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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
SAMUEL CHURCHRAY, JR.,
Appellant No. 496 EDA 2018
Appeal from the Judgment of Sentence Entered January 31, 2018
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0006083-2017
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED DECEMBER 05, 2018
Appellant, Samuel Churchray, Jr., appeals from the judgment of
sentence of 3 to 23 months’ incarceration, imposed after he was convicted of
the vehicular crimes of habitual offenders, 75 Pa.C.S. § 6503.1, and driving
while operating privilege is suspended or revoked, 75 Pa.C.S. § 1543(b)(1).
Appellant solely challenges the sufficiency of the evidence to sustain his
habitual offenders conviction. After careful review, we affirm.
The trial court summarized the pertinent facts and procedural history of
this case, as follows:
On April 22, 2017, Bensalem Township Police Officer Ryan Kolb
responded to a report of suspicious activity at a condemned home
located at 4307 Grove Avenue, Bensalem, Bucks County. N.T.[,]
1/23/18, pp. 36-37. Officer Kolb observed one vehicle in the
driveway of the home, a blue-in-color Ford Festiva hatchback with
Nevada license plate 865COU. Id. at 37-38. Inside the home,
Officer Kolb encountered [] Appellant and asked for his
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identification. Id. at 39. Appellant provided Officer Kolb with a
Pennsylvania non-driver’s identification card that displayed []
Appellant’s photograph and eight-digit Operating License Number
(“OLN”). Id. at 39-40. After he advised Appellant that the
building was unsafe and asked him to leave, Officer Kolb observed
[] Appellant enter the blue Ford Festiva and drive away on Grove
Avenue, a public roadway. Id. at 39, 43-44.
Officer Kolb subsequently ran [] Appellant’s OLN through the
National Crime Information Center database and obtained a copy
of [] Appellant’s certified driving history from the Pennsylvania
Department of Transportation (“PennDOT”). Id. The first page
of the certified driving history, obtained on October 25, 2017,
showed that Appellant’s current license status was suspended,
revoked, or expired. Id. at 48; see Ex. C-2. [] Appellant’s driving
history contained the following relevant violations. On December
20, 2001, Appellant committed a violation under 75 Pa.C.S. §
3731 (codified as amended at 75 Pa.C.S. § 3802 (2003)), and was
convicted of Driving under the Influence [(DUI)] on June 28, 2002.
Id. at 52. On December 29, 2004, Appellant committed a
violation under 75 Pa.C.S. § 3802(a)(1), and was convicted of
Driving under the Influence on June 22, 2005. Id. at 56. On
December 18, 2004, Appellant committed a violation under 75
Pa.C.S. § 3743, and was convicted of Accidents Involving Damage
to Attended Vehicles or Property on June 22, 2005. Id. at 62.
Following this conviction, Appellant’s license was revoked for five
years, effective June 2, 2017, pursuant to the Habitual Offender’s
statute. Finally, Appellant’s license was suspended at the time of
the instant offense as a result of a June 22, 2005, conviction for
Driving with a Suspended License under 75 Pa.C.S. § 1543(a).
This one-year suspension did not begin until June 2, 2016,
because of his prior suspensions. Id. at 61-62. [] Appellant’s
certified driving history and all corresponding criminal history
records and identifying documents were admitted into evidence.
Id. at 46, 52-63, 72.
At trial, Appellant testified that no blue Ford Festiva was in
the driveway of 4307 Grove Avenue. Id. at 129. He further
denied that he drove a Ford Festiva on April 22, 2017. Id. at 137.
The jury heard testimony from witness Peter Imhof, who testified
that he picked up [] Appellant in his vehicle from 4307 Grove
Avenue shortly after Officer Kolb’s arrival. Id. at 154-[]56. On
rebuttal, Bensalem Township Police Officer Timothy Henehan
testified that, on January 20, 2017, he observed [] Appellant
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standing near a 1992 Ford Festiva hatchback, blue-in-color, with
Nevada License Plate 865COU. N.T.[,] 1/24/18, pp. 19-21.
After a two-day trial, the jury convicted Appellant under the
Habitual Offender’s statute, and this [c]ourt found [] Appellant
guilty of Driving with a DUI Suspended License. Id. at 65-66. On
January 31, 2018, [the trial court] sentenced Appellant to an
aggregate three to 24 months’ incarceration. Appellant filed a
timely Notice of Appeal to the Superior Court on February 14,
2018.
