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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RANDAL L. LOVE :
:
Appellant : No. 1508 MDA 2018
Appeal from the Judgment of Sentence Entered August 28, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-SA-0000145-2018
BEFORE: STABILE, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED MAY 29, 2019
Appellant Randal L. Love appeals from the Judgment of Sentence
entered in the Dauphin County Court of Common Pleas on August 28, 2018,
following his conviction for Driving while Operating Privilege is Suspended or
Revoked.1 On appeal, he challenges the sufficiency of evidence in support of
his conviction. We affirm.
The relevant facts and procedural history are as follows. On April 3,
2018, Police Officer Shayne Barber observed that the letters on Appellant’s
vehicle registration plate were not visible, which prompted him to effect a
traffic stop of Appellant. During the stop, Appellant provided Officer Barber
with his driver’s license. While running a check on Appellant’s license, Officer
Barber discovered that Appellant’s license had been suspended as of January
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1 75 Pa.C.S. § 1543(a).
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* Former Justice specially assigned to the Superior Court.
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16, 2018. Officer Barber cited Appellant for Driving while Operating Privilege
is Suspended or Revoked. Trial Ct. Op., filed 10/9/18, at 1.
On May 16, 2018, the magisterial district judge found Appellant guilty
in absentia of that offense, and Appellant filed a timely summary appeal. On
August 28, 2018, the trial court held a hearing at which Officer Barber was
the sole witness and the Commonwealth entered Appellant’s certified driving
record into evidence without objection. Id. at 1-2 & n.1.
The trial court found Appellant guilty of violating 75 Pa.C.S. § 1543(a).
It recognized Appellant’s repeat offender status and sentenced him to sixty
days’ incarceration and a fine of one thousand dollars.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following issue:
Whether the Judge’s holding that [Appellant] was a multiple
offender under the statute was sufficient to uphold the conviction
of driving under a suspended license when the Commonwealth
failed to introduce evidence of actual notice of [Appellant] of the
suspension and at the time of the traffic stop [Appellant] provided
an expired driver’s license?
Appellant’s Br. at 4.
In other words, Appellant argues that the evidence was insufficient to
establish that he had actual notice that PennDot had suspended his driver’s
license at the time of the April 3, 2018 traffic stop. Id. at 4, 7.
“A claim challenging the sufficiency of the evidence is a question of law.”
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review
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claims regarding the sufficiency of the evidence by considering 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.” Commonwealth v.
Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation and citations
omitted). “[A] conviction may be sustained wholly on circumstantial evidence,
and the trier of fact—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 conducting this review, we may not weigh the evidence and substitute
our judgment for the fact-finder. Id.
Section 1543 provides that “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.” 75
Pa.C.S. § 1543(a). Section 6503 further provides that “[a] person convicted
of a sixth or subsequent offense under section 1543(a) shall be sentenced to
pay a fine of not less than $1,000 and to imprisonment for not less than 30
days but not more than six months.” 75 Pa.C.S. § 6503(a.1).
In order to sustain a conviction of driving while under suspension, it is
necessary for the Commonwealth to prove that the defendant had actual
notice of a suspension. Commonwealth v. Harden, 103 A.3d 107, 112 (Pa.
Super. 2014) (citing Commonwealth v. Kane, 333 A.2d 925, 927 (Pa.
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1975)). “[A]ctual notice is ‘a judicially created element, designed to protect
a defendant’s due process rights.’” Id. (quoting Commonwealth v.
Crockford, 660 A.2d 1326, 1329 (Pa. Super. 1995)).
The Commonwealth has not proven actual notice of suspension when
the Commonwealth only presents evidence that PennDot mailed notice to the
defendant. Kane, 333 A.2d at 927. However, the Commonwealth may
establish actual notice through “a collection of facts and circumstances” that
allow the factfinder to infer that a defendant has knowledge of suspension.
Harden, 103 A.3d at 114. Facts and circumstances that may be considered
include 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. Commonwealth v. Zimmick, 653
A.2d 1217, 1221 (Pa. 1995) (quotations omitted).
Most relevant to this appeal, this Court has held that the Commonwealth
proves actual notice of a suspension where it presented evidence as to three
crucial facts: (1) appellant’s license had been suspended; (2) notice of
appellant’s suspension had been mailed by PennDOT; and (3) appellant failed
to produce a current driver’s license at the traffic stop. Crockford, 660 A.2d
at 1331. See also Harden, 103 A.3d at 112-15 (finding actual notice shown
where evidence demonstrated the notice of suspension was mailed, the
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appellant had a long history of suspensions, and the appellant failed to present
a driver’s license during traffic stop). In Crockford, we deduced that when
“the subject driver is unable to produce a current license, it is either because
he is unable to do so since the license has been surrendered, or he is unwilling
to do so because he believes that tendering a suspended license is a futile
gesture.” Crockford, supra at 1331. See also Commonwealth v. Dietz,
621 A.2d 160, 162-63 (Pa. Super. 1993) (holding a defendant’s failure to
possess a current license at the time of the incident is presumptive knowledge
of suspension).2 We also found in Harden that an appellant’s history of
suspensions for previous violations, as detailed in his driving record, supports
an inference of knowledge of his suspension. 103 A.3d at 114; see Dietz,
621 A.2d at 162.
Here, the trial court concluded that the Commonwealth presented
sufficient evidence to establish Appellant’s actual knowledge of his driving
suspension at the time of the April 3, 2018 traffic stop. See Trial Ct. Op. at
3-7. It found that Appellant’s driving record showed that his driving privileges
had been suspended, from January 16, 2018 until May 16, 2018; PennDOT
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2 We note that in Crockford we disagreed with Dietz’s holding that a driver
who claims no notice of a suspension must prove possession of a current
license at the time of the incident. Id. 660 A.2d at 1335. Rather, we
decided an appellant may come forward with any evidence of lack of notice
to rebut the Commonwealth’s case, such as evidence that at the time of his
stop by police, appellant was in possession of, or able to produce, a current
driver’s license. Id. at 1332, 1335
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mailed an Official Notice of Suspension to Appellant on December 26, 2017;
Appellant failed to produce a valid license at the time of the traffic stop3; and
Appellant had eight prior convictions for Driving while Operating Privilege is
Suspended or Revoked. Id. at 1-7 & nn.1-2.
We agree with the trial court’s conclusion. Our review of the record
evidence, in the light most favorable to the Commonwealth as the verdict
winner demonstrates, that at the time of the traffic stop, PennDOT had
suspended Appellant’s license, PennDot properly notified Appellant of the
suspension, and Appellant could not produce a valid driver’s license.
Accordingly, the trial court properly found that the Commonwealth
presented “a collection of facts and circumstances” sufficient to establish that
Appellant had actual notice that his license had been suspended. See
Harden, 103 A.3d at 114. Appellant is, therefore, not entitled to relief on this
claim.
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3We note that the license Appellant provided the Officer Barber had expired
and thus was not valid. Since PennDot had suspended Appellant’s license, it
would have refused to renew Appellant’s license during the suspension. This
confirms the inference that the failure to produce a current license presumes
knowledge of suspension. See Crockford, supra at 1331; Dietz, supra at
162-63.
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Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/29/2019
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