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Commonwealth v. Blauser

Superior Court of Pennsylvania

June 28, 2017

COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL BLAUSER, JR., Appellant

         Appeal from the Judgment of Sentence, September 27, 2016, in the Court of Common Pleas of Clearfield County Criminal Division at No. CP-17-CR-0000451-2016

          BEFORE: PANELLA, J., DUBOW, J., AND FORD ELLIOTT, P.J.E.

          OPINION

          FORD ELLIOTT, P.J.E.

         Michael Blauser, Jr., appeals from the judgment of sentence of September 27, 2016, following his conviction of one count of defiant trespass.[1] Appointed counsel, Michael S. Marshall, Esq., has filed a petition for leave to withdraw as counsel together with an Anders brief.[2] After careful review, we deny permission to withdraw and remand for preparation of an advocate's brief on appellant's behalf.

         The facts of this case, as gleaned from the notes of testimony of the jury trial held on August 24, 2016, may be summarized as follows:

         At approximately 10:30 p.m. on the night of April 16, 2016, Zack Park ("Park") was working as a shift supervisor at a Sheetz store in DuBois when his attention was drawn to appellant. (Notes of testimony, 8/24/16 at 16-17, 43.) Appellant had been standing next to a merchandise rack for approximately 30-45 minutes without purchasing anything. (Id. at 17-18, 22, 31.) Park described it as a small rack containing cards "that you can put, like, your tax return on them and things like that." (Id. at 19, 31.) Appellant was studying the cards and writing things down on a notepad. (Id. at 19, 31.) Earlier, appellant had asked to take pictures of the cards and was told it was against store policy. (Id. at 67-68.) It did not appear to Park that appellant intended to actually purchase anything. (Id. at 31.)

         Park explained to appellant that he would have to leave if he was not going to buy anything. (Id. at 20.) Appellant responded that he was going to buy a lot of things but then continued to linger around the card rack. (Id.) Park asked appellant to leave several times but he refused. (Id. at 20-21.) Park testified that Sheetz has a "no-loitering" policy that applies to customers "without a legitimate purpose." (Id. at 22, 33-34; Defense Exhibit A.) There are no-loitering signs posted outside the doors. (Id. at 23; Commonwealth's Exhibit 2.) Eventually, Park contacted store security and then the police. (Id. at 25.)

         Corporal Randall L. Young and Corporal Orlando Prosper of the City of DuBois Police Department responded to the scene. (Id. at 44-45, 56.) Corporal Young testified that he asked appellant numerous times to leave the store and he refused. (Id. at 48-49.) Appellant repeatedly asked why he had to leave, and Corporal Young explained that the store has a no-loitering policy. (Id. at 50.) Finally, after appellant was asked to leave at least five times, Corporal Young advised him that if he continued to refuse to leave the store he would be arrested for trespassing. (Id. at 49-50.)

         Appellant continued to argue and refused to leave the store. (Id. at 50.) At that point, Corporal Young placed his hand on appellant's back and escorted him outside. (Id.) Appellant was not yet under arrest. (Id.) While standing outside, both Corporal Young and Corporal Prosper pleaded with appellant to leave the property. (Id. at 50-51, 60.) They explained that it was in appellant's best interests to comply. (Id.) Appellant remained argumentative and insisted that he had the right to remain on the premises. (Id. at 51, 54, 60.) Finally, after approximately 17 minutes of negotiating with appellant, he was placed under arrest. (Id. at 51.)

         Appellant wanted to call his sister, Jamie Moore ("Moore"), to testify that appellant frequently purchases pre-paid electronic cards of the sort he was examining in the Sheetz store. (Id. at 65.) Moore would also testify that appellant has a habit of being very meticulous when it comes to his purchases. (Id.) According to defense counsel, Moore would testify that appellant spends an inordinate amount of time examining items for sale. (Id.) The trial court rejected Moore's proffered testimony as irrelevant and denied appellant's request to call Moore as a witness. (Id. at 66.)

         Following a one-day jury trial, appellant was found guilty of one count of defiant trespass. (Id. at 90.) On September 27, 2016, appellant was sentenced to 131 days to one year of incarceration, with immediate parole. (Docket #15, 16.) No post-sentence motions were filed, and this timely appeal followed on October 25, 2016. On October 26, 2016, appellant was ordered to file a concise statement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P. 1925(b). Appellant complied on December 21, 2016, and on December 29, 2016, the trial court filed a Rule 1925(a) opinion.[3]

         In his Anders brief, Attorney Marshall reviewed the following issue before concluding that the instant appeal was wholly frivolous:

Whether the trial court erred by refusing to allow appellant's sister to testify on his behalf at trial as to (1) that appellant commonly used "bank cards" like the ones that he was examining in the Sheetz store and (2) that appellant habitually took an inordinate amount of time to make purchasing decisions, which testimony could have been relevant and probative as to whether or not appellant lawfully remained upon the Sheetz property[?]

Anders brief at 4.

         Counsel having filed a petition to withdraw, we reiterate that "[w]hen presented with an Anders brief, this court may not review the merits of the underlying issues without first passing on the request to withdraw." Commonwealth v. Daniels, 999 A.2d 590, 593 (Pa.Super. 2010), citing Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en banc) (citation omitted).

         In order for counsel to withdraw from an appeal pursuant to Anders, certain requirements ...


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