J-S05012-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                       IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

DANIEL VINCENT SCHOONOVER,

                            Appellant                    No. 800 MDA 2015


          Appeal from the Judgment of Sentence Entered April 9, 2015
                In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-SA-0000009-2015


BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J.*

DISSENTING MEMORANDUM BY BENDER, P.J.E.:                FILED MARCH 24, 2016

        For the following reasons, I would conclude that the evidence was

insufficient to prove that Appellant received actual notice of his license

suspension. Accordingly, I respectfully dissent.

        Essentially, the Commonwealth’s evidence regarding notice amounted

to proof that PennDOT mailed the notice to Appellant’s correct address,

which is insufficient under Commonwealth v. Kane, 333 A.2d 925, 926

(Pa. 1975), and its progeny.          The only additional evidence the trial court

cites to support that actual notice was provided is the fact that the notice

was not returned as undeliverable or unclaimed. The Majority agrees with



____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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the trial court that this one additional fact renders the evidence sufficient to

prove actual notice.

      I disagree. In the case relied upon by the Majority, Commonwealth

v. Zimmick, 653 A.2d 1217 (Pa. 1995), our Supreme Court held that the

defendant received actual notice of his license suspension, observing that,

“[t]here was no evidence that the notice was ever returned to PennDOT as

undeliverable.”   Zimmick, 653 A.2d at 1219.         However, the Court also

emphasized various other circumstances not present in Appellant’s case. For

instance, Zimmick had been informed by the trial court, at the time he pled

guilty to driving under the influence of alcohol, that his license would be

suspended. Id. Zimmick also did not have a license in his possession when

he was stopped by a police officer after his suspension began, and he

indicated his knowledge of the suspension by asking that the officer not

“issue a citation … because he did not want to go to jail.”       Id. (footnote

omitted). Additionally, Zimmick took the stand at his trial for driving with a

suspended license “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.     [Zimmick] also testified that he knew his license was

suspended at the time the officer stopped him….” Id.

      Unlike in Zimmick, Appellant was in possession of his license when

stopped by Trooper Glentzer. N.T. Trial at 7 (Trooper Glentzer’s testifying

that Appellant possessed what appeared to be a valid driver’s license at the

time of the traffic stop). This fact bolsters Appellant’s lack of notice defense.

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See Commonwealth v. Dietz, 621 A.2d 160, 162 (Pa. Super. 1993)

(holding “that in order for a person to invoke the defense that there was no

notice of the suspension or revocation of the license, at a minimum it must

be established at trial, that a current driver’s license was produced at the

time of the offense, or within 15 days thereafter, as provided in 75 Pa.C.S.A.

[§] 1511”).   Moreover, Appellant did not make any statements during the

traffic stop, or at trial, indicating his knowledge of the suspension. Indeed,

Trooper Glentzer testified that Appellant stated that he did not know his

license was suspended, and Appellant acted surprised when told of that fact.

Appellant also did not behave in any manner that suggested he was aware

that he was not permitted to drive.       See Zimmick, 653 A.2d at 1221

(stating the fact finder may consider “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”);

Contra Dietz, 621 A.2d at 162 (finding actual notice satisfied where, inter

alia, Dietz’s conduct indicated he knew he was not permitted to drive, as

Dietz fled from the scene of a traffic accident and then claimed his wife was

driving when police questioned him); Commonwealth v. Baer, 682 A.2d

802, 806 (Pa. Super. 1996) (concluding actual notice was proven where

there was evidence that the notice was mailed to Baer’s correct address,

Baer “admitted receiving the letter which notified her that her operator’s

privilege would be suspended if she did not comply with the requirements




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set forth in the letter[,]” and Baer “paid the fines” outlined in the notice, but

“failed to take the steps necessary to restore her driving privileges”).

      In sum, I disagree with the Majority’s suggestion that Zimmick

permits us to conclude, under the specific circumstances of this case, that

the evidence was sufficient based only on the fact that the notice was mailed

to Appellant’s correct address and it not returned as undeliverable. I would

instead hold that the trial court committed an error of law by deeming this

evidence sufficient, and I would reverse Appellant’s judgment of sentence.




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