J-S16013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    JAMES ROBERT SHOCK                         :
                                               :
                       Appellant               :   No. 1617 MDA 2018

        Appeal from the Judgment of Sentence Entered August 28, 2018
                 In the Court of Common Pleas of York County
             Criminal Division at No(s): CP-67-CR-0004340-2017


BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                         FILED: MAY 20, 2019

        James Robert Shock appeals from the judgment of sentence imposed

on August 28, 2018, in the Court of Common Pleas of York County, following

his jury conviction of one count of driving under the influence — highest rate

of alcohol, fourth offense (DUI).1 The trial court then convicted him of one

count each of driving under suspension — DUI related (DUS) and driving on

roadways laned for traffic.2 The court sentenced him to 15¼ to 60 months’

imprisonment. On appeal, Shock challenges the sufficiency of the evidence

underlying his conviction for DUS. Based upon the following, we affirm.




____________________________________________


1 75 Pa.C.S.A. § 3802(c); we note that the Commonwealth nolle prossed a
second count of DUI, 75 Pa.C.S.A. § 3802(a)(1).

2   75 Pa.C.S.A. §§ 1543(b)(1.1)(i) and 3309(1), respectively.
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      We take the underlying facts and procedural history in this matter from

the trial court’s November 30, 2018 opinion and our independent review of

the certified record.

      On July 7, 2017, at approximately 1:41 a.m., Officer Joshua Poplin
      of the Southwest Regional Police Department conducted a traffic
      stop after observing [Shock] driving north in the southbound lane
      on Seven Valleys Road in North Codorus Township, York County.
      When Officer Poplin made contact with [Shock], he detected an
      aroma of alcoholic beverage on his breath. Officer Poplin later
      observed that [Shock’s] speech was slurred and his eyes were
      glassy and bloodshot. After [Shock] failed multiple field sobriety
      tests, Officer Poplin placed him under arrest and transported him
      to York County Central Booking where a blood draw ultimately
      yielded a .203 blood alcohol content (BAC).

Trial Court Opinion, 11/30/2018, at 2.

      A jury trial took place on July 12, 2018. At trial, without objection, the

Commonwealth submitted into evidence Shock’s certified driving record. N.T.

Trial, 7/12/2018, at 98. The record showed that, at the time of the incident,

Shock’s driver’s license was suspended because of a previous DUI. Id. The

record also demonstrated that the Pennsylvania Department of Transportation

(PennDOT) mailed notice of the suspension to Shock on August 29, 2016, and

that the suspension was for five years.       Id. at 99.    When offered the

opportunity to cross-examine Officer Poplin with respect to the certified

record, defense counsel declined. Id.

      At trial, Shock took the stand in his own defense. Id. at 109-116. While

Shock vigorously contested the Commonwealth’s version of the events of July




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7, 2017, at no point did he contend that he was unaware of the fact that

PennDOT had suspended his driver’s license. Id.

     As noted above, the jury found Shock guilty of DUI and the trial court

found him guilty of DUS and driving on roadways laned for traffic. Sentencing

took place on August 28, 2018. At the sentencing hearing, the trial court

specifically expressed its concern about Shock’s lengthy history of motor

vehicle violations and driving under suspension. N.T. Sentencing, 8/28/2018,

at 6-7.     In response, Shock did not claim that he was unaware of the

suspension, but rather apologized and stated he did not have a good reason

for his actions. Id. at 7. The Commonwealth placed on the record that this

was Shock’s fourth DUI and that PennDOT had designated him to be a habitual

offender on August 18, 2015. Id. at 8-9. The trial court sentenced him to an

aggregate sentence of 15¼ to 60 months’ imprisonment. Shock did not file

any post-sentence motions.

     The instant, timely appeal followed.   In response to the trial court’s

order, Shock filed a timely concise statement of errors complained of on

appeal on October 22, 2018. The trial court issued an opinion on November

30, 2018.

     On appeal, Shock claims that the evidence was insufficient to sustain

his conviction for DUS because the Commonwealth failed to prove he had

actual notice of the suspension. We disagree.




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     Our standard of review for a claim of insufficient evidence is as follows:

     The determination of whether sufficient evidence exists to support
     the verdict is a question of law; accordingly, our standard of
     review is de novo and our scope of review is plenary. In assessing
     [a] sufficiency challenge, we must determine whether viewing all
     the evidence admitted at trial in the light most favorable to the
     [Commonwealth], there is sufficient evidence to enable the
     factfinder to find every element of the crime beyond a reasonable
     doubt.     [T]he facts and circumstances established by the
     Commonwealth need not preclude every possibility of innocence.
     . . . [T]he finder of fact while passing upon the credibility of
     witnesses and the weight of the evidence produced, is free to
     believe all, part[,] or none of the evidence.

Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)

(quotation marks and citations omitted).    Moreover, “[t]he Commonwealth

may sustain its burden of proving every element of the crime beyond a

reasonable     doubt   by   means   of    wholly   circumstantial   evidence.”

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation

omitted), appeal denied, 32 A.3d 1275 (Pa. 2011).

     To sustain a conviction pursuant to 75 Pa.C.S.A. § 1543(b), the

Commonwealth must prove that the defendant had actual notice that his

license had been suspended or revoked. Commonwealth v. Kane, 333 A.2d

925 (Pa. 1975). Solely establishing that PennDOT mailed notice is insufficient

to prove actual notice. Id. at 926. The Commonwealth has to establish actual

notice, “which may take the form of a collection of facts and circumstances

that allow the fact finder to infer that a defendant has knowledge of

suspension.”    Commonwealth v. Crockford, 660 A.2d 1326, 1331 (Pa.

Super. 1995), appeal denied, 670 A.2d 140 (Pa. 1995). Further, “notice is a



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question of fact, and anything that proves knowledge or is legal evidence that

knowledge exists can be sufficient.” Id. at 1330. This Court has held that

evidence of mailing of the notice paired with some other, additional evidence

of knowledge is sufficient to show actual notice beyond a reasonable doubt.

Id. at 1329. Our Supreme Court has discussed the factors we may look to in

determining this issue as follows:

      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.

Commonwealth v. Zimmick, 653 A.2d 1217, 1221 (Pa. 1995) (citation

omitted).

      Here, Shock’s certified driving record shows that PennDOT had

suspended his license nearly one year prior to the time of the traffic stop

underlying this case.   N.T. Trial, 7/12/2018, at 98-99, Exhibit 2.     It also

reflects that PennDOT sent the notice to Shock’s address of record and the

United States Postal Service (USPS) did not return the notice as undeliverable.

Id. Moreover, the suspension was incurred because of a prior DUI; this was

Shock’s fourth conviction for DUI; he was still on probation and/or parole for


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two prior DUI offenses at the time of the incident; and PennDOT had

designated him as a habitual offender approximately two years prior to this

incident. See id.; N.T. Sentencing, 8/28/2018, at 7-9, 12, 14-17. At trial,

Shock never testified that he did not receive the notice, nor did he object to

the admission of the certified driving record. Thus, this evidence coupled with

the evidence of mailing establishes actual notice beyond a reasonable doubt.

See Zimmick, supra at 1221. Shock’s claim fails.

      For all the foregoing reasons, we affirm Shock’s judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2019




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