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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 April 9, 2015
                in the Court of Common Pleas of Centre County
               Criminal Division at No.: CP-14-SA-0000009-2015


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

MEMORANDUM BY PLATT, J.:                             FILED MARCH 24, 2016

        Appellant, Daniel Vincent Schoonover, appeals from the judgment of

sentence imposed following his bench trial conviction of driving while

operating privilege is suspended or revoked.1 He challenges the sufficiency


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    Section 1543(a) of the Vehicle Code provides:

               (a) Offense defined.─Except as provided in subsection (b),
        any person who drives a motor vehicle on any highway or
        trafficway of this Commonwealth after the commencement of a
        suspension, revocation or cancellation of the operating privilege
        and before the operating privilege has been restored is guilty of
        a summary offense and shall, upon conviction, be sentenced to
        pay a fine of $200.

75 Pa.C.S.A. § 1543(a).
J-S05012-16


of the evidence, specifically, proof of actual notice. We affirm, in part on the

basis of the trial court opinion.2

       We take our facts from the notes of testimony of the bench trial on

April 9, 2015. (See N.T. Summary Appeal Hearing [Trial], 4/09/15, at 3-10;

see also Commonwealth’s Brief, at 3-5). At approximately 11:00 p.m. on

November 19, 2014, Pennsylvania State Police Trooper Michael Glentzer, on

routine patrol, stopped Appellant for a routine Vehicle Code violation.      He

was driving on Nittany Valley Road in Walker Township, Centre County,

Pennsylvania. While processing Appellant’s driver information on the police

computer system, Trooper Glentzer determined that Appellant’s driving

license was suspended. He issued Appellant a summary citation for driving

under suspension, 75 Pa.C.S.A. § 1543(a). Appellant appealed his citation

to the magisterial district court, which found him guilty. He then appealed

his conviction to the court of common pleas.

       A trial de novo was held before the Honorable Jonathan D. Grine on

April 9, 2015, at which the Commonwealth presented one witness, Trooper




____________________________________________


2
  We note that Appellant has failed to include a copy of the trial court opinion
in his brief, in violation of Pa.R.A.P. 2111(a)(10), and (b). We further note
that both Appellant’s brief and reproduced record were filed late. We attach
a copy of the trial court opinion as a supplement to this memorandum.




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J-S05012-16


Glentzer, and one exhibit, Appellant’s certified driver’s record.3     Appellant

exercised his constitutional right not to testify.        He presented no other

witnesses or evidence.         (See N.T. Trial, at 13).    The trial court found

Appellant guilty, again, and re-imposed the sentence of fines and costs

originally imposed. The instant timely appeal followed.4

       Appellant raises one question for our review:

             Whether the [trial] court committed an abuse of discretion
       / error of law in finding the Appellant guilty of a violation of
       Driving While Suspended, 75 Pa.C.S. § 1543(a), despite no
       evidence being presented that Appellant received actual notice of
       the suspension, as required by Pennsylvania case law, including
       Commonwealth v. Baer, 682 A.2d 802, 805 (Pa. Super. 1996)
       and Commonwealth v. Taylor, 390 Pa. Super. 571, 579, 568
       A.2d 1320, 1324 (1990)?

(Appellant’s Brief, at 5).

       Appellant’s issue is a challenge to the sufficiency of the evidence.

(See id. at 8) (“Such a finding [the guilty verdict] is clearly based upon

insufficient evidence and is contrary to Pennsylvania case law”); (see also

id. at 9) (“The sole question presented . . . revolves around a determination

as to whether there was sufficient evidence to convict . . . .”).


____________________________________________


3
  Appellant’s certified driving record reveals that he had nine motor vehicle
violations in ten years, including three prior suspensions.             (See
Commonwealth’s Exhibit 1; see also Commonwealth’s Brief, at 4-5).
4
  Appellant timely filed a court-ordered statement of errors, on May 18,
2015. See Pa.R.A.P. 1925(b). The trial court filed an opinion, on June 19,
2015. See Pa.R.A.P. 1925(a).



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J-S05012-16


            Initially, we note in a license suspension case, our scope of
      review is limited to determining whether the trial court’s findings
      are supported by competent evidence, whether any error of law
      was committed and whether the decision is a manifest abuse of
      discretion. [ ]Baer, [supra at 804-05].

