J-S61015-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT
                                                           OF
                                                      PENNSYLVANIA
                          Appellee

                     v.

SAMUEL CHURCHRAY, JR.,

                          Appellant                  No. 496 EDA 2018


      Appeal from the Judgment of Sentence Entered January 31, 2018
               In the Court of Common Pleas of Bucks County
            Criminal Division at No(s): CP-09-CR-0006083-2017


BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.

MEMORANDUM BY BENDER, P.J.E.:                   FILED DECEMBER 05, 2018

      Appellant, Samuel Churchray, Jr., appeals from the judgment of

sentence of 3 to 23 months’ incarceration, imposed after he was convicted of

the vehicular crimes of habitual offenders, 75 Pa.C.S. § 6503.1, and driving

while operating privilege is suspended or revoked, 75 Pa.C.S. § 1543(b)(1).

Appellant solely challenges the sufficiency of the evidence to sustain his

habitual offenders conviction. After careful review, we affirm.

      The trial court summarized the pertinent facts and procedural history of

this case, as follows:
      On April 22, 2017, Bensalem Township Police Officer Ryan Kolb
      responded to a report of suspicious activity at a condemned home
      located at 4307 Grove Avenue, Bensalem, Bucks County. N.T.[,]
      1/23/18, pp. 36-37. Officer Kolb observed one vehicle in the
      driveway of the home, a blue-in-color Ford Festiva hatchback with
      Nevada license plate 865COU. Id. at 37-38. Inside the home,
      Officer Kolb encountered [] Appellant and asked for his
J-S61015-18


     identification. Id. at 39. Appellant provided Officer Kolb with a
     Pennsylvania non-driver’s identification card that displayed []
     Appellant’s photograph and eight-digit Operating License Number
     (“OLN”). Id. at 39-40. After he advised Appellant that the
     building was unsafe and asked him to leave, Officer Kolb observed
     [] Appellant enter the blue Ford Festiva and drive away on Grove
     Avenue, a public roadway. Id. at 39, 43-44.

            Officer Kolb subsequently ran [] Appellant’s OLN through the
     National Crime Information Center database and obtained a copy
     of [] Appellant’s certified driving history from the Pennsylvania
     Department of Transportation (“PennDOT”). Id. The first page
     of the certified driving history, obtained on October 25, 2017,
     showed that Appellant’s current license status was suspended,
     revoked, or expired. Id. at 48; see Ex. C-2. [] Appellant’s driving
     history contained the following relevant violations. On December
     20, 2001, Appellant committed a violation under 75 Pa.C.S. §
     3731 (codified as amended at 75 Pa.C.S. § 3802 (2003)), and was
     convicted of Driving under the Influence [(DUI)] on June 28, 2002.
     Id. at 52. On December 29, 2004, Appellant committed a
     violation under 75 Pa.C.S. § 3802(a)(1), and was convicted of
     Driving under the Influence on June 22, 2005. Id. at 56. On
     December 18, 2004, Appellant committed a violation under 75
     Pa.C.S. § 3743, and was convicted of Accidents Involving Damage
     to Attended Vehicles or Property on June 22, 2005. Id. at 62.
     Following this conviction, Appellant’s license was revoked for five
     years, effective June 2, 2017, pursuant to the Habitual Offender’s
     statute. Finally, Appellant’s license was suspended at the time of
     the instant offense as a result of a June 22, 2005, conviction for
     Driving with a Suspended License under 75 Pa.C.S. § 1543(a).
     This one-year suspension did not begin until June 2, 2016,
     because of his prior suspensions. Id. at 61-62. [] Appellant’s
     certified driving history and all corresponding criminal history
     records and identifying documents were admitted into evidence.
     Id. at 46, 52-63, 72.

            At trial, Appellant testified that no blue Ford Festiva was in
     the driveway of 4307 Grove Avenue. Id. at 129. He further
     denied that he drove a Ford Festiva on April 22, 2017. Id. at 137.
     The jury heard testimony from witness Peter Imhof, who testified
     that he picked up [] Appellant in his vehicle from 4307 Grove
     Avenue shortly after Officer Kolb’s arrival. Id. at 154-[]56. On
     rebuttal, Bensalem Township Police Officer Timothy Henehan
     testified that, on January 20, 2017, he observed [] Appellant


                                     -2-
J-S61015-18


      standing near a 1992 Ford Festiva hatchback, blue-in-color, with
      Nevada License Plate 865COU. N.T.[,] 1/24/18, pp. 19-21.

             After a two-day trial, the jury convicted Appellant under the
      Habitual Offender’s statute, and this [c]ourt found [] Appellant
      guilty of Driving with a DUI Suspended License. Id. at 65-66. On
      January 31, 2018, [the trial court] sentenced Appellant to an
      aggregate three to 24 months’ incarceration. Appellant filed a
      timely Notice of Appeal to the Superior Court on February 14,
      2018.

