J-S42021-17
2017 PA Super 347
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTTY JOE SALES
Appellant No. 2057 MDA 2016
Appeal from the Judgment of Sentence November 18, 2016
In the Court of Common Pleas of Fulton County
Criminal Division at No(s): CP-29-SA-0000009-2016
BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.
OPINION BY MOULTON, J.: FILED NOVEMBER 06, 2017
Scotty Joe Sales appeals from the November 18, 2016 judgment of
sentence entered in the Court of Common Pleas of the 39th Judicial District
(Fulton County Branch) following his conviction for driving while commercial
operating privilege is suspended, 75 Pa.C.S. § 1606(c)(1)(ii). For the
reasons that follow, we reverse.
On May 16, 2016, Pennsylvania State Police Trooper Steven R.
Morningstar stopped Sales’ tractor trailer on Interstate 70 in Brush Creek
Township, Pennsylvania for a speeding violation. At the time, Sales was a
Kentucky resident and had a Kentucky commercial driver’s license (“CDL”).
Upon accessing Sales’ Kentucky driving record, Trooper Morningstar learned
that Sales’ CDL had been suspended as of March 27, 2016. Trooper
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Morningstar cited Sales for speeding1 and for driving while commercial
operating privilege is suspended.
On May 26, 2016, a magisterial district judge convicted Sales of
speeding and driving while commercial operating privilege is suspended.
Sales filed a summary appeal with the trial court, which held a de novo
hearing on November 18, 2016. The trial court summarized the evidence
presented at the hearing as follows:
Trooper Morningstar testified that [on May 16, 2016] he
confronted [Sales] about the status of his license;
according to Trooper Morningstar, [Sales’] response was
“kind of a head cock, a shoulder shrug.” It appeared to
Trooper Morningstar that [Sales] was “indifferent” to the
fact that his license was suspended.
Under cross-examination, Trooper Morningstar clarified
that [Sales] did not state that he was unaware of the
license suspension.[2] When asked why his license was
suspended, [Sales] responded with “I don’t know” or
“unknown.”
[Sales] took the stand in his own defense. [Sales]
denied any knowledge of his license being suspended at
the time he was stopped by Trooper Morningstar. He
further denied receiving any letter or information from the
[Commonwealth] of Kentucky indicating his license was
suspended.
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1 75 Pa.C.S. § 3362.
Trooper Morningstar testified, “He didn’t tell me point-blank, I was
2
unaware. It was, Okay or a shrug of the shoulders, cock of the head.” N.T.,
11/18/16, at 13.
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Opinion Sur Pa.R.A.P. 1925(a), 3/9/17, at 3-4 (internal citations omitted)
(“1925(a) Op.”). Further:
The Commonwealth introduced Commonwealth’s Exhibit 1,
which consisted of the driving record of [Sales] as reported
by the [Commonwealth] of Kentucky. According to this
record, [Sales’ CDL] was “suspended.” The driving record
also establishes that Kentucky issued a suspension order
on March 27, 2016 for a violation of some type. It further
appears that the Kentucky Transportation Cabinet issued a
previous order of suspension on June 27, 2015 for “Failure
to Answer Court Summons.”
Id. at 3 (internal citations omitted). At the conclusion of the hearing, the
trial court found Sales guilty of driving while commercial operating privilege
is suspended and sentenced him to pay fines and costs in the amount of
$1,065.3
On December 14, 2016, Sales timely appealed to this Court. After
Sales filed his Pennsylvania Rule of Appellate Procedure 1925(b) statement,
the trial court issued a Rule 1925(a) opinion. In its opinion, the trial court
stated that it had erroneously convicted Sales and concluded that the
evidence at trial was insufficient to support the conviction:
In short, there was no evidence presented by the
Commonwealth to establish that the Kentucky
Transportation Cabinet mailed notice of the suspension to
[Sales] by first-class mail, as required by Kentucky law.
Further, there was no evidence presented upon which this
court could find [Sales] to have actual notice of the
suspension, i.e., no admission by [Sales] that he was
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3The trial court also granted Sales’ request to withdraw his summary
appeal from the speeding conviction.
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aware of the suspension or proof of receipt of notice of the
suspension.
Accordingly, this court is constrained to opine that it
erred in finding the Commonwealth’s evidence sufficient to
prove beyond a reasonable doubt that [Sales] had notice
of the suspension of his [CDL].
1925(a) Op. at 5 (internal citation omitted).
