Com. v. Detwiler, K.

Opinion

J-A23007-23 J-A23008-23 J-A23009-23 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

KATHRINE ANN DETWILER :

:

Appellant : No. 390 MDA 2023

Appeal from the Judgment of Sentence Entered February 23, 2023 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000015-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

GARY ROBERT KRUM :

:

Appellant : No. 391 MDA 2023

Appeal from the Judgment of Sentence Entered February 23, 2023 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000016-2022

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA :

v. :

: :

ELAINE M. BARNHART :

:

Appellant : No. 392 MDA 2023

J-A23007-23 J-A23008-23 J-A23009-23

Appeal from the Judgment of Sentence Entered February 23, 2023 In the Court of Common Pleas of Columbia County Criminal Division at No(s): CP-19-CR-0000092-2022

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM PER CURIAM: FILED: JANUARY 4, 2024

Kathrine Ann Detwiler, Gary Robert Krum, and Elaine M. Barnhart

(collectively, Appellants) appeal from their judgments of sentence,1 entered

in the Court of Common Pleas of Columbia County, following their convictions

of one count each of defiant trespass.2 After careful review, we affirm

Appellants’ judgments of sentence, and we vacate the stays of sentence.3

On September 13, 2021, Detwiler, Krum, and Barnhart attended an

advertised scheduled public meeting of the Southern Columbia School Board,

at the Southern Columbia High School library. See N.T. Jury Trial, 1/13/23,

at 65, 67. The public meeting was scheduled to begin at 7:00 p.m., and an

____________________________________________

* Former Justice specially assigned to the Superior Court.

1 Detwiler, Krum, and Barnhart were charged based upon the same factual

scenario, proceeded to a consolidated jury trial, were represented by the same counsel, and now raise the same issues on appeal. Additionally, counsel for Appellants has filed nearly identical briefs at each docket. Accordingly, we consolidate these appeals sua sponte. See Pa.R.A.P. 513 (“[W]here the same question is involved in two or more appeals in different cases, [this Court] may . . . order them to be argued together in all particulars as if but a single appeal.”).

2 18 Pa.C.S.A. § 3503(b)(1)(v).

3 On March 20, 2023, the Appellants filed, with this Court, applications for stay

of sentence at each of the above-captioned dockets. On April 13, 2023, this Court entered orders at each of the above-captioned dockets granting each application and staying each Appellant’s sentence. See Order, 4/13/23, at 1.

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executive session was scheduled to take place after the public meeting. Id.

At an August 29, 2021 school board meeting, the Southern Columbia School

District adopted a mask mandate that was still in effect at the time of the

public meeting Appellants attended in September 2021.4 Id. at 63-64.

Superintendent Becker testified that the public meeting was to be

recorded and streamed over the internet, as well as be open to all members

of the public so long as they comported with the school board rules. Id. at

65-66. Superintendent Becker further stated that an executive session is

typically “closed doors,” and addresses more private functions such as student

discipline, pending litigations, and personnel matters. Id. at 66.

On September 13, 2021, the date of the scheduled meeting, Detwiler,

Krum, and Barnhart, as well as two other individuals, arrived not wearing

masks. Id. at 67, 112. Becker and School Security Officer David Townsend

were present to greet people as they arrived. Id. at 68, 112. School Officer

Townsend had extra masks to provide to people who did not have a mask with

them. Id. at 68, 113. As the group of five approached the library, they

____________________________________________

4 James A. Becker, the superintendent at Southern Columbia, testified that on

August 29, 2021, he met with the school board. Id. at 59-60. At the August 29, 2021 meeting, the school board adopted the mask mandate pursuant to the American Rescue Plan Act of 2021 (ARP) PL 117-2, Section 2001(i)(1), and the Center for Disease Control’s recommendations. See N.T. Jury Trial, 1/13/23, at 59-63; see also ARP PL 117-2 § 2001(i)(1) (“A local educational agency receiving funds under this section shall develop and make publicly available on the local educational agency’s website, not later than 30 days after receiving the allocation of funds described in paragraph (d)(1), a plan for the safe return to in-person instruction and continuity of services.”). The mask mandate was effective immediately. Id.

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engaged in a discussion with School Officer Townsend, who advised them that

they had to be masked in order to stay for the public meeting. Id. at 68-69,

114. The members of the group refused to put on masks.5 Id. at 69, 114.

School Officer Townsend again informed the group that they had to wear a

mask or leave. Id. at 68-70, 113-15. Again, the Appellants refused either by

stating so outright, or failing to put on a mask. Id. at 115. School Officer

Townsend informed them that if they refused to mask, and refused to leave,

he would need to call the police. Id. The Appellants, undeterred, continued

their refusal to mask and refused to leave. Id.; see also id. at 138-39

(School Officer Townsend testifying that, throughout evening, Krum stated he

would not wear a mask, while Detwiler and Barnhart did not specifically state

they would not wear a mask, but refused through their actions).

Superintendent Becker joined the conversation and told the group that

they had to either put on masks or leave the premises. Id. at 70. He further

advised the group that the school board had a mask mandate in effect. Id.

He did not individually address any of the Appellants, but rather addressed all

of them as a group. Id.; see also id. at 58 (Commonwealth stipulating

Appellants were not individually advised to wear masks). Still, Detwiler,

Krum, and Barnhart refused to put on a mask and refused to leave. Id. at

71. Ultimately, School Officer Townsend called the police. Id. at 115

____________________________________________

5 Initially, the two unidentified individuals also refused to wear masks.

Id. at

69. However, one of them ultimately put on a mask, and the other left the building. Id.; see also id. at 71.

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As a result, Superintendent Becker and the rest of the school board

decided to conduct the executive session first. Id. In part, the school board

hoped that the Appellants would either put on a mask or leave during the

executive session; additionally, the school board discussed how to handle the

situation. Id. at 71-73. While the executive session was conducted,

Superintendent Becker advised that all members of the public should wait in

the cafeteria, which was next door to the library. Id.

School Officer Townsend remained in the cafeteria with the members of

the public until the conclusion of the executive session. Id. at 117. During

this time, Officer Donald Spotts of the Locust Township Police Department6

responded to School Officer Townsend’s call.7 Id. at 115-16. Officer Spotts

spoke with Krum, Detwiler, and Barnhart, as well as the other members of the

public. Id. at 146-51. Officer Spotts informed the maskless individuals that

the school had asked them to leave. Id. The Appellants still did not leave or

put on a mask. Officer Spotts ultimately left the school in order to discuss the

situation with the District Attorney. Id. at 131, 153-55.

Shortly after Officer Spotts left, School Officer Townsend continued

talking to everyone in the cafeteria. Id. at 117-19. During this time, School

____________________________________________

6 We note that the school in question is located in Franklin Township; however,

per a municipal agreement, the Locust Township Police Department provides police services to the school. See id. at 146.

7 Officer Spotts wore a body cam, which recorded his interactions and was preserved and presented at trial. See id. at 101, 116 (wherein Officer Spotts’ body cam footage was presented as multiple separate exhibits, and played multiple times).

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Officer Townsend informed them that refusing to comply with the mask

mandate is not a “traffic citation,” but rather a misdemeanor offense for

defiant trespass. Id. at 118-19. Still, the Appellants refused to comply or

leave. Id. Shortly thereafter, another unidentified member of the public

asked the Appellants to leave because there was a concern that the school

board would cancel the public meeting due to their actions. Id. A couple of

minutes later, the Appellants left. Id. School Officer Townsend testified that

the entire series of events occurred over the span of approximately 41

minutes. Id. at 119. Ultimately, the public meeting occurred later that

evening, after the Appellants had left. Id. at 74.

Officer Spotts re-entered the school, and informed School Officer

Townsend that the DA was not planning to file charges since the Appellants

had already left the school. Id. at 154 (Officer Spotts reading police report).

School Officer Townsend indicated that he would inform Superintendent

Becker. Id. Subsequent to this event, the school board reached out the DA

and informed him that the school board wished to press charges. Id. at 155-

56.

On November 8, 2021, the Appellants were charged with one count each

of defiant trespass. On April 1, 2022, the Appellants filed a joint petition for

habeas corpus relief. On June 17, 2022, the trial court conducted a hearing,

after which it denied Appellants’ habeas corpus petition. On January 13, 2023,

the Appellants proceeded to a consolidated jury trial, after which they were

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convicted as charged. The trial court deferred sentencing and ordered the

preparation of pre-sentence investigation reports.

On February 23, 2023, the trial court conducted a sentencing hearing

and sentenced each Appellant to 12 months’ probation for their respective

convictions of defiant trespass. Additionally, the trial court imposed, upon

each Appellant, a $1,000 fine, and ordered them to pay the costs of

prosecution, and to complete 50 hours of community service.

