Com. v. Crockford

• Decision Date: 08 June 1995
• Citation: 443 Pa.Super. 23,660 A.2d 1326
• Parties: COMMONWEALTH of Pennsylvania v. James William CROCKFORD, Appellant.
• Court: Pennsylvania Superior Court

Page 1326

660 A.2d 1326

443 Pa.Super. 23

COMMONWEALTH of Pennsylvania v. James William CROCKFORD, Appellant.

Superior Court of Pennsylvania.

Argued Feb. 22, 1995.

Filed June 8, 1995.

Albert J. Flora, Jr., Wilkes-Barre, for appellant.

Peter Paul Olszewski, Jr., Dist. Atty., Wilkes-Barre, for Com., appellee.

Harold H. Cramer, Philadelphia, for PA Dept. of Transp., amicus curiae.

Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, CIRILLO, BECK, TAMILIA, FORD ELLIOTT and SAYLOR, JJ.

FORD ELLIOTT, Judge:

Appellant comes before us challenging the judgment of sentence imposed upon him following his conviction pursuant to 75 Pa.C.S.A. § 1543(b), pertaining to driving while operating privileges are suspended or revoked. Finding no error below, we affirm.

The factual setting from which this case devolves is simply recounted. The Commonwealth presented a single witness at trial. State Trooper Robert Halecky testified that on March 1, 1993, while on patrol in a marked police car, he observed appellant operating a vehicle with an expired inspection sticker. Prompted to effect a traffic stop of appellant, Trooper Halecky asked appellant to produce a driver's license and an owner's card, but appellant was unable to comply with the license request since he was not carrying one. Upon discerning appellant's name, address, and date of birth, Trooper Halecky returned to his car and ran a records check on appellant. The records check revealed that appellant's license had been suspended. When Trooper Halecky questioned appellant as to why he was under suspension, appellant was unable to state a possible reason.

Trooper Halecky went on to testify that subsequent receipt of appellant's certified driving record from the Pennsylvania Department of Transportation (PennDOT) revealed that appellant's driver's license had been suspended for driving under the influence. The record further indicated that the license suspension was effective for one year from October 28, 1992, and that official notice thereof was mailed to appellant on that same date.

Following Trooper Halecky's testimony, the Commonwealth offered appellant's certified driving record into evidence and rested. Appellant thereupon demurred on the basis that the Commonwealth had failed to meet its burden of proof insofar as demonstrating that appellant had actual notice of his license suspension. The trial court refused to grant a demurrer and the defense proceeded with its case, likewise presenting a sole witness, in the person of appellant.

In the course of his testimony, appellant admitted that he had two prior convictions for driving under the influence. ¹ He had been told that his license would be suspended and that he would be notified by the state. Appellant was asked by the court to produce his license at trial and was told that the court would find him not guilty if he could. Notes of testimony, 2/2/94 at 23. Appellant explained that he did not bring his license because he was not instructed to do so, and he did not think to bring it on his own because it was no longer valid. Appellant was convicted of driving while under suspension, and now appeals.

Although couched by appellant as two arguments, he effectively raises a single issue on appeal. Appellant avers that the Commonwealth must show that appellant had actual notice of his suspension, and that it failed to meet this burden. We agree that the Commonwealth bears the burden of proving notice beyond a reasonable doubt, but find that the Commonwealth's evidence at trial, left unrebutted, sufficiently proved such notice. Therefore, we affirm.

Preliminarily, we begin by reiterating our standard of review:

In examining a challenge to the sufficiency of the evidence, it is well established that an appellate court must determine whether the evidence was sufficient to enable the jury to find every element of the crime charged beyond a reasonable doubt, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner.

Commonwealth v. Zimmick, 539 Pa. 548, 554, 653 A.2d 1217, 1220 (1995). It would also be beneficial at this point to set out the particular statute at issue:

§ 1543. Driving while operating privilege is suspended or revoked

....

(b) Certain offenses.--Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S.A. § 1543(b).

