Com. v. Heckman

• Decision Date: 08 May 1991
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Timothy S. HECKMAN, Appellant.
• Court: Pennsylvania Superior Court

Page 1261

590 A.2d 1261

404 Pa.Super. 335

COMMONWEALTH of Pennsylvania, Appellee, v. Timothy S. HECKMAN, Appellant.

Superior Court of Pennsylvania.

Argued April 3, 1991.

Filed May 8, 1991.

Douglas B. Chester, Spring Mills, for appellant.

J. Karen Arnold, Asst. Dist. Atty., Bellefonte, for Com., appellee.

Before JOHNSON, HUDOCK and CERCONE, JJ.

HUDOCK, Judge:

This is an appeal from the judgments of sentence imposed upon Appellant after he was found guilty of two separate instances of driving under suspension and two violations concerning licenses. Timely filed post-verdict motions were granted in part and denied in part by the trial court. Appellant was sentenced to an aggregate term of ninety days incarceration and a total of $1400 in fines. This direct appeal followed. We affirm.

The facts may be summarized as follows: On April 16, 1988, Trooper John Kruse of the Pennsylvania State Police stopped Appellant and cited him for speeding. At that time, Trooper Kruse ran a computer check on Appellant's driver's license, which revealed that Appellant's license was under suspension and that the suspension was possibly DUI-related. According to testimony, Trooper Kruse advised Appellant that his license was under suspension and refused to allow Appellant to drive away from the point where he had been stopped. Trooper Kruse also testified, however, that he was not sure of the status of Appellant's license at that time and had to verify it with the Pennsylvania Department of Transportation (PennDot). Thus, pursuant to the requirements set forth in 75 Pa.C.S.A. § 1543(d), Trooper Kruse sent to PennDot for a certified driving record in order to verify the suspension and determine the appropriate subsection of § 1543 under which to file his citation. Consequently, Trooper Kruse filed only a citation for speeding at that time, pending verification of the status of Appellant's driver's license.

On May 11, 1988, Trooper Kruse received a certified copy of Appellant's driving record which indicated an indefinite suspension beginning March 14, 1988, for failing to pass an exam. Based on this information, Trooper Kruse filed a driving under suspension citation against Appellant on May 12, 1988, pursuant to 75 Pa.C.S.A. § 1543(a). Appellant's certified driving record also showed a court ordered DUI/ARD suspension for thirty days, effective October 6, 1987, which included a notation that official notice was mailed on September 1, 1987. However, Trooper Kruse testified that since there was no indication on Appellant's record that this DUI/ARD suspension had not expired thirty days from its effective date, he had no reason to file a citation for driving under suspension with regard to the DUI/ARD suspension.

Also on May 11, 1988, Trooper Thomas Breon of the Pennsylvania State Police stopped Appellant and cited him for speeding. Trooper Breon did not run a computer check on Appellant's license, and was thus unaware of its suspension. Later that evening, Trooper Breon learned from Trooper Kruse that Appellant's license had been indefinitely suspended, for failing to pass an exam, effective March 14, 1988. Based on this information, Trooper Breon filed citations against Appellant on May 16, 1988, for driving under suspension, supra, and violations concerning licenses, 75 Pa.C.S.A. § 1571(a)(1) and (4). Like Trooper Kruse, Trooper Breon testified that he believed Appellant's DUI/ARD suspension had terminated November 6, 1987, since the certified driving record did not indicate otherwise.

Appellant entered guilty pleas to the speeding violations and subsequently requested a magistrate's hearing on all of the remaining citations issued by Troopers Kruse and Breon. This hearing was originally scheduled for June 17, 1988. However, on June 16, 1988, counsel for PennDot advised the Commonwealth via telephone that Appellant was in fact under a DUI/ARD suspension due to the fact that Appellant had not relinquished his license until June 1, 1988. The Commonwealth relayed this information to Troopers Kruse and Breon and contacted the magistrate to request a continuance of the hearing for the purpose of awaiting receipt by the Troopers of more specific, supplemental information from PennDot sufficient to establish DUI-related suspension violations. Counsel who represented Appellant at that time agreed to the continuance. Troopers Kruse and Breon received documentation of this information on July 5, 1988, and used same as the basis to file supplemental driving under suspension citations against Appellant, pursuant to 75 Pa.C.S.A. § 1543(b).