Commonwealth v. Vetrini, 734 A.2d 404, 406 (Pa. Super. 1999).

      Our standard of review for a challenge to the sufficiency of the

evidence is well-settled:

      A challenge to the sufficiency of the evidence is a question of law
      subject to plenary review. We must determine whether the
      evidence admitted at trial and all reasonable inferences drawn
      therefrom, when viewed in the light most favorable to the
      Commonwealth as the verdict winner, is sufficient to support all
      elements of the offenses. A reviewing court may not weigh the
      evidence or substitute its judgment for that of the trial court.

Commonwealth v. Colon, 102 A.3d 1033, 1041 (Pa. Super. 2014), appeal

denied, 109 A.3d 678 (Pa. 2015) (citation and internal quotation marks

omitted). Similarly,

             The standard we apply in reviewing the sufficiency of
      evidence is whether, viewing all the evidence admitted at trial in
      the light most favorable to the verdict winner, there is sufficient
      evidence to enable the fact finder to find every element of the
      crime beyond a reasonable doubt.

         In applying [the above] test, we may not weigh the
         evidence and substitute our judgment for that of the fact-
         finder.    In addition, we note that the facts and
         circumstances established by the Commonwealth need not
         preclude every possibility of innocence.      Any doubts
         regarding a defendant’s guilt may be resolved by the fact-
         finder unless the evidence is so weak and inconclusive that
         as a matter of law no probability of fact may be drawn
         from the combined circumstances.

         The Commonwealth may sustain its burden of proving
         every element of the crime beyond a reasonable doubt by

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J-S05012-16


         means of wholly circumstantial evidence. Moreover, in
         applying the above test, the entire record must be
         evaluated and all evidence actually received must be
         considered. Finally, the trier 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.

Vetrini, supra at 406–07 (internal quotation marks and citations omitted).

“The Commonwealth, as verdict winner, is entitled to all favorable inferences

which may be drawn from the evidence.” Baer, supra at 805 (holding that

there was sufficient evidence to support trial court’s conclusion that

Commonwealth proved beyond reasonable doubt that appellant had actual

notice that her operating privilege was suspended) (citations omitted).

      Here, Appellant argues chiefly that no evidence was presented at the

trial that he received actual notice of the suspension. (See Appellant’s Brief,

at 9-13). We disagree.

      Initially, we observe that because Appellant presented no evidence at

all at the trial, the evidence that the Commonwealth presented stands

uncontradicted. (See N.T. Trial, at 13).

      In order to sustain a conviction under 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, 460 Pa. 582, 333 A.2d 925 (1975).
      Merely establishing that notice was mailed is not sufficient by
      itself to show actual notice.       Id. 333 A.2d at 926.       The
      Commonwealth must 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, 443 Pa. Super. 23, 660 A.2d
      1326, 1331 (1995)[, appeal denied, 670 A.2d 140 (Pa. 1995)].


                                     -5-
J-S05012-16


          Moreover, “[n]otice is a question of fact, and
     anything that proves knowledge or is legal evidence
     showing that knowledge exists can be sufficient.” Id. at
     1330. There are no bright line tests as to what kind of
     proof is required to show actual notice; however, this
     Court has indicated that evidence of mailing of notice
     coupled with some other, additional evidence of
     knowledge will suffice to establish actual notice beyond a
     reasonable doubt. Id. at 1329.

Vetrini, supra at 407 (emphases added).

     As a practical matter, in most cases it is virtually impossible for
     the Commonwealth to prove positively that the defendant
     received express actual notice of suspension; only the defendant
     would have such knowledge. The Commonwealth, relying only
     upon the facts and circumstances of a case, can, at best, impute
     such knowledge to the defendant. To hold otherwise would
     make the provisions of § 1543 virtually unenforceable and
     unworkable.

           Hence, in response to appellant’s inquiry as to whether the
     Commonwealth is required to prove actual notice of suspension
     to sustain a conviction under 75 Pa.C.S.A. § 1543(b), the courts
     of this Commonwealth have repeatedly answered in the
     affirmative. The Commonwealth is required 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.

Crockford, supra at 1330-31 (footnote omitted, emphasis added).

            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

                                    -6-
J-S05012-16


     or directly appellant’s knowledge of the suspension or awareness
     of guilt.

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

added; citation omitted).

