentenced that same day to pay a fine in the
amount of $50.00 and to pay the costs of prosecution.
[Gall] filed a Notice of Appeal to the Superior Court of
Pennsylvania on May 13, 2016, which incorrectly noted the date
of the Order entered in this matter as May 14, 2016. Counsel
for [Gall], Craig B. Neely, Esquire notified the Court of his
mistake by letter on May 16, 2016, and he filed a corrected
Notice of Appeal on May 16, 2016. By Order of Court dated May
19, 2016, [Gall] was [o]rdered to file a Concise Statement of
Matters Complained of within twenty-one days of the Order.
[Gall] timely filed her Concise Statement of Matters Complained
of on Appeal.
Trial Court Opinion, 7/15/2016, at 1-2.3
In Gall's first issue, she complains there was insufficient evidence to
convict her of criminal trespass/simple trespasser because the
Commonwealth "did not establish that [Gall] knew that she was [] 'not
licensed or privileged to do so' when she entered upon the Heiter premises
3 It merits mention that while the court's Rule 1925(a) opinion was dated
July 15, 2016, it was timestamped and filed three days later.
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to cut the branch that was blacking her private lane." Gall's Brief at 4.4
Specifically, she states:
The Trial Court's analysis focused on the variations
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, is an element of the
crime of defiant trespass, 18 Pa.C.S.A. [§] 3503(b), it is not an
element of simple trespassing." Trial Court 1925(a) Opinion, at
7. The Trial Court's Opinion ignores the predicate language to a
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 is not licensed or
privileged to do so, he enters or remains in any place ..." The
Trial Court's decision holds that the Commonwealth does not
need to prove that [Gall] had actual knowledge that she was not
licensed or permitted to enter upon the H[ie]ter property, which
is contrary to the explicit language of [] 18 Pa.C.S.A. [§]
3503(b.1.)[.]
The Commonwealth offered no evidence, and [Gall] offered
no testimony, indicating [she] was ever informed that she was
not permitted on the Hieter property, and [she] did not testify
4 We note that Gall stated this issue somewhat differently in her concise
statement:
The Commonwealth offered no evidence that there was any
posting or notice that [Gall] was not permitted on the premises.
[Gall] only entered upon the premises of the alleged victim to
remove the tree branch that was completely blocking the right-
of-way, which amounted to her maintaining the right-of-way so
that she could use the right-of-way and ensure that emergency
vehicles could access her premises in the event of a health
emergency or an emergency that imperiled her property.
Defendant's Concise Statement of Matters Complained of on Appeal,
6/6/2016, at ¶ 2. Nevertheless, we will overlook this slight transgression,
and will decline to find waiver. See Pa.R.A.P. 1925(b)(4)(vii)("Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.").
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that she had any knowledge that she was not licensed or
privileged to be there. Consequently, no evidence was before
the Court to indicate that [Gall] "knew" that she could not enter
upon the H[ie]ter property.
The Legislature explicitly states in 18 Pa.C.S.A. [§]
3503(b.1.) that [Gall] must know that she was not licensed or
privileged to enter upon the H[ie]ter property. Here, the
Commonwealth offered no evidence that could directly, or by
reasonable inference, establish that [Gall] knew that she was not
permitted on the premises.
The Trial Court attempts to use the differences between
the defiant trespass and simple trespass statutes to support its
finding of guilt for simple trespass without any evidence of [Gall]
knowing that she was not permitted on the Hieter property.
Trial Court 1925(a) Opinion, at 7. [Gall] acknowledges that
there are differences between the two crimes, but the
distinctions do not impact consideration of [Gall]'s claims.
Id. at 5-6.
Our standard of review when considering a challenge to the sufficiency
of the evidence is well -settled:
The standard we apply ... 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
[trier] of fact while passing upon the credibility of witnesses and
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the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Beasley, 138 A.3d 39, 45 (Pa. Super. 2016) (citations
omitted), appeal denied, A.3d , [218 WAL 2016] (Pa. Nov. 22,
2016).