The Appellants did not file post-sentence motions. The Appellants filed

timely notices of appeal and court-ordered Pa.R.A.P. 1925(b) concise

statements of errors complained of on appeal. The Appellants now raise the

following issues for our review:

[1.] Whether the trial court erred when it failed to dismiss the charge of defiant trespass . . . at the close of the Commonwealth’s case given that the Commonwealth stipulated that no actual communication was given to the Appellant[s] to leave school grounds by a school, center or program official, employee or agent or law enforcement officer?

[2.] Whether the Commonwealth failed to establish all the elements for defiant trespass . . . beyond a reasonable doubt given that the Commonwealth stipulated that no actual communication was given to the Appellant[s] to leave school grounds by a school, center or program official, employee or agent or law enforcement officer?

[3.] Whether the trial court erred in instructing the jury that the Southern Columbia Area School District possessed the legal authority to require students and visitors to wear face masks where no statutory or regulatory authority exists that confers to school districts the power or authority to force students and visitors to wear face masks?

8

J-A23007-23 J-A23008-23 J-A23009-23 [4.] Where no statute or regulation authorizes public school districts to force students and visitors to wear masks, did the trial court err in instructing the jury that Southern Columbia Area School District had the authority to force students and visitors to wear face masks?

[5.] Whether the trial court erred when it failed to allow counsel for the Appellant[s] to present evidence of the school officials[’] violation of Federal law, 21 U.S.C. § 360bbb-3, which required them to provide informed consent to the Appellant[s] in order to require them to wear a face mask which school officials testified was the reason that the school officials wanted the Appellant[s] to leave the school premises on September 13, 2021.

[6.] Whether the trial court erred when it sustained the Commonwealth’s objection to the witness being questioned about the failure to provide informed consent in violation of 21 U.S.C. § 360bbb-3 relating to the use of Emergency Use Authorized only devices such as face masks?

Briefs for Appellants, at 7-9.

We address Appellants’ first two issues together, as they are related. In

their first issue, Appellants argue that the trial court erred in failing to grant

their motion for acquittal at the close of the Commonwealth’s evidence. See

Briefs for Appellants, at 25-28. Appellants contend that the Commonwealth

failed to satisfy any of the elements of the crime of defiant trespass. Id.

In their second issue, Appellants argue that Superintendent Becker and

School Officer Townsend’s statements to “wear a mask or leave” did not

constitute “communications” to leave school grounds. Id. at 29-34.

Appellants acknowledge that “[t]here is no question that the [Appellants]

heard [School] Officer Townsend and Superintendent Becker making the

statements about masking or leaving.” Id. at 35. However, Appellants argue

that “either or” statements are not “actual communications” as they are not

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“clear, definitive, and understood by the recipient of the communication.” Id.

at 35-37. Appellants assert that it was reasonable for them to think they could

wait for further directions. Id. at 36-41. Appellants posit that there was no

evidence presented to the jury that they were asked to leave. Id. at 41-42.

Our standard of review is as follows:

A motion for judgment of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, and is granted only in cases in which the Commonwealth has failed to carry its burden regarding that charge.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial[,] in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part[,] or none of the evidence.

Commonwealth v. Fitzpatrick, 159 A.3d 562, 567 (Pa. Super. 2017)

(citation omitted).

The Crimes Code defines criminal trespass, in relevant part, as follows:

§ 3503. Criminal Trespass

***

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(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:

***

(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[.]

18 Pa.C.S.A. § 3503(b)(1)(v) (emphasis added).

Appellants’ first and second claims are belied by the record. As we

summarized above, it is clear the Commonwealth stipulated the Appellants

were not individually warned to wear a mask or leave. See N.T. Jury Trial,

1/13/23, at 58. However, the stipulation indicates that Appellants were

warned as a group. See id. It is equally clear from trial testimony that the

Appellants, along with two other individuals, were warned as a group about

the school board policy to put on a mask or leave the premises. See id. at

68-70, 83-84, 113-15, 118-19, 138-39, 146-51. To the extent that Appellants

argue these communications were unclear, we point out that these

communications were clear enough to the two unnamed individuals, as they

each either put on a mask or left the school in response to the

communications.8 See id. at 71; see also 115 (School Officer Townsend

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8 It is unclear to this Court how an “either or” statement fails to satisfy the

requirements of section 3503, or how an “either or” statement is unclear. See (Footnote Continued Next Page)

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testifying unidentified female put on mask; unidentified male left school

premises). Moreover, almost the entire sequence of events was caught either

on surveillance video or on Officer Spotts’ body cam, or both. See id. at 86-

88 (Superintendent Becker testifying high school surveillance video accurately

depicted events). These videos, combined with the accompanying testimony

from Superintendent Becker, School Officer Townsend, Officer Spotts, and

Krum, all reveal that the Appellants were informed numerous times that they

had to either put on a mask, or leave the school. See id.; see also id. at

101, 116 (Officer Spotts body cam being played at trial); Trial Court Opinion,

4/24/23, at 1, 6.

For the same reasons, we are unpersuaded by Appellants’ arguments

that they cannot be found guilty of defiant trespass because they were not

individually informed of the mask mandate. See Briefs for Appellants, at

35, 41-42. The language of section 3503 does not require each “actor” be

separately and personally given notice to leave. See 1 Pa.C.S.A. § 1902 (“The

singular shall include the plural, and the plural, the singular. Words used in

the masculine gender shall include the feminine and neuter.”). Taking the

evidence as a whole, and including the fact that Appellants conceded that they

____________________________________________

Briefs for Appellants, at 35-37. As noted, the record before us clearly reflects that the two options presented to the Appellants were (1) put on a mask in accordance with the mask mandate; or (2) leave the school. See N.T. Jury Trial, 1/13/23, at 68-70, 83-84, 113-15, 118-19, 138-39, 146-51; id. at 106 (Superintendent Becker testifying that if Appellants had put on a mask, they would have been allowed to stay); see also Trial Court Opinion, 4/24/23, at 1, 6. Because Appellants elected not to put on a mask, they only had one option remaining, to leave the school premises.

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were informed as a group and were all aware of the mask mandate,

Appellants’ first two claims fail and they are afforded no relief.

We address Appellants’ third and fourth claims together as they are

related. In their third and fourth claims, which Appellants raise together in

their argument sections, Appellants argue that the trial court erred in issuing

a jury instruction that the Southern Columbia Area School District had the

authority to issue a mask mandate. See Briefs for Appellants, at 43-58.

Appellants assert that the trial court’s instruction was an inaccurate statement

of law because the school board expressly lacked the authority to issue a mask

mandate pursuant to Corman v. Acting Secretary of Pennsylvania

Department of Health, 266 A.3d 452 (Pa. 2021). See Briefs for Appellants,

at 48-58.

Pennsylvania courts are generally afforded “broad discretion in phrasing

[jury] instructions, and may choose [their] own wording so long as the law is

clearly adequately and accurately presented to the jury for its consideration.

Only where there is an abuse of discretion or an inaccurate statement of law

is there reversible error.” Commonwealth v. Antidormi, 84 A.3d 738, 754

(Pa. Super. 2014).

The trial judge gave the following jury instruction on mask mandates:

There’s another swirling issue and that is the power of school boards, what powers do school boards have. I’m telling you the law on this. . . .

The legislature has delegated to the board of directors of any school district the power to permit use on the school grounds and buildings for certain proper purposes under such rules and

13

J-A23007-23 J-A23008-23 J-A23009-23 regulations as the board may adopt. The mask mandate adopted by the Southern Columbia Area school board on August 29, 2021, was a lawful exercise of that authority at that time and continuing through into September 13, 2021.

N.T. Jury Trial, 1/13/23, at 227-28 (emphasis added).

With regard to Appellants’ third and fourth claims, we rely upon and

adopt the trial court’s thorough and well-written opinion.9 See Trial Court

Opinion, 4/24/23, at 11-17. In so doing, we emphasize the trial court’s

following analysis:

[T]his court is not a “super school board” which exists to second[- ]guess rules and regulations promulgated by school boards. As in [Duffield v. School Dist., 29 A. 742 (Pa. 1894)] and [Jacobson v. Massachusetts, 197 U.S. 11 (1905)], where the courts noted that vaccinations may or may not have prevented smallpox, we can accept for purposes of this argument that masks may or may not mitigate the spread of COVID-19. We are not taking a position on that in this [o]pinion. As stated in Duffield, we are not adjudicating whether the wearing o[f] masks [is] “absolutely right or not.” . . . [A]gain to quote Duffield, we are to determine whether the [m]ask [m]andate was “reasonable in view of the [then-]present state of medical knowledge and the concurring opinions of the various boards and officers charged with the care of the public health.” Duffield, 29 A. at 743. More specifically, we find that one reasonable interpretation of the science at the time was that masks inhibit the spread of COVID-19, especially in view of the CDC Guidelines in effect at the adoption of the [m]ask [m]andate[, (Commonwealth Exhibit 2),] which expressed one scientific school of thought. . . . [T]he [school b]oard is the entity vested with broad discretion to make these policy decisions. . . .