           Appellant’s entire challenge rests upon the misplaced
     notion that Baer requires the Commonwealth to prove receipt of
     written notification of suspension. In Baer, we said that factors
     to be considered to determine whether appellant had actual
     notice of suspension include evidence that the Pennsylvania
     Department of Transportation sent notice to appellant’s current
     address, and statements by appellant indicating knowledge, or
     any conduct demonstrating circumstantially or directly that
     appellant had knowledge of the suspension. Moreover, this
     notion was directly dispelled by our Supreme Court in [ ]
     Zimmick, [supra], wherein other examples of factors which
     could be considered in determining whether a defendant had
     actual notice of license suspension were recited[.]

                                *    *    *

     Hence the sending of written notice to the appellant’s current
     address is but one of many factors that may be considered. It
     is not obligatory that any combination of factors must be
     present.

Vetrini, supra at 408 (emphasis added; citation omitted).

     In this case, the trial court determined that Appellant had actual

knowledge of his suspension. (See Trial Court Opinion, 6/19/15, at 3). The

trial court noted that there was proof of mailing to Appellant’s address of




                                    -7-
J-S05012-16


record, and no evidence that the notice of suspension was returned as

undeliverable.5

         Appellant argues on appeal that the trial court should have accepted

the testimony of Trooper Glentzer that Appellant denied knowledge of his

suspension at the traffic stop. (See Appellant’s Brief, at 12). It was the role

of the trial court, sitting as factfinder, to weigh the evidence presented and

to accept all, part or none of it. See Vetrini, supra at 407. “A reviewing

court may not weigh the evidence or substitute its judgment for that of the

trial court.” Colon, supra at 1041.

         Additionally, Appellant argues for the first time on appeal that it is

“possible” that he changed residences after the date the notice was mailed.

(Appellant’s Brief, at 11). Appellant failed to raise this issue with the trial

court.      To the contrary, his counsel objected, successfully, to the

Commonwealth’s attempt to raise the issue of a second address for

Appellant after the case had closed. (See N.T. Trial, at 14). Accordingly,

Appellant’s issue is waived.       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.”).

____________________________________________


5
  Moreover, the trial court observes that Appellant requested a continuance
from the magisterial district court, and received a rescheduled hearing, at
which he appeared. The trial court appears to suggest that the notice of the
rescheduled hearing was sent by mail to his address of record, as was the
notice of suspension. (See Trial Ct. Op., at 3).



                                           -8-
J-S05012-16


       Viewing the evidence admitted at trial under our standard of review for

sufficiency, in the light most favorable to the Commonwealth as verdict

winner, together with all reasonable inferences, we conclude that there was

sufficient evidence to support the trial court’s verdict.    The trial court’s

findings are supported by competent evidence, and we discern no error of

law or manifest abuse of discretion.6 See Baer, supra at 804-05; Vetrini,

supra at 406-07; Colon, supra at 1041.

       Judgment of sentence affirmed.

       Judge Shogan joins the Memorandum.

       President Judge Emeritus Bender files a Dissenting Memorandum.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/24/2016




____________________________________________


6
   Moreover, we note our agreement with the trial court’s observation that
Appellant’s argument, if adopted as precedent, would allow any individual
faced with license suspension to disregard the notice of suspension, keep his
license and, if caught, claim that he was unaware of a suspension, to avoid a
citation or further liability. (See Trial Ct. Op., at 3).



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                   IN THE COURT OF COMMON PLEAS OF CENTRE COUNTY, PENNSYLVANIA
                                        CRIMINAL DIVISION


             COMMONWEALTH OF PENNSYLVANIA,                         )
                                                                   )
                     v.                                            )      No.    CP-14-SA-0009-2015
                                                                   )
             DANIEL VINCENT SCHOONOVER,                            )
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            Attorney for Commonwealth:                                    Adam L. Morris, Es'.q,, ?'__;;:i"                       1...0
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            Attorney for Defendant:                                       R. Thom Rosam.ilia,f!{s~Z ·
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                     OPINION IN RESPONSE TO MATTERS COMPLAINED OF ON A:PP'EA~

                 Presently before this Court is an appeal filed by Daniel Vincent Schoonover (hereinafter

            · "Appellant.")   On November 19, 2014, a citation was filed against Appellant for a single count of

            Driving Under a Suspended License in violation of 75 Pa.C.S. §1543(a). Appellant was found

            guilty by Magisterial District Judge Gilette-Walker on January 29, 2015. Appellant filed a notice

            of appeal from his summary conviction and a de novo hearing was held in front of this Court on

            April 9, 2015. This Court found Appellant guilty and reinstated all fines and costs as imposed by

            the Magisterial District Judge.

