Com. v. Fay, K.

J-S78041-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KENNETH A. FAY :
:
Appellant : No. 1764 EDA 2018

Appeal from the Judgment of Sentence May 3, 2018
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006493-2017

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

MEMORANDUM BY STEVENS, P.J.E.: FILED JANUARY 11, 2019

Appellant, Kenneth A. Fay, appeals from the judgment of sentence

entered in the Court of Common Pleas of Delaware County following his

conviction at a bench trial on the charges of driving while under the influence

(“DUI”)-General impairment-2nd offense, 75 Pa.C.S.A. § 3802(a)(1), and

driving while operating privilege is suspended or revoked-DUI related, 75

Pa.C.S.A. § 1543(b)(1). After a careful review, we are constrained to vacate

the judgment of sentence for Appellant’s conviction under 75 Pa.C.S.A. §

1543(b)(1); however, we affirm in all other respects.

The relevant facts and procedural history are as follows: On February

9, 2018, Appellant, who was represented by counsel, proceeded to a non-jury

trial, at which Glenolden Police Officer Robert Brake testified that, during the

afternoon on October 2, 2017, he was on routine patrol when, at 2:33 p.m.,

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* Former Justice specially assigned to the Superior Court.
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he observed a blue Ford Escape on North McDade Boulevard near West Cook

Avenue. N.T., 2/9/18, at 7-8. Officer Brake explained that he was stopped

at a red traffic signal on the northbound lane of North McDade Boulevard when

he looked in his rearview mirror and noticed Appellant’s blue Ford Escape

traveling from the northbound lane into the median at a high rate of speed.

Id. at 8-9. Appellant’s vehicle went into the left turn only lane and, instead

of making a left turn at the red traffic signal, he continued north into the

median towards oncoming traffic for the left turn only lane of the southbound

traveling lane. Id. Appellant continued driving for approximately one hundred

yards and made a left turn into a parking lot. Id.

Officer Brake testified that he pulled into the parking lot behind

Appellant’s vehicle and activated his police cruiser’s lights. Id. at 12.

Appellant exited his vehicle and, in response, Officer Brake exited his cruiser

and ordered Appellant to return to his vehicle. Id. at 15. Appellant “kept

laughing at [the officer] and uncontrollably waving his arms at [him], telling

[him] that he is a race car driver.” Id. After several more commands from

the officer, Appellant finally went back into his car. Id. at 16.

Officer Brake testified he asked Appellant for his driver’s license, and

Appellant gave him a Pennsylvania identification card. Id. at 18-20. Appellant

refused to take a portable breath test or submit to a blood draw; due to

Appellant’s report of knee and foot injuries, Officer Brake did not administer

field sobriety tests. Id. Officer Brake opined that, on October 2, 2017,

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Appellant was driving while under the influence of alcohol to a degree that

rendered him incapable of safe driving. Id. at 23. Officer Brake testified he

reviewed Appellant’s Pennsylvania driving record, and the Commonwealth

entered into evidence a certified copy of Appellant’s driver’s history from the

Pennsylvania Department of Transportation, Bureau of Driver’s Licensing

(“PennDot”). Id. at 21.

On redirect examination, Officer Brake testified that, in addition to

searching Appellant’s driving history in Pennsylvania, he also used his mobile

database to search for Appellant’s driving history in other states. Id. at 34.

He discovered that Appellant had a driver’s license in Maine, but it had been

suspended. Id. The Commonwealth entered into evidence a certified copy of

Appellant’s driver’s history from the Maine Department of Transportation,

Department of State Certified Driving. N.T., 3/5/18, at 4.

Appellant took the stand in his own defense. Regarding whether

Appellant had a valid driver’s license on October 2, 2017, the following

relevant exchange occurred on cross-examination:

Q: You would agree with me that you did not have a valid driver’s
license back on October 2, 2017?
A: I know I didn’t and I was told that that’s what I would have to
do, drive without a license.
Q: Okay. So—
A: And that was from Harrisburg.
Q: Okay. So you had an identification card—
A: That’s correct.
Q: -- that was not a driver’s license?

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A: Correct.
Q: And you agree with me that your driver’s license was at the
time suspended, correct?
A: No. I was told by the DMV that my license wasn’t suspended
and it wasn’t revoked. It just wasn’t renewed.
Q: Sir, you also had a driver’s license back on October 2, 2017
from the State of Maine, correct?
A: Yeah, I guess so.
Q: Okay. And that driver’s license was also suspended, correct?
A: Yes, it was.
Q: And you knew that?
A: Yes, I did. That’s why I tried to get a Pennsylvania license and
they wouldn’t give it to me.

Id. at 41-42.

On redirect examination, Appellant testified that, when the police

stopped him in Maine, they informed him that his Maine driver’s license would

be suspended; however, Appellant never received any official notice from the

State of Maine. Id. at 45-46.

