J-S68033-16

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

GLENN W. SIMINICK,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

 No. 320 WDA 2016

Appeal from the Order February 5, 2016, 

in the Court of Common Pleas of Mercer County, 

Criminal Division, at No(s): CP-43-CR-0000416-2015

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

 v.

GLENN W. SIMINICK,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 

 

 No. 487 WDA 2016

Appeal from the Judgment of Sentence March 4, 2016, 

in the Court of Common Pleas of Mercer County, 

Criminal Division, at No(s): CP-43-CR-0000416-2015

BEFORE: SHOGAN, SOLANO and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 17, 2016

In these consolidated appeals, Glenn W. Siminick (Appellant) 

challenges his conviction for the summary offense of defiant trespass.1 We 

affirm.

 

1 Appellant purports to appeal from the orders entered on February 5, 2016 

and March 9, 2016, which denied his post-trial and post-sentence motions, 
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On December 18, 2014, Appellant was charged at CP-43-CR-0000416-

2015 (416-2015) with defiant trespass, graded as a third-degree 

misdemeanor, stemming from an incident that occurred on September 10, 

2014, when Appellant was accused of being present unlawfully on the 

grounds of Buhl Park in Hermitage, Mercer County. Appellant was also 

charged with misdemeanor defiant trespass at CP-43-CR-0000415-2015 

(415-2015), with respect to an identical incident that occurred on October 6, 

2014. 

Both cases proceeded to separate non-jury trials, which were heard on 

January 25, 2016. Case number 415-2015 was heard in the morning. 

Following the presentation of the Commonwealth’s case-in-chief, Appellant 

moved for judgment of acquittal, which was granted. Trial Court Opinion, 

5/3/2016, at 2. Shortly thereafter, the trial court heard testimony on case 

number 416-2015. At the close of evidence in that trial, the trial court found 

Appellant guilty of defiant trespass, graded as a summary offense.

 

respectively. It is well-settled that “an appeal from an order denying a posttrial motion is procedurally improper because a direct appeal in a criminal 

proceeding lies from the judgment of sentence.” Commonwealth v. 

Preacher, 827 A.2d 1235, 1236 (Pa. Super. 2003) (citation omitted). 

Accordingly, we quash as improperly filed the appeal from the February 5, 

2016 order denying Appellant’s written post-sentence motion, docketed at 

320 WDA 2016. Because the issues raised in that appeal are identical to 

those raised in the appeal docketed at 487 WDA 2016, such quashal does 

not affect our examination of Appellant’s substantive claims. Further, we 

have changed the caption of the appeal docketed at 487 WDA 2016 to 

comply with Preacher.
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On March 4, 2016, Appellant was sentenced to a 90-day period of 

unsupervised probation, plus costs. On March 8, 2016, Appellant filed a 

post-sentence motion, which was denied on March 9, 2016. This timely-filed 

appeal followed. Both Appellant and the trial court complied with the 

mandates of Pa.R.A.P. 1925.

Appellant raises two issues for our review.

1. Whether the Commonwealth should have been collaterally 

estopped from re-litigating the notice issue in a second trial 

after a final order was entered on that specific issue in the 

first trial.

2. Whether the evidence adduced at trial was insufficient as a 

matter of law to convict [Appellant] of the charge for which 

he was found guilty.

Appellant’s Brief at 9 (unnecessary capitalization omitted).

Appellant’s first issue, regarding collateral estoppel, “is a pure question 

of law. Therefore, our standard of review is de novo, and our scope of review 

is plenary.” Commonwealth v. Barger, 956 A.2d 458, 461 (Pa. Super. 

2008) (citation omitted).

In order to understand Appellant’s argument on appeal, we provide 

the following by way of background. At Appellant’s first trial on January 25, 

2015, case number 415-2015, the Commonwealth proffered the testimony 

Daniel Davis, Esquire, an assistant district attorney, who was present at a 

prior court proceeding when Appellant was “told by Judge Fagley that he was 

not to be in Buhl Park and [Appellant] acknowledged that he was not allowed 
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to be in Buhl Park.” N.T., 1/25/2016 (morning), at 4. However, the trial 

court sustained Appellant’s objection to Attorney Davis’ testimony as 

inadmissible hearsay. Id. at 13. The Commonwealth then called two more 

witnesses, Debra Fait, a part-time grant writer for Buhl Park who testified 

that she called the police to report Appellant’s presence in the park on 

October 6, 2014, and responding Hermitage Police Officer James Thomas 

Rogerson. Id. at 15-40. At the conclusion of the Commonwealth’s 

testimony, Appellant moved for judgment of acquittal and the following 

exchange occurred.

