Com. v. Zimmick

• Decision Date: 23 January 1995
• Citation: 653 A.2d 1217,539 Pa. 548
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Kevin Lee ZIMMICK, Appellant.
• Court: Pennsylvania Supreme Court

Page 1217

653 A.2d 1217

539 Pa. 548

COMMONWEALTH of Pennsylvania, Appellee, v. Kevin Lee ZIMMICK, Appellant.

Supreme Court of Pennsylvania.

Argued March 9, 1994.

Decided Jan. 23, 1995.

John A. Knorr, for appellant.

John J. Driscoll, Dist. Atty., Leslie J. Uncapher, Asst. Dist. Atty., for appellee.

Before NIX, C.J., and FLAHERTY, ZAPPALA, PAPADAKOS, CAPPY, CASTILLE and MONTEMURO, JJ.

OPINION

CASTILLE, Justice.

Appellant raises two issues on appeal to this Court from the judgment of the Superior Court affirming the judgment of sentence by the trial court 431 Pa.Super. 624, 631 A.2d 219. The first issue is whether there was sufficient evidence to support appellant's conviction for driving a motor vehicle while his license was suspended as a result of a conviction for driving under the influence ("DUI") where appellant alleges that the Commonwealth failed to prove that he received actual notice of the suspension where the Pennsylvania Department of Transportation (PennDOT) sent notice of his suspension to an expired address. The second issue is whether appellant is estopped from asserting a lack of notice defense on PennDOT's failure to mail his notice to his current address where appellant himself failed to provide PennDOT with his current address as required by 75 Pa.C.S. § 1515. For the reasons expressed below, we affirm the order of the Superior Court affirming appellant's judgment of sentence.

Following a trial de novo in the Court of Common Pleas of Westmoreland County, the trial court convicted appellant of driving while his license was suspended as a result of a DUI offense. ¹ The evidence at trial established that previously on June 1, 1990, appellant pleaded guilty and was convicted of driving under the influence. ² At the time of his plea, the trial court advised him that his license would be suspended. ³ Per a certified copy of PennDOT's notice of suspension, appellant's license was indeed suspended for one year effective July 10, 1990, as mandated by 75 Pa.C.S. § 1532(b). PennDOT mailed the one-year suspension notice by first class mail on July 10, 1990, to appellant's address of record, 600 H Deborah Jane Drive, Pittsburgh, Pennsylvania, which, unbeknownst to PennDOT, was an expired address. There was no evidence that the notice was ever returned to PennDOT as undeliverable.

Approximately five months later, on November 13, 1990, a police officer stopped appellant for a broken light. The officer testified that at the time of his stop, appellant was unable to produce a driver's license. He therefore conducted a check on appellant and learned that appellant's license had been suspended for one year as a result of the prior DUI conviction. The officer also testified that as he began to issue a citation (for a violation of 75 Pa.C.S. § 1543(b)), appellant asked him not to do so because he did not want to go to jail. ⁴ Despite appellant's plea, the officer proceeded with the issuance of the citation, which gave rise to the conviction presently challenged by appellant.

Appellant testified in his own behalf and admitted that at the time he was stopped he did not have a valid driver's license and that he had not had a valid driver's license for several years. Appellant also testified that he knew his license was suspended at the time the officer stopped him, but claimed that it had been suspended because of speeding, reckless driving, and accumulation of points, not because of his DUI conviction. ⁵ When appellant was first questioned regarding whether the sentencing court had advised him during his guilty plea for his DUI offense that his license would be suspended for one year, appellant first stated that he had been so advised. He then immediately changed this statement to say that the sentencing court had stated only that his license would be suspended for a month and that PennDot would notify him by mail of how long his license would be suspended beyond the one month period. ⁶

Appellant further testified that he never specifically notified PennDOT of his change of address ⁷ although he had notified the post office. Appellant asserted that he never saw PennDOT's written notice of the suspension even though the post office had forwarded other mail to appellant from his expired address. However, he admitted that he never received notice that his license, which he knew had been suspended for some period of time, was eligible for restoration.

After convicting appellant of driving while his operating privilege was suspended in connection with a DUI offense, the trial court found that the evidence, and the reasonable inferences therefrom, sufficiently demonstrated that appellant had actual notice of his suspension despite the fact that the evidence revealed that PennDOT's notice of suspension had been sent to an expired address, and even though the Commonwealth did not prove that appellant actually received a copy of PennDOT's written notice of suspension. The trial court further found that, notwithstanding the lack of evidence demonstrating actual receipt of the PennDOT notice by the appellant, appellant was nevertheless estopped from arguing lack of notice based upon PennDOT's mailing of the notice to an expired address. The trial court found that PennDOT's failure to send the notice to a current address and appellant's alleged failure to receive such notice was solely because of appellant's own failure to apprise PennDOT of his current address in dereliction of his statutorily mandated duties under 75 Pa.C.S. § 1515.

Following a denial of appellant's post-trial motions challenging the sufficiency of the evidence, the trial court sentenced appellant to ninety (90) days incarceration and a fine of $1,000. The Superior Court affirmed the judgment of sentence.

I. Sufficiency of Evidence

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. Thomas, 527 Pa. 511, 594 A.2d 300 (1991). Viewed under this standard, we find that the Commonwealth amply demonstrated that appellant had actual notice of his suspension.

75 Pa.C.S. § 1543 provides in pertinent part:

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 ... because of a violation of section ... 3731 [driving under the influence of alcohol or controlled substance], 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.

In Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), this Court held that the Commonwealth also must prove that the defendant had actual notice that his license had been suspended or revoked in order for a conviction under this statute to stand. ⁸

Appellant claims that the Commonwealth did not meet its burden of proof because it failed to establish that PennDOT sent the notice of suspension to the correct address or that he received the written notice. Appellant urges this Court, in essence, to find that absent such proof, the finder of fact cannot find that the accused had actual notice of his suspension. However, lack of evidence that a written notice of suspension was sent to a defendant's current address or received by the accused does not, as appellant suggests, demonstrate per se that a person did not have actual notice. ⁹ For the Court to adopt this bold argument would require that a finder of fact literally ignore a wealth of other factors which may also serve to demonstrate that a defendant had actual notice of a license suspension, many of which are present in this case.

Factors that a finder of fact may consider in determining circumstantially or directly whether a defendant had actual notice of his or her suspension include, but are not limited to, evidence that the defendant was verbally or in writing apprised of the license suspension during the trial or a plea, statements by the accused indicating knowledge that he or she was driving during the period in which his or her license had been suspended, 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 or awareness of guilt. See, e.g., Commonwealth v. Dietz, 423 Pa.Super. 366, 370-71, 621 A.2d 160, appeal denied, 535 Pa. 634, 631 A.2d 1007 (1993) (driver's flight from crash site and misleading conduct demonstrated that driver knew he was not permitted to drive; driver's failure to produce a driver's license is presumptive knowledge of suspension).

In this matter, there was sufficient evidence to demonstrate that appellant had actual notice that his license was suspended at the time he chose to drive without it in November of 1990. The Commonwealth proved that appellant pleaded guilty to the underlying DUI offense giving rise to his license suspension; that the DUI offense had a sentence of a mandatory one year license suspension which if violated, required imprisonment; that at the time appellant pleaded guilty he was informed by the trial court that his license would be suspended as a result of his DUI conviction; ¹⁰ that he never received a notice informing him that his license was eligible for restoration; that at the time appellant was stopped in November of 1990, appellant was aware that he had not had a valid driver's license for years; and...