The crime of criminal trespass/simple trespasser is defined, in relevant
part, as follows:
(b.1) Simple 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
for the purpose of:
(iii) defacing or damaging the premises; []
(2) An offense under paragraph (1)(iv) constitutes a first degree
misdemeanor. An offense under paragraph (1)(i), (ii) or (iii)
constitutes a summary offense.
18 Pa.C.S § 3503(b.1)(1)(iii), (2). The defenses for criminal trespass are
codified as follows:
(c) Defenses.
section that:
- It is a defense to prosecution under this
(1) a building or occupied structure involved in an offense
under subsection (a) of this section was abandoned;
(2) the premises were at the time open to members of the
public and the actor complied with all lawful conditions
imposed on access to or remaining in the premises; or
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(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 for criminal trespass for entering her neighbor's
property and damaging her neighbor's apple tree on July 14,
2015. [Gall] acknowledged that she 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 in fact cutting off
her neighbor's tree branch. The [trial c]ourt found from
circumstantial evidence that the Commonwealth had proven
beyond a reasonable doubt that [Gall] knew she was not
licensed or privileged to be on her neighbors' property to cut
down the apple tree branch.
[Gall] essentially argues that she did not know that she
was not privileged or licensed to enter onto her neighbor's
property, that she was permitted on the property for the purpose
of removing a personal hazard to her health, and that she did
not have the specific intent of defacing or damaging the
premises.
[Gall] alleges that the Commonwealth presented no evidence
that, "there was any posting or notice that [Gall] was not
permitted on the premises." However, while the burden of
showing posting or indirect or direct notice against trespassing,
is an element of the crime of defiant trespass, 18 Pa.C.S.A. §
3503(b), it is not an element of simple trespassing. See Corn. v.
Bennett, 124 A.3d 327 (Pa. Super. 2015) (Evidence that
defendant, who had been informed multiple times that he was
not to be on victim's property, and whom was apprehended on
the property twice, was sufficient to support defiant trespass
conviction.); Com v. Namack, 663 A.2d 191 (Pa. Super. 1995)
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(In order to establish crime of defiant trespass it is necessary to
prove that defendant: entered or remained upon the property
without right to do so; while knowing that he had no license or
privilege to be on property; and 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). The Pennsylvania Legislature placed the requirement of
demonstrating that the property had been posted or that the
defendant had actual or indirect notice in 18 Pa.C.S.A. §
3503(b), but chose not to add that element in 18 Pa.C.S.A. §
3503(b.1), when it created the offense of simple trespasser on
October 27, 1995. See 1995 Pa. Legis. Serv. Act 1995-53 (S.B.
223). When interpreting statutes, "where Congress includes
particular language in one section of a statute but omits it in
another ..., it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or
exclusion." Keene Corp. v. United States, 508 U.S. 200, 208
(1993), quoting Russello v. United States, 464 U.S. 16, 23
(1983). See also, Hamdan v. Rumsfeld, 548 U.S. 557, 578
(2006) ("A familiar principle of statutory construction ... is that a
negative inference may be drawn from the exclusion of language
from one statutory provision that is included in other provisions
of the same statute."). Thus, the Court concludes that [Gall's
contention] ... is meritless as the Commonwealth was not
required to produce evidence of any posting or actual notice to
[Gall] that [she] was not permitted on the premises prior to July
14, 2015.
Trial Court Opinion, 7/15/2016, at 4-8. Additionally, the court explained:
Intent may be proved by circumstantial evidence. Proof of a
defendant's knowledge of his lack of license or privilege to enter
onto property 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 found that the evidence was sufficient to show Defendant's
knowledge that he lacked a license or privilege to enter a
building, when "the fact that he knew could be inferred from the
evidence of the time and manner of his entry." Id. at 1348. In
Gordon, the [d]efendant had entered a locked school building at
night using force. Id. at 1347-1348.
Here, Ms. H[ie]ter testified that she drives past the
easement, which is on her left, to go to work. Mr. Goldman
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testified that he heard the chainsaw and the 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, 2015.
