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filed: December 2, 1983.


No. 3255 Philadelphia 1981, Appeal from the Judgment of Sentence dated November 16, 1981, Court of Common Pleas, Criminal Division, Philadelphia County, at No. 81-07-0223.


Michael J. Downing, in propria persona.

Michael L. Turner, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

Spaeth, Cavanaugh and Johnson, JJ. Cavanaugh, J., files a dissenting statement.

Author: Johnson

[ 323 Pa. Super. Page 155]

Appellant was found guilty of defiant trespass*fn1 and acquitted of disorderly conduct*fn2 in the Philadelphia Municipal Court as a result of an incident at the Temple University Law Library. He appealed his trespass conviction to the common pleas court and, following a trial de novo, was again convicted of defiant trespass. After denial of post-trial motions, Appellant was sentenced to one year probation. This appeal followed.

Viewing the evidence in the light most favorable to the Commonwealth, Commonwealth v. Parker, 494 Pa. 196, 431 A.2d 216 (1981), the record indicates that Appellant, who was not affiliated with the University, had periodically used the law library, located in the Klein Building, in preparation of various lawsuits to which he was a party. He had obtained a general pass from the law school to use the library during its normal hours of operation.

On December 10, 1980, Appellant approached the Klein Building and encountered the following posted notice:

In order to accommodate law students studying and sitting for the final exams, the Klein Building will have restricted access from December 4th to December 23rd.

Admittance will be limited to faculty, staff and students of the School of Law and persons presenting written authorization from the Director of Administration, Eugene R. Lyons, or Law School Counsel, H. Patrick Swygert.

Thank you in advance for your cooperation.

Appellant proceeded to Professor Swygert's office, also located in the Klein Building,*fn3 and stated to Swygert that he wanted to see the Dean. Swygert informed Appellant that the Dean was unavailable and asked what he could do to assist Appellant. Appellant told Swygert that he wanted to

[ 323 Pa. Super. Page 156]

    use the law library and that he had a pass to use the library. Swygert then told Appellant that his pass was suspended during the examination period and that he could return after that period to use the library. Swygert handed Appellant a copy of the posted notice. Appellant then told Swygert that he needed to use the books in the library and would return at a later date to use them. Swygert told Appellant he could not use the law library during the restricted examination period. Appellant then left the Klein Building peaceably. Swygert prepared a memorandum, dated December 10, 1980, to the University security office stating that Appellant was not to be admitted to the building.

On December 19, 1980, Appellant returned to Swygert's office on the eighth floor of the Klein Building and demanded that he be allowed to use the library, because it was his right. Swygert asked Appellant to leave and Appellant stated that he would not leave the building unless arrested or physically removed. Appellant was again asked to leave and upon his refusal, campus security was contacted. During this encounter outside Swygert's office, Appellant was shouting at those present and at one point told Swygert to "go to hell". The security officer, upon his arrival at Swygert's office, spoke with Appellant, requesting that he leave. Appellant again refused. He was then arrested, escorted off the University premises, and released. Appellant immediately returned to the law library where he was arrested at the check-out desk of the library and charges of defiant trespass and disorderly conduct filed.

Professor Swygert testified at trial that he refused Appellant access to the law library for his failure to maintain the proper "decorum", based on the two confrontations.

Appellant raises three issues on appeal: (1) did the trial court err in failing to grant Appellant's demurrer and was the evidence insufficient, (2) was Appellant's conviction for defiant trespass barred by 18 Pa.C.S.A. ยง 110(2) because of his prior acquittal of the disorderly conduct charge, and (3)

[ 323 Pa. Super. Page 157]

    did Appellant have a legal right and/or license to use the law library.

Appellant's first argument alleges that the trial court erred in failing to grant his demurrer and that the evidence was insufficient to support Appellant's conviction for defiant trespass. We note initially that the issue of the correctness of the ruling on a demurrer is not an appropriate appellate issue where the defendant did not rest following the adverse ruling, but instead chose to present evidence in his defense. Commonwealth v. McNeal, 493 Pa. 395, 426 A.2d 606 (1981). However, when there is an improper challenge to the trial court's ruling on the demurrer, this court may treat the question as if properly framed, namely, whether the trial court erred in refusing ...

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