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9 Briefly, we note that in Corman, our Supreme Court declared the “Order of

the Acting Secretary of the Pennsylvania Department of Health Directing Face Coverings in School Entities,” issued on September 9, 2021, (DoH Order) void ab initio. See Corman, supra. However, as we noted supra, the Southern Columbia Area school board enacted its mask mandate nine days before the DoH Order was issued. Further, the school board relied not upon the DoH Order, as the Appellants seem to suggest, but upon the CDC’s recommendations and the ARP. See supra, at n.3.

14

J-A23007-23 J-A23008-23 J-A23009-23 It is not the function of this court to second-guess policies of the [school b]oard.

Id. at 15-16 (emphasis in original).

The trial court, having so found, was well within its discretion to issue

the jury instruction that the school board was within its authority to

promulgate rules for Southern Columbia Area School District. See id. at 11-

17; see also Antidormi, supra. Accordingly, Appellants’ are afforded no

relief on these claims.10

In their fifth and sixth claims, which we address together, Appellants

argue that the trial court erred in prohibiting evidence regarding the

Emergency Use Authorization (EUA) of masks pursuant to Federal Food Drug

and Cosmetic Act, particularly to 21 U.S.C. § 360bbb-3. See Briefs for

Appellants, at 60-67. Appellants assert that under section 360bbb-3, a mask

is a “product” and that administration of that “product,” even by a

supermarket chain or, in this case, a school board, requires that the distributor

inform the intended wearers of masks of the benefits and risks of wearing

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10 In so deciding, we are cognizant that this Court is expressly prohibited from

being a “super school board.” See Regan, et al, v. Stoddard, et al, 65 A.2d 240, 242 (Pa. 1949) (“a court is not a super Board of directors”); Detweiler v. School Dist. Of Borough of Hatfield, 104 A.2d 110 (Pa. 1954) (courts should not interfere with policy decisions of school authorities so long as they act in good faith within their statutory powers); see also Zebra v. School Dist. Of the City of Pittsburgh, 296 A.2d 748, 750 (Pa. 1972) (“It is only when the board transcends the limits of its legal discretion that it is amenable to the injunctive processes of a court of equity.”). Furthermore, we reiterate to the parties that this Court’s review is whether the trial court erred, not whether the school board’s policies exceeded the bounds of its legislative authority.

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masks. See Briefs for Appellants, at 60-67. Appellants contend that absent

this “informed consent,” the school board acted outside the bounds of federal

law. Id. at 65-67.

Preliminarily, we rely upon and adopt the trial court’s analysis on these

issues as well. See Trial Court Opinion, 4/24/23, at 17-20. Moreover, it is

unclear from Appellants’ argument how this evidence is relevant to whether

they were trespassing. See Commonwealth v. Collins, 888 A.2d 564, 57

(Pa. Super. 2005) (“The threshold inquiry with admission of evidence is

whether the evidence is relevant.”); Pa.R.E. 402 (“Evidence that is not

relevant is not admissible.”); see also N.T. Jury Trial, 1/13/23, at 90-91 (trial

court sustaining Commonwealth’s objection to this evidence as irrelevant).

Appellants cite to no legal authority for their position. Appellants had no legal

authority to support these claims at the time of trial, and they do not have

any now. Consequently, Appellants are afforded no relief. The parties are

directed to attach a copy of the trial court opinion in the event of further

proceedings.

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Judgments of sentence affirmed. Stay of sentence vacated.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 1/4/2024 • I ·-ORIGINAL Circulated URIG NAL

COMMONWEALTH OF COMMONWEALTH OF PENNSYLVANIA, PENNSYLVANIA, :IN THE IN COURT OF

THE COURT OF COMMON PLEAS COMMON PLEAS

:OF 26TH JUDICIAL DISTRICT OF THE 28"

vs. :COLUMBIA COUNTY .COLUMBIA COUNTY BRANCH, BRANCH, PA

PA

:CRIMINAL DIVISION .CRIMINAL DIVISION

KATHERINE KA THERINE ANN DETWILER, Defendant :NO. 15-CR-2022 .NO.

COMMONWEALTH OF PENNSYLVANIA, JN IN THE COURT OF COMMON PLEAS :OF THE 26 ·OF 26"T"JUDICIAL DISTRICT

vs. ::COLUMBIA COLUMBIA COUNTY BRANCH,

BRANCH. PA

:CRIMINAL ·CRIMINAL DIVISION

GARY ROBERT KRUM, GARY ROBERT KRUM, Defendant Defendant :.NO.

NO. 16-CR-2022

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April 24, 2023 Aprit Norton, Norton, P.J.

OPINION PA.R.A.P. 1925 OPINION PER PA.R.A.P.

These consolidated These consolidated cases

cases arise

arise from an episode

from an episode which

which occurred

occurred on September

on September

grounds of Southern Columbia Area School District 13, 2021 on the grounds District ("Southern")

("Southern")

beginning around 7.00 beginning 7:00 p.m. On On that

that date

date and

and time, aSouthern school time, a board (the school board (the

meeting had been properly advertised and was scheduled to occur in a "Board") meeting a school

library. The library. The Defendants were told Defendants were told multiple times that multiple times that they

they were required to

were required wear a

to wear a

mask or leave pursuant to Board policy.

policy, The Defendants did not leave until about 41

minutes passed passed and only

only after a municipal police a municipal police officer was summoned to the the school.

school

The The Defendants were charged with were each charged with one count of Defiant Defiant Trespass

Trespass ((M-1)

M-1) under

under

§3503(b)(1)(v) of the $3503(b)(1)(v) the Crimes Code:

Code:

§3503. $ 3503. Criminal Criminal trespass....

trespass....

(b) (b) Defiant trespasser.

(1) (1)AA person

person commits

commits an

an offense if, knowing that that he is not

not

llicensed privileged to do so, he enters or remains in any icensed or privileged place as to which notice against place given by:...

against trespass is given by: ...

(v) (v) an

an actual communication toto the the actor to

to leave school

grounds grounds as communicated by aaschool, center or program program

official, employee agent or a employee or agent alaw enforcement officer....

18 Pa.C.S. $ 18Pa.C.S. § 3503(b)(1)(v).

3503(b)(1v). The relevant section also provides this defense:

(c) Defenses. (c) Defenses. — It is a a defense to prosecution under this section that:...

that. ...

(2) (2) the premises were were at of the at the time open to members of the public and the actor complied complied with all lawful conditions imposed on access to lo or

remaining in the the premises....

18 Pa.C.S. $3503(c)(2). 18Pa.CS. § 3503(c)(2). Of note, considering considering the first two of the Defendants'

assignments assignments of error, is that nowhere in the statute does it say say that an

an "actual

"actual

communication" must occur by by segregating

segregating the Defendant away away from all other people people to

effect a aone-on-one communication. After a ajury trial on January 13, 2023, each of the

Defendants Defendants were convicted of of the single

single count Trespass ((M-1)

count of Defiant Trespass M-1) charged charged

against them. against them. Each Each Defendant

Defendant was sentence on was sentence on February

February 23,

23, 2023

2023 to pay tthe

to pay he costs of

costs of

prosecution, afine of $1,000.00, prosecution, a $ 1,000.00, to undergo undergo 12 months of probation probation and to render 50

hours of community service.

On April 1, 1, 2022, the Defendants filed a a Petition for Writ

Writ of

of Habeas

Habeas Corpus

Corpus in

each of the three three ((3)

3) above captioned cases, all of which have been consolidated. The

33

1.

issue at issue at a ahearing

hearing on

on a

a Petition

Petition for

for Writ of Habeas

Writ of Corpus is

Habeas Corpus is whether

whether the

the

Commonwealth can prove a aprima facie case. To meet this burden, the

present some evidence, which, if believed, would satisfy the Commonwealth must present

charged:

elements of the crime charged:

A prima facie case consists of evidence showing A prima showing the existence of each material element of the charged offense(s) and probable cause to believe the defendant committed the crime(s) such that, if the evidence were presented presented at trial, the court would be warranted in submitting submitting the case to the factfinder. the factfinder. Commonwealth Commonwealth v,v. Landis, Landis, 2012

2012 PA PA Super

Super 132,

132, 48

48 A.3d

A.3d

432, 444444 ((Pa.

Pa. Super.

Super. 2012).

2012). If a

a defendant wishes to challenge challenge the

sufficiency of sufficiency of the

the evidence

evidence that was adduced that was adduced during during aapreliminary

preliminary hearing,

hearing,

the defendant may the defendant may file file a

a pretrial petition for

pretrial petition for a

a writ

writ of

of habeas

habeas corpus

corpus in

in

Common Pleas Court. Id. Id. The Commonwealth's duty duty at the habeas stage stage

is, once is, again, to

once again, to present present a a prima

prima facie Id.

facie case. Id.

Commonwealth v. Claffey, 2013 v. Claffey, 2013 PA

PA Super A.3d 780, 788 Super 155, 80 A.3 788 (2013).