[APPELLANT’S COUNSEL]: For defiant trespass, Your Honor, it is 

required that my client had notice that he was not supposed to 

be in the area where he is alleged to have been. There has been 

nothing shown today that my client actually had that notice, 

nothing in writing. There was no testimony presented today that 

anybody orally told him that he wasn’t allowed to be there he 

said he supposedly was. [sic] So he didn’t have the requisite 

notice. Therefore, he cannot be a defiant trespasser.

THE COURT: Well, you’re partially correct. His own words 

incriminate himself where he admits [to Officer Rogerson] that 

he knew he was not allowed to trespass. So, he had notice. The 

problem is the statute that they cite him with, the specific 

subsection, requires actual communication to the actor.[2] That is 

what we don’t have. 

Id. at 40-41. 

 

2 The statute at issue states “[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.” 18 Pa.C.S. § 3503(b)(1)(i).
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Accordingly, the trial court granted Appellant’s motion, acknowledging 

that the Commonwealth “ha[d] not presented any evidence that notice not 

to trespass was given to [Appellant] by actual communication.” Id. at 41. 

Later that afternoon, the court heard testimony with respect to case 

number 416-2015, which involved an alleged instance of trespass at Buhl 

Park on September 10, 2014. Prior to trial, Appellant’s counsel raised the 

collateral estoppel argument advanced herein and moved for judgment of 

acquittal. N.T., 1/25/2016 (afternoon), at 3-6. The trial court denied the 

motion. Id. at 5-6. The Commonwealth then presented the testimony of 

William A. Watson, Assistant Chief Park Ranger, who testified that, in June of 

2013, he personally told Appellant he was not permitted in Buhl Park; 

Charles Mehalko, director of safety and security at Buhl Park, who testified 

that he was instructed to write a report each time he observed Appellant in 

the park and those reports were eventually turned over to the Board of 

Trustees who sent a letter to Appellant banning him from the park; and 

Jeffrey Paul, a maintenance employee and part-time park ranger, who 

testified that, per his employer’s instructions, he reported to his supervisor 

Appellant’s presence in the park on September 10, 2014. Id. at 49-92. 

Appellant’s motion for judgment of acquittal was denied, id. at 92-93, and 

Appellant then testified in his own defense and denied being in the park on 

September 10, 2014, id. at 96-97. At the conclusion of trial, the court 
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found Appellant guilty of a summary offense, finding that Appellant “knew 

that he shouldn’t be in the park on that day in September and that the only 

way he could have known was by some form of actual communication,” 

although there was no proof that communication came from the owner of 

the park. Id. at 112-13.

Appellant argues that trial court erred in denying his motion for 

judgment of acquittal because the Commonwealth was collaterally estopped 

from litigating the second defiant trespass case.

The doctrine of collateral estoppel is a part of the Fifth 

Amendment’s guarantee against double jeopardy, which was 

made applicable to the states through the Fourteenth 

Amendment. The phrase “collateral estoppel,” also known as 

“issue preclusion,” simply means that when an issue of law, 

evidentiary fact, or ultimate fact has been determined by a valid 

and final judgment, that issue cannot be litigated again between 

the same parties in any future lawsuit. Collateral estoppel does 

not automatically bar a subsequent prosecution, but rather, it 

bars redetermination in a second prosecution of those issues 

necessarily determined between the parties in a first proceeding 

that has become a final judgment. 

Traditionally, Pennsylvania courts have applied the 

collateral estoppel doctrine only if the following threshold 

requirements are met: 1) the issues in the two actions are 

sufficiently similar and sufficiently material to justify invoking the 

doctrine; 2) the issue was actually litigated in the first action; 

and 3) a final judgment on the specific issue in question was 

issued in the first action. An issue is actually litigated when it is 

properly raised, submitted for determination, and then actually 

determined. For collateral estoppel purposes, a final judgment 

includes any prior adjudication of an issue in another action that 

is sufficiently firm to be accorded conclusive effect. 
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Commonwealth v. Holder, 805 A.2d 499, 502–03 (Pa. 2002) (citations 

and footnotes omitted; emphasis in original).

As our Supreme Court has explained,

In the criminal law arena, the difficulty in applying collateral 

estoppel typically lies in deciding whether or to what extent an 

acquittal can be interpreted in a manner that affects future 

proceedings, that is, whether it reflects a definitive finding 

respecting a material element of the prosecution’s subsequent 

case. We ask whether the fact-finder, in rendering an acquittal in 

a prior proceeding, could have grounded its verdict upon an 

issue other than that which the defendant seeks to foreclose 

from consideration. If the verdict must have been based on 

resolution of an issue in a manner favorable to the defendant 

with respect to a remaining charge, the Commonwealth is 

precluded from attempting to relitigate that issue in an effort to 

resolve it in a contrary way. See Commonwealth v. 

