Opinion
2551 EDA 2023 J-S28020-24
08-27-2024
COMMONWEALTH OF PENNSYLVANIA v. ERIC STORLIE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered September 20, 2023 In the Court of Common Pleas of Lehigh County Criminal Division at No(s): CP-39-SA-0000073-2023
BEFORE: STABILE, J., MURRAY, J., and LANE, J.
MEMORANDUM
MURRAY, J.
Eric Storlie (Appellant) appeals from the judgment of sentence imposed after the trial court convicted him of one count of driving with a suspended license (related to a prior conviction of driving under the influence of alcohol (DUI)). We affirm.
On January 4, 2023, law enforcement cited Appellant with the above summary offense. On February 22, 2023, a magisterial district judge convicted Appellant as charged, and sentenced Appellant to pay a $1,000 fine. On March 31, 2023, Appellant filed a nunc pro tunc summary appeal. The case proceeded to a de novo trial on September 20, 2023.
The trial court granted Appellant's request to proceed nunc pro tunc without objection from the Commonwealth.
At trial, the Commonwealth called Officer John Bowlby (Officer Bowlby) as a witness. Officer Bowlby testified that while on routine patrol on January 4, 2023, at approximately 6:15 p.m., he ran the license plate of a white Mitsubishi Outlander, which was registered to Appellant. See N.T., 9/20/23, at 5. Officer Bowlby's inquiry revealed Appellant's driving privileges were suspended. See id. Officer Bowlby initiated a traffic stop, whereupon he identified Appellant as the vehicle's operator. See id. at 6. Officer Bowlby testified that Appellant acknowledged that his driver's license was suspended due to a prior DUI conviction. See id.
Appellant testified on his own behalf, and agreed that he was driving on January 4, 2023. See id. at 10. Appellant explained that on the date of his traffic stop (and at the time of the summary appeal hearing), he was on probation for a prior DUI offense. See id. The terms of his supervision required Appellant to speak with his probation officer daily, who would advise Appellant as to whether he was required to report for a drug test the following day. See id. Appellant's probation officer directed him to report for a drug test between 12:00 p.m. and 8:00 p.m. on January 4, 2023. See id. Appellant testified he was unable to secure alternative means of travel, which required him to drive to the testing facility. Id. at 13-14.
At the conclusion of the trial, the trial court convicted Appellant of the above offense. The trial court sentenced Appellant to pay a $1,000 fine and associated court costs. Appellant timely appealed. Both the trial court and Appellant have complied with Pa.R.A.P. 1925.
In addition to a mandatory $1,000 fine, Section 1543(b)(1)(ii) (relating to second offenses) mandates "imprisonment for a period not less than 90 days." See 75 Pa.C.S.A. § 1543(b)(1)(ii). However, as Section 1543(b)(1)(ii) does not set forth a maximum period of incarceration, "it is unconstitutionally vague and inoperable[.]" Commonwealth v. Jackson, 271 A.3d 1286, 1288 (Pa. Super. 2022) (citation omitted). Accordingly, the trial court correctly imposed only the mandatory $1,000 fine.
Appellant presents a single issue: "Whether the [t]rial [c]ourt erred in finding [Appellant] guilty of Driving Under Suspension-DUI[-]related[,] as the testimony established the defense of justification?" Appellant's Brief at 5.
See 18 Pa.C.S.A. § 503.
Appellant challenges the sufficiency of the evidence underlying his conviction. Specifically, Appellant argues the Commonwealth presented insufficient evidence to disprove his affirmative defense of justification. Appellant's Brief at 11.
In addressing this challenge, our well-settled standard of review is de novo, and our scope of review is limited to the evidence admitted at trial viewed in the light most favorable to the Commonwealth as verdict winner. Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). We determine "whether the evidence at trial, and all reasonable inferences derived therefrom, when viewed in the light most favorable to the Commonwealth as
verdict winner, are sufficient to establish all elements of the offense beyond a reasonable doubt." Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005). "The Commonwealth can meet its burden by wholly circumstantial evidence." Commonwealth v. Benito, 133 A.3d 333, 335 (Pa. Super. 2016) (citation omitted).Commonwealth v. Salinas, 307 A.3d 790, 793 (Pa. Super. 2023) (some citations modified). The trial court as factfinder, "while passing on the credibility of the witnesses and the weight of the evidence[,] is free to believe all, part, or none of the evidence." Id.
In order to sustain a conviction for a violation of driving with a suspended license (DUI related), the Commonwealth must prove the defendant "dr[o]ve[] a motor vehicle on a highway or trafficway of this Commonwealth at a time when [his] operating privilege [were] suspended or revoked … because of a violation of … [75 Pa.C.S.A. §] 3802 [(relating to DUI)] …." 75 Pa.C.S.A. § 1543(b)(1)(i). Further, the Commonwealth must "prove that the defendant had actual notice of a suspension in order to sustain a conviction of driving while under suspension." Commonwealth v. Harden, 103 A.3d 107, 112 (Pa. Super. 2014) (citation omitted).
Instantly, Appellant concedes the Commonwealth met its burden with respect to the foregoing elements. See Appellant's Brief at 10-11. Instead, Appellant argues "he met the statutory requirements for the elements of justification…." Id. at 11.
