J-A09031-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

RACHEL C. ZIEGLER 

Appellant

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:

:

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:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1099 MDA 2016

Appeal from the Judgment of Sentence June 14, 2016

In the Court of Common Pleas of Cumberland County 

Criminal Division at No(s): CP-21-SA-0000099-2016

BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J.

MEMORANDUM BY GANTMAN, P.J.: FILED APRIL 27, 2017

Appellant, Rachel C. Ziegler, appeals from the judgment of sentence 

entered in the Cumberland County Court of Common Pleas, following her 

bench trial conviction for the summary offense of defiant trespass—actual 

communication.1 We affirm. 

In its opinion, the trial court fully and correctly set forth the relevant 

facts of this case as follows: 

On January 26, 2016, [Appellant and co-defendant] rang 

the doorbell at a fur shop known as Charles Exclusive 

Furriers. When the shop owner came to the door, 

[Appellant and co-defendant] told her they were curious 

about the shop’s products. She allowed them to enter. 

After entering the shop, [Appellant and co-defendant] 

began touching the furs asking questions about the furrier 

process. Suddenly, their “tone” changed, as they began 

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1 18 Pa.C.S.A. § 3503(b)(1)(i).
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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 [Appellant and co-defendant] would not go. 

Something akin to a scuffle occurred as the owner 

attempted to usher [Appellant and co-defendant] from the 

shop area into the lobby. During the scuffle, [codefendant] thrust her cell phone into the shop owner’s 

face. The owner somehow got possession of both 

[Appellant’s and co-defendant’s] phones as she ushered 

them outside 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 co-defendant] ran 

screaming behind her. [Appellant and co-defendant] were 

still in the lobby when the police arrived. 

(Trial Court Opinion, filed September 16, 2016, at 1-2) (internal footnotes 

and citations to record omitted). 

Procedurally, the Commonwealth charged Appellant with defiant 

trespass—actual communication. On March 31, 2016, the magisterial district 

court found Appellant guilty of defiant trespass—actual communication. 

Appellant timely filed a notice of summary appeal in the Court of Common 

Pleas on April 8, 2016. The court held a bench trial de novo on June 14, 

2016. The court found Appellant guilty of defiant trespass—actual 

communication and sentenced her to 90 days’ probation, plus costs and 

fines. Appellant timely filed a notice of appeal on July 6, 2016. On July 12, 

2016, the court ordered Appellant to file a concise statement of errors 

complained of on appeal per Pa.R.A.P. 1925(b), which she timely filed on 

July 28, 2016. 
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Appellant raises one issue for our review:

DID APPELLANT HAVE THE MENS REA TO COMMIT THE 

CRIME OF TRESPASS?

(Appellant’s Brief at 4). 

Appellant claims she became a business invitee when the owner 

invited Appellant into the fur shop. Appellant maintains that once the owner 

asked Appellant to leave, she attempted to exit the shop, but the owner 

prevented Appellant from leaving by confiscating her cell phone. Appellant 

insists she would have left the shop if the owner had not taken Appellant’s 

cell phone. Appellant avers she remained in the vestibule outside the shop 

because she was waiting for the police to arrive. Appellant explains she 

remained at the scene until the police arrived because the owner still had 

physical possession of Appellant’s cell phone. Appellant concludes the 

Commonwealth failed to produce sufficient evidence to establish she had the 

mens rea necessary to commit the crime of defiant trespass. 

In a related argument, Appellant states she was inside the fur shop 

lawfully because the shop was open to the public. Appellant continues she 

“had complied with all ‘lawful conditions’ for remaining on the premises...” 

(Id. at 11). Appellant asserts refusing to leave the shop immediately after 

the owner asked her to leave does not rise to a conviction of defiant 

trespass. Appellant concludes Section 3503(c)(2) of the Pennsylvania 

Crimes Code provides an affirmative defense that precludes a conviction of 

defiant trespass under these circumstances. For these reasons, Appellant 
J-A09031-17

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requests that we overturn her conviction. We disagree.

