J-S05012-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DANIEL VINCENT SCHOONOVER,
Appellant No. 800 MDA 2015
Appeal from the Judgment of Sentence Entered April 9, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-SA-0000009-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*
DISSENTING MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 24, 2016
For the following reasons, I would conclude that the evidence was
insufficient to prove that Appellant received actual notice of his license
suspension. Accordingly, I respectfully dissent.
Essentially, the Commonwealth’s evidence regarding notice amounted
to proof that PennDOT mailed the notice to Appellant’s correct address,
which is insufficient under Commonwealth v. Kane, 333 A.2d 925, 926
(Pa. 1975), and its progeny. The only additional evidence the trial court
cites to support that actual notice was provided is the fact that the notice
was not returned as undeliverable or unclaimed. The Majority agrees with
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*
Retired Senior Judge assigned to the Superior Court.
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the trial court that this one additional fact renders the evidence sufficient to
prove actual notice.
I disagree. In the case relied upon by the Majority, Commonwealth
v. Zimmick, 653 A.2d 1217 (Pa. 1995), our Supreme Court held that the
defendant received actual notice of his license suspension, observing that,
“[t]here was no evidence that the notice was ever returned to PennDOT as
undeliverable.” Zimmick, 653 A.2d at 1219. However, the Court also
emphasized various other circumstances not present in Appellant’s case. For
instance, Zimmick had been informed by the trial court, at the time he pled
guilty to driving under the influence of alcohol, that his license would be
suspended. Id. Zimmick also did not have a license in his possession when
he was stopped by a police officer after his suspension began, and he
indicated his knowledge of the suspension by asking that the officer not
“issue a citation … because he did not want to go to jail.” Id. (footnote
omitted). Additionally, Zimmick took the stand at his trial for driving with a
suspended license “and admitted that at the time he was stopped, he did not
have a valid driver’s license and that he had not had a valid driver’s license
for several years. [Zimmick] also testified that he knew his license was
suspended at the time the officer stopped him….” Id.
Unlike in Zimmick, Appellant was in possession of his license when
stopped by Trooper Glentzer. N.T. Trial at 7 (Trooper Glentzer’s testifying
that Appellant possessed what appeared to be a valid driver’s license at the
time of the traffic stop). This fact bolsters Appellant’s lack of notice defense.
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See Commonwealth v. Dietz, 621 A.2d 160, 162 (Pa. Super. 1993)
(holding “that in order for a person to invoke the defense that there was no
notice of the suspension or revocation of the license, at a minimum it must
be established at trial, that a current driver’s license was produced at the
time of the offense, or within 15 days thereafter, as provided in 75 Pa.C.S.A.
[§] 1511”). Moreover, Appellant did not make any statements during the
traffic stop, or at trial, indicating his knowledge of the suspension. Indeed,
Trooper Glentzer testified that Appellant stated that he did not know his
license was suspended, and Appellant acted surprised when told of that fact.
Appellant also did not behave in any manner that suggested he was aware
that he was not permitted to drive. See Zimmick, 653 A.2d at 1221
(stating the fact finder may consider “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”);
Contra Dietz, 621 A.2d at 162 (finding actual notice satisfied where, inter
alia, Dietz’s conduct indicated he knew he was not permitted to drive, as
Dietz fled from the scene of a traffic accident and then claimed his wife was
driving when police questioned him); Commonwealth v. Baer, 682 A.2d
802, 806 (Pa. Super. 1996) (concluding actual notice was proven where
there was evidence that the notice was mailed to Baer’s correct address,
Baer “admitted receiving the letter which notified her that her operator’s
privilege would be suspended if she did not comply with the requirements
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set forth in the letter[,]” and Baer “paid the fines” outlined in the notice, but
“failed to take the steps necessary to restore her driving privileges”).
In sum, I disagree with the Majority’s suggestion that Zimmick
permits us to conclude, under the specific circumstances of this case, that
the evidence was sufficient based only on the fact that the notice was mailed
to Appellant’s correct address and it not returned as undeliverable. I would
instead hold that the trial court committed an error of law by deeming this
evidence sufficient, and I would reverse Appellant’s judgment of sentence.
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