Opinion
J-S05012-16 No. 800 MDA 2015
03-24-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. DANIEL VINCENT SCHOONOVER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence April 9, 2015 in the Court of Common Pleas of Centre County
Criminal Division at No.: CP-14-SA-0000009-2015 BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Daniel Vincent Schoonover, appeals from the judgment of sentence imposed following his bench trial conviction of driving while operating privilege is suspended or revoked. He challenges the sufficiency of the evidence, specifically, proof of actual notice. We affirm, in part on the basis of the trial court opinion.
Section 1543(a) of the Vehicle Code provides:
(a) Offense defined.—Except as provided in subsection (b), any person who drives a motor vehicle on any highway or trafficway of this Commonwealth after the commencement of a suspension, revocation or cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.75 Pa.C.S.A. § 1543(a).
We note that Appellant has failed to include a copy of the trial court opinion in his brief, in violation of Pa.R.A.P. 2111(a)(10), and (b). We further note that both Appellant's brief and reproduced record were filed late. We attach a copy of the trial court opinion as a supplement to this memorandum.
We take our facts from the notes of testimony of the bench trial on April 9, 2015. ( See N.T. Summary Appeal Hearing [Trial], 4/09/15, at 3-10; see also Commonwealth's Brief, at 3-5). At approximately 11:00 p.m. on November 19, 2014, Pennsylvania State Police Trooper Michael Glentzer, on routine patrol, stopped Appellant for a routine Vehicle Code violation. He was driving on Nittany Valley Road in Walker Township, Centre County, Pennsylvania. While processing Appellant's driver information on the police computer system, Trooper Glentzer determined that Appellant's driving license was suspended. He issued Appellant a summary citation for driving under suspension, 75 Pa.C.S.A. § 1543(a). Appellant appealed his citation to the magisterial district court, which found him guilty. He then appealed his conviction to the court of common pleas.
A trial de novo was held before the Honorable Jonathan D. Grine on April 9, 2015, at which the Commonwealth presented one witness, Trooper Glentzer, and one exhibit, Appellant's certified driver's record. Appellant exercised his constitutional right not to testify. He presented no other witnesses or evidence. ( See N.T. Trial, at 13). The trial court found Appellant guilty, again, and re-imposed the sentence of fines and costs originally imposed. The instant timely appeal followed.
Appellant's certified driving record reveals that he had nine motor vehicle violations in ten years, including three prior suspensions. ( See Commonwealth's Exhibit 1; see also Commonwealth's Brief, at 4-5).
Appellant timely filed a court-ordered statement of errors, on May 18, 2015. See Pa.R.A.P. 1925(b). The trial court filed an opinion, on June 19, 2015. See Pa.R.A.P. 1925(a).
Appellant raises one question for our review:
Whether the [trial] court committed an abuse of discretion / error of law in finding the Appellant guilty of a violation of Driving While Suspended, 75 Pa.C.S. § 1543(a), despite no evidence being presented that Appellant received actual notice of the suspension, as required by Pennsylvania case law, including Commonwealth v. Baer , 682 A.2d 802, 805 (Pa. Super. 1996) and Commonwealth v. Taylor , 390 Pa. Super. 571, 579, 568 A.2d 1320, 1324 (1990)?(Appellant's Brief, at 5).
Appellant's issue is a challenge to the sufficiency of the evidence. ( See id. at 8) ("Such a finding [the guilty verdict] is clearly based upon insufficient evidence and is contrary to Pennsylvania case law"); ( see also id. at 9) ("The sole question presented . . . revolves around a determination as to whether there was sufficient evidence to convict . . . .").
Initially, we note in a license suspension case, our scope of review is limited to determining whether the trial court's findings are supported by competent evidence, whether any error of law was committed and whether the decision is a manifest abuse of discretion. [ ] Baer , [ supra at 804-05].Commonwealth v. Vetrini , 734 A.2d 404, 406 (Pa. Super. 1999).
Our standard of review for a challenge to the sufficiency of the evidence is well-settled:
A challenge to the sufficiency of the evidence is a question of law subject to plenary review. We must determine whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all elements of the offenses. A reviewing court may not weigh the evidence or substitute its judgment for that of the trial court.Commonwealth v. Colon , 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal denied, 109 A.3d 678 (Pa. 2015) (citation and internal quotation marks omitted). Similarly,
The standard we apply in reviewing the sufficiency of 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 that of 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
Vetrini , supra at 406-07 (internal quotation marks and citations omitted). "The Commonwealth, as verdict winner, is entitled to all favorable inferences which may be drawn from the evidence." Baer , supra at 805 (holding that there was sufficient evidence to support trial court's conclusion that Commonwealth proved beyond reasonable doubt that appellant had actual notice that her operating privilege was suspended) (citations omitted).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.
Here, Appellant argues chiefly that no evidence was presented at the trial that he received actual notice of the suspension. ( See Appellant's Brief, at 9-13). We disagree.
Initially, we observe that because Appellant presented no evidence at all at the trial, the evidence that the Commonwealth presented stands uncontradicted. ( See N.T. Trial, at 13).