At the conclusion of all testimony, the trial court convicted Appellant of

the offenses indicated supra, and on May 3, 2018, following a sentencing

hearing, the trial court sentenced Appellant to three months to six months in

prison for the DUI conviction under Section 3802(a)(1), and ninety days in

prison for the driving while license suspended-DUI related conviction under

Section 1543(b)(1); the sentences to run concurrently. This timely, counseled

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appeal followed.1 The trial court directed Appellant to file a Pa.R.A.P. 1925(b)

statement, and after receiving an extension of time, Appellant filed the

required statement. The trial court filed a Rule 1925(a) opinion on August 3,

2018.

On appeal, Appellant does not challenge his conviction for DUI-2nd

offense under 75 Pa.C.S.A. § 3802(a)(1).2 However, he contends the

evidence was insufficient to support his conviction for driving while operating

privilege is suspended or revoked-DUI related pursuant to 75 Pa.C.S.A. §

1543(b)(1). Specifically, Appellant avers the Commonwealth failed to prove

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1 We note that, while still represented by trial counsel, Appellant filed a pro se
post-sentence motion. Since Appellant was represented by counsel, the trial
court did not rule on the pro se motion; however, the prothonotary properly
docketed the motion in accordance with Pa.R.Crim.P. 576(A)(4). On appeal,
this Court issued a rule to show cause to determine whether Appellant’s
instant appeal was from an interlocutory order. In response, Appellant’s
counsel suggested Appellant’s pro se post-sentence motion is a legal nullity
and, consequently, the fact counsel filed the notice of appeal absent a trial
court order disposing of the pro se motion does not require quashal of the
appeal. We agree. See Commonwealth v. Reid, 117 A.3d 777, 781 n.8
(Pa.Super. 2015) (holding pro se post-sentence motion while represented by
counsel is a legal nullity); Commonwealth v. Nischan, 928 A.2d 349, 355
(Pa.Super. 2007) (same); Pa.R.Crim.P. 576 cmt. (Rule 576(A)(4)’s
“requirement that the clerk time stamp and make docket entries of the filings
in these cases only serves to provide a record of the filing, and does not trigger
any deadline nor require any response.”).

2Accordingly, any issue with regard to his DUI-2nd offense conviction has been
waived. See Pa.R.A.P. 2119.

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that, on the day of the offense, Appellant’s operating privilege was, in fact,

suspended or revoked.3

When considering a challenge to the sufficiency of the evidence, the

standard we apply is as follows:

[W]hether 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 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. Johnson, 192 A.3d 1149, 1155 (Pa.Super. 2018)

(citation omitted).

Here, the trial court convicted Appellant of the offense of driving while

operating privilege is suspended-DUI related pursuant to 75 Pa.C.S.A. §

1543(b)(1), which states:

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3 We note that, despite the fact Appellant preserved this sufficiency claim in
his Pa.R.A.P. 1925(b) statement, the trial court failed to include in its opinion
a discussion of this claim. Further, we note the Commonwealth indicates on
appeal that it “is constrained to agree with [Appellant]” as to this issue. See
Commonwealth’s Brief at 5.

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(1) a person who drives a motor vehicle on a highway or
trafficway of this Commonwealth at a time when the person’s
operating privilege is suspended or revoked as a condition of
acceptance of Accelerated Rehabilitative Disposition for a violation
of section 3802 (relating to driving under influence of alcohol or
controlled substance) or the former section 3731, because of a
violation of section 1547(b)(1) (relating to suspension for refusal)
or 3802 or former section 3731 or is suspended under section
1581 (relating to Driver’s License Compact) for an offense
substantially similar to a violation of section 3802 or former
section 3731 shall, upon conviction, be guilty of a summary
offense and shall be sentenced to pay a fine of $500 and to
undergo imprisonment for a period of not less than 60 days nor
more than 90 days.

75 Pa.C.S.A. § 1543(b)(1).

In the case sub judice, as indicated supra, in an effort to establish that

Appellant’s operating privilege was suspended or revoked when he was driving

on October 2, 2017, the Commonwealth entered into evidence Appellant’s

certified driving records from PennDot and the State of Maine. The PennDot

record reveals that Appellant’s Pennsylvania driver’s license was suspended

effective June 16, 2005, for a violation of 75 Pa.C.S.A. § 1547 (chemical

testing). See Commonwealth Exhibit 2. However, the PennDOT record also

reveals that, on June 16, 2006, Pennsylvania restored Appellant’s driving

privileges.4 See id.

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4 Appellant’s trial testimony suggests that, although he may have been
eligible, he did not actually renew his Pennsylvania driver’s license due to
information provided by the Department of Motor Vehicles. N.T., 4/11/18, at
41-42. In any event, whether he actually renewed the license or was just
eligible to do so, as of June 16, 2006, Appellant’s Pennsylvania driver’s license
was no longer “suspended or revoked” as required for a conviction under
Section 1543(b)(1).

