J-S19028-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

CHARLES WESLEY HENNING, III

                            Appellant               No. 1686 EDA 2015


                  Appeal from the Order entered May 12, 2015
                In the Court of Common Pleas of Monroe County
                Criminal Division at No: CP-45-SA-0000015-2015


BEFORE: BENDER, P.J.E., STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                            FILED JUNE 08, 2016

       Appellant, Charles Wesley Henning, III, appeals from the May 12,

2015 order entered in the Court of Common Pleas of Monroe County,

denying the appeal of his summary conviction for driving with a license DUI

suspended under 75 Pa.C.S.A. § 1543(b).1 Following review, we affirm.
____________________________________________


1
  75 Pa.C.S.A. § 1543(b), relating to driving while operating privileges are
suspended or revoked, provides, in relevant part:

       (1) A person who drives a motor vehicle on a highway or
       trafficway of this Commonwealth at a time when the person’s
       operating privilege is suspended or revoked as a condition of
       acceptance of Accelerated Rehabilitative Disposition for a
       violation of section 3802 (relating to driving under influence of
       alcohol or controlled substance) . . . shall, upon conviction, be
       guilty of a summary offense and shall be sentenced to pay a fine
       of $500 and to undergo imprisonment for a period of not less
       than 60 days nor more than 90 days.
(Footnote Continued Next Page)
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      The trial court summarized the testimony presented at Appellant’s May

12, 2015 summary appeal hearing as follows:

            Sergeant Jeffrey Bowman is a patrol sergeant with Pocono
      Mountain Regional Police Department (PMRPD) and has worked
      there since 1990. On December 10, 2014, Sgt. Bowman was
      working a routine patrol on the 7:00 [a.m.] to 3:00 [p.m.] shift.
      Sgt. Bowman testified that the week prior to that date, he
      received information at roll call that [Appellant] had a DUI
      suspension and had been seen operating a motor vehicle. On
      December 10, 2014, while monitoring traffic, Sgt. Bowman saw
      a vehicle that he knew belonged to [Appellant], and observed
      [Appellant] driving the vehicle. Sgt. Bowman then stopped the
      vehicle and made contact with [Appellant].

            Sgt. Bowman asked [Appellant] for his license and
      registration and [Appellant] acknowledged to Sgt. Bowman he
      did not have his license as it was still under suspension.
      [Appellant] went on to explain to Sgt. Bowman that he was
      supposed to have an ignition interlock and had not been able to
      get that taken care of yet.      Sgt. Bowman then pulled up
      [Appellant’s] driving record on the MVP of the patrol car to
      confirm the suspension was still in effect,[2] and then issued
      [Appellant] a citation for driving while license was under
      suspension.

            [Appellant] testified that he initially had a sixty (60) day
      license suspension from an ARD in 2013. [Appellant] testified he
      contacted PennDOT concerning restoration of his license, but
      they were still processing it. [Appellant] was aware that another
      attorney was challenging an additional twelve (12) month
                       _______________________
(Footnote Continued)



2
  Appellant’s Certified Driver’s History obtained by Sgt. Bowman on the
morning of the traffic stop was admitted into evidence during Appellant’s
May 12, 2015 hearing and reflects that Appellant violated 75 Pa.C.S.A.
§ 3802 on October 8, 2012; that his suspension was effective January 23,
2013; that notice was mailed to Appellant on February 13, 2013; and that
PennDOT received Appellant’s license on January 23, 2013.       Notes of
Testimony, Hearing, 5/12/15, Exhibit 1.



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      suspension he received. [Appellant] testified he received a
      notice from PennDOT dated December 10, 2014, the same date
      of his traffic stop, that he was required to have an ignition
      interlock. [Appellant] admitted he did not receive anything from
      PennDOT that his license had been reinstated nor did he receive
      his license back prior to December 10, 2014.            He also
      acknowledged he received the letter regarding the ignition
      interlock a few days after the traffic stop.

            Officer Jason Wile also testified in this case. He has been
      an officer at [PMRPD] since 2009.          Officer Wile also knew
      [Appellant] and was familiar with the status of [Appellant’s]
      driver’s license in 2014. Officer Wile testified that he received an
      anonymous tip that [Appellant] was driving while his license was
      DUI suspended. Officer Wile then checked with the (Monroe
      County) Control Center to verify [Appellant’s] license was DUI
      suspended. The Control Center confirmed the DUI suspension
      was still in effect. Officer Wile then informed all of the officers
      on the day shift, including Sgt. Bowman, of [Appellant’s] DUI
      suspension.

Trial Court Rule 1925(a) Opinion (“Rule 1925(a) Opinion”), 7/9/15, at 2-3

(references to notes of testimony omitted).

      By order entered at the conclusion of the hearing, Appellant was

sentenced to 90 days in the Monroe County Correctional Facility and a fine of

$500.00. Trial Court Order, 5/12/15, at 1. In the event of an appeal, the

sentence would be delayed pending conclusion of the appeal.           Id.    This

timely appeal followed.    Both Appellant and the trial court complied with

Pa.R.A.P. 1925.

