HomeMy WebLinkAboutCP-21-CR-2753-2005
COMMONWEALTH
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
v.
KIRK C. GOBIN
CP-21-CR-2753-2005
IN RE: OPINION PURSUANT TO P A. R.A.P. 1925
OLER, 1., September 20, 2006.
In this criminal case, a 39-year-old man1 who had been ordered in writing
not to enter the Shippensburg University campus as a result of an incident of
indecent exposure was found guilty following a jury trial of summary defiant
trespass after he entered the campus again. Defendant was sentenced to undergo a
period of imprisonment of not less than 30 days nor more than ninety days? From
the judgment of sentence, Defendant has filed a direct appeal to the Pennsylvania
Superior Court. 3
The bases for the appeal have been expressed in Defendant's statement of
matters complained of on appeal as follows:
Kirk C. Gobin was charged by an information filed on December 13,
2005, with Defiant Trespass, 18 Pa. C.S.A. ~ 3503(b)(l)(v). At trial on
June 21, 2006, the Defendant defended the case by asserting that the
evidence would not prove actual communication, or even that Defendant
was on school grounds.
Without any request to amend, Judge Oler allowed the matter to
continue and be presented to the jury as a summary case when it became
evident that the elements challenged by the defense would not be proven.
The matter was presented to the jury as a summary offense and the jury
was charged with elements of an offense for which Defendant was not
charged, for which he was not prepared, and for which he did not present a
defense.
The evidence was not sufficient to establish the elements of trespass
since the notice not to enter was "In other words, it's not being introduced
for the truth of the statement." Judge Oler (NT. p. 17 at 10). There was
no challenge to other evidence on this issue.
1 Court's Ex. 1 (presentence investigation report), Sentencing Proceeding, July 25, 2006.
2 Order of Court, July 25,2006.
3 Defendant's Notice of Appeal, filed August 11,2006.
The sentence imposed in this case was punitive and far in excess of
any sentence necessary for the conduct of the Defendant considering the
spirit of the sentencing code and Defendant's zealous defense of the
charges.4
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident on October 12, 2005, Defendant was charged
with defiant trespass by Shippensburg University police.5 The affidavit of
probable cause supporting the criminal complaint read as follows:
On the evening of Wednesday October 12, 2005, at approximately 1757
hour, Officer Brennan and myself Officer [Robert] Wenerd w[]ere on
patrol in uniform in a marked patrol vehicle. We w[]ere traveling west on
Lebanon Drive, where we spotted a black and silver truck traveling north
on Cumberland Drive. The driver of the vehicle has a defiant trespass
notice issued to him from this officer, three years ago. Officers tried to get
behind the vehicle on Cumberland Drive, but were not able to do so. The
driver of the vehicle started to head towards the back entrance of the
campus and did exit campus. We activated the overhead lights and siren
and stopped the vehicle bearing P A YKR -13 3 8 coming back to a Kirk C.
Gobin of Chambersburg on Fogolsanger Rd. Suspect was asked for his
driver's license, which I.D him a Kirk C. Gobin PA OLN 21670223. Mr.
Gobin was asked why he was on campus. He stated "I know I messed up,
I'm not supposed to be on campus I was just out for a ride." Mr. Gobin
had been arrested in September of 2002 for indecent exposure with two
counts against him. Based on the information I believe to be true and
correct, I ask that a summons be sent to Kirk C. Gobin for defiant
6
trespass.
The Information filed by the Commonwealth on December 13, 2005,
alleged that
[O]n or about Wednesday, the 12th day of October, 2005, in
the. . . County of Cumberland, KIRK C. GOBIN, did [commit the offense
of] Defiant Trespasser (Ml - $10,000.00 - 5 Years) [in that,] knowing
that he . . . was not licensed or privileged to do so, [he did] enter or remain
in a place as to which notice against trespass was given, after having
received actual communication to leave school grounds and not return,
4 Defendant's Concise Statement of Matters Complained of on Appeal, filed August 29,2006.
5 Criminal Complaint, filed October 13,2005.
6 Criminal Complaint, filed October 13,2005 (affidavit of probable cause).
2
which communication was given by a school, center or program official,
employee or agent or a law enforcement officer.7
The Information cited 18 Pa. C.S.A. S3503(b )(1)(v) with reference to the crime.
The evidence presented by the Commonwealth at trial may be summarized
as follows. Shippensburg University is an institution of higher learning which is
part of the Commonwealth's education system. 8 It has a sprawling campus, on a
small portion of which is located an elementary school,9 presumably utilized by
the university for purposes of its teachers' education curriculum.