Trial Court Opinion (TCO), 4/17/18, at 1-3.

      The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal, and he timely complied. On

April 17, 2018, the court issued a Rule 1925(a) opinion. Herein, Appellant

presents one issue for our review:
      A. Whether the Commonwealth failed to establish sufficient
         evidence to convict Appellant of 75 Pa.C.S. [§] 6503.1 when
         the date of the traffic offense occurred on April 22, 2017,
         before Appellant’s habitual offenders license revocation
         became effective on June 2, 2017?

Appellant’s Brief at 5.

      To begin, we note our standard of review of a challenge to the sufficiency

of the evidence:

            In reviewing a sufficiency of the evidence claim, we must
      determine whether the evidence admitted at trial, as well as all
      reasonable inferences drawn therefrom, when viewed in the light
      most favorable to the verdict winner, are sufficient to support all
      elements of the offense. Commonwealth v. Moreno, 14 A.3d
      133 (Pa. Super. 2011). Additionally, we may not reweigh the
      evidence or substitute our own judgment for that of the fact
      finder. Commonwealth v. Hartzell, 988 A.2d 141 (Pa. Super.
      2009). The evidence may be entirely circumstantial as long as it
      links the accused to the crime beyond a reasonable doubt.
      Moreno, supra at 136.

Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011).

                                     -3-
J-S61015-18



      Appellant challenges his conviction under section 6503.1, which states:

      A habitual offender under section 1542 (relating to revocation of
      habitual offender’s license) who drives a motor vehicle on any
      highway or trafficway of this Commonwealth while the habitual
      offender’s operating privilege is suspended, revoked or canceled
      commits a misdemeanor of the second degree.

75 Pa.C.S. § 6503.1.

      Appellant contends that the Commonwealth failed to present sufficient

evidence to convict him of this crime because, on the date of the offense (April

22, 2017), his license was suspended, but his “five-year period of license

revocation … for being deemed a Habitual Offender [under section 1542] did

not become effective until June 2, 2017.” Appellant’s Brief at 11. Appellant

claims that “[a] plain reading of the language of [section] 6503.1 supports the

interpretation that Appellant can only be convicted for being a Habitual

Offender if he drives in the Commonwealth ‘while the habitual offender’s

operating privilege is suspended, revoked or canceled’ on or after the effective

date of his Habitual Offender license revocation.” Id. Thus, “[s]ince Appellant

was not operating a motor vehicle on or after the effective date of his five-

year period of license revocation for being deemed a Habitual Offender[,] the

Commonwealth failed to establish sufficient evidence to convict Appellant of

[section] 6503.1.” Id.

      In response, the Commonwealth offers several reasons for rejecting

Appellant’s interpretation of section 6503.1:
            First, the Habitual Offenders statute does not state, or even
      suggest, that a person must be currently serving the habitual
      offender revocation period to be found guilty of this offense. It

                                     -4-
J-S61015-18


     merely requires that the defendant drove a vehicle on the roadway
     at a time when he qualifies as a “habitual offender” and his license
     was “suspended, revoked or canceled.” See 75 Pa.C.S. § 6503.1.
     The legislature would not have used the language “suspended,
     revoked or canceled” if the conduct to be punished only started at
     the effective date of the suspension, as the only penalty for being
     designated a habitual offender is a 5-year revocation. 75 Pa.C.S.
     § 1542(d). Therefore, should the statute only punish a defendant
     for driving during the limited period of time that Appellant claims,
     it would have limited the relevant portion of the statute to
     “revoked,” and not the language actually used of “suspended,
     revoked or canceled.” As properly found by the trial court, “[h]ad
     the legislature intended to impose Habitual Offender status only
     after the effective date of a habitual offender driver’s license
     revocation, it would have explicitly said so.” [TCO at] 7.

            Second, as previously stated, the appellate courts have
     already rejected similar arguments made, specifically in
     connection to violations of 75 Pa. C.S. § 1543(b), Driving Under
     Suspension - DUI related. In Commonwealth v. Nuno, 559 A.2d
     949 (Pa. Super. 1989), this Court rejected the defendant’s
     argument that he could not be convicted of § 1543(b) because the
     effective date of the suspension and revocation for this suspension
     had not yet begun to run. This Court found this argument to be
     “untenable” and held that “when a person receives notice that
     their operating privilege is or will be suspended or revoked for a
     D.U.I. related offense, that person is subject to the penalties of §
     1543(b) … throughout any current suspension or revocation and
     any subsequent suspensions or revocations until the end of their
     D.U.I. related suspension or revocation.” Id. at 950-[]51.