Zimmerman,[] 445 A.2d 92, 96 ([Pa.] 1981) (acquittal on 

simple assault precluded retrial on hung murder charges because 

simple assault was a constituent element of all grades of 

homicide in the case); Commonwealth v. Wallace, [] 602 A.2d 

345, 349-50 ([Pa. Super.] 1992) (Commonwealth’s concession 

that the jury’s acquittal meant appellant did not possess a gun 

collaterally estopped Commonwealth from any subsequent 

prosecution based on appellant’s possession of a gun); 

Commonwealth v. Klinger, [] 398 A.2d 1036, 1041 ([Pa. 

Super.] 1979) (appellant’s acquittal on murder precluded the 

Commonwealth from bringing a subsequent perjury prosecution 

based on appellant’s trial testimony that he did not kill the 

victim), aff’d. sub nom. Commonwealth v. Hude, [] 425 A.2d 

313 ([Pa.] 1980).

Conversely, where an acquittal cannot be definitively 

interpreted as resolving an issue in favor of the defendant with 

respect to a remaining charge, the Commonwealth is free to 

commence with trial as it wishes. See [Commonwealth v.] 

Buffington, 828 A.2d [1024,] 1033 [(Pa. 2003)] (acquittal of 

rape and IDSI did not establish that Commonwealth failed to 

prove an essential element of sexual assault); [Commonwealth 

v.] Smith, 540 A.2d [246,] 253-54 [(Pa. 1988)] (acquittal of 
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gun possession charge did not collaterally estop Commonwealth 

from proceeding on charges of murder and possession of an 

instrument of crime, as acquittal could have been based on any 

number of reasons); Commonwealth v. Harris, [], 582 A.2d 

1319, 1323 ([Pa. Super.] 1990) (robbery acquittal did not 

preclude retrial on hung charge of aggravated assault), appeal 

denied, [] 597 A.2d 1151 ([Pa.] 1991).

Commonwealth v. States, 938 A.2d 1016, 1021-22 (Pa. 2007) (some 

citations and quotation marks omitted).

Applying the test outlined above, it is clear that the issues in the two 

trespass cases are sufficiently similar and sufficiently material to justify 

invoking the doctrine. However, we disagree with Appellant that the other 

two prongs are met. 

In the first trial, the issue was whether the Commonwealth was able to 

prove beyond a reasonable doubt that Appellant was a defiant trespasser on 

October 6, 2014. In the second case, the issue was whether Commonwealth 

was able to prove beyond a reasonable doubt that Appellant was a defiant 

trespasser a month earlier, on September 10, 2014. While similar, these are 

two separate issues, and the litigation of the issue raised in the first case 

has no bearing on the issue raised in the second. Moreover, the court did not 

make a final judgment as to the issue raised in the second case. Rather, in 

granting Appellant’s motion for judgment of acquittal, the court only found 

that the Commonwealth had failed to meets its burden of proving defiant 

trespass with respect to the October 6 incident. In so doing, the court did 
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not determine that Appellant did not have notice; rather, it held that the 

Commonwealth failed to prove how that notice was communicated. N.T., 

1/25/2016 (morning), at 41 (“[H]e had notice. The problem is the statute 

that they cite him with, the specific subsection, requires actual 

communication to the actor. That is what we don’t have.”). However, this is 

not dispositive of the issue of whether Appellant had received actual 

communication a month earlier, or what might have occurred in the ensuing 

month between the incidents. Accordingly, the doctrine of collateral 

estoppel does not bar the subsequent prosecution and we conclude that the 

trial court did not err in denying Appellant’s motion for judgment of 

acquittal.

Appellant next contends that the evidence is insufficient to support his 

conviction. 

Our Pennsylvania Rules of Appellate Procedure and our case law 

set forth the well-established requirements for preserving a 

claim for appellate review. “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, [] 465 A.2d 1028, 1032 ([Pa. 

Super.] 1983).

Similarly, our Supreme Court has made it clear that “[a]ny 

issues not raised in a [Rule] 1925(b) statement will be deemed 

waived.” Commonwealth v. Castillo, [] 888 A.2d 775, 780 

([Pa.] 2005) (citation and quotation omitted). See also

Pa.R.A.P.1925(b)(4)(vii) (“Issues not included in the Statement 

... are waived.”).
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Commonwealth v. Phillips, 141 A.3d 512, 522 (Pa. Super. 2016)

Appellant’s Rule 1925(b) statement raises two claims of error: the 

collateral estoppel argument and a weight-of-the-evidence claim. 

Accordingly, because he failed to raise his sufficiency-of-the-evidence 

argument therein, we find it waived. Id.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/17/2016