July 14, 2015, was a Tuesday. It was permissible for the Court
to infer by [Gall]'s choice in choosing to cut down the branch at
a time Ms. H[ie]ter would not have been home, that [Gall] knew
she was not licensed or privileged to enter Ms. H[ie]ter's
property to cut down the branch. Ms. H[ie]ter also testified that
she was never approached about the tree branch nor did she
receive any correspondence from [Gall] requesting that she
remove the tree branch. Additionally, [Gall] testified that:
THE WITNESS: I had to do what I could do.
THE COURT: Okay. Well, so here we are on the trespass,
and so there's a consequence of that.
THE WITNESS: But there was nothing there to say I
couldn't go up there. There was nothing there, no signs or
nothing. They posted, actually, their signs into my
easement, in other words, with the - may I say
something?
THE WITNESS: There was time when they encroached on
my easement there, trying to take it on me, and it cost me
thousands of dollars in court to establish that I had the
right to that road. They were pushing dirt on my - they
built a shed a foot over their property line without a
permit, and I have no -
MS. H[IE]TER: That's irrelevant.
[THE COMMONWEALTH]: It's okay.
THE WITNESS: -- other way to explain the need to go on
there and just take care of it myself.
See N.T., 4/14/16, at 37:25-28:15. As the Court stated in
response to [defense counsel]'s argument that the
Commonwealth had not proven that [Gall] knew that she was
not licensed or privileged to be on the property, "The problem I
have with that is she seems all too aware of where the easement
line is and where her property is and where her property isn't.
She acknowledges that she went four steps onto her neighbor's
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property." See N.T., 4/14/16, at 44:19-23. Considering all the
testimony in the light most favorable to the Commonwealth[,]
the Court concludes that the Commonwealth proved beyond a
reasonable doubt through circumstantial evidence that [Gall]
knew that she was not licensed or privileged to enter onto her
neighbor's property to cut down the apple tree branch.
Furthermore, as has already been stated above, [Gall] has been
quite forthright about her entry onto Ms. H[ie]ter's land having
the sole destructive purpose of removing the apple tree branch
that was hanging in the easement.
Trial Court Opinion, 7/15/2016, at 12-14 (some citations omitted).
We agree with the trial court's well -reasoned analysis. First, with
respect to her claim that the trial court improperly focused on the variations
between simple trespasser and defiant trespasser, we note the court's
discussion on the two subsections was because Gall relied on the wrong
provision of the criminal trespass statute in her concise statement.
Compare 18 Pa.C.S. § 3503(b.1) (the crime Gall was charged with) with 18
Pa.C.S. § 3503(b). As indicated above, in Gall's concise statement, she
alleged the Commonwealth presented no evidence that "there was any
posting or notice that [she] was not permitted on the premises."
Defendant's Concise Statement of Matters Complained of on Appeal,
6/6/2016, at '11 2. The trial court was merely pointing out the different
elements required for simple trespasser and defiant trespasser and
explaining how the element of posting or giving notice is not necessary to
prove the crime of simple trespasser.
Furthermore, based on all the evidence presented at trial, it is
reasonable to infer that Gall knew she was not licensed or privileged to
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damage the tree on her neighbor's property. Via counsel, Gall admitted she
cut down the tree limb that was on Hieter's property. N.T., 4/14/2016, at
10-11.5 Furthermore, as noted above, Hieter took the stand and testified to
the following:
[Commonwealth]: Did you have any conversations with Ms.
Gall? Did she approach you and say, hey, the tree's in my way;
can you cut it down?
[Hieter]: No, not at all.
[Commonwealth]: Did you receive any letter or correspondence
from her suggesting that the tree's in the way; cut it down?
[Hieter]: Not at all. She just did it.
[Commonwealth]: Did she ask your permission to come on the
property to 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 knew she was not licensed or privileged to go on
Hieter's land and remove the limb. See 18 Pa.C.S § 3503(b.1)(1)(iii).
Accordingly, the evidence was sufficient to sustain a conviction for criminal
trespass/simple trespasser. Therefore, Gall's first issue fails.