On appeal, Sales presents one question for our review: “Did the
Commonwealth prove [sic] sufficient evidence beyond a reasonable doubt
that [Sales] had been provided notice that his CDL was suspended so as to
convict [Sales] under 75 Pa.C.S. § 1606(c)(1)(ii)?” Sales’ Br. at 6.
Our standard of review of a sufficiency of the evidence claim “is
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. Heberling, 678 A.2d 794, 795 (Pa.Super. 1996).
Further:
[W]e 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.
Commonwealth v. Vetrini, 734 A.2d 404, 406-07 (Pa.Super. 1999)
(quoting Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa.Super.
1995)).
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The question in this appeal is whether the Commonwealth proved that
Sales had notice of the suspension of his Kentucky CDL to support a
conviction under section 1606(c)(1)(ii) of the Uniform Commercial Driver’s
License Act (“UCDLA”). Our Court addressed the notice requirement under
this section in Commonwealth v. Rose, 820 A.2d 164 (Pa.Super. 2003).
In that case, Rose was convicted under section 1606(c)(1)(ii) of the UCDLA
for driving with a suspended Florida CDL. On appeal, Rose argued that the
evidence was insufficient to prove beyond a reasonable doubt that he had
notice that his Florida CDL was suspended. Id. at 168-69.
This Court began by noting that “[t]he issue of whether notice of
suspension is required for conviction under [section] 1606-driving while
commercial license is suspended, is an issue of first impression before this
Court.” Id. at 169.
We have examined [section] 1543 of the Vehicle Code-
driving while operating privilege is suspended or revoked
to guide our inquiry with respect to [section] 1606 [of the
UCDLA]. Pennsylvania case law is well-settled that in
order to sustain a conviction under [section] 1543, the
Commonwealth must prove that the defendant had actual
notice that his license had been suspended or revoked.
Additionally, under [section] 1532(b), the Commonwealth’s
failure to notify a person of their driver’s license
suspension within a reasonable time may result in vacation
of the suspension if the person is prejudiced as a result.
Since actual notice is required to sustain a conviction for
[section] 1543-driving while operating privileges
suspended or revoked, we conclude that in order to
convict for [section] 1606, the commercial license
equivalent to [section] 1543, the Commonwealth
must demonstrate that a person received actual
notice that his [CDL] was suspended.
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Id. at 169-70 (internal citations omitted; emphasis added); see
Commonwealth v. Crockford, 660 A.2d 1326, 1329 (Pa. Super. 1995) (en
banc) (recognizing that actual notice is “a judicially created element,
designed to protect a defendant’s due process rights”).
In determining whether Rose had actual notice of his Florida CDL
suspension, we held that Florida law regarding proof of notice applied.
Rose, 820 A.2d at 170. Thus, we examined the notice provision of Florida’s
CDL suspension statute and the cases interpreting it. Id. at 170-71. We
determined that, under Florida law, because Rose’s suspension resulted from
his failure to pay a registration fee, the Commonwealth was required to
prove that Rose had, in fact, received notice of the suspension to establish a
violation under section 1606(c)(1)(ii) of the UCDLA. Id. at 171. We
concluded that although “the Commonwealth presented evidence that the
notice of suspension was mailed to [Rose], it failed to present evidence that
[Rose] received said notice.” Id. Therefore, we reversed Rose’s conviction.
Id.
Following Rose, the Commonwealth must prove that the defendant
had “actual notice” of the license suspension to support a conviction under
section 1606(c)(1)(ii) of the UCDLA. The Commonwealth may establish
“actual notice” either by: (1) presenting evidence that the defendant, in
fact, received notice of the suspension, such as the defendant’s own
admission or other evidence showing his or her receipt of notice; or
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(2) satisfying the standard for proving notice in the state of the license
suspension. As this Court explained in Crockford:
Notice is a question of fact, and anything that proves
knowledge or is legal evidence showing that knowledge
exists can be sufficient. As a practical matter, in most
cases it is virtually impossible for the Commonwealth to
prove positively that the defendant received express actual
notice of suspension; only the defendant would have such
knowledge. The Commonwealth, relying only upon the
facts and circumstances of a case, can, at best, impute
such knowledge to the defendant.
660 A.2d at 1330.4
Applying these principles to the facts of this case, we conclude that the
Commonwealth failed to establish that Sales actually received notice of the
Kentucky license suspension. Contrary to the Commonwealth’s assertion,
Trooper Morningstar’s testimony that Sales did not expressly deny receiving
notice at the time of the traffic stop was insufficient to prove that Sales, in
fact, received notice. Absent any evidence of actual notice, the
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In discussing the “actual notice” requirement, the Crockford Court
4
contrasted actual notice with constructive notice as follows:
Constructive notice is information or knowledge of a
fact imputed by law to a person (although he may not
actually have it), because he could have discovered the
fact by proper diligence, and his situation was such as to
cast upon him the duty of inquiring into it. . . .