(2013). In passing

passing

upon that upon that burden, burden, the courts must

the courts must accept

accept all

all facts

facts in

in a light most

a light most favorable to the favorable to the

Commonwealth. Commonwealth Commonwealth. v. Hendricks, 2007 Commonwealth v. 2007 PA PA Super

Super 187,

187, 927

927 A.2d

A.2d 289,

289, 291

291

(2007). (2007). The same standard is applied upon a applied upon a defense demurrer or aamotion for

judgment of acquittal judgment acquittal at the close of the Commonwealth's case in chief, which is the

subject subject of the Defendants' first assignment assignment of error.

The first

first Commonwealth

Commonwealth witness

witness at trial

trial was Southern Superintendent, James James

Becker. Mr. Becker testified that tthe he Board adopted

adopted a

aHealth and Safety

Safety Plan

Plan ((Ex.

Ex. C-1)

C-1)

August 29, 2021 on August 2021 (the (the "Health

"Health Plan").

Plan"). The Health

Heath Plan was mandated by by the federal

American Rescue Plan Act §2001(i)(1) ((Public Act $2001(1)(1) Public Law 117-2, 135 Stat.

Stat. 4), which required

plans to coordinate resumption such plans resumption of in-person in-person instruction and activities in public public

schools after COVID-19 related shut-downs.

after €OVID-19 shut-downs. Item 3.a.

3.a. of the by the Health Plan adopted by

the "[u]niversal

the Board on August 29, 2021 states that Southern requires the "[u]niversal and correct

4

wearing wearing of masks" as one tactic to be employed employed to resume in person presence at

Southern's school buildings. Souther's school buildings. The The Health

Health Plan

Plan further states: "The further states: District will The District will mandate mandate

masking buildings for all students, staff, and visitors regardless masking in all buildings regardless of vaccination

status." Collectively, Collectively, these masking requirements adopted masking requirements adopted by by the Board in the Health

Plan will be referred to as the the "Mask

"Mask Mandate."

Mandate.

The Defendants The Defendants cite cite and

and heavily argued the

heavily argued the "Order of the Order of the Acting

Acting Secretary of the

Secretary of the

Pennsylvania Department of Health Directing Pennsylvania Department Face Directing F Coverings in School Entities"

ace Coverings Entities" ((Ex.

Ex. D-

1, hereafter, the the "DoH herein, ""DOH"

"DoH Order;" herein, DoH" shall refer to the Pennsylvania Pennsylvania Department

Department

Health). On cross examination, Mr. Becker authenticated the DoH Order and it was of Health).

September 7, 2021, nine

confirmed that it was issued on September nine (9)

(9) days afterthe

days after the Health Plan

was approved by the Board. The DoH Order was declared void ab initio by approved by by the

Pennsylvania Commonwealth Pennsylvania Commonwealth Court Court on

on November

November 10, 2021 (Corman v. Actinq 2021 (Corman Acting Sec'y of Sec'y

the Pa. Dep't of the Pa. of Health, 267 A.3d 568, 2021 A.3d 561, 568, 2021 Pa. Commw. LEXIS Pa. Commw. LEXIS 574,

574, *4

4 (2021)).

(2021))

The Pennsylvania Pennsylvania Supreme Supreme Court affirmed the Commonwealth Court on December 10,

2021 (Corman v,v. Acting Secy.

2021 (Corman of the Pa.

Secy. of Pa. Dep't

Dep't of

of Health,

Health, 2021 Pa.

Pa. LEXIS

LEXIS 4348, 266

266

452 (2021)).

A.3d 452 (2021)). The Supreme Count Court held that the DoH did not follow the process

required for issuance of the DoH Order and, as such, it was invalid and void ab initio. required

Corman adjudicate the prerogative Gorman did not adjudicate prerogative of local school districts to erect protective protective

conditions to conditions the entry to the entry to or presence to or presence within

within school buildings such school buildings such as mask wearing.

as mask wearing.

Since the Since the DoH DoH Order

Order was

was not

not in

in effect when the

effect when Mask Mandate the Mask Mandate was adopted, and was adopted, and given

given

that that itit is is void

void ab initio, the

the DoH Order and

DoH Order and its

its masking

masking requirement

requirement are

are inapposite

inapposite to

to this

this

case. Also of note is the fact that the Mask Mandate was promulgated promulgated under an act of

'

Congress (the Congress American Rescue (the American Rescue Plan Act) and Plan Act) and not under tthe not under he rule

rule making

making authority

authority of

of

the the DoH which was DoH which determined in was determined in Gorman

Corman to have been

to have been inappropriately inappropriately exercised by exercised by

the DoH. The jury jury was instructed on the dates, contents and legal effects effects (or,

(or, as to the

DoH Order, DoH Order, the the void

void ab initip

initio effect)

effect) of

of the

the Health Plan, the

Health Plan, the DoH

DoH Order and the

Order and the District

District

Attorney's Memorandum dated Attorney's Memorandum dated September September 9,

9, 2021

2021 relating

relating to trespassing

trespassing and mask

and mask

mandates ((Ex. mandates Ex. D-9).

Mr. Becker Mr. Becker next

next authenticated Ex. C-2, authenticated Ex. the CDC C-2, the CDC mask

mask wearing

wearing recommendation

recommendation

of August August 12, 2021, issued 17 days days before the Mask Mandate was adopted by the

Board Board (the (the "CDC Guideline"). Mr. Becker confirmed that the CDC Guideline CDC Guideline).

recommended that masks should be worn as one means of protecting against the

transmittal transmittal of COVID-19 and of COVID-19 and that Mask Mandate that the Mask Mandate was was drafted not exclusively drafted not exclusively based based

upon, upon, but in consideration but in consideration of,

of, that

that CDC Guideline. The

CDC Guideline. Health Plan The Health Plan ((Ex.

Ex. C-1)

C-1)

guidelines and specifically references CDC guidelines specifically states that that "CDC

CDC and PA DoH

recommendations will recommendations will be implemented to be implemented to the extent practicable the extent practicable for for mitigation

mitigation policies in

policies in

line with the line the most most up

up to date guidance."

to date guidance." ((Ex.

Ex. C-1,

C-1, p.

p. 5 of 7).

5 of 7). It

It is

is clear

clear that,

that, on

on August

August

29, 29, 2021 and September 2021 and 13, 2021, September 13, 2021, the

the most up to

most up to date

date recommendation

recommendation from

from the

the CDC

CDC

was for was people to for people wear masks to wear masks in

in all indoor public

all indoor public settings settings.

Mr. Becker Mr. Becker testified

testified that

that a Board meeting

a Board was advertised meeting was to be advertised to held in

be held in the school

the school

library on September library September 13, 2021 at 7.00 7:00 p.m.

p.m. The three

three (3)

(3) Defendants and two

two (2)

(2) other

persons entered the library persons library without masks along along with several other members of the

public public who did wear who did wear masks.

masks. Mr.

Mr. Becker

Becker stated

stated that

that school

school security

security Officer

Officer David

David

approached those without masks and told them that there was a Townsend approached aschool-wide

6

k '

masking masking policy policy and that they

they would

would need to

to wear amask or leave

wear a leave the building. Of the building. Of the

the

five five ((5)

5) members of the public

public who were not wearing one ((1)

wearing masks, one 1) person person left, one

one ((1)

1)

person put aamask on and the three three (3)

(3) Defendants did not put on aamask and did not

leave. According to Mr.

Mr. Becker, Officer

Officer Townsend told tthe Townsend told he three

three (3)

(3) Defendants again

again

that they needed to wear a amask or leave the premises, premises. Mr. Becker himself also told

the Defendants that they needed to wear a a mask or leave. These multiple

of "mask

communications of mask or leave" were given by Mr. Becker and Officer Townsend to

the group of the group of three three (3)

(3) Defendants,

Defendants, who

who were

were together in a

together in group. The

a group. The Defendants

Defendants did

did

not "mask not leave" for a "mask or leave aperiod of at least 41 minutes. At trial, the DA stipulated to the

same facts same facts to which which he

he stipulated

stipulated at

at the Habeas Corpus

the Habeas Corpus hearing hearing on June 17,

on June 17, 2022:

2022:

"We would We stipulate there was would stipulate was no personal given to personal directive given to any any or each

of the

the three

three Defendants individually."

individually.

(Hereafter, the (Hereafter, the "Stipulation").

Stipulation")

At At trial,

trial, the

the DA brought out

DA brought evidence from out evidence Mr. Becker, from Mr. Becker, Officer

Officer David Townsend

David Townsend

and and township police police officer Donald Spotts Spotts that the

the Defendants were present present and were

collectively and actually told told as

as a

a group that they required to they were required put on a to put amask or

premises. The DA argued

leave the premises, argued that the Stipulation only was intended to agree Stipulation only agree that

the Defendants were the Defendants not individually were not individually segregated segregated and

and individually

individually told,

told, one-by-one,

one-by-one, that

that

they had to they had to mask or leave.

mask or leave. The

The defense

defense argued to the

argued to the jury otherwise. By jury otherwise. By returning a returning a

verdict of guilty, verdict of guilty, the the jury

jury accepted

accepted the

the DA's

DA's argument and interpretation argument and interpretation that, using the that, using the

language of the statute, the Defendants were told to leave by language by "actual "actual communication."

assignment of error states that the The Defendants' first assignment the "Commonwealth Commonwealth stipulated

stipulated that

no actual communication was given given to the Defendant[s]

Defendant[s] to leave school grounds....

grounds...."