We have observed,
the Commonwealth has the unshifting burden to prove beyond a reasonable doubt all elements of the crime charged.
Commonwealth v. Rose, 321 A.2d 880, 389 (Pa. 1974). The burden is neither increased nor diminished when a defendant attempts to disprove an element of the crime by introducing an affirmative defense. Id.Commonwealth v. Cottam, 616 A.2d 988, 1000 (Pa. Super. 1992) (citation modified). However, once an affirmative defense has been raised, "the Commonwealth d[oes] not have any duty to present additional testimony if it determine[s] that its existing evidence [is] sufficient to refute the defense." Commonwealth v. Weis, 611 A.2d 1218, 1225 (Pa. Super. 1992).
Our Crimes Code defines the defense of "justification" as follows:
(a) General rule.--Conduct which the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable if:
(1) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged;
(2) neither this title nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(3) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.18 Pa.C.S.A. § 503(a).
We have further recognized our Supreme Court's refinement of these elements as requiring:
1. that the actor was faced with a clear and imminent harm, not one which is debatable or speculative;
2. that the actor could reasonably expect that the actor's actions would be effective in avoiding this greater harm[;]
3. that there is no legal alternative which will be effective in abating the harm; and[]
4. that the Legislature has not acted to preclude the defense by clear and deliberate choice regarding the values at issue.Commonwealth v. Manera, 827 A.2d 482, 484 (Pa. Super. 2003) (quoting Commonwealth v. Capitolo, 498 A.2d 806, 809 (Pa. 1985)). "[T]he justification defense is generally applicable to all offenses, absent clear legislative intent to the contrary." Id. Further, we have specifically held that the defense of justification is applicable to 75 Pa.C.S.A. § 1543(b). Id. at 485.
Here, Appellant contends the harm he sought to avoid, "missing a [c]ourt-required urine screen [], the result of which … would likely result in a probation violation and incarceration, [was] greater than the harm" Section 1543(b)(1) seeks to prevent. Appellant's Brief at 12 (citation to record omitted). Appellant further maintains
that no legal alternative would [have] be[en] effective in abating the harm. [Appellant] testified at [the de novo trial] that he could not take a taxi or Uber [ride share] due to financial constraints and lack of family in the area. … [Appellant] testified that he lived in Whitehall, while [the testing facility] is located on Hamilton Street in Allentown. The [trial c]ourt estimated this distance to be approximately three (3) miles. … [Appellant] testified that he believed … that his options were either to miss the required urine screen and face a probation violation and jail time, or drive to the test in violation of [Section] 1543(b)(1)(ii).Id. at 13 (record citations omitted).
The Commonwealth counters that Appellant's argument fails "because of the plethora of legal alternatives available to him." Commonwealth's Brief at 6. The Commonwealth argues that Appellant "knew the day before the mandatory urinalysis that he was required to provide a sample and that he had an eight-hour window to do so. … Failure to plan on [Appellant's] part does not constitute an emergency on the Commonwealth's part." Id. at 7.
The trial court addressed and rejected Appellant's claim in its Rule 1925(a) opinion:
In examining Section 503 of the Pennsylvania Crimes Code, our Supreme Court [has] held that in order to succeed on a justification defense, an individual must be faced with clear and imminent harm, not one which is debatable or speculative; the individual must reasonably expect that the actions taken would be effective in avoiding the greater harm; there must be no legal alternative which [would] be effective in abating the harm; and the Legislature cannot have acted to preclude the defense by a clear and deliberate choice regarding the values at issue. [] Capitolo, [supra].
Here, [Appellant] testified that he needed to drive to a drug [] test because if he missed the test, he faced a probation violation and possible incarceration. Even assuming a probation violation and possible incarceration is the type of harm contemplated by the justification defense, [Appellant] failed to prove there were no other legal alternatives that would have prevented the harm. For example, [Appellant] could have taken a ride share or taxi; asked someone for a ride; or even walked to his appointment. There were other legal alternatives available to [Appellant]; thus, the defense of justification was not met.Trial Court Opinion, 12/12/23, at 1-2 (emphasis added).
Upon review, the trial court's reasoning is supported by the record and free of legal error. The record confirms that Appellant's probation officer advised Appellant on January 3, 2023, that he was required to appear and submit to a drug test on the next day, prior to 8:00 p.m. See N.T., 9/20/23, at 10. Officer Bowlby conducted a traffic stop of Appellant at 6:15 p.m. on January 4, 2023. Id. Although Appellant agreed with his counsel that he did not have the financial means "to use an Uber or any ride share, a taxi or other public transportation[,]" id. at 13, the trial court was free to assess his credibility and reject his assertion. See Salinas, 307 A.3d at 793. This is especially true in light of the fact that Appellant was afforded an eight-hour window during which to report to the testing facility. See N.T., 9/20/23, at 10.
As the trial court reasonably concluded legal alternatives were available to Appellant, Appellant's claim that he was justified in driving with a suspended driver's license is without merit. See Capitolo, 498 A.2d at 809 (affirming trial court's refusal to charge the jury on the defendant's requested justification instruction, "[w]here the proffered evidence supporting one element of the defense [was] insufficient to sustain the defense").
Judgment of sentence affirmed.