Appellant's hearing before the magistrate took place on July 20, 1988. After presiding over Appellant's hearing, District Justice Ronald J. Horner rendered his decision on August 9, 1988. Appellant was convicted of the citations filed by Trooper Breon and found not guilty of the citations filed by Trooper Kruse. Appellant then appealed to the trial court on August 22, 1988, contending that his conviction was barred by the statute of limitations under 42 Pa.C.S.A. § 5553(a) and that he did not receive notice that his license had been suspended. A non-jury trial, (summary appeal), was held on December 20, 1988. Although two citations had been dismissed by the District Justice, the trial court proceeded to try Appellant on all six citations filed. Appellant was found guilty on all six citations.

Timely post-verdict motions were filed by Appellant. The trial court, upon recognizing the fact that two citations had been dismissed by the District Justice, arrested judgment rendered in regard to them. Thus, the trial court ultimately found Appellant guilty of two counts of driving under suspension, pursuant to 75 Pa.C.S.A. § 1543(a) and § 1543(b), respectively, and one count each of violations concerning licenses, 75 Pa.C.S.A. § 1571(a)(1), and violations concerning licenses, 75 Pa.C.S.A. § 1571(a)(4).

Appellant first claims that his conviction under 75 Pa.C.S.A. § 1543(b) is barred by the applicable statute of limitations. ¹ Section 5553(a) of the Judicial Code, 42 Pa.C.S.A., provides as follows:

(a) General rule.--Except as provided in subsection (b) or (c), proceedings for summary offenses under Title 75 (relating to vehicles) must be commenced within 30 days after the commission of the alleged offense or within 30 days after the discovery of the commission of the offense or the identity of the offender, whichever is later, and not thereafter. (Emphasis added).

The above-emphasized language is at issue in the present case since it is clear that the § 1543(b) citation was issued more than thirty days after commission of the offense. Appellant argues that this language is likewise inapplicable since the citation was filed more than thirty days after the DUI-related suspension was "discovered" by the police. Appellant supports this conclusion by presenting the following two arguments: The computer check run by Trooper Kruse in April, 1988, provided a legal basis for the filing of § 1543(b) citations under the rationale of Commonwealth v. Larson, 299 Pa.Super. 252, 445 A.2d 550 (1982) and, alternatively, that if "discovery" did not occur at that time, it occurred no later than May 11, 1988, when Trooper Kruse received Appellant's certified driving record and showed it to Trooper Breon. Appellant further states that if the certified driving record was misinterpreted by the Troopers as not providing a basis for the filing of a § 1543(b) violation, he cannot be held accountable because they should have "discovered" such basis.

Appellant's reliance on Commonwealth v. Larson, supra, in support of his first argument is misplaced since it was decided prior to the amendment of § 1543(b). In Larson, this Court held a charge of operating while under a DUI-related suspension should have been dismissed because it was filed beyond the thirty-day limitation period from the date of the offense, on the rationale that the officer in that case could have filed the DUI-related citation on the basis of the computer check, which indicated a "suspension", and, thereafter, if the certified driving record had not been received by the time of the scheduled hearing, a continuance could then be requested. Larson, therefore, suggests that a police computer check would not suffice in lieu of a certified driving record as proof of the suspension at the time of the hearing. Larson was also decided at a time when all suspensions, regardless of the underlying reason therefor, were grouped under the equivalent of what would now be a § 1543(a) violation. Subsequently, § 75 Pa.C.S.A. § 1543(b) was enacted which specifically dealt with DUI-related suspensions.

Following enactment of § 1543(b), several trial court decisions held that, where only a § 1543(a) citation was filed at the time of the offense, absent an amendment or supplemental citation filed prior to the hearing, a defendant could be neither convicted at the hearing of a § 1543(b) violation, nor subject to its mandatory penalties, even where information obtained subsequent to the original filing established that § 1543(b) was applicable. See e.g., Commonwealth v. Lambert, 28 D. & C.3d 339 (Northampton Co. 1983); Commonwealth v. Chapman, 39 D. & C.3d 360 (Clinton Co.1983). In an apparent response to these cases, the Pennsylvania Legislature, in 1987, enacted 75 Pa.C.S.A. § 1543(d) which provides:

(d) Citation of appropriate subsection.--Prior to filing a citation for a violation of this section with the issuing authority named in the citation, the police officer shall verify the basis of the suspension with the department. Upon receiving the verification, the officer shall cite the appropriate subsection of this section on the citation.

Appellant argues that the Troopers in the present case could have satisfied the verification requirement of the above subsection by phone or a personal visit to PennDot. Our research has failed to uncover an appellate case which...