This is a This is ablatantly false statement blatantly false statement of of the Stipulation which

the Stipulation which was stated. The was stated. Stipulation The Stipulation

was as is was as is quoted quoted above.

above

In response In response to to the

the brewing

brewing issue,

issue, and to allow

and to allow for

for dealing with the

dealing with the refusal of the refusal of the

Defendants to Defendants to mask mask or

or leave,

leave, Mr. Becker testified Mr Becker testified that he he took

took the Board into

the Board into executive

executive

session, session, which occurs under Board past past practice by excusing practice by excusing all non-Board members

from the from library to the library to the cafeteria. At the cafeteria. At that, the public, that, the including the public, including the three three (3) Defendants,

(3) Defendants,

went to went the cafeteria.

to the cafeteria. The The Defendants

Defendants were

were the only persons

the only persons in

in the cafeteria without

the cafeteria without

masks. Mr. masks. Mr. Becker Becker stated

stated that

that the executive session the executive session lasted lasted approximately

approximately 45 minutes.

45 minutes.

After the After the executive executive session was concluded, session was concluded, Mr.

Mr. Becker invited the

Becker invited the public back into public back into the

the

library for the conduct of the public library public meeting.

meeting. At that time, about 45 minutes later, the

Defendants were Defendants were not not among

among the members of

the members the public of the public who returned from who returned from the

the cafeteria

cafeteria

to to the library and the library and they they had

had apparently by that apparently left by time.

that time.

Officer Townsend, Officer Townsend, the the Commonwealth's second witness, Commonwealth's second witness, testified that, on testified that, on

September 13, September 13, 2021, 2021, he was a

he was aschool

school security officer at security officer at Souther.

Southern. After

After September

September 13,

13,

2021, his job 2021, his job title title changed

changed to school police

to school police officer.

officer. Therefore,

Therefore, Officer

Officer Townsend

Townsend did

did not

not

have arrest have arrest powers powers on

on September 13, 2021.

September 13, 2021, Officer Townsend stated Officer Townsend that he stated that he observed

observed

a a group group of five five (5) persons without masks, including (5) persons including the three three (3)

(3) Defendants herein,

enter enter the school library the school library to attend the to attend the Board meeting on Board meeting on September September 13, 2021. Officer 13, 2021. Officer

Townsend testified Townsend testified that that he told all five

told all five ((5)

5) of

of those

those persons

persons without masks that without masks that they

they

needed to needed to mask mask or

or leave

leave the premises. Officer the premises. Officer Townsend Townsend specifically

specifically offered

offered a

a mask

mask to

to

the the Defendant Krum, and, Defendant Krurn, according to and, according to Officer Townsend's testimony, Officer Townsend's Defendant Krum testimony, Defendant Krum

explicitly said: explicitly said: "I "I will not wear a

a mask." Of the five

five (5) persons who were unmasked, (5) persons

88

one one ((1)

1) left, left, one one ((1)

1) put

put on a

amask

mask and three ((3),

and three 3), the Defendants herein, herein, did neither:

neither:

They They stayed stayed inside the school building and did not put on a mask. When Officer a mask,

Townsend told the three three (3)

(3) Defendants that he would call the police if they did not

Townsend: "go

mask or leave, Defendant Detwiler told Officer Townsend: "go ahead and call the cops

or whomever you you need to call," or something something to that effect. The various video evidence

entered into the record and shown to the jury jury also clearly shows that someone in the

Defendants' group stated, in the cafeteria after the Board went into executive session,

that they were engaging in "civil civil disobedience." Defendant Krum was on video

extensively arguing extensively arguing to Officers Townsend and Spotts regarding regarding his

his "rights"

rights" and that the

Board did not have the power to impose a "mask mask or leave

leave" mandate. On the video,

Defendant argued: "It's Defendant Krum argued: It's not a a law, it's just aamandate."It mandate."' It was clear that that

Defendant Krum knew that he was required to mask or leave and that moving moving the group

group

to the cafeteria did not somehow rescinded the the "mask

"mask or leave"

leave order. Defense counsel

argued, and Defendant Krum disingenuously testified, that the Defendants thought thought that,

when when the Board went into executive session, the the authorities were permitting permitting the

the

Defendants to remain on school premises premises ((in

in the cafeteria) without masks. The video

the jury's

evidence clearly belies that argument and interpretation, and the jury's verdict illustrates

that they did not buy that specious argument interpretation. Eventually, argument and interpretation. Eventually, Officer

Townsend did call the municipal police.

police

Officer Spotts from the Locust Township Police Department arrived about twenty

(20) minutes into the episode, according to Officer Townsend's testimony. Officer

This court is still trying This trying to to figure out

out the relevance of that thin thin or non-existent

non-existent

distinction.

Townsend met Officer Spotts Spotts in front of the school, told Officer Spotts what was going going

on and the two two (2)

(2) officers walked into the school together. By that time, the public,

including the three including three (3)

(3) Defendants, had been excused from the library to the cafeteria

due to the executive session that had been called. Officer Spotts and Officer

Townsend went to the cafeteria and again again told all three

three (3)

(3) Defendants that they

they were

non-compliance

required to either mask or leave. When told that non-compliance would result in aa

Defiant Trespass charge, one person in the group of three three (3)

(3) Defendants said to the

effect: "Oh, that's just aatraffic citation," to which Officer Townsend told the group group of

three three (3)

(3) Defendants to the effect of: "No, itit is not just aatraffic citation.

citation."

This standoff went on from start to finish for a a period of about 41 minutes.

Officer Townsend testified that the three three (3)

(3) Defendants did leave after 41 minutes.

The Defendants left immediately after another member of the public in the cafeteria

complained complained to them, telling them them to mask or leave, because he wanted to get get on with

and attend the school Board meeting.

meeting. With that, 41 minutes into the episode episode and,

according to Officer Townsend, about 20 minutes after Officer Spotts arrived, the

Defendants Defendants left.

To summarize the facts, the evidence would permitted a afinding that the Board,

on August August 29, 2021, promulgated a a requirement that all individuals in school buildings, buildings,

with exceptions not claimed on this this record, be masked

masked (the

(the Health Plan, Ex. C-1).

Plan, Ex. C-1). The

The

Board relied upon then current CDC Guidelines Guidelines ((Ex.

Ex. C-2), as explicitly

explicitly set forth in the

Plan ((Ex.

Health Plan Ex. C-1). The CDC CDC Guideline included

included recommendations persons recommendations that persons

wear masks to inhibit the spread of COVID-19. It is clear that the CDC Guideline was a the spread a

10

equally clear that the Mask Mandate in the Health Plan recommendation, but it is equally

promulgated by promulgated by the Board Board was

was a

a requirement.

requirement. By virtue of its guideline, guideline, the CDC, an

an

authoritative scientific body, body, illustrated its opinion that masking impeded the

transmission of transmission COVID to of COVID to some degree. The some degree. The Defendants Defendants entered

entered the

the school

school building

building

without masks and were told collectively by by "actual

actual communication" multiple times by

Superintendent Superintendent Becker, Officer Townsend Becker, Officer Townsend and and Officer

Officer Spotts

Spotts to

to ""mask

mask or

or leave," and

leave," and

they they were expressly advised of the were expressly the school school Board policy

policy in that regard. They They did not

leave immediately, immediately, dared the school security officer to call the police, Defendant Krum

expressly refused to wear a expressly amask and the three three (3)

(3) Defendants stayed 41 minutes

through through the the incident and and 20

20 minutes after police Officer Spotts Spotts arrived. They only left

after a a fellow member of the public complained to them and asked them to mask or

leave so that everyone could get on with the school board meeting.

In their

their Concise

Concise Statements of

of Matters

Matters Complained of on Appeal, the the

Defendants assert 6 6issues. The will be dealt with in sequence, sequence, paraphrasing the

issues: issues

1. This f, This court court erred

erred in failing to

in failing to grant the defense grant the defense motion to dismiss motion to dismiss at

at the

the

close close of the the Commonwealth's case due due to to the

the Defendants' claim

claim that

that the

the

"Commonwealth Commonwealth stipulated stipulated that

that no

no actual

actual communication

communication was given the was given

Defendant[s] to leave school grounds...." Defendant[s] grounds...."

This assignment falsely stated. The Stipulation was:

assignment of error is falsely was: "We "We would

stipulate stipulate there was no personal directive given to any or each of the three Defendants

individually." That is a individually." afar far cry from stipulating away the Commonwealth's case by by

saying no "actual saying that no "actual communication" occurred. By rendering its verdict, the jury

accepted the Commonwealth's accepted Commonwealth's argument argument that actually and that the Defendants were actualy collectively collectively communicated the directive to mask or leave. This was aaquestion for the

jury answered it by

jury and the jury by rendering rendering their verdict of of "guilty."

