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COMMONWEALTH PENNSYLVANIA v. MICHAEL J. DOWNING (06/23/86)

decided: June 23, 1986.

COMMONWEALTH OF PENNSYLVANIA, APPELLANT,
v.
MICHAEL J. DOWNING, APPELLEE



Appeal from the Order of the Superior Court Dated February 13, 1984, at No. 3255 Philadelphia, 1981, Reversing the Judgment of Sentence of the Court of Common Pleas of Philadelphia County at No. 233 July Session 1981; 323 Pa. Superior Ct. 153, Nix, C.j., and Larsen, Flaherty, McDermott, Hutchinson, Zappala and Papadakos, JJ.

Author: Papadakos

[ 511 Pa. Page 30]

Opinion OF THE COURT

This is the appeal of the Commonwealth from the Opinion and Order of Superior Court, 323 Pa. Super. 153, 470 A.2d 526 (1983), reversing the judgment of sentence imposed on Michael J. Downing (Appellee) and discharging him. Appellee was convicted of defiant trespass*fn1 as a result of an incident at the Temple University Law Library.

From the record it appears that Appellee, who is not affiliated in any way with Temple or its Law School, asked for, and received, a library card in order to obtain access to

[ 511 Pa. Page 31]

    the law library during its normal hours of operation. On December 10, 1980, Appellee attempted to use the law library, but 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 Law School 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.

Upon reading the notice, Appellee went to Professor Swygert's office and attempted to find out whether he could use the Law School library facilities. Professor Swygert told Appellee that his library pass was invalid during the examination period, but that he could use the facilities after exams were completed. After Professor Swygert handed Appellee a copy of the posted notice, Appellee told Professor Swygert that he needed to use the books in the library and that he would return at a later date to use them. Following Appellee's peaceful departure, Professor Swygert prepared a memorandum and sent same to the University Security Office informing them that Appellee was not to be admitted into the law library during exam period.

On December 19, 1980, Appellee returned to Professor Swygert's office and demanded that he be admitted into the library because it was his right. Professor Swygert told Appellee to leave and Appellee responded that he would not leave the building unless arrested or physically removed. Appellee was again asked to leave and, upon his refusal, campus security was contacted. The campus security officer, who responded to the call, requested Appellee to leave and, upon his refusal, Appellee was placed under arrest, escorted from the campus, and then released. Appellee immediately returned to the library, where he was arrested at the check out desk of the library, and was charged with defiant trespass and disorderly conduct.

[ 511 Pa. Page 32]

Appellee was found guilty of defiant trespass and acquitted of disorderly conduct in the Philadelphia Municipal Court. Upon his appeal to the Court of Common Pleas, Appellee was again convicted of defiant trespass. Following denial of post-trial motions, Appellee was ...


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