On the evening of Wednesday, October 12,2005, Shippensburg University
Police Officer Robert Wenerd was standing on campus with another Shippensburg
University police officer, when they observed Defendant driving on campus
grounds.lO Officer Wenerd had had contact with Defendant in 2002.11 At that
time, Officer Wenerd had personally observed service upon Defendant of the
following written notice on Shippensburg University stationery:
September 25,2002
Mr. Kirk C. Gobin
462 North Franklin Street
Chambers burg, P A 17201
Dear Mr. Gobin:
Due to your involvement in an incident on the campus of
Shippensburg University on September 3, 2002 please consider this my
official warning to you.
I am instructing you that you are not permitted to enter onto the
property (which includes all campus roadways) of Shippensburg
University at any time.
The only exception to this warning would be if in the future you had
official business with the university that you must transact. In such a case,
you must call my office to notify me of such a visit.
If you attempt to make an unwelcome visit to our campus, you will be
apprehended by our police officers and arrested for Criminal Trespass.
7 Information, filed December 13,2005.
8 NT. 28, Trial, June 21-22,2006 (hereinafter NT. ~.
9 Commonwealth's Exs. 2, 2-A, Trial, June 21-22,2006; NT. 28.
10 NT. 14-15.
11 NT. 15.
3
If you have any questions concerning this warning, please feel free to
call me between 8:00 a.m. and 4:00 p.m., Monday through Friday. 12
This notice bore the signature of Herbert H. Bowers, Director of Public
Safety of Shippensburg.13 Its service upon Defendant was acknowledged by
Defendant's signature, and evidenced by the signatures of Officer Wenerd and
Shippensburg Police Officer John M. Clark.14
On the present occasion of his appearance on campus, which did not
involve an incursion into the vicinity of the elementary school,15 Defendant had
not been authorized to enter the campus. 16 Officer Wenerd and the other
university police officer succeeded in stopping Defendant's vehicle shortly after it
exited the campus. 17 Defendant initially claimed that he had been picking up
someone on campus, but eventually conceded that he was "just driving through the
campus.,,18 He told the officers that he knew he was not permitted on the campus
and admitted that he had "messed Up.,,19
During the course of the trial, Defendant's counsel objected to the
Commonwealth's introduction through Officer Wenerd of the written notice which
he had witnessed Defendant receive, directing him not to enter the campus.20 In
so objecting, Defendant's counsel stated, "That is hearsay. He is not the author.
Per [Pennsylvania] Rule [of Evidence] 802, I have no right to cross-examine the
author if that is presented.,,21 While agreeing that testimony of the officer that he
12 Commonwealth's Ex. 1, Trial, June 21-22,2006.
13 Id.
14Id.;NT. 18-19.
15 NT. 28; Commonwealth's Exs. 2, 2-A, Trial, June 21-22,2006.
16 NT. 19-20.
17 NT. 24-25.
18 NT. 26.
19 NT. 26.
20 NT. 16.
21 NT. 16.
4
had seen Defendant receIve a notice of some sort would be permissible,
Defendant's counsel objected to "the contents of the notice. It's hearsay. [The
witness] did not write it. It's not a business record.,,22 The court, however,
concluded that "it's more of an operative fact" and that "it's not being introduced
for the truth of the statement,,,23 and overruled the objection?4
At the conclusion of the Commonwealth's case, Defendant's counsel
moved for a judgment of acquittal.25 In response to the motion, and after
researching the issues presented, the court entered the following order:
AND NOW, this 22nd day of June, 2006, upon consideration of
Defendant's motion for judgment of acquittal at the conclusion of the
Commonwealth's case-in-chief, the motion is granted as to the
misdemeanor-of-the-first-degree form of Defiant Trespasser (relating to
"school grounds"), granted as to the lesser-included misdemeanor-of-the-
third degree form of the offense (relating to refusal to leave) (see
Commonwealth v. Crosby, 791 A.2d 366 (Pa. Superior Ct. 2002)), and
denied as to the lesser-included summary offense form of the offense.26
Defendant's counsel objected strenuously to the court's conclusion that the
case could proceed on a lesser-included summary offense theory:
. . . Number one, I would suggest it is not a lesser-included offense
and should not-since it was not charged separately in the information,
that the Court does not, in fact, have jurisdiction over the summary
offense, and it should not go either to the jury or to you as the trial judge
for a decision, and I would cite Commonwealth versus Hoffman, 594 A.2d
772, for the proposition that an uncharged summary offense cannot be
decided and, in fact, creates jeopardy.