"guilty.

2. The second assignment assignment of error is essentially essentially the same as the first and hereby incorporated by

that discussion is hereby by reference.

3. 3. This court court erred in

in instructing the jury that the Southern School School Board

had the legal authority to require persons on school premises to wear face masks.

School districts are granted broad general powers to enable them them to carry out

out

the the provisions of the the Pennsylvania School

School Code, found

found at 24 P.S. $§ 1-101 gt 24P.S. et Se

seq.:

§2-211. General powers of districts $2-211.

The several school districts in this Commonwealth shall be, and hereby are vested as, bodies corporate, with all necessary powers to enable them to carry to carry out out the

the provisions of this act.

act.

24 P.S. § 2-211. These 24PS.$2211. These include include powers

powers specifically granted by specifically granted by the legislature or the legislature or by

by

necessary implication. necessary implication. Central Dauphin Dauphin School District v.

School District • American Cas.

American Cas.Co,,

Co., 271

271

Pa.Super. Pa.Super. 218, 412 A.2d A.2d 892

892 ((1979),

1979), rev'd.

rev'd. on grounds, 493 Pa.

on other grounds, Pa. 254, 254, 426 A.2d

A.2d

94. 94. A A school district's powers are administered by aaboard of school directors. 24 P.S.

§ $ 3-301.

Among the several express Among express and implied implied powers

powers of a

aschool board is the power power to

provide provide for and administer necessary and and suitable

suitable school buildings.

buildings. 24 P.S. $

24P.S. § 7-701.

7.701,

School boards are vested with broad discretion to adopt adopt "rules as [they]

rules and regulations as [they]

may may deem necessary and proper proper' as to all functions delegated to them under the

School Code, including those those as to

to regulation of

of presence

presence on school grounds. 24 24 P.S.

P.S.

Z1

§ 5-510, considered in conjunction $5-510, conjunction with with $§ 7-701.

7-701, The power of aaschool school board to

to

promulgate promulgate rules and regulations regarding regarding school buildings buildings has indeed been delegated

by the legislature, by legislature, is plenary, plenary, and is

is subject

subject to aabroad exercise of discretion:

The legislature The has delegated legislature has delegated to the board board ofof school

school directors

directors ofof any

any

school district the power to permit use of the school grounds and buildings for certain proper

proper purposes

purposes under such rules and regulations regulations as the board

may adopt. may adopt. Judicial review of the actions of a a board must be restricted to the reasonableness

reasonableness thereof:

thereof: Regan,

Regan, et

et al. v. Stoddard.

al, v. Stoddard, et

et al.,

al., 361

361 Pa.

Pa. 469,

469,

65 A. 2d 240; Commonwealth ex rel. v. Sunbury School District.

Sunbury School District, 335 Pa.

Pa

6, 6A. 2d 6, 6A. 2d 279;

279; Wilson v. School District v. School District of

of Philadelphia,

Philadelphia, 328

328 Pa.Pa. 225, 195

225, 195

A. 90. A. 90. ItIt cannot

cannot encompass

encompass consideration

consideration of the wisdom of the the action action

taken.

McKnight v. Board of Public Education, 365 Pa. 422, 427, 76 A.2d 207, 209-210 209-210 ((1950).

1950).

In Commonwealth Commonwealth v. Hall, v.

Hall, 309 Pa.

Pa. Super. 407, 455 674 ((1983), 455 A.2d 674 1983), this this proposition

was repeated in the context of a aprosecution of a

aviolation of a

amandatory attendance

policy: policy.

"[W]hen one attacks the action of a "[WIhen aschool board concerning matters committed by law to its discretion, he has a aheavy burden as the courts are not prone to disturb a a school board's decision. Indeed, they are without jurisdiction to interfere therewith therewith unless it is apparent that the school board's conduct is arbitrary, capricious and to the prejudice of public interest. Lack of wisdom or mistaken judgment is insufficient." Farris v. Farris v. Swetts,

Swetts, 158 Pa.Super.

Pa.Super. 645,

645, 648,

648, 46

46 A.2d

A.2d 504,

504, 505

505 ((1946).

1946). InIn

short, the courts of this Commonwealth are not not "super"

"super" school boards with superior superior knowledge

knowledge concerning

concerning the administration of the public public schools or the science of pedagogics. McCoy v. v. Lincoln Intermediate Unit No, No. 12, 38 Pa.CmwIth. 29, 36, 391 A.2d 1119, 1123 Pa.Cmwlth. 1123 ((1978), 1978), cert. denied, 441 U.S.

923, 99 923, 99 S.Ct.

$.Ct 2033,

2033, 60 L.Ed.2d 397

60 L.Ed.2 397 ((1979).

1979). See also:

also: Zebra v.

Zebra v. Pittsburgh

Pittsburgh

School District, 449

District,

School 449 Pa.

Pa. 432,

432, 437, 296 A.2dA.2d 748, 750 750 ((1972)

1972); Christoffel v.v

Area School District.

Shaler Area District, 60 Pa.Cmwth.

Pa.Cmwlth. 17, 20, 430 430 A.2d A.2 726,

726, 728

728

(1981); O'Leary v. (1981); Q'Lear , Wisecup, Pa.Cmwlth. 538, Wisecup, 26 Pa.Cmwith. 538, 364 364 A.2d 770 ((1976)

A.2d 770 1976).

"[CJourts are in "'[C]ourts in no

no position to exercise control control over schools

schools and

and

determine the policy

policy of school administration; the judgesjudges ordinarily ordinarily are not

equipped equipped for this immense task." Balsbaugh, et task."' Balsbaugh, v.

et al. v. Rowland, 447 Pa.

423, 431, 290 A.2d 85, 90 90 ((1972) Wilson, et 1972) citing Wilson, et ux, ux. v.

v, Philadelphia

School District. School District, et al, al., supra

supra 328 Pa. at 236, 195 A. A. at at 97.

97. Therefore,

Therefore, inin the

the

absence of a agross gross abuse of discretion, courts will not second-guess second-guess

policies of the policies of several boards the several boards of

of school directors. See:

school directors. Commonwealth ex See: Commonwealth ex

rel. Hetrick v. Sunbury rel. Hetrick School District, 335 Sunbury School 335 Pa. 6, 11, Pa. 6, 11, 6 A.2d 279,

6 A.2 279, 282

282

(1939); (1939) Hibbs Hibbs v. Arensberq,

Arensberg, 276 Pa. 24,

276 Pa. 24, 26, 119 A.

26, 119 A. 727, 728 ((1923).

727, 728 1923).

tall, Hall, 455 A.2d at 455 A.2d at 676-677.

676-677.

In Duffield In Duffield v, v. School Dist., 162

School Dist,, 162 Pa.

Pa. 476,

476, 29 742 ((1894),

29 A. 742 1894), the

the Pennsylvania

Pennsylvania

Supreme Court dealt Supreme Court with a dealt with case in

a case in which

which aaparent

parent sued

sued a

aschool

school district

district in

in mandamus

mandamus

compel the school to admit his child who had not been vaccinated against to compel against smallpox.

smallpox.

The school district had adopted a a policy requiring vaccination in order to attend school.

Although Duffield was Although was adjudicated adjudicated 128

128 years ago, the

years ago, propositions and the propositions and principles principles set

set

forth in its forth in its opinion opinion are

are those which have

those which have been

been carried

carried forward

forward in

in the

the present School

present School

Code and Code and in in the cases set the cases set forth

forth above. In leading

above. In leading to

to its holding

holding that the school

that the school district

district

was within was within its its power

power to

to condition

condition school

school attendance

attendance upon receiving a upon receiving a smallpox vaccine, smallpox vaccine,

the Pennsylvania the Supreme Court Pennsylvania Supreme Court recognized recognized the distinction between the distinction between dictating dictating what

what

citizen generally citizen generally must must do

do and

and regulating

regulating aaperson's presence within person's presence aschool within a building:

school building:

The board do The school board do [sic) not claim [sic] not claim that they can that they can compel

compel the plaintiff

plaintiff to

to

vaccinate vaccinate his son. They his son. claim only They claim only the

the right

right to exclude

exclude from

from the

the schools

schools

those who those who do do not

not comply

comply with such regulations of such regulations of the

the city

city and

and the

the board

board of

of

directors as have been thought necessary to preserve the public health health.

Duffield, 29 Duffield, 29 A. at 742.