Constructive notice is a presumption of law, while actual
notice requires proof of facts and circumstances
showing knowledge actually received.
660 A.2d at 1330 n.3 (quotation and internal citation omitted) (emphasis
added).
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Commonwealth was required to satisfy the standard for proving notice under
Kentucky law. Therefore, we must look to Kentucky law to determine if the
Commonwealth satisfied its burden of proof. See Rose, 820 A.2d at 170.
The Kentucky statute governing the suspension of a driver’s license,
whether commercial or non-commercial, provides:
The [Kentucky Transportation C]abinet or its agent
designated in writing for that purpose shall provide any
person subject to the suspension, revocation, or
withdrawal of their driving privileges, under provisions of
this section, an informal hearing. Upon determining that
the action is warranted, the [C]abinet shall notify the
person in writing by mailing the notice to the person
by first-class mail to the last known address of the
person. The hearing shall be automatically waived if not
requested within twenty (20) days after the [C]abinet
mails the notice. The hearing shall be scheduled as early
as practical within twenty (20) days after receipt of the
request at a time and place designated by the [C]abinet.
Ky. Rev. Stat. (“KRS”) § 186.570(4) (emphasis added). Therefore, to
establish that Sales violated section 1606(c)(1)(ii) of the UCDLA, the
Commonwealth was required to establish that the Kentucky Transportation
Cabinet sent notice of the license suspension via first-class mail to Sales’ last
known address.5
The Commonwealth contends that the trial court erred in applying
Rose’s notice requirement because Kentucky law does not require proof of
actual notice of the suspension, citing Commonwealth v. Duncan, 939
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Like the trial court, we have found no Kentucky case law interpreting
5
KRS § 186.570(4). See 1925(a) Op. at 3.
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S.W.2d 336 (Ky. 1997). We conclude, however, that the Commonwealth’s
reliance on Duncan is misplaced.
In Duncan, the Kentucky Supreme Court held that a certified copy of
the Kentucky Transportation Cabinet’s driver history is sufficient proof, by
itself, of a license suspension to support a conviction under Kentucky’s
statute prohibiting operation of motor vehicle with a suspended license. Id.
at 338-39 (citing KRS § 186.620(2)).6 Thus, the Commonwealth is correct
that Kentucky law does not require actual notice of the suspension to
support a conviction for driving with a suspended license under KRS
§ 186.620(2). However, KRS § 186.620(2) does not govern the resolution
of this case.
Unlike Kentucky, Pennsylvania law does require proof of actual notice
to support a conviction under section 1606(c)(1)(ii) of the UCDLA. We look
to Kentucky law only to determine the standard for proving notice of the
suspension, which is codified in KRS § 186.570(4). Under that provision, the
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6 KRS § 186.620(2) provides:
No person who has not applied for an operator’s license
or whose operator’s license has been denied, canceled,
suspended or revoked, or whose privilege to operate a
motor vehicle has been withdrawn, shall operate any
motor vehicle upon the highways while the license is
denied, canceled, suspended, or revoked or his privilege to
operate a motor vehicle is withdrawn, or the license has
not been applied for.
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Kentucky Transportation Cabinet must provide written notice of the
suspension to the licensee by first-class mail.
Here, the Commonwealth presented Sales’ Kentucky driving record,
which merely states the date on which his license was suspended. See
Cmwlth.’s Ex. 1. This document does not indicate that either a notice of
informal hearing or a notice of suspension was mailed to Sales as required
by KRS § 186.570(4). As the trial court found:
[T]here was no evidence presented by the Commonwealth
to establish that the Kentucky Transportation Cabinet
mailed notice of the suspension to [Sales] by first-class
mail, as required by Kentucky law. Further, there was no
evidence presented upon which this court could find
[Sales] to have actual notice of the suspension, i.e., no
admission by [Sales] that he was aware of the suspension
or proof of receipt of notice of the suspension.
1925(a) Op. at 4-5. Without any evidence of mailing of a notice to Sales,
the Commonwealth failed to prove beyond a reasonable doubt that Sales
had actual notice of his Kentucky license suspension. Therefore, we agree
with the trial court’s conclusion in its Rule 1925(a) opinion that the evidence
was insufficient to sustain Sales’ conviction.
Judgment of sentence reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/2017
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