      Appellant presents two questions for our consideration, both of which

are fairly embodied in his Rule 1925(b) statement of errors complained of on

appeal. The issues as set forth in his brief are:




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      I.    Did the Commonwealth present sufficient evidence to
            prove beyond a reasonable doubt that Appellant had actual
            notice of a DUI related suspension?

      II.   Did the honorable trial court improperly deny [Appellant’s]
            summary appeal when at the time of the stop the officer
            did not have a “reasonable suspicion” to suspect a
            violation of the Motor Vehicle Code?

Appellant’s Brief at 4.

      Appellant’s first issue involves a sufficiency of evidence challenge.

This Court has recognized that the scope of our review in a license

suspension case “is whether the trial court’s findings are supported by

competent evidence of record and whether an error of law or abuse of

discretion was committed.”     Commonwealth v. Brewington, 779 A.2d

525, 526 (Pa. Super. 2001) (citing Commonwealth v. Baer, 682 A.2d 802,

804-05 (Pa. Super. 1996)).      “We must determine if there was sufficient

evidence to enable the fact finder to find every element of the crime beyond

a reasonable doubt.” Id. at 527. Further:

      When faced with a challenge to the sufficiency of the evidence to
      support a conviction, the appellate court must view the evidence
      adduced at trial in the light most favorable to the verdict winner.
      The Commonwealth, as verdict winner, is entitled to all favorable
      inferences which may be drawn from the evidence. If the trier
      of fact could have reasonably determined from the evidence that
      all the necessary elements of the crime were established, then
      the evidence will be deemed sufficient to support the verdict.

Baer, 682 A.2d at 804-05 (Pa. Super. 1996) (citations omitted).

      “In order to uphold a § 1543(b) conviction, the Commonwealth must

establish that the defendant had actual notice that his license was


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suspended.” Brewington, 779 A.2d at 527 (citation and footnote omitted).

As in Brewington, it is the “actual notice” element Appellant claims was not

established.   In Brewington, we recognized that “actual notice may take

the form of a collection of facts and circumstances that allow that fact finder

to infer that a defendant has knowledge of suspension.” Id. (citations and

internal quotations omitted). See also Commonwealth v. Crockford, 660

A.2d 1326, 1331 (Pa. Super. 1995) (en banc), appeal denied, 670 A.2d 140

(Pa. 1995).

      In Baer, this Court stated:

      Proof that a notice of suspension was merely mailed to an
      appellant is not, standing alone, sufficient to establish beyond a
      reasonable doubt that he or she had actual notice of the
      suspension. Only where additional evidence exists to indicate
      that an appellant received actual notice of suspension, will the
      evidence be viewed as sufficient to prove actual notice.

Baer, 682 A.2d at 805 (citations omitted).          Our Supreme Court has

identified several factors that may be considered by the fact finder when

determining whether a defendant had actual notice, including a statement by

the defendant acknowledging that he was driving during a suspension period

or evidence that PennDOT mailed notice of suspension to the defendant.

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

      In this case, we find the Commonwealth has met its burden of proving

beyond a reasonable doubt that Appellant did have notice that his license

was suspended. As noted, Appellant’s Certified Driving History was admitted

into evidence at his summary appeal hearing.         The record reflects that

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PennDOT mailed a notice of suspension to Appellant on February 13, 2013.

The Commonwealth also presented testimony from Sgt. Bowman indicating

that Appellant acknowledged notice of his suspension during the December

10, 2014 traffic stop as reflected in the following exchange with counsel for

the Commonwealth:

      Q.    Did you have any conversation with [Appellant] at that
            time?

      A.    I did. I asked him for his license and registration. He
            searched around for his registration. I asked him about
            his driver’s license. He said he didn’t have it. I said why
            don’t you have it? He said, well, it’s still under suspension.
            I said then why are you driving? He tried to explain to me
            that he was supposed to have an ignition interlock and he
            hasn’t been able to get that taken care of yet.

            So I said, well, then why are you driving today? He told
            me that he had to go and get tires on his truck. As a
            result of that, I returned to my patrol car and prepared
            two traffic citations. One for his license being expired and
            the second one for being under DUI suspension.

Notes of Testimony, Hearing, 5/12/15, at 4-5.

      Considering the Certified Driver’s History from PennDOT and Sgt.

Bowman’s testimony, which the trial court found credible, see Rule 1925(a)

Opinion, 7/9/15, at 6, and considering the evidence in a light most favorable

to the Commonwealth as verdict winner, the Commonwealth has satisfied its

burden of proof that Appellant had notice that his driver’s license was

suspended as of the time of the December 10, 2014 traffic stop. Finding no

error of law or abuse of discretion on the part of the trial court with respect

to Appellant’s first issue, we shall not disturb the trial court’s determination.