                                     ***

            Thereafter, in Commonwealth v. Jenner, 681 A.2d 1266,
     1273-[]74 (Pa. 1996), the Pennsylvania Supreme Court rejected
     the argument that “the application of the mandatory sentencing
     provisions of § 1543(b)[,] prior to the effective date on the DUI-
     related suspension notification[,] fails to give drivers with
     outstanding non-DUI-related suspensions proper notice that they
     are subject to the enhanced penalties of the statute prior to the
     effective date of the DUI-suspension.” Id. at 1273. Rather, the
     Court explained:



                                    -5-
J-S61015-18


         The purpose of § 1543(b) is to prevent drivers who have
         been convicted of driving under the influence from operating
         motor vehicles on the public roads of the Commonwealth by
         enhancing the penalties for recidivist violators. If we were
         to accept the argument advanced by [the] appellants, we
         would be permitting [the] appellants to avoid the mandatory
         sentencing provisions imposed on drunk drivers for
         disregarding a suspension of driving privileges simply
         because [the] appellants have a history of violating the
         Motor Vehicle Code which has resulted in long term license
         suspensions which have not expired at the time of their DUI
         violations or their subsequent violations of the Motor Vehicle
         Code. [W]e hold that once a driver is notified that his
         license is suspended as a result of a conviction for driving
         under the influence[,] he is subject to the enhanced
         sentencing provisions of § 1543(b) for the duration of any
         prior periods of suspension or revocation until the
         completion of the DUI-related suspension. The effective
         dates provided by the Department of Transportation in such
         cases are simply for the purpose of determining when the
         DUI-related suspension is completed.

      Further, in Commonwealth v. Harden, 103 A.3d 107 (Pa. Super.
      2014), the defendant challenged the sufficiency of the evidence
      for his conviction under § 1543(b), claiming that, on the date of
      the offense, he was serving a suspension for a non-DUI related
      suspension and that the DUI-related suspension did not begin until
      a future date. This Court, relying on the holdings in Nuno and
      Jenner[,] rejected the defendant’s claim as “frivolous.” Id. at
      112.

Commonwealth’s Brief at 12-15. Based on the reading of section 1543(b) in

Nuno, Jenner, and Harden, the Commonwealth urges us to reject

Appellant’s contrary interpretation of 6503.1.

      The trial court agrees with the Commonwealth. The court explains:

            [T]he plain language of [section] 6503.1 requires that the
      Commonwealth prove each of the following three elements
      beyond a reasonable doubt: First, that a defendant drove a motor
      vehicle on a traffic way or highway in the Commonwealth of
      Pennsylvania; Second, that the defendant was a Habitual Offender
      as defined under § 1542; and third, that the defendant’s license

                                     -6-
J-S61015-18


      was suspended, revoked or canceled at the time he was driving
      the motor vehicle on a traffic way or highway in the
      Commonwealth. A defendant’s Habitual Offender revocation need
      not occur prior to the date of the instant offense. The plain
      language of the statute only requires that the defendant’s license
      was suspended, revoked, or cancelled for any reason at the time
      he drove a motor vehicle in the Commonwealth.

                                      ***

         Appellant’s interpretation of the statute would effectively allow
      a defendant with a significant history of license suspensions to
      indefinitely evade prosecution under [section] 6503.1. Such an
      absurd interpretation could not have been the legislature’s intent.
      In re B.A.M., 806 A.2d [893,] 894 (Pa. Super. [] 2002)[] (“[T]he
      general assembly does not intend a result that is absurd,
      impossible of execution, or unreasonable.”).

TCO at 5-7.

      Appellant concedes “that his interpretation of [section] 6503.1 would

‘effectively allow a defendant with a significant history of license suspensions’

to avoid being charged as a Habitual Offender like in the instant case.”

Appellant’s Brief at 13 (quoting TCO at 7). He contends, however, that “[i]f

the trial court’s interpretation [of section 6503.1] is correct, and a person of

‘ordinary intelligence’ is left to guess at whether it is a crime to drive before

the effective date of the Habitual Offender license revocation, then [section]

6503.1 should be deemed unconstitutionally void for vagueness.” Id. at 14.

Notably, Appellant did not raise this constitutional challenge to section 6503.1

at trial, or in his Rule 1925(b) statement. Thus, this argument is waived for

our review. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are

waived and cannot be raised for the first time on appeal.”); Pa.R.A.P.




                                      -7-
J-S61015-18



1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in

accordance with the provisions of this paragraph (b)(4) are waived.”).

      In sum, we agree with the reasoning of the trial court and the

Commonwealth, and we reject Appellant’s interpretation of section 6503.1.

That provision requires proof that the defendant is a habitual offender under

section 1542, that he drove a vehicle on a highway or trafficway in this

Commonwealth, and that he did so while his license was suspended, revoked

or canceled for any reason. This interpretation of section 6503.1 is consistent

with a plain reading of the statutory language, as well as the rationale of

Nuno, Jenner, and Harden.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/5/18




                                     -8-