As a preliminary matter, generally “[i]ssues 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. Wanner, 2017 PA Super 81, at *2 (filed March 28, 2017) (quoting 

Commonwealth v. York, 465 A.2d 1028, 1032 (Pa.Super. 1983)). 

Likewise, as a general rule, any issue not raised in a Rule 1925(b) statement 

will be deemed waived for appellate review. Commonwealth v. Castillo, 

585 Pa. 395, 888 A.2d 775 (2005). 

The Pennsylvania Crimes Code defines defiant trespass and the 

relevant affirmative defense as follows: 

§ 3503. Criminal trespass 

* * * 

(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; 

* * * 

(c) Defenses.― It is a defense to prosecution under 

this section that:

* * * 
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(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; 

* * * 

18 Pa.C.S.A. § 3503(b)(1)(i), (c)(2).2 “The crime of defiant 

trespass...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.” Commonwealth v. Namack, 663 A.2d 191, 194 

(Pa.Super. 1995). 

A challenge to the sufficiency of the evidence implicates the following 

legal principles: 

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 

____________________________________________

2 The Pennsylvania Supreme Court has declared Section 3503(b.1)(1)(iv) 

and (b.1)(2) unconstitutional as violative of the single subject rule. See 

Leach v. Commonwealth et al., ___ Pa. ___, 141 A.3d 426 (2016). This 

declaration does not affect the subsections of the statute relevant to the 

present case. 
J-A09031-17

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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. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) 

(quoting Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 

2003)). 

Instantly, to the extent Appellant raises an affirmative defense for the 

first time on appeal, her claim is waived because she failed to raise the 

defense in the trial court, and she made no mention of it in her Rule 1925(b) 

statement. See Pa.R.A.P. 302(a); Castillo, supra; Wanner, supra; York, 

supra. 

After a thorough review of the record, the briefs of the parties, the 

applicable law, and the well-reasoned opinion of the Honorable Edward E. 

Guido, P.J., we conclude Appellant’s remaining issue merits no relief. The 

trial court opinion comprehensively discusses and properly disposes of the 

question presented. (See Trial Court Opinion, filed September 16, 2016, at 

2-3) (finding: Appellant gained access to premises on false pretense she was 

customer of fur shop; Appellant’s true reason for entering shop was to 

confront owner about selling animal furs; when Appellant’s purpose became 

apparent, shop owner told Appellant to leave; despite multiple demands, 
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Appellant refused to leave; Appellant’s argument that she refused to leave 

because shop owner had taken her cell phone fails; crime had occurred 

before shop owner took Appellant’s cell phone because owner had already 

revoked Appellant’s privilege to remain in shop; Appellant’s refusal to leave 

was part of her plan to harass shop owner). Accordingly, we affirm on the 

basis of the trial court opinion.

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/27/2017
I Lf 

118 Pa. C.S.A. § 3503. 

2 Defendants' Concise Statement of Errors Complained of on Appeal, July 21, 2016. 

Defendants rang the doorbell at a fur shop known as Charles Exclusive Furriers. 3 When the shop 

We begin with a recitation of the facts as we found them to be. On January 26, 2016, the 

FACTUAL BACKGROUND 

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IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 ;.J rn +o 

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Guido, P.J., September / ,S , 2016 f:~ g ~ gJ 

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On June 14, 2016, we found both Defendants guilty of defiant trespai;. ~.fhe~led this 

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timely appeal, in which they allege that the evidence was insufficient to support the guilty 

CRYSTAL LYNN WANNER : AFFIANT: PTL. DANIEL HAIR 

: CHARGE: APPEAL FROM SUMMARY 

DEFIANT TRESPASS 

(SUMMARY) 

CITATION NO. R0014131-5 

: CP-21-SA-0100-2016 

v. 

: IN THE COURT OF COMMON PLEAS OF 

: CUMBERLAND COUNTY,.PENNSYLVANIA 

COMMONWEALTH 

RACHEL C. ZIEGLER : AFFIANT: PTL. DANIEL HAIR 

: CHARGE: APPEAL FROM SUMMARY 

DEFIANT TRESPASS 

(SUMMARY) 

CITATION NO. R0014108-3 

: CP-21-SA-0099-2016 

v. 