                Appellant raises one issue on appeal, that is, that this Court committed an abuse of discretion

            and/or error of law in finding Appellant guilty "despite no evidence being presented that [he]

            received actual notice of the suspension."

                    I.        Evidence was Sufficient to Support Finding of Guilt

                Appellant argues this Court committed an error of law or abuse of discretion in finding

            Appellant guilty of Driving Under Suspension, as no evidence was presented at trial to establish

            Appellant had actual notice of his license suspension. The Court disagrees.
    In a license suspension case, the scope of review is limited to determining whether this

Court's findings were supported by competent evidence, whether it committed an error of law,

and/or whether the decision rendered was a manifest abuse of discretion. Commonwealth v.

Baer, 682 A.2d 802, 804-805, (Pa.Super. 1996). The issue raised by Appellant represents a

challenge to the sufficiency of the evidence. In such a case, the evidence at trial must be viewed

in the light most favorable to the Commonwealth, as the verdict winner, Id. In addition, the

Commonwealth is "entitled to all favorable inferences which may be drawn from the evidence."

Id at 805. If the trial court "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." Id.

    It is well settled that proof of a defendant's "actual notice of the suspension" of his or her

license is necessary to establish the elements of a violation of75 Pa.C.S.A. §1543(a). Id. Proof

of the mailing of a notice of suspension to an appellant, standing alone, is not sufficient to

establish beyond a reasonable doubt that he or she had actual notice of the license suspension.

Id. Only when some additional evidence is presented to indicate the defendant received actual

notice of suspension will the evidence be viewed as sufficient to establish actual notice. Id. The

Commonwealth may meet this burden by presenting wholly circumstantial evidence.

Commonwealth v. Herb, 852 A.2d 356, 361 (Pa.Super. 2004). Factors a court may consider in

determining actual notice of a license suspension include, but are not limited to:

       Evidence that the defendant was verbally or in writing apprised of the license
       suspension during [a] 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.


                                                  2
     Commonwealth v. Zimmick, 653 A.2d 1217, 1221 (Pa.Super. 1995). There is no specific

 combination of factors which must be present in order to determine an individual had actual

 notice of his or her license suspension.   Commonwealth v. Vetrini, 734 A.2d 404, 408 (Pa.Super.

 1999).

     In the instant case, although Appellant was able to produce his driver's license and expressed

 apparent surprise at being informed by Trooper Glentzer that his license was currently

 suspended, the Court determined Appellant had actual knowledge of the suspension. The

 Commonwealth provided the Court with evidence indicating PennDOT mailed a notice of

 suspension to Appellant on October 10, 2014 indicating a suspension of his operating privileges

 due to a failure to respond to a citation for an expired registration or other expired

 documentation. The records do not indicate the notice was returned as undeliverable or

 unclaimed. The Court also considered the fact that the notice was mailed to Appellant's address

 as listed on his certified driver's record, 26 Merlyn Drive, Mill Hall, Pennsylvania. This is also

 the address on Appellant's citation, the address on the documents from the Magisterial District

 Court level, and the address Appellant provided to this Court when he filed his summary appeal.

 The Court also notes Appellant requested a continuance at the Magisterial District Court level,

 appeared at the rescheduled hearing, and appeared at his summary appeal hearing.

    Based on this evidence, the Court determined the Merlyn Drive address was Appellant's valid

 address and that he had actual notice of the suspension of his license. To determine otherwise

would set a precedent whereby an individual, upon receiving a suspension notice, could

· disregard said notice, keep his license instead of returning it to PennD01: and would only have

to claim he was unaware his license had been suspended upon being pulled over in order to avoid

a citation for driving under suspension.



                                                   3
     This Court hopes this Opinion aids the Honorable Superior Court and respectfully requests

its Orders remain undisturbed.




                                                           BY THE COURT:




                                                           Jonathan D. Grine, Judge

DATE: June    fq     , 2015




                                              4