In order to sustain a conviction under 75 Pa.C.S.A. § 1543(b), the Commonwealth must prove that the defendant had actual notice that his license had been suspended or revoked. Commonwealth v. Kane , 460 Pa. 582, 333 A.2d 925 (1975). Merely establishing that notice was mailed is not sufficient by itself to show actual notice. Id. 333 A.2d at 926. The Commonwealth must establish actual notice "which may take the form of a collection of facts and circumstances that allow the fact finder to infer that a defendant has knowledge of suspension." Commonwealth v. Crockford , 443 Pa. Super. 23, 660 A.2d 1326, 1331 (1995)[, appeal denied, 670 A.2d 140 (Pa. 1995)].
Moreover, "[n]otice is a question of fact, and anything that proves knowledge or is legal evidence showing that knowledge exists can be sufficient." Id. at 1330. There are no bright line tests as to what kind of proof is required to show actual notice; however, this Court has indicated that evidence of mailing of notice coupled with some other, additional evidence of knowledge will suffice to establish actual notice beyond a reasonable doubt. Id. at 1329.Vetrini , supra at 407 (emphases added).
As a practical matter, in most cases it is virtually impossible for the Commonwealth to prove positively that the defendant received express actual notice of suspension; only the defendant would have such knowledge. The Commonwealth, relying only upon the facts and circumstances of a case, can, at best, impute such knowledge to the defendant. To hold otherwise would make the provisions of § 1543 virtually unenforceable and unworkable.Crockford , supra at 1330-31 (footnote omitted, emphasis added).
Hence, in response to appellant's inquiry as to whether the Commonwealth is required to prove actual notice of suspension to sustain a conviction under 75 Pa.C.S.A. § 1543(b), the courts of this Commonwealth have repeatedly answered in the affirmative. The Commonwealth is required to establish actual notice which may take the form of a collection of facts and circumstances that allow the fact finder to infer that a defendant has knowledge of suspension.
Factors that a finder of fact may consider in determining circumstantially or directly whether a defendant had actual notice of his or her suspension include, but are not limited to, evidence that the defendant was verbally or in writing apprised of the license suspension during the trial or a plea, statements by the accused indicating knowledge that he or she was driving during the period in which his or her license had been suspended, evidence that PennDOT sent by mail the notice of the suspension to appellant's current address, evidence that PennDOT's notice of suspension was not returned as undeliverable, attempts by the accused to avoid detection or a citation, and any other conduct demonstrating circumstantially
or directly appellant's knowledge of the suspension or awareness of guilt.Commonwealth v. Zimmick , 653 A.2d 1217, 1221 (Pa. 1995) (emphases added; citation omitted).
Appellant's entire challenge rests upon the misplaced notion that Baer requires the Commonwealth to prove receipt of written notification of suspension. In Baer , we said that factors to be considered to determine whether appellant had actual notice of suspension include evidence that the Pennsylvania Department of Transportation sent notice to appellant's current address, and statements by appellant indicating knowledge, or any conduct demonstrating circumstantially or directly that appellant had knowledge of the suspension. Moreover, this notion was directly dispelled by our Supreme Court in [ ] Zimmick , [ supra ], wherein other examples of factors which could be considered in determining whether a defendant had actual notice of license suspension were recited[.]Vetrini , supra at 408 (emphasis added; citation omitted).
* * *
Hence the sending of written notice to the appellant's current address is but one of many factors that may be considered. It is not obligatory that any combination of factors must be present.
In this case, the trial court determined that Appellant had actual knowledge of his suspension. ( See Trial Court Opinion, 6/19/15, at 3). The trial court noted that there was proof of mailing to Appellant's address of record, and no evidence that the notice of suspension was returned as undeliverable.
Moreover, the trial court observes that Appellant requested a continuance from the magisterial district court, and received a rescheduled hearing, at which he appeared. The trial court appears to suggest that the notice of the rescheduled hearing was sent by mail to his address of record, as was the notice of suspension. ( See Trial Ct. Op., at 3).
Appellant argues on appeal that the trial court should have accepted the testimony of Trooper Glentzer that Appellant denied knowledge of his suspension at the traffic stop. ( See Appellant's Brief, at 12). It was the role of the trial court, sitting as factfinder, to weigh the evidence presented and to accept all, part or none of it. See Vetrini , supra at 407. "A reviewing court may not weigh the evidence or substitute its judgment for that of the trial court." Colon , supra at 1041.
Additionally, Appellant argues for the first time on appeal that it is "possible" that he changed residences after the date the notice was mailed. (Appellant's Brief, at 11). Appellant failed to raise this issue with the trial court. To the contrary, his counsel objected, successfully, to the Commonwealth's attempt to raise the issue of a second address for Appellant after the case had closed. ( See N.T. Trial, at 14). Accordingly, Appellant's issue is waived. See Pa.R.A.P. 302(a). ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
Viewing the evidence admitted at trial under our standard of review for sufficiency, in the light most favorable to the Commonwealth as verdict winner, together with all reasonable inferences, we conclude that there was sufficient evidence to support the trial court's verdict. The trial court's findings are supported by competent evidence, and we discern no error of law or manifest abuse of discretion. See Baer , supra at 804-05; Vetrini , supra at 406-07; Colon , supra at 1041.
Moreover, we note our agreement with the trial court's observation that Appellant's argument, if adopted as precedent, would allow any individual faced with license suspension to disregard the notice of suspension, keep his license and, if caught, claim that he was unaware of a suspension, to avoid a citation or further liability. ( See Trial Ct. Op., at 3).
Judgment of sentence affirmed.
Judge Shogan joins the Memorandum.
President Judge Emeritus Bender files a Dissenting Memorandum. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 3/24/2016
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