A. at 742. The Duffield court The Duffield court continued continued:

Vaccination Vaccination may may be, or or may may not not be, a apreventive preventive ofof smallpox.

smallpox. That

That isis a

a

question about which medical men differ and which the law affords no question determining in a

means of determining asummary summary manner. A A decided majority majority of the

medical profession medical profession believe believe in in its

its efficacy.

efficacy. The municipal regulations The municipal regulations ofof many, and many, and IIhave have no no doubt

doubt of most, of

of most, of the

the cities

cities of

of this

this state and country, state and country,

provide provide for for it.

it. In the present

In the present state

state of

of medical knowledge and medical knowledge and public opinion public opinion

upon upon this subject subject it would be impossible impossible for a acourt to deny deny that there is

reason for reason for believing believing in in the

the importance

importance of of vaccination vaccination asas a a means means ofof

protection from protection from thethe scourge scourge of of smallpox.

smallpox. The question is The question is not one of not one of

science in science in a acase

case like

like the

the present.

present. We We areare not not required

required toto determine

determine

judicially whether the public judicially public belief in the efficacy efficacy of vaccination is absolutely right absolutely right or not. We are to consider what is reasonable in view of the present state the present of medical state of knowledge and medical knowledge and the the concurring

concurring opinions

opinions of

of the

the

various boards various and officers boards and officers charged with the charged with the care

care of the public

of the public health.

health.

Duffield, 29 A. at 742-743

Eleven years Eleven

L. Ed. 643 742-743.

later, in

years later,

643 ((1905), in Jacobson

1905), the United States Supreme v.

Jacobson v.Massachusetts, Massachusetts, 197

197 U.S.

U.S. 11,

11, 25

Supreme Court affirmed the power 25 S.

S. Ct.

Ct. 358, 49

358, 49

power of state and

governments to generally local governments generally compel all healthy compel all healthy persons persons to undergo a

to undergo asmallpox

smallpox

vaccination, despite a vaccination, despite athen ongoing debate then ongoing debate as

as to

to its

its efficacy.

efficacy. In

In so holding, the United so holding, United

Supreme Court expressly States Supreme expressly stated that individuals do not have aaConstitutional

liberty liberty right to refuse right to such health refuse such health and

and safety

safety mandates

mandates enacted

enacted by

by state or local

state or local

legislative bodies: legislative bodies:

The authority of The authority of the State to the State to enact

enact this statute is this statute is to

to be referred

referred to what is

to what is

commonly called commonly called the the police power --

police power -- a power which a power which the the State did not State did not

surrender when becoming becoming a amember of the Union under the Constitution. Although this court Although lhis court has has refrained refrained fromfrom any attempt to define any attempt define the limits of the limits of

that power, yet that power, yet itit has has distinctly

distinctly recognized

recognized the authority of the authority of a

a State

State to to enact

enact

quarantine lawslaws and and "health "health laws

laws of of every description;" indeed, every description;" indeed, allall laws that relate to to matters completely territory and completely within its territory and which do not by by necessary operation

their necessary operation affect the the people people of other States. According According to

settled principles the police power of of aa State State must be held held to to embrace, at at

least, such reasonable regulations established established directly by legislative enactment as enactment as will will protect

protect the public

public health and the health and public safety.

the public Gibbons safety. Gibbons

v. Ogden, v. Ogden, 9 9wheat.

Wheat. 1, 203; Railroad Company v. iusen, v. Husen, 95 U.S. U.S. 465, 470; Beer 470: Beer Company • v. Massachusetts, Massachusets. 97 U.S. U.S. 25; NewNew Orleans Orleans GasGas Co,Co.

v. Louisiana Light v.Louisiana Light Co., 115 U.S.

Co,, 115 U.S. 650, 661; Lawton v.

650, 661; v. Steele, 152 0.S. U.S. 133.

133.

equally true

It is equally true that the the State State maymay invest local bodies called into existence for purposes of local for purposes local administration authority in some administration with authority appropriate way appropriate way to to safeguard safeguard the public health the public health andand the the public

public safety.

safety. TheThe

mode mode or or manner manner in in which

which those results are those results are toto be accomplished is be accomplished is within within

the discretion of the State, subject, subject, of course, so far as Federal power power is concerned, only concerned, only to to the condition that the condition that no no rule prescribed by

rule prescribed by aaState, State, nor

nor

any regulation any regulation adopted adopted by by a

alocal governmental

governmental agency agency acting acting under

under the the

sanction of state legislation, legislation, shall contravene the Constitution of the United States or infringe infringe anyany right granted or secured by night granted by that instrument.

A regulation, even if based on the acknowledged A local enactment or regulation, acknowledged police power police power of aaState, must always yield in case of conflict with the always yield

exercise by exercise by the the General

General Government

Government of of any

any power

power itit possesses

possesses under

under the

the

Constitution, or with any any right gives or right which that instrument gives or secures.

secures

Gibbons v. Ogden, Gibbons Ogden, 9 Wheat. 1, 210; Sinnot 9 Wheat. Sinnot v. Davenport, 22 How. 227, v. Davenport.

Missouri. Kansas

243; Missouri, Kansas & & Texas Texas Ry.

Ry. Co,

Co. ,v. Haber, 169 U.S. U.S. 613, 626 626.

We come, We come, then, then, toto inquire

inquire whether

whether any any right given, or right given, or secured

secured byby the

the

Constitution, is Constitution, is invaded invaded by by the

the statute

statute as interpreted by as interpreted by the state state court.

court

The defendant The defendant insists insists that

that his

his liberty is invaded

liberty is invaded when

when the

the State

State subjects

subjects

him him to imprisonment for to fine or imprisonment for neglecting refusing to neglecting or refusing to submit toto vaccination; that aacompulsory compulsory vaccination

vaccination law law is unreasonable, arbitrary arbitrary

oppressive, and, therefore, hostile to the inherent night and oppressive, right of every every

freeman to freeman to care care for his own

for his own body and health body and health inin such way as such way as to him seems to him seems

best; and that the execution of such a against one who objects a law against objects to vaccination, vaccination, no matter matter for what nothing short of an assault upon what reason, is nothing upon his person. his person. But But the liberty secured the liberty secured by by the Constitution of the Constitution the United of the United States

States

to every jurisdiction does not import every person within its jurisdiction import an absolute night right in

each person to be, each person be, at at all

all times

times and in all

and in circumstances, wholly all circumstances, wholly freed freed from

from

restraint. restraint.

Jacobson, 197 U.S. at 197 U.S. at 24-26.

24-26.

Applying Applying these cases and propositions to the facts facts of

of this

this case,

case, read in

in a light

a light

most favorable to the Commonwealth, the verdict winner, it is apparent apparent that the Board

was within its power power and prerogative

prerogative to mandate the wearing wearing of masks inside school

buildings, including at public buildings, including public school board meetings meetings inside a

a school building.

building. To

paraphrase tthe he cases, this court is

is not aa "super

"super school board" which exists to second

guess promulgated by guess rules and regulations promulgated by school boards.

boards. As

As in Duffield and

and

Jacobson, where the Jacobson, where the courts courts noted

noted that

that vaccinations may or

vaccinations may or may

may not

not have

have prevented

prevented

smallpox, smallpox, we can accept we can accept for

for purposes

purposes of

of this

this argument that masks

argument that masks may

may or

or may

may not

not

mitigate mitigate the spread of COVID-19.

COVID-19. We are not taking taking a

aposition

position on that in this Opinion.

Opinion.

As As stated Duffield, we are stated in Duffield, not adjudicating are not adjudicating whether whether the

the wearing or masks

wearing or masks are

are

"absolutely right "absolutely right or or not."

not." Reasonable minds may Reasonable minds differ, but, may differ, but, again

again to

to quote

quote Duffield, we

are to determine whether the Mask Mandate was was "reasonable

reasonable in view of the the [then']

[then]

medical knowledge and the concurring opinions of the various boards present state of medial

and officers charged with the care of the public health." Duffield, 29 A. at 743. More

specifically, specifically, we find that one reasonable interpretation of the science at the time was

that masks inhibit the spread of COVID-19, CO\VID-19, especially in view of the CDC Guidelines in

adoption of the Mask Mandate effect at the adoption Mandate ((Ex.

Ex. C-2) which expressed one scientific

school of thought. There may may have

have been other

other reasonable interpretations, interpretations, but

but the

the

Board is the entity entity vested with broad discretion to make these policy decisions. As

stated in Hall, supra, in the absence of aagross gross abuse of discretion, it is not the function

of this court to second-guess policies policies of the Board. As confirmed in Jacobson by the

United States States Supreme Court, the the Defendants had

had no Constitutional right right to

to exercise

exercise

their liberty interests by being being "mask

mask free"

free inside aaschool building. There was clearly

no abuse of discretion in promulgating the Mask Mandate.

In Duffield, there there was no requirement

requirement that

that all children be

be vaccinated in

in the

the

abstract, only that, if the children were present in school, then and only then did they they

have to be vaccinated. In the present case, the Southern Board did not require the

Defendant's to don masks generally generally or in the abstract. Rather, the Board promulgated

a a policy decision that, if one wanted to be present upon school grounds, he or she had

to wear aamask.

