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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37


COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :          PENNSYLVANIA
                                           :
                                           :
              v.                           :
                                           :
MICHAEL JOSEPH ASCENZI                     :
                                           :
                    APPELLANT              :     No. 257 MDA 2016

           Appeal from the Judgment of Sentence December 30, 2015
               In the Court of Common Pleas of Luzerne County
              Criminal Division at No(s): CP-40-SA-0000265-2015

BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*

MEMORANDUM BY DUBOW, J.:                          FILED OCTOBER 18, 2016

        Appellant, Michael Joseph Ascenzi, appeals pro se from the Judgment

of Sentence entered in the Luzerne County Court of Common Pleas following

his conviction of one count each of Driving without a License and Displaying

a Foreign License During Suspension or Revocation.1 We affirm.

        On August 26, 2015, Officer Richard Harding of the City of Wilkes-

Barre Police Department initiated a traffic stop after observing Appellant,

whom Officer Harding knew had a suspended driver’s license, operating a

vehicle.   When asked for his driver’s license, Appellant produced a Florida

driver’s license.    Officer Harding ascertained the validity of Appellant’s



*
    Retired Senior Judge Assigned to the Superior Court.
1
    75 Pa.C.S. § 1501(a) and 75 Pa.C.S. § 1573(a), respectively.
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Florida-issued   driver’s    license,   but   also   confirmed   that   Appellant’s

Pennsylvania driving privileges had been suspended on September 9, 2014.

Accordingly, Officer Harding issued two citations to Appellant: one for driving

with a suspended license, and one for displaying a foreign license during

suspension.

      The Magisterial District Judge found Appellant guilty of both charges

on September 22, 2015. On October 20, 2015, Appellant filed a Notice of

Appeal to the Luzerne County Court of Common Pleas.              That court held a

summary appeal trial on December 30, 2015.             Officer Harding testified on

the Commonwealth’s behalf. Appellant, appearing pro se, declined to cross-

examine Officer Harding, and instead made a statement on his own behalf.

Appellant claimed that, when asked for identification, Appellant produced his

Florida driver’s license to Officer Harding because it was the only

identification he had.      He argued that, even though his driving privileges

were suspended in Pennsylvania, since Florida had issued him a driver’s

license, it was not a “false license,” and the Florida license permitted him to

“drive anywhere.” N.T., 12/30/15, at 8-9.            Appellant also opined that 75

Pa.C.S. § 1573(a), pertaining to the display of a foreign license, is

unconstitutional. Id. at 11.

      The trial court found Appellant guilty of both charges and imposed an

aggregate fine of $623. On January 27, 2016, Appellant filed a timely Notice

of Appeal and a Pa.R.A.P. 1925(b) Statement.



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      On March 1, 2016, the trial court entered an order directing Appellant

to file a Pa.R.A.P. 1925(b) Statement.       On June 17, 2016, the court,

apparently not realizing that Appellant had already filed a Rule 1925(b)

Statement in January, filed a Pa.R.A.P. 1925(a) Opinion in which it

concluded that Appellant had waived his issues on appeal by not complying

with its March 1, 2016 Order.

      Appellant raises the following three issues on appeal, which we have

reordered for ease of disposition:

         1. There is no set law that requires an appellant to file
         more than one 1925(b) Concise Statement of Matters of
         Complaint on Appeal. See Exhibits A, B.

         2. Was it a complete error of law where the trial court
         found the Appellant guilty of displaying his Florida driver’s
         license as his proper valid photo identification as a foreign
         driver’s license, when the arresting officer had first hand
         knowledge that his Pennsylvania license was in fact
         suspended, and that same officer asked for the Appellant’s
         identification. Title 75 Pa.C.S.A. § 1501.

         3. As viewing Title 75 Pa.C.S.A. § 1543(a) coupled with §
         1573(a), in nature they are in conflict with the United
         States Constitution under the 1st, 4th, and 14th
         Amendments as well as [the Pennsylvania Constitution
         Article 1 Section 8 and Section 9]. Also breeching Florida’s
         sovereignty as a proclaimed state and independent laws
         therein. Making said statutes unconstitutional.

Appellant’s Brief at 2.

      In his first issue, Appellant purports to challenge the trial court’s

assertion that he waived his issues on appeal by failing to file a Pa.R.A.P.

1925(b) statement in compliance with the trial court’s March 1, 2016 Order.



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Our review of the trial court docket reveals that Appellant filed a Rule

1925(b) Statement on January 27, 2016. In it, Appellant raised the issues

he currently raises before this Court on appeal.             Accordingly, and

notwithstanding that the trial court did not address those issues on their

merits in its Rule 1925(a) opinion, we decline to find Appellant’s issues on

appeal waived.

      Next, Appellant avers that it was an “error by the trial court to have

found the Appellant guilty of displaying a foreign license when the officer

only asked for identification.” Id. at 8. Essentially, Appellant argues that

because Officer Harding asked Appellant for identification, and the only

identification he possessed was a Florida driver’s license, the Commonwealth

presented insufficient evidence for the trial court to find him guilty of

Displaying a Foreign License During Suspension or Revocation. Id. at 8-9.

      When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

         The standard we apply in reviewing the sufficiency of the
         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
            factfinder. 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



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            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 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.

Commonwealth v. Vetrini, 734 A.2d 404, 406–07 (Pa. Super. 1999)

(citations and quotations marks omitted).