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Thereafter, Appellant secured a Maine driver’s license and, on July 6,

2012, he was cited with Maine’s statutes pertaining to the refusal of a chemical

test and operating under the influence of intoxicants (“OUI”). See

Commonwealth Exhibit 3. Regarding the refusal of a chemical test offense,

the State of Maine suspended Appellant’s driver’s license until February 2,

2013. See id. Meanwhile, while the proceedings related to the July 2, 2012,

OUI offense were pending, Appellant drove in Maine on November 23, 2012,

while his operating privileges were suspended. See id.

On January 2, 2015, Maine convicted Appellant on his July 2, 2012, OUI

offense, as well as his November 23, 2012, driving while operating privileges

were suspended offense. As a result, Appellant’s driving privileges in Maine

were suspended until April 2, 2015. See id. Thereafter, on January 19, 2015,

Appellant was cited with driving to endanger,5 and following his conviction on

this offense, on March 26, 2015, Maine revoked Appellant’s driver’s license

until March 26, 2018, as he was a “habitual offender.”6 See id.

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5 Maine’s driving to endanger statute relevantly provides: “A person commits
a Class E crime if, with criminal negligence as defined in Title 17-A, that person
drives a motor vehicle in any place in a manner that endangers the property
of another or a person, including the operator or passenger in the motor
vehicle being driven.” Me.Rev.Stat. tit. 29-A, § 2413 (footnote omitted).
6 Maine’s habitual offender statute indicates that a person who has
accumulated three or more convictions for various separate acts within a five
year period is considered a habitual offender. Me.Rev.Stat. tit. 29-A, § 2551-
A. Here, Maine found Appellant to be a habitual offender based on his OUI

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Appellant’s OUI conviction in Maine was reported to PennDot,7 and thus,

the PennDot record contains the following entry (verbatim):

VIOLATION DATE: Jul 06 2012
VIOLATION: Vehicle Code 3802(a)(2) MAJOR VIOLATION
DESCRIPTION: DUI BAC .08 -< .10
VIOL. REPORT FROM ME (DLC CONV)
NATIONAL CODE: A20, DUI of ALCOH OR DRUGS
COMM VEHILCE: NO
HAZMAT: NO
CLD HOLDER: NO
CONVICTION DATE: JAN 02 2015
ACTION: NO ACTION DLC
OFFICIAL NOTICE MAILED MAR 11, 2015

Commonwealth Exhibit 2 (emphasis added).

Based on the aforementioned, applying the appropriate standard of

review, the PennDot driving records reveal that, on October 2, 2017 (the date

of the instant offense), Appellant’s Pennsylvania driver’s license was not in a

“suspended or revoked” status since Appellant’s operating privileges had been

restored on June 16, 2006, and Pennsylvania took no action with regard to

Appellant’s violation in Maine.

Further, with regard to Appellant’s Maine driver’s license, Appellant’s

Maine driver’s license was in a revoked status at the time he was driving in

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conviction, his driving while under suspension conviction, and his driving to
endanger conviction. See id.; Commonwealth Exhibit 3.

7Article III of the Driver’s License Compact states in part that “[t]he licensing
authority of a party state shall report each conviction of a person from another
party state occurring within its jurisdiction to the licensing authority of the
home state of the licensee.” 75 Pa.C.S. § 1581, Art. III.

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Pennsylvania on October 2, 2017. However, assuming, arguendo, he could

otherwise be cited under Section 1543(b)(1) for driving in Pennsylvania with

a revoked Maine license, the record reveals Appellant’s Maine license was not

revoked “for an offense substantially similar to a violation of [S]ection 3802

or former [S]ection 3731” pertaining to Pennsylvania’s DUI statutes. See 75

Pa.C.S.A. § 1543(b)(1). Rather, Appellant’s Maine driver’s license was

revoked due to an accumulation of various traffic offenses, including non-DUI

related offenses, for which Maine deemed him to be a “habitual offender.”

Accordingly, viewing the evidence in the light most favorable to the

Commonwealth, as verdict winner, we conclude the evidence is insufficient to

sustain Appellant’s conviction for driving while operating privilege is

suspended or revoked-DUI related under Section 1543(b)(1). Accordingly,

we vacate Appellant’s conviction and judgment of sentence for this conviction.

However, in light of the trial court’s imposition of concurrent sentences, we

have not upset the trial court’s sentencing scheme and, thus, we find it

unnecessary to remand for resentencing. See Commonwealth v. Thur, 906

A.2d 552 (Pa.Super. 2006).

Judgment of Sentence for 75 Pa.C.S.A. § 1543(b)(1) is Vacated.

Judgment of Sentence Affirmed in all other respects. Jurisdiction is

Relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/11/19

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