2 It is well documented that our country country was faced with an unprecedented emergency when faced with the COVID pandemic. It is also well documented that research evolved and is evolving evolving to this day. It is only fair and just just to apply the state of the art research and CDC recommendations as they existed on September 13, 2021. 2021

17

4. The fourth assignment of error is the same at the third: That the Southern Board legal authority Board had no legal authority to to require the

the wearing of masks on school school premises.

premises.

The discussion of the third issue is hereby hereby incorporated by reference.

5. This court erred in prohibiting defense counsel from arguing that the Federal Food Food Drug and Cosmetic Drug and Act (the Cosmetic Act (the ""FDCA")

FDCA") and

and the Emergency Use

the Emergency Use Authorization Authorization

(EUA) provisions within the FDCA, found at 21 U.S.C. &$360bbb-3, §360bbb-3, prohibited the Southern Board Southern Board from implementing implementing thethe Mask

Mask Mandate.

Mandate.

The Defendants next argue that it was error for this court, at trial and as a a matter

of law, to have prohi prohibited

bited the jury from being read and instructed on aacertain part of the

Federal Food Drug and Cosmetic Act Act (the

(the "FDCA"), specifically the Emergency Use

Authorization ((EUA) Authorization §360bbb-3. At argument, outside tthe EUA) statute found at 21 U.S.C. $360bbb-3. he presence of the jury, jury, defense counsel argued that aamask is aa "product"

product" under the

FDCA and the EUA statute and that, prior to to "administration"

"administration" of that

that "product," even by

a a supermarket chain, the supermarket or other distributor must inform the distributees

of masks of the benefits and risks of masks. When asked if he had any case citations

interpreting the FDCA in tthe he manner argued by him, defense counsel had none to offer.

This court determined that such an interpretation was absurd and ruled that no party

could could present evidence evidence or make argument to to the

the jury relating to the

the FDCA or the

the EUA

EUA

statute.

The EUA statute contained within the FDCA sets forth the statutory guidelines for

emergency emergency authorization of of ""products"

products" ((including

including drugs, devices, and biological

products) by the Secretary Services ("the Secretary of Health and Human Services ("the Secretary"). See

generally S§ 360bbb-3(a)(1).

360bbb-3(a)(1). The Secretary Secretary "may

"may make aadeclaration that the

circumstances exist justifying justifying the authorization" for aaproduct on the basis of of "a

"a

determination by the Secretary determination by Secretary that there there is

is aapublic health emergency...

emergency ... that

that affects,

affects,

or has a asignificant significant potential to affect, national security or the health and security of

abiological, chemical,

United States citizens living abroad, and that involves a

radiological, radiological, or nuclear agent or agents, agents, or a

a disease or condition that may be

attributable to such agent or agents." $§ 360bbb-3(b)(1(C)

360bbb-3(b)(1)(C) ((Emphasis Emphasis added). For

a "product"

authorization of a "product" for emergency use, the FDCA requires that, "to "to the extent

practicable," practicable," steps be taken to ensure that individuals individuals "on

"on whom the product is

administered" are informed informed "of

"of the option to accept or refuse administration of the

product, of tthe he consequences, if any, of refusing administration of the product, and of the alternatives to the product that are available and of their benefits and risks."

§360bbb-3(e)(1)(A)(ii)(I ll). ((Emphasis $360bbb-3(e(1)(A{ii)(1II). Emphasis added).

In Lloyd v.

v.Sch,

Sch. Bd,

Bd. of

of Palm Beach Cty., 570 F. Supp.

Supp 3d 1165

1165 (S.D. Fl. 2021),

(S.D. FI 2021)

the history of EUA of masks was traced:

On February 4, 2020, the Secretary determined there to be aa "public "public emergency that has a

health emergency significant potential to affect national security a significant security or the health and security of United States citizens living abroad and that involves a anovel novel ((new)

new) coronavirus

coronavirus ((nCoV)

nCoV) first detected in Wuhan City, City,

Hubel Province, China in 2019 Hubei 2019 ((2019-nCoV"

2019-nCoV)." See Determination of Public Health Emergency, 85 Fed. Fed. Reg.

Reg. 7316-01

7316-01 ((Feb.

Feb. 7, 2020). Then, based upon the Secretary's Secretary's determination of apublic health emergency, a emergency, on April April

the Secretary issued an Emergency Use Authorization 24, 2020, the Authorization ("Mask ("Mask

EUA") clarifying that facemasks, including cloth face coverings, are "authorized for use by the general public to cover their noses and mouths, in accordance with CDC recommendations." See FOOD AND DRUG in ADMINISTRATION, ADMINISTRATION, (April (April 24, 2021), available at: https://www.fda.gov/media/137121/download. The Mask EUA does not include any provision regarding informed consent. See generally id. (Emphasis (Emphasis added).

added)

Lloyd, 570 Lloyd, 570 F.

F. Supp.

Supp. 3d at 1174.

3d at 1174. Given

Given the

the absence

absence of any provision

of any provision regarding regarding informed

informed

apparent that the Secretary consent, it is apparent apprisal of the Secretary felt, as does this court, that appnisal

much argued argued risks and benefits of masks was not not "practicable"

"practicable" in the literally literally hundreds

of tthousands of of every housands of every day day distributions

distributions of

of masks

masks in

in supermarkets, stores, hospitals supermarkets, stores, and hospitals and

schools. schools.

In Lloyd, In Lloyd, with citations to significant citations to significant precedent, precedent, it was held that was held that there

there is

is no

no private

private

cause of cause of action for an action for an alleged alleged violation

violation of the FDCA

of the FDCA or EUA promulgated Or EUA promulgated thereunder.

thereunder.

Accord: Bush Accord: Bush v, v. fantasia,

Fantasia, 2022

2022 U.S. Dist. LEXIS

U.S. Dist LEXIS 163696, 2022 WL 163696, 2022 WL 4134501 ( D. Mass.

4134501(D. Mass.

2022). 2022). Thus, Defendants in the present present case cannot convolute the issues by asserting by asserting

a a claim of a claim of aright right to

to be

be mask

mask free

free based

based upon aprivate

upon a assertion of private assertion of a

a violation of the

violation of the

Llovd, it was held that a FDCA or an EUA. Further, in Lloyd, amask mandate presents presents no

process or equal

substantive due process equal protection protection Constitutional violation violation.

In addition In to the addition to the above,

above, the court in

the court in Lloyd

Lloyd held

held that amask

that a mandate by

mask mandate by a

aschool

school

district is rationally rationally related to a legitimate governmental a legitimate governmental interest because it is consistent

with the CDC's Guidance, pointing regardless of two divergent pointing out that, regardless divergent scientific

schools of tthought, hought,"...

"... the School Board's Mask Mandate is consistent with guidance guidance

from the CDC." from the CDC." LI0yd, Lloyd. 570 F. Supp.

570 F. Supp. 3d

3d at 1184. The

at 1184. The Lloyd

Lloyd court

court elaborated:

elaborated:

Although Plaintiffs have Although Plaintiffs have raised valid points raised valid points about about the

the efficacy

efficacy of masks,

of masks,

the Court cannot find that Defendants are irrational for following the Court cannot find that Defendants are irrational for following the the

recommendations of recommendations of the CDC which, the CDC which, as the Court as the Court has

has noted,

noted, are

are

formulated based formulated based upon upon aagreat deal of

great deal of scientific

scientific research

research.

Lloyd, 570 Lloyd, 570 F.

F. Supp.

Supp. 3d

3d at

at 1185. As such,

1185. As such, itit was held that was held that aa ""mask

mask mandate"

mandate" does

does not

not

any violation of a

constitute any asubstantive due process equal protection process or equal protection right right under the

Constitution. See also: Constitution. See Guilfoyle v.

also: Bush, supra; Guilfoyle v. Beutner, 2021 U.S.

Beutner, 2021 U.S. Dist.

Dist. LEXIS

LEXIS

195396 195396 (C.D. Cal. 2021);

(C.D. Cal, 2021); Dolen-Cartwright Dolen-Cartwright v. Alexander, 2022 v, Alexander, 2022 U.S.

U.S. Dist. LEXIS 50053

50053

La. 2022). The CDC Guidance in the present case (M.D. La. case ((Ex.

Ex. C-2) was confirmed by by

Superintendent Becker to have been a a basis for Southern's Mask Mandate promulgated promulgated

in Lloyd,

on August 29, 2021. As in Llovd, and as articulated above, as long as there was some some

rational basis for the Southern School Board policy, we, in the judiciary, are not to act

as aa "super super school board," second guessing board policy and substituting our own.

For the foregoing reasons, the FDCA and the EUA statute contained within it are

not relevant or assertable by the Defendants in the present present case, each of whom are

trying to use tthe he EUA statute as aadefense to the crime of defiant trespass.

trespass. It was

proper to prevent the jury from being confused by arguments thereunder.

6. The sixth assignment of error is the same as the fifth and the discussion on 6, the fifth assignment of error is hereby incorporated by by reference.

BY TH COURT:

P.J.

E GARY . NOR ON, P.J.