The seminal case in this area is Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), which held that it is necessary for the Commonwealth to prove that the accused had actual notice of suspension in order to convict of driving while under suspension. Kane interpreted the former 75 P.S. § 624, our prior statute governing driving under suspension. Under § 624, driving while under suspension was a misdemeanor subject to the general culpability requirements of 18 Pa.C.S.A. §§ 301, 302, and proof of mens rea. 75 Pa.C.S.A. § 1543(b), however, is defined by the Legislature as a summary offense. As such, it is exempted from general culpability requirements pursuant to 18 Pa.C.S.A. § 305. Still, our supreme court has plainly held that proof of actual notice of suspension remains a necessary element of 75 Pa.C.S.A. § 1543. See Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993). See also Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). Notice is, therefore, a judicially created element, designed to protect a defendant's due process rights.

In addition to requiring actual notice, Kane also ruled that proof that notice was mailed was not sufficient alone to prove the vital element of actual notice. As the Kane court stated:

[T]he issue now being discussed is not whether evidence of mailing is admissible evidence, but whether admissible evidence of mailing, standing alone, is sufficient evidence to establish one of the elements of the crime beyond a reasonable doubt. ... [E]ven though an inferred fact is more likely than not to follow from a proven fact, in a criminal case, the inference 'must also satisfy the criminal "reasonable doubt" standard if proof of the crime charged or an essential element thereof depends upon its use.'

....

... Although the records stated that a notice had been mailed, there was no other proof that appellant had actual notice of his suspension. There was no evidence ... that appellant's operator's license was returned to the Bureau ... There was no evidence that the appellant resided at the address shown on the notice at the time the notice was mailed. Moreover, we note that the appellant's address typed on the notice of suspension was different from the appellant's address typed in two other places in the certified records.

Id., 460 Pa. at 584-86, 333 A.2d at 926, quoting Leary v. United States, 395 U.S. 6, 36 n. 64, 89 S.Ct. 1532, 1548 n. 64, 23 L.Ed.2d 57, 81, n. 64 (1969) (emphasis in original). The concern of the Kane court was, quite simply, that letters get lost in the mail; evidence of mailing alone might suffice to show a strong likelihood of actual notice, but it could not constitute proof beyond a reasonable doubt.

In the twenty years since Kane was decided, numerous rulings of both the supreme court and this court have refined its basic message. While these cases have set out no hard and fast rule as to the kinds of proof required to establish actual notice of suspension, they do indicate that evidence of mailing of notice coupled with some other, additional evidence of knowledge will suffice to establish actual notice beyond a reasonable doubt. ² The question has always been, how much evidence is sufficient.

In Commonwealth v. Burkett, supra, 300 Pa.Super. 72, 445 A.2d 1304, for example, this court held that evidence that notice was mailed, combined with evidence that defendant returned his license to the Bureau of Traffic Safety, and that, when stopped by police, defendant switched seats with a passenger, was sufficient to establish actual notice beyond a reasonable doubt.

In Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985), this court was uncertain whether the additional evidence established actual notice, and therefore remanded for an evidentiary hearing. In Martin, the defendant's certified driving record was admitted into evidence. This record showed the original mailing and also displayed a cryptic notation that an affidavit had thereafter been received. We remanded to determine if this affidavit evinced actual notice.

In Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), allocatur denied, 514 Pa. 638, 523 A.2d 345 (1987), we found actual notice where there was evidence that notice was mailed, together with proof that the defendant had surrendered his license on a previous suspension for which notice was mailed to the same address, as well as evidence that the defendant was not carrying his license when he was stopped.

In Commonwealth v. Horney, supra, at 365 Pa.Super. 152, 529 A.2d 18, actual notice was found where there was evidence that notice was mailed, together with defendant's admission that he received an earlier letter at the same address notifying him that he had to take a special exam to keep his driver's license, and evidence that he failed to complete the exam.

More recently, in Commonwealth v. Dietz, supra, 423 Pa.Super. 366, 621 A.2d 160, actual notice was predicated upon mailing of notice combined with several...