Second, I would suggest that the entire defense in this case from my
opening, wherein I opened to the jury only on the issues of defiant
trespass, telling the jury in my opening that I was going to address two
things. Number one, whether this was a school ground, and number two,
whether he was told at that point to leave, and I told the jury that that was
what made up defiant.
Throughout the trial I did not question anything dealing with what the
Court believes is a lesser-included offense. The entire trial defense
22 NT. 17.
23 NT. 17.
24 NT. 18.
25 See NT. 33-34.
26 NT. 34; Order of Court, June 22,2006.
5
strategy was that the elements for which Mr. Gobin was charged-all my
cross-examination to the Officer was about where the stop was, whether
he, in fact, gave-I think I asked five questions. If Shippensburg
University was a secondary school, where the stop occurred, and whether
it was on University grounds, whether he told Mr. Gobin to leave at that
time, and whether he refused, and I think I stopped my cross examination
at that point.
I would also add that the Court allowed a notice in suggesting that it
was not offered for the truth of the matter asserted, which would be the
notice of trespass, but simply as to why the Officer on this occasion
performed the stop. Had I known that we were going to address summary,
I would suggest I might have called Officer Bower, Herbert Bower or
Bowers, who gave that notice as to the length, as to whether he did
communicate it, as to whether he, in fact, had ever received a call from Mr.
Gobin saying is it okay if I come back or whether he was even a director at
the time of this stop so that he could have received notice from Mr. Gobin.
None of those issues have been addressed in this defense because I did not
think they were relevant to address them. 27
However, when asked by the court whether Defendant's counsel was
"requesting an opportunity to call [Herbert Bowers",] he replied, "No.,,28 The
defense thereafter rested without presenting any evidence.29
In its charge to the jury on the elements of the offense which remained for
its consideration, the court gave the following instruction:
The Defendant is charged in this case with trespass. As I
indicated earlier, several forms of defiant trespasser have been
eliminated from the case by me based on the evidence as it was
presented, but there's one form which does remain as a charge
for your consideration, and this is the instruction on that form
of criminal trespass.
The Defendant has been charged with criminal trespass as
a defiant trespasser. To find the Defendant guilty of this
offense, you must find that all of the following elements have
been proven beyond a reasonable doubt.
First, that the Defendant entered the grounds of
Shippensburg University. Second, that notice against trespass
upon those grounds was given by actual communication to the
27 NT. 35-36.
28 NT. 36.
29 NT. 38-39.
6
Defendant, and third, that the Defendant knew that he had no
permission from the owner to be in such place.
If after considering all of the evidence you find that the
Commonwealth has established each of these elements beyond
a reasonable doubt, then you should find the Defendant guilty
of criminal trespass, defiant trespasser. Otherwise, you must
find the Defendant not guilty. 30
Defendant's counsel objected to the court's instruction, maintaining that the
offense described in the charge was not a lesser-included offense. He articulated
this position as follows:
. . . [Defendant] actually was not charged with [the offense instructed
upon]. He was charged with 3503[b](l), which includes as an element
school grounds. The charge you gave, I'm not even sure what offense that
is in the Crimes Code, but I would suggest it's not a lesser-included
offense, that it is a different offense in the same subsection, and that the
Courts have in the past suggested that you not charge on a different theory
of the case. So I would ask the Court to change that telling the jury that
they should find the Defendant not guilty?l
The Commonwealth argued to the contrary, that the charge had properly
presented for the fact-finder's consideration a lesser-included offense under
Section 3503(b) of the Crimes Code.32 Defendant's objection to the charge was
overruled. 33
Defendant was found guilty of the summary form of defiant trespasser, and
a presentence investigation report was ordered by the court. 34 The presentence
investigation report revealed that Defendant's criminal record at the time of
sentence included, in addition to the aforesaid indecent exposure conviction, three
convictions for driving under the influence, a drug act conviction, and a
30 NT. 41-42.
31 NT. 46-47.
32 NT. 47.
33 NT. 47.
34 NT. 49, 53; Order of Court, June 22,2006.
7
misdemeanor conviction for harassment by communication.35 It also revealed that
Defendant had served periods of imprisonment for most of these offenses,
including the prior Shippensburg University crime. 36
In imposing the sentence related at the beginning of this opinion, the court
noted its reliance upon the facts in the presentence investigation report, and
specifically observed that "Defendant [had] a substantial prior record with various
periods of incarceration, and that record include [ d] a conviction for indecent
exposure occurring on the campus of Shippensburg University.,,37 Defendant's
release, on his own recognizance, was continued, based upon his counsel's
representation at sentencing that Defendant would be filing an appeal. 38
No motion for reconsideration was filed with respect to the discretionary
aspects of the sentence. Defendant's notice of appeal to the Superior Court from
the judgment of sentence was filed on August II, 2006?9
DISCUSSION
Defiant trespasser. The Defiant Trespasser provision of the Pennsylvania
Crimes Code provides as follows:
(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;
(ii) posting in a manner prescribed by
law or reasonably likely to come to the attention
of intruders;
(iii) fencing or other enclosure
manifestly designed to exclude intruders;
35 Court's Ex. 1 (presentence investigation report), Sentencing Proceeding, July 25, 2006; NT. 2-
3, Sentencing Proceeding, July 25,2006.