5 The investigating officer also testified that Gall told him: "Gall admitted to
me that she walked onto Ms. Hieters' property, used an electric chain saw to
essentially cut the branch down, and then after successfully doing so, she
indicated she towed it back onto her property." Id. at 12.
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In her second issue, which is related to the first, Gall claims the court
erred by ruling the defense of justification by necessity, as codified in 18
Pa.C.S. § 501 et seq.,6 was irrelevant to her case. See Gall's Brief at 7.
She states her "conduct was to avoid a 'harm or evil,' namely the harm of
not being able to receive emergency services at her home," and therefore,
she "was privileged to enter upon the Hieters' property to cut the potentially
harmful branch." Id. at 9.7
6
Justification is generally defined as follows:
(a) General rule.
necessary to avoid
-harm
a
Conduct which the actor believes to
or evil to himself or to another
be
is
justifiable if:
(1) the harm or evil sought to be avoided by such conduct
is greater than that sought to be prevented by the law
defining the offense charged;
(2) neither this title nor other law defining the offense
provides exceptions or defenses dealing with the specific
situation involved; and
(3) a legislative purpose to exclude the justification
claimed does not otherwise plainly appear.
(b) Choice of evils. -
When the actor was reckless or
negligent in bringing about the situation requiring a choice of
harms or evils or in appraising the necessity for his conduct, the
justification afforded by this section is unavailable in a
prosecution for any offense for which recklessness or negligence,
as the case may be, suffices to establish culpability.
18 Pa.C.S. § 503.
Moreover, she argues:
(Footnote Continued Next Page)
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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 that necessity was not a defense
when the Court stated, "I don't see that necessity is a defense.
Again, the necessity would be as to why she had to go onto the
property as opposed to cutting the limb at the edge of the
easement, and that's not what's in front of us today." ...
Accordingly, to the extent that the Trial Court, in its [Rule]
1925(a) Opinion, claims that it did not preclude [Gall] from
offering evidence about her medical conditions, the foundation of
her necessity defense, those conclusions are belied by the
record, in which the Trial Court explicitly declared that it would
not consider the defense of justification by necessity. [Gall]
could not have been expected to attempt to offer further
testimony on her medical conditions when the Trial Court
explicitly stated that it found 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 the law that a neighboring landowner
can cut off a branch at a property line, is instructive, as it
demonstrates a well -settled principle in the civil law that a non -
owner of vegetative property, like a tree, is privileged to
physically damage the property when it is intruding onto her
property. The privilege is absolute. There need be no necessity,
no emergency, and no harm or evil caused by the intruding
vegetation.
On the other hand, in this case, as [Gall] testified, she
needed to cut the branch to open her private road to make it
accessible to emergency vehicles. The perceived harm was real,
and it was immediate - a medical incident requiring emergency
medical treatment can arise suddenly and instantaneously. And,
[Gall] acted in a manner designed to relieve the harm.
Id. at 9-10.
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Complained of on Appeal, 6/6/2016, at 1111 1-7. As such, the trial court did
not address that challenge in its Rule 1925(a) opinion. Rather, the court
analyzed the following issue by Gall: "[Gall]'s entry upon the alleged
victim's premises was for the sole purpose of maintaining the right-of-way,
and not to intentional[ly] deface or damage the alleged victim's property."
Id. at 113. In addressing this claim, the court discussed the three defenses
permitted under the criminal trespass statute. See 18 Pa.C.S § 3503(c);
see also Trial Court Opinion, 7/15/2016, at 8-10. Accordingly, we find
Gall's second issue waived. See Pa.R.A.P. 1925(b)(4)(vii)("Issues not
included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.").8
Judgment of sentence affirmed.
Judge Jenkins did not participate in the consideration or decision of
this case.
Judgment Entered.
Joseph D. Seletyn, Es .
Prothonotary
Date: 5/5/2017
We note that unlike the first issue, this second claim was substantially
different from what was raised in the concise statement and therefore, we
find that waiver is necessary.
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