: IN THE COURT OF COMMON PLEAS OF 

: CUMBERLAND COUNTY, PENNSYLVANIA 

COMMONWEALTH 

Circulated 04/07/2017 12:26 PM
3 The doors to the outside are locked at all times. Customers can gain entrance only by ringing the bell to get the 

attention of an attendant. 

4 Trial Transcript, p. 22, June 14, 2016. 

5 Trial Tr., p. 6. 

6 Trial Tr., p. 10. 

7 Trial Tr., p. 6. 

8 Id. 

9 Id. 

10 Trial Tr., pp. 6-7. 

11 Trial Tr., p. 7, 10. The lobby of the premises is separated from the area containing the furs by a locked door. 

12 Trial Tr., p. 7. 

13 Trial Tr., pp. 7-8. 

14 Trial Tr., p. 7. 

15 Trial Tr., p. 18. 

A.2d 498, 505 (Pa. Super. 2005). The evidence will be deemed sufficient to support the verdict if 

and is free to believe all, part or none of the evidence presented. Commonwealth v. Hunzer, 868 

The trier of fact determines the credibility of witnesses and the weight of the evidence 

DISCUSSION 

screaming behind her.14 They were still in the lobby when the police arrived.15 

the lobby as the owner tried to lock the shop door behind her. 12 After she was eventually able to 

get the door locked, she ran up the steps to the office to call the police. 13 The Defendants ran 

ushered them outside the shop and into the lobby. 11 Another scuffle ensued after they were all in 

shop owner's face. 10 The owner somehow got possession of both defendants' phones as she 

the shop area into the lobby. During the scuffle, Defendant Wanner thrust her cell phone into the 

Something akin to a scuffle occurred as the owner attempted to usher the defendants from 

She repeated the request multiple times but they would not go.9 

the shop owner if she thought she was God. 7 At that point, the shop owner asked them to leave. 8 

furrier process. 

5 Suddenly, their "tone" changed, 6 as they began referencing the Bible and asking 

them to enter. After entering the shop, they began touching the furs asking questions about the 

owner came to the door, they told her they were curious about the shop's products.4 She allowed 
16 Trial Tr., p. 9. 

17 Trial Tr., pp. 18, 31-32. 

trespass. 

shop owner because of her business. For these reasons, we found Defendants guilty of defiant 

. had taken their phones. It was clear that their refusal to leave was part of their plan to harass the 

they refused. Furthermore, we did not believe that they refused to leave only because the owner 

revoked their privilege to remain in the store by telling them to leave numerous times. However, 

crime was complete before the cell phones had been wrested from the defendants. The owner had 

cell phones. However, this argument fails as a defense for two reasons. In the first instance, the 

Defendants argue that they refused to leave only because the owner had confiscated their 

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. 16 They remained in the lobby until the police arrived. 17 

Defendant Wanner began to accost the owner with her cell phone. They resisted the owner's 

told them to leave. Despite multiple commands, they refused. Not only would they not leave, but 

owner about her business of selling animal furs. When that true purpose became clear, the owner 

they were customers. It was apparent that their true reason for being there was to confront the 

In the instant case, the defendants gained access to the premises on the false pretense that 

trespass is given by ... actual communication to the actor." 

licensed or privileged to do so, he enters or remains in any place as to which notice against 

Crimes Code which provides as follows: "A person commits an offense if, knowing that he is not 

The defendants were charged with Defiant Trespass under Section 3503(b)(l)(i) of the 

elements of the crime were established. Id. at 506. 

the trier of fact reasonably could have determined from the evidence that all of the necessary 
Copies nialled on Sf P 16 2016 

---·-- 

SEP 16 2016 

·. ,.;,·.i: 

Edward E. Guido, P.J. 

BY~ 

Court Admin 

David R. Dautrich, Esquire 

526 Court Street 

Reading, PA 19601 

District Attorney 

DATE