36 Court's Ex. 1 (presentence investigation report).
37 Order of Court, July 25,2006.
38 Id.; NT. 4-5, Sentencing Proceeding, July 25, 2006.
39 Defendant's Notice of Appeal, filed August 11,2006.
8
(iv) notices posted in a manner
prescribed by law or reasonably likely to come
to the person's attention at each entrance of
school grounds that visitors are prohibited
without authorization from a designated school,
center or program official; or
(v) an actual communication to the actor
to leave school grounds as communicated by a
school, center or program official, employee or
agent or a law enforcement officer.
(2) Except as provided in (l)(v), an offense under this
section constitutes a misdemeanor of the third degree if
the offender defies an order personally communicated to
him by the owner of the premises or other authorized
person. An offense under paragraph (l)(v) constitutes a
misdemeanor of the first degree. Otherwise it is a
summary offense.
Act of December 6, 1972, P.L. 1482, Sl, as amended, 18 Pa. C.S. S3503(b) (Supp.
2006). For purposes of this provision, "school grounds" are defined as
any building of or grounds of any elementary or secondary publicly funded
educational institution, any elementary or secondary private school
licensed by the Department of Education, any elementary or secondary
parochial school, any certified day-care center or any licensed preschool
program.
Id, S3503(d) (Supp. 2006).
A summary offense under the Crimes Code is punishable by a fine of up to
$300.00 and a period of imprisonment of up to 90 days. Act of December 6, 1972,
P.L. 1482, S I, 18 Pa. C.S. S 1105.
Lesser included offenses. "One cnme IS a lesser-included offense of
another if, while considering the underlying factual circumstances, the elements
constituting the lesser crime as charged are all included within the elements of the
greater crime and the greater offense includes at least one additional element that
is not a requisite for committing the lesser crime." Commonwealth v. Murray,
2003 P A Super. 428, ,-r15, 836 A.2d 956, 962. Where an offense is a lesser-
included offense of a crime charged in a case, the trial court may sua sponte
instruct the jury on the lesser-included offense. Commonwealth v. Davis, 331 Pa.
Super. 285, 480 A.2d 1035 (1984).
9
Under Section 3503(b) of the Crimes Code, the elements common to each
of the three forms of defiant trespasser are (a) the actor's presence on property of
another and (b) defiance of notice that his presence is not permitted. Without
more, the offense is a summary offense. With the additional element that defiance
of the notice occurs at the time it is personally communicated to the actor, the
offense is a misdemeanor of the third degree. With the further additional element
that the event occur on "school grounds," the offense is a misdemeanor of the first
degree.4o Defiant trespasser, as statutorily set forth, would thus appear to present a
classic greater/lesser-included offense pattern.41
In the present case, Defendant's conduct satisfied the elements of the least
serious form of defiant trespasser in that he was present on property
notwithstanding notice that his presence was not permitted, where neither the
additional element of communication at the time of the event nor the further
additional element of presence on school grounds was extant. Having been
charged in the information with the most serious form, Defendant was properly
found guilty of the least serious form, as a lesser-included offense.42
The contention in Defendant's statement of matters complained of on
appeal that he was not prepared to defend against the facts constituting this form
of defiant trespasser is not compelling, inasmuch as the substance of the
Commonwealth's case, including its predication upon the no-trespass notice
served upon Defendant in 2002, was set forth in detail in the probable cause
affidavit accompanying the criminal complaint.
40 Act of December 6, 1972, P.L 1482, ~1, as amended, 18 Pa. C.S. ~3503(b)(2) (Supp. 2006).
41 See Commonwealth v. Crosby, 2002 PA Super. 10, 791 A.2d 366.
42 The court was unable to agree with Defendant that the holding in Commonwealth v. Hoffman,
406 Pa. Super. 583, 594 A.2d 772 (1991), was dispositive of the issue presented. In Hoffman, the
Superior Court held that the summary offense in question, harassment, was not a lesser-included
offense of simple assault, "because the elements are not identical." Id. at 589, 594 A.2d at 775.
