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.
Blauser, Jr., appeals from the judgment of sentence of
September 27, 2016, following his conviction of one count of
defiant trespass. Appointed counsel, Michael S. Marshall,
Esq., has filed a petition for leave to withdraw as counsel
together with an Anders brief. After careful
review, we deny permission to withdraw and remand for
preparation of an advocate's brief on appellant's
facts of this case, as gleaned from the notes of testimony of
the jury trial held on August 24, 2016, may be summarized as
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.)
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.)
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.)
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.)
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.)
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)
Anders brief, Attorney Marshall reviewed the
following issue before concluding that the instant appeal was
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.
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)
order for counsel to withdraw from an appeal pursuant to
Anders, certain requirements ...