Trial Court Opinion (TCO), 4/17/18, at 1-3.
The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal, and he timely complied. On
April 17, 2018, the court issued a Rule 1925(a) opinion. Herein, Appellant
presents one issue for our review:
A. Whether the Commonwealth failed to establish sufficient
evidence to convict Appellant of 75 Pa.C.S. [§] 6503.1 when
the date of the traffic offense occurred on April 22, 2017,
before Appellant’s habitual offenders license revocation
became effective on June 2, 2017?
Appellant’s Brief at 5.
To begin, we note our standard of review of a challenge to the sufficiency
of the evidence:
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Commonwealth v. Moreno, 14 A.3d
133 (Pa. Super. 2011). Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
2009). The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Moreno, supra at 136.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).
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Appellant challenges his conviction under section 6503.1, which states:
A habitual offender under section 1542 (relating to revocation of
habitual offender’s license) who drives a motor vehicle on any
highway or trafficway of this Commonwealth while the habitual
offender’s operating privilege is suspended, revoked or canceled
commits a misdemeanor of the second degree.
75 Pa.C.S. § 6503.1.
Appellant contends that the Commonwealth failed to present sufficient
evidence to convict him of this crime because, on the date of the offense (April
22, 2017), his license was suspended, but his “five-year period of license
revocation … for being deemed a Habitual Offender [under section 1542] did
not become effective until June 2, 2017.” Appellant’s Brief at 11. Appellant
claims that “[a] plain reading of the language of [section] 6503.1 supports the
interpretation that Appellant can only be convicted for being a Habitual
Offender if he drives in the Commonwealth ‘while the habitual offender’s
operating privilege is suspended, revoked or canceled’ on or after the effective
date of his Habitual Offender license revocation.” Id. Thus, “[s]ince Appellant
was not operating a motor vehicle on or after the effective date of his five-
year period of license revocation for being deemed a Habitual Offender[,] the
Commonwealth failed to establish sufficient evidence to convict Appellant of
[section] 6503.1.” Id.
In response, the Commonwealth offers several reasons for rejecting
Appellant’s interpretation of section 6503.1:
First, the Habitual Offenders statute does not state, or even
suggest, that a person must be currently serving the habitual
offender revocation period to be found guilty of this offense. It
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merely requires that the defendant drove a vehicle on the roadway
at a time when he qualifies as a “habitual offender” and his license
was “suspended, revoked or canceled.” See 75 Pa.C.S. § 6503.1.
The legislature would not have used the language “suspended,
revoked or canceled” if the conduct to be punished only started at
the effective date of the suspension, as the only penalty for being
designated a habitual offender is a 5-year revocation. 75 Pa.C.S.
§ 1542(d). Therefore, should the statute only punish a defendant
for driving during the limited period of time that Appellant claims,
it would have limited the relevant portion of the statute to
“revoked,” and not the language actually used of “suspended,
revoked or canceled.” As properly found by the trial court, “[h]ad
the legislature intended to impose Habitual Offender status only
after the effective date of a habitual offender driver’s license
revocation, it would have explicitly said so.” [TCO at] 7.
Second, as previously stated, the appellate courts have
already rejected similar arguments made, specifically in
connection to violations of 75 Pa. C.S. § 1543(b), Driving Under
Suspension - DUI related. In Commonwealth v. Nuno, 559 A.2d
949 (Pa. Super. 1989), this Court rejected the defendant’s
argument that he could not be convicted of § 1543(b) because the
effective date of the suspension and revocation for this suspension
had not yet begun to run. This Court found this argument to be
“untenable” and held that “when a person receives notice that
their operating privilege is or will be suspended or revoked for a
D.U.I. related offense, that person is subject to the penalties of §
1543(b) … throughout any current suspension or revocation and
any subsequent suspensions or revocations until the end of their
D.U.I. related suspension or revocation.” Id. at 950-[]51.