      Section 1573 of our Vehicle Code, entitled “Displaying a foreign license

during suspension or revocation,” prohibits anyone “whose operating

privilege to drive a motor vehicle in this Commonwealth has been …

suspended… to display a license … issued by any other jurisdiction … during

the suspension[.]”    75 Pa.C.S. § 1573(a).      The Vehicle Code does not

provide any defenses to the violation of this statute.

      At Appellant’s trial de novo, Officer Harding testified that he stopped

Appellant on August 26, 2015, when he saw him driving a vehicle because

he knew that Appellant’s driving privileges had been suspended. N.T. at 4-

5. He further testified that the police department dispatcher confirmed that

Appellant’s driver’s license had been suspended for one year, beginning on

September 9, 2014. N.T. at 6-7. Officer Harding also testified that, when




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he requested Appellant’s driver’s license, registration, and insurance card,

Appellant produced a Florida driver’s license. Id. at 5.

      Appellant did not object to the admission into evidence of his certified

driving record, nor did he provide any evidence or testimony refuting the

Commonwealth’s evidence that his Pennsylvania driving privileges were

suspended on the date of the traffic stop.        Appellant admitted that he

displayed a Florida driver’s license when asked for identification by Officer

Harding.

      Viewing all of the evidence admitted at trial in the light most favorable

to the Commonwealth as the verdict winner, we conclude that the evidence

was sufficient to enable the fact-finder to find that Appellant did indeed

“[d]isplay[ ] a foreign license during suspension or revocation.”             75

Pa.C.S. §1573(a). The record shows, and Appellant does not dispute, that

he displayed to Officer Harding a Florida driver’s license during the effective

period of the suspension of his Pennsylvania driving privileges. Appellant’s

statement that he displayed the Florida license only in response to Officer

Harding’s order to do so does not provide a defense to the statute.

Accordingly, Appellant’s second issue is without merit.

      In his final issue, Appellant states that the trial court erred by “failing

to review the constitutionality of Pennsylvania’s driving codes.” Appellant’s

Brief at 10.   In support of this claim, Appellant avers that the traffic stop

initiated by Officer Harding deprived Appellant of his “guaranteed right” to



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travel under the First Amendment to the U.S. Constitution; and that the

towing and impounding of his vehicle incident to the traffic stop “[gave] rise

to a violation of Appellant’s [Fourth] Amendment rights under the [U.S.]

Constitution. Id. at 10-11. Appellant also summarily avers, without citation

to authority, that the trial court improperly interpreted and applied Section

1573(a) to him, a resident of Florida, because he is “protected by the

appropriate sovereign of his home state.”     Id. at 13. He claims that “the

state of Florida [gave him] a substantial right to drive.” Id.

      At trial, Appellant raised the constitutionality of Section 1573(a) in the

following exchange:

         The Court:     Because your license is suspended here, it’s
                        suspended everywhere . . . .

         Appellant:     It’s a sovereign state. If they issue me a
                        license, they issued me a license, Judge.
                        Each state has their own sovereignty.
                        Same thing with Pennsylvania.

         The Court:     We also have something which we share.
                        Something we share from state to state.

         Appellant:     I’m not here for a DUI.

         The Court:     Suspended license we share.

         Appellant:     That’s what I’m here for.

         The Court:     And DUI’s are suspended license and they
                        go from state to state.

         Appellant:     In my opinion the statute itself is
                        unconstitutional if you ask me that.




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         The Court:      Hire a lawyer and file whatever you want to
                         challenge the constitution.

N.T. at 11-12.

      Based on our review of the above exchange, we conclude that

Appellant only preserved his purported constitutional claim that finding him

guilty of Section 1573 violated a sovereign “right” to drive granted by the

state of Florida.   However, to the extent that Appellant raises First and

Fourth Amendment violations, we find those claims waived as Appellant did

not raise them in a Pre-Trial Motion or at his trial.   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.”); see also Commonwealth v. Eisenberg, 98

A.3d 1268, 1274-75 (“[I]t is incumbent upon one raising the specter that a

statute is unconstitutional to state, at least in somewhat express terms, the

specific constitutional grounds upon which the challenger is basing its attack

on the legislation.”).

      Appellant’s unsupported claim of protection from Section 1573(a)

because of Florida’s grant of a “substantial right” to drive fails. Appellant’s

Brief at 13. It is well-settled that the operation of a vehicle is a privilege,

not a right, afforded by the state, and subject to regulation by the state.

See Commonwealth v. Zimmick, 653 A.2d 1217, 1222 (Pa. 1995);

Commonwealth Dep’t of Transp. v. Wysocki, 535 A.2d 77, 78 (Pa.

1987). See also Lite v. State, 617 So. 2d 1058, 1060 (Fla. 1993)




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(reiterating that driving is a privilege, not a right). There is no right to drive

recognized by the U.S. Constitution or any state constitution.

      Because there is no constitutional right to drive, Appellant’s claim that

“the state of Florida has given the Appellant a substantial right to drive” is,

as a matter of law and fact, false. Thus, contrary to Appellant’s contention,

Section 1573(a) does not infringe on any constitutional rights. 2 Accordingly,

Appellant is not entitled to relief.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/18/2016




2
  We also note that both Florida and Pennsylvania are members of the Driver
License Compact. See Fla. Stat. 322.44; 75 Pa.C.S. §1581-86.



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