As noted in the text, the court in the present case concluded that the elements of summary defiant
trespasser were common to the more serious forms of the offense.
10
Sufficiency of the evidence. On a challenge to the sufficiency of the
evidence in a criminal case, the proper test is "whether, viewing the evidence
admitted at trial in the light most favorable to the Commonwealth and drawing all
reasonable inferences in the Commonwealth's favor, there is sufficient evidence to
enable the trier of fact to find every element of the [crime] charged beyond a
reasonable doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d
1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96,
478 A.2d 1286, 1288 (1984). The sufficiency of the evidence is not to be assessed
on the basis of a diminished record. Commonwealth v. Bricker, 2005 P A Super.
307, 882 A.2d 1008.
Hearsay is an out-of-court statement introduced for the truth of the
statement. Pa. RE. 801(c) The general evidentiary rule excluding hearsay
evidence is based on the absence in the case of hearsay of the reliability of
declarations made under oath and subject to the penalties of perjury. Pa. RE. 802;
Commonwealth v. Carter, 2004 PA Super 420, ,-r9, 861 A.2d 957, 961-62. It
follows that the hearsay rule applies generally to speech in the indicative mood.
See generally, Pa. RE. 801(a); Commonwealth v. Samuels, 235 Pa. Super. 192,
340 A.2d 880 (1975).
A trespass notice is in the imperative mood, and in a defiant trespasser case
its introduction is not for the purpose of showing the truth of the statement, but
rather for the purpose of showing the actor's receipt of notice-an element, or
operative fact, with respect to the offense.
Some out-of-court statements do not constitute hearsay. If the mere
making of an out-of-court statement-regardless of its truthfulness-has
legal significance, then evidence that the statement was made is not
hearsay because it is not offered to prove the truth of the matter asserted.
This is most obvious when the words proven constitute a necessary part of
the cause of action or defense, or as is sometimes said, are "operative"
facts, or part of the "ultimate issue. ,,43
43 Case Corp. v. Hi-Class Business Systems of America, Inc., 184 S.W.3d 760, 782 (Tex. App.
2006) (citations omitted).
11
In this sense, a no-trespass notice in a defiant trespasser case presents no more of a
hearsay issue than does a red light in a Vehicle Code prosecution.
To the extent that Defendant's challenge on appeal to the sufficiency of the
evidence is predicated upon the inadmissibility of the no-trespass notice given to
Defendant, the challenge can not be sustained because if is dependent upon a
diminution of the record. To the extent that the challenge is predicated upon the
theory that the item in question had no probative effect because it was not
admitted "for the truth of the statement," the challenge misapprehends the notice's
evidentiary import as an operative fact.
Discretionary aspects of sentence. The sentencing guidelines do not apply
to summary offenses. Commonwealth v. Barzyk, _ Pa. Super. _, 692 A.2d
211 (1997). An appeal from the discretionary aspects of a sentence may be
allowed "where it appears that there is a substantial question that the sentence
imposed is not appropriate under the [Sentencing Code]." Act of October 5, 1980,
P.L. 603, S330, as amended, 42 Pa. C.S. S9781(b). An appeal will be permitted
"only when the appellant shows that the trial judge's actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or (2) contrary to
the fundamental norms which underlie the sentencing process." Commonwealth v.
Brzyk, _ Pa. Super. _, _, 692 A.2d 211,216 (1997).
Stated differently, it is only where an aggrieved party can articulate clear
reasons why the sentence imposed by the trial court compromises the
sentencing scheme as a whole that [the appellate court] will find a
"substantial question" and review the decision of the trial court.
Id
Under the Sentencing Code, a sentence of total confinement is appropriate
where
(1) there is undue risk that during a period of probation or partial
confinement the defendant will commit another crime;
(2) the defendant is in need of correctional treatment that can be
provided most effectively by his commitment to an institution; or
(3) a lesser sentence will depreciate the seriousness of the crime of
the defendant.
12
Act of December 30,1974, P.L. 1052, Sl, as amended, 42 Pa. C.S. S9725.
In the present case, as revealed by the presentence investigation report and
indicated by the court in its sentencing order, Defendant had a substantial record
which included periods of incarceration, including the conviction for the incident
that resulted in his being excluded from Shippensburg University grounds. Under
these circumstances, the court felt (a) that it was unlikely that a probationary
sentence for the present incident of defiant trespasser would have the desired
effect of deterring him from such conduct in the future and (b) that a lesser
sentence would be incompatible with the seriousness of this recidivist activity.
BY THE COURT,
1. Wesley Oler, Jr., 1.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
H. Anthony Adams, Esq.
Trial Assistant Public Defender
13