***
Thereafter, in Commonwealth v. Jenner, 681 A.2d 1266,
1273-[]74 (Pa. 1996), the Pennsylvania Supreme Court rejected
the argument that “the application of the mandatory sentencing
provisions of § 1543(b)[,] prior to the effective date on the DUI-
related suspension notification[,] fails to give drivers with
outstanding non-DUI-related suspensions proper notice that they
are subject to the enhanced penalties of the statute prior to the
effective date of the DUI-suspension.” Id. at 1273. Rather, the
Court explained:
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The purpose of § 1543(b) is to prevent drivers who have
been convicted of driving under the influence from operating
motor vehicles on the public roads of the Commonwealth by
enhancing the penalties for recidivist violators. If we were
to accept the argument advanced by [the] appellants, we
would be permitting [the] appellants to avoid the mandatory
sentencing provisions imposed on drunk drivers for
disregarding a suspension of driving privileges simply
because [the] appellants have a history of violating the
Motor Vehicle Code which has resulted in long term license
suspensions which have not expired at the time of their DUI
violations or their subsequent violations of the Motor Vehicle
Code. [W]e hold that once a driver is notified that his
license is suspended as a result of a conviction for driving
under the influence[,] he is subject to the enhanced
sentencing provisions of § 1543(b) for the duration of any
prior periods of suspension or revocation until the
completion of the DUI-related suspension. The effective
dates provided by the Department of Transportation in such
cases are simply for the purpose of determining when the
DUI-related suspension is completed.
Further, in Commonwealth v. Harden, 103 A.3d 107 (Pa. Super.
2014), the defendant challenged the sufficiency of the evidence
for his conviction under § 1543(b), claiming that, on the date of
the offense, he was serving a suspension for a non-DUI related
suspension and that the DUI-related suspension did not begin until
a future date. This Court, relying on the holdings in Nuno and
Jenner[,] rejected the defendant’s claim as “frivolous.” Id. at
112.
Commonwealth’s Brief at 12-15. Based on the reading of section 1543(b) in
Nuno, Jenner, and Harden, the Commonwealth urges us to reject
Appellant’s contrary interpretation of 6503.1.
The trial court agrees with the Commonwealth. The court explains:
[T]he plain language of [section] 6503.1 requires that the
Commonwealth prove each of the following three elements
beyond a reasonable doubt: First, that a defendant drove a motor
vehicle on a traffic way or highway in the Commonwealth of
Pennsylvania; Second, that the defendant was a Habitual Offender
as defined under § 1542; and third, that the defendant’s license
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was suspended, revoked or canceled at the time he was driving
the motor vehicle on a traffic way or highway in the
Commonwealth. A defendant’s Habitual Offender revocation need
not occur prior to the date of the instant offense. The plain
language of the statute only requires that the defendant’s license
was suspended, revoked, or cancelled for any reason at the time
he drove a motor vehicle in the Commonwealth.
***
Appellant’s interpretation of the statute would effectively allow
a defendant with a significant history of license suspensions to
indefinitely evade prosecution under [section] 6503.1. Such an
absurd interpretation could not have been the legislature’s intent.
In re B.A.M., 806 A.2d [893,] 894 (Pa. Super. [] 2002)[] (“[T]he
general assembly does not intend a result that is absurd,
impossible of execution, or unreasonable.”).
TCO at 5-7.
Appellant concedes “that his interpretation of [section] 6503.1 would
‘effectively allow a defendant with a significant history of license suspensions’
to avoid being charged as a Habitual Offender like in the instant case.”
Appellant’s Brief at 13 (quoting TCO at 7). He contends, however, that “[i]f
the trial court’s interpretation [of section 6503.1] is correct, and a person of
‘ordinary intelligence’ is left to guess at whether it is a crime to drive before
the effective date of the Habitual Offender license revocation, then [section]
6503.1 should be deemed unconstitutionally void for vagueness.” Id. at 14.
Notably, Appellant did not raise this constitutional challenge to section 6503.1
at trial, or in his Rule 1925(b) statement. Thus, this argument is waived for
our review. 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.”); Pa.R.A.P.
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1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
In sum, we agree with the reasoning of the trial court and the
Commonwealth, and we reject Appellant’s interpretation of section 6503.1.
That provision requires proof that the defendant is a habitual offender under
section 1542, that he drove a vehicle on a highway or trafficway in this
Commonwealth, and that he did so while his license was suspended, revoked
or canceled for any reason. This interpretation of section 6503.1 is consistent
with a plain reading of the statutory language, as well as the rationale of
Nuno, Jenner, and Harden.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/18
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