J-S46015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,           :     IN THE SUPERIOR COURT OF
                                        :          PENNSYLVANIA
                       Appellee         :
                                        :
           v.                           :
                                        :
SHAWN MICHAEL SMITH,                    :
                                        :
                       Appellant        :     No. 2192 MDA 2013


        Appeal from the Judgment of Sentence Entered July 2, 2013,
           In the Court of Common Pleas of Cumberland County,
             Criminal Division, at No. CP-21-SA-0000044-2013.


BEFORE: SHOGAN, LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY SHOGAN, J.:                        FILED AUGUST 26, 2014

     Appellant, Shawn Michael Smith, appeals from the judgment of

sentence imposed on his conviction of driving while his license was

suspended in relation to a driving-under-the-                             , 75

Pa.C.S.A. § 1543(b). We affirm.

     The trial court summarized the facts and procedural history of this

matter as follows:

           On January 3, 2013, Trooper John Boardman witnessed a
     stop sign violation committed by [Appellant] Shawn Smith.
     Notes of Testimony, In Re: Appeal From Summary, July 2, 2013
     at 4-
     Trooper Boardman discovered that [Appellant] was not able to
     pr

     license was suspended for a driving under the influence violation.
     N.T. at 6-7.    Trooper Boardman filed the citation against
     [Appellant] for driving under a suspended license when the
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      underlying suspension was due to a driving under the influence
      violation, 75 Pa.C.S.§ 1543(b)(1). N.T. at 7. The Magisterial
      District Judge found [Appellant] guilty and he appealed to the
      Court of Common Pleas. On de novo review, this [c]ourt found
      the Commonwealth had met their burden and adjudicated
      [Appellant] guilty. N.T. at 19.

Trial Court Opinion, 1/21/14, at 1 2. This appeal followed.1 Appellant and

the trial court complied with Pa.R.A.P. 1925.

      On appeal, Appellant presents two questions for our consideration:

      I.    WAS THE EVIDENCE PRESENTED AT TRIAL SUFFICENT
            [sic] TO SUSTAIN A CONVICTION OF DRIVING UNDER
            SUSPENSION WHEN TROOPER BOARDMAN DID NOT HAVE
            PROBABLE CAUSE TO INITIATE A TRAFFIC STOP AND ALL
            EVIDENCE ACQUIRED AS A CONSEQUENCE OF THE
            UNLAWFUL STOP SHOULD HAVE BEEN EXCLUDED?

      II.

            OF JUSTICE WHEN THE UNCONTRADICTED EVIDENCE
            ESTABLISHED THAT TROOPER BOARDMAN DID NOT HAVE
            PROBABLE CAUSE TO INITIATE A TRAFFIC STOP AND ALL
            EVIDENCE ACQUIRED AS A CONSEQUENCE OF THE
            UNLAWFUL STOP SHOULD HAVE BEEN EXCLUDED?



      Initially, we must consider the context of our review given the

phrasi

issued two citations to Appellant, one for failing to stop at the stop sign and

one for driving with a suspended license. N.T., 7/2/13, at 7. Appellant did



1

grant of his uncontested petition for reinstatement of appellate rights nunc
pro tunc. Certified Record Nos. 14, 17.

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not file a summary appeal from the citation Trooper Boardman issued to

Appellant for the stop sign violation. Id. at 16 17. Thus, Appellant cannot



                                                                       aived and




conclusion that the underlying traffic stop was legal.

      In reviewing the sufficiency of evidence, we must view all the evidence

admitted at trial in the light most favorable to the verdict winner and

determine whether there is sufficient evidence to enable the fact finder to

find every element of the crime beyond a reasonable doubt. In applying this

test, we may not weigh the evidence and substitute our judgment for that of

the fact-finder.   Commonwealth v. O'Black, 897 A.2d 1234, 1238 (Pa.

Super. 2006).

      Appellant    was   convicted   of    violating   section   1543(b)   of   the

Pennsylvania Vehicle Code. That section reads, in relevant part, as follows:

      (1) A person who drives a motor vehicle on a highway or

      operating privilege is suspended or revoked . . . because of 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.

75 Pa.C.S.A. § 1543(b)(1).


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follows:

        The elements of 75 Pa.C.S. § 1543(b)(1) require that a person
        be operating a motor vehicle while their license is under
        suspension due to a violation of section 3802. This Court heard
        testimony from multiple sources, one of them [Appellant], which
        indicated [Appellant] was driving under a suspended license.
        N.T. at 12.      Further, it was established that the license
        suspensions occurred because of a driving under the influence
        related violation. N.T. at 7. Last, this Court determined that
        Trooper Boardman, not [Appellant] or his fiancé, was the
        credible witness. N.T. at 18. Based on the testimony this Court
        found to be factual, the elements of the cited offense have been
        met. By failing to find [Appellant] or his fiancé credible, this
        Court settled any potential matter of reasonable doubt.
        Therefore, viewing the evidence in a light most favorable to the
        Commonwealth as verdict-winner, there is sufficient evidence to
        uphold the guilty verdict.

Trial Court Opinion, 1/21/14, at 3 4 (footnote omitted).

        Our review of the record confirms that Trooper Boardman asked



7/2/1



Id. at 6

Appellant told Trooper Boardman that his license was suspended. Id. at 12.



that the evidence was sufficient to sustain the section 1543(b) conviction.

Accord Commonwealth v. Herb, 852 A.2d 356, 361 (Pa. Super. 2004)

(


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driving with suspended license where, inter alia, appellant admitted he had

driven his vehicle to scene of his arrest when his license was suspended for

DUI-related offense). Thus, Appellant is not entitled to relief.



supporting the section 1543(b) conviction.        We recently reiterated the

procedure for preserving a weight claim:

      Pennsylvania Rule of Criminal Procedure 607(A) provides that a
      challenge to the weight of the evidence must be raised in a
      motion for a new trial that is presented orally, on the record,
      before sentencing, by written motion before sentencing, or in a
      post-sentence motion. See Commonwealth v. Washington,
      825 A.2d 1264, 1265 66 (Pa.Super.2003).

Commonwealth v. Myers, 86 A.3d 286, 291 n.4 (Pa. Super. 2014).

      Here, Appellant neither asserts, nor does the record disclose, that he

raised a challenge to the weight of the evidence by any of the available

means. Consequently, to the extent he intended to challenge the weight of

the evidence on appeal, this issue is waived. Myers, 86 A.3d at 291 n.4.



weight claim. Thus, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/26/2014




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