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      In his second issue, Appellant contends the trial court improperly

denied his summary appeal because Sgt. Bowman did not have “reasonable

suspicion” to suspect a violation of the Motor Vehicle Code.      As Appellant

properly notes, “[r]easonable suspicion is a less stringent standard than

probable cause necessary to effectuate a warrantless arrest and it depends

on the information possessed by police and its degree of reliability and the

totality of the circumstances.” Appellant’s Brief at 18.

      In Commonwealth v. Shabazz, 18 A.3d 1217 (Pa. Super. 2011), this

Court reiterated:

             The issue of what quantum of cause a police officer must
      possess in order to conduct a vehicle stop based on a possible
      violation of the Motor Vehicle Code is a question of law, over
      which our scope of review is plenary and our standard of review
      is de novo.

Id. at 1219-20 (quoting Commonwealth v. Holmes, 14 A.3d 89, 94 (Pa.

2011)). Further:

      The Vehicle Code permits a police officer to initiate a traffic stop
      when he or she possesses reasonable suspicion that a section of
      the Code has been or is being violated.

         § 6308. Investigation by police officers

         (b) Authority of police officer.—Whenever a police officer is
         engaged in a systematic program of checking vehicles or
         drivers or has reasonable suspicion that a violation of this
         title is occurring or has occurred, he may stop a vehicle,
         upon request or signal, for the purpose of checking the
         vehicle's registration, proof of financial responsibility,
         vehicle identification number or engine number or the
         driver's license, or to secure such other information as the
         officer may reasonably believe to be necessary to enforce
         the provisions of this title.

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      75 Pa.C.S.A. § 6308. The Commonwealth bears the burden of
      establishing the validity of the stop. “Thus, under the present
      version of Section 6308(b), in order to establish reasonable
      suspicion, an officer must be able to point to specific and
      articulable facts which led him to reasonably suspect a violation
      of the Motor Vehicle Code . . . .”

Id. at 1220 (quoting Holmes, 14 A.3d at 95-96) (emphasis in original).

      In Commonwealth v. Brown, 996 A.2d 473 (Pa. 2010), our

Supreme Court explained:

             While warrantless seizures such as a vehicle stop are
      generally prohibited, they are permissible if they fall within one
      of a few well-delineated exceptions. One such exception allows
      police officers to detain individuals for a brief investigation when
      they possess reasonable suspicion that criminal activity is afoot.
      Reasonable suspicion is a less stringent standard than probable
      cause necessary to effectuate a warrantless arrest, and depends
      on the information possessed by police and its degree of
      reliability in the totality of the circumstances. In order to justify
      the seizure, a police officer must be able to point to specific and
      articulable facts leading him to suspect criminal activity is afoot.
      In assessing the totality of the circumstances, courts must also
      afford due weight to the specific, reasonable inferences drawn
      from the facts in light of the officer’s experience and
      acknowledge that innocent facts, when considered collectively,
      may permit the investigative detention.

         ....

             An anonymous tip, corroborated by independent police
      investigation, may exhibit sufficient indicia of reliability to supply
      reasonable suspicion for an investigatory stop. Alabama v.
      White, 496 U.S. 325, 331, 110 S.Ct. 2412, 110 L.Ed.2d 301
      (1990). However, we have recognized a known informant is far
      less likely to produce false information. A known informant’s tip
      may carry sufficient indicia of reliability to justify an investigative
      detention despite the fact that it may prove insufficient to
      support an arrest or search warrant.

Id. at 476-77 (citations and internal quotations omitted).

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      The trial court agreed with the Commonwealth that reasonable

suspicion existed in this case, concluding:

             Sgt. Bowman both knew that the vehicle he saw was
      owned by an individual whose driving privileges were suspended
      and he recognized the driver as the person whose driving
      privileges were suspended. He knew this information as a result
      of information related to him by Officer Wile at a recent roll call.
      Based on the totality of the circumstances, Sgt. Bowman had
      articulable and reasonable grounds for the stop.

             [Appellant] has argued that the information Sgt. Bowman
      had was based upon hearsay, and therefore unreliable. Police
      officers may have reasonable suspicion, without personal
      observation, from third party information, including a tip from a
      citizen. Anonymous tips typically also require an independent
      basis.

         ....

            In this case, an anonymous call (or perhaps not
      anonymous—the testimony was unclear) indicated [Appellant]
      was driving a vehicle while his license was DUI suspended.
      Officer Wile corroborated this information by confirming through
      the Monroe County Control Center that [Appellant’s] license was
      DUI suspended. This was an independent verification of the
      suspension. The information was conveyed by Officer Wile to
      Sgt. Bowman at a roll call. Sgt. Bowman then independently
      observed [Appellant] driving a vehicle, at a time the Sgt.
      Bowman had reason to believe [Appellant’s] driver’s license was
      DUI suspended. We found this constituted reasonable suspicion.

Rule 1925(a) Opinion, 7/9/15, at 4-5 (emphasis is original; citations

omitted).

      We find no error of law or abuse of discretion in the trial court’s

determination that reasonable suspicion existed, warranting initiation of a

traffic stop. Appellant’s second issue does not provide any basis for relief.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/8/2016




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