J-S67033-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellee              :
             v.                          :
                                         :
                                         :
ROLANDO HORSFORD                         :
                                         :
                   Appellant             :   No. 242 EDA 2017

        Appeal from the Judgment of Sentence December 1, 2016
             in the Court of Common Pleas of Carbon County
          Criminal Division at No(s): CP-13-SA-0000043-2016

BEFORE:    OTT, J., NICHOLS, J. and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 14, 2019

      Rolando Horsford (Appellant) appeals from the judgment of sentence

imposed following his conviction for the summary offense of driving without

a valid driver’s license. We affirm.

      As accurately summarized by the trial court,

      [t]he facts, when viewed most favorably to the Commonwealth
      as verdict winner, begin on June 8, 2016[,] when Corporal
      Shawn Nunemacher of the Lansford Police Department received
      a call from dispatch concerning an unrelated incident. Corporal
      Nunemacher testified that while responding to that call, he
      noticed a Chrysler sedan with tinted windows. Corporal
      Nunemacher recognized this automobile as the same vehicle
      from previous traffic stops he had made which also involved
      [Appellant]. He recalled that earlier in the year he stopped
      [Appellant] and ultimately cited him for operating a vehicle
      without a valid driver’s license. Corporal Nunemacher then
      followed the vehicle until it stopped at a local convenience store.
      A few seconds after [Appellant] parked and the marked police
      cruiser pulled up behind [Appellant’s] vehicle, Corporal
      Nunemacher observed [Appellant] exit the vehicle from the
      driver’s seat. The corporal then watched [Appellant] walk from
      his car into the convenience store. At that time, Corporal
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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      Nunemacher and his partner proceeded on to the call that they
      were originally responding to prior to spotting [Appellant’s]
      vehicle. Later that day, Corporal Nunemacher returned to the
      Lansford police station, printed a certified copy of [Appellant’s]
      suspended driver’s license, and sent [Appellant] a traffic citation
      via the United States Postal Service. [T]he citation was issued
      for violating 75 Pa.C.S.[] § 1501(a) -driving without a license.
      The June 8, 2016 citation is [Appellant’s] third violation of 75
      Pa.C.S.[] § 1501(a) within the past seven [] years[,] which
      triggers enhanced penalties pursuant to 75 Pa.C.S.[] § 6503(b).
      Appellant’s prior violations occurred on August 29, 2009, and
      January 6, 2016, respectively.

Supplemental Trial Court Opinion, 8/17/2017, at 2-3.

      The district magistrate judge found Appellant guilty in abstentia of

driving without a valid license. Appellant, who was in jail at the time of the

hearing, petitioned and received the right to reinstate nunc pro tunc an

appeal de novo. The case then proceeded to a de novo hearing before the

trial court on December 1, 2016, wherein Appellant was represented by

privately-retained counsel.      After hearing the testimony of Corporal

Nunemacher and Appellant, the trial court found Appellant guilty of driving

without a valid driver’s license pursuant to 75 Pa.C.S. § 1501(a). The trial

court applied the enhanced penalties set forth in 75 Pa.C.S. § 6503, and

sentenced Appellant in open court at the conclusion of the hearing to pay a

$1,000 fine and serve 45 to 90 days of imprisonment.

      Appellant pro se filed a notice of appeal on December 27, 2016. This

court granted the motion to withdraw filed by Appellant’s privately-retained

counsel and instructed the trial court to determine Appellant’s eligibility for

court-appointed counsel.      Following a hearing, the trial court appointed

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counsel, who petitioned this Court to remand this matter to the trial court to

permit Appellant to file a supplemental concise statement pursuant to

Pa.R.A.P. 1925(b).       This Court granted the petition, Appellant filed a

counseled supplemental concise statement, and the trial court filed a

supplemental opinion pursuant to Pa.R.A.P. 1925(a).         The matter is now

ready for our review.

        On appeal, Appellant sets forth two issues, which we will consider out

of order for ease of disposition. Appellant’s Brief at 4. We first address his

argument that the evidence was insufficient to convict Appellant of driving

without a valid license by using the following standard.

        Whether sufficient evidence exists to support the verdict is a
        question of law; our standard of review is de novo and our scope
        of review is plenary. When reviewing the sufficiency of the
        evidence, this Court is tasked with determining whether the
        evidence at trial, and all reasonable inferences derived
        therefrom, [is] sufficient to establish all elements of the offense
        beyond a reasonable doubt when viewed in the light most
        favorable to the Commonwealth[.]           The evidence need not
        preclude every possibility of innocence….

Commonwealth v. Walls, 144 A.3d 926, 931 (Pa. Super. 2016) (internal

citations and quotation marks omitted).

        “This standard is equally applicable to cases where the evidence is

circumstantial rather than direct so long as the combination of the evidence

links    the   accused    to   the   crime   beyond    a   reasonable    doubt.”

Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014).

“Although a conviction must be based on ‘more than mere suspicion or


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conjecture, the Commonwealth need not establish guilt to a mathematical

certainty.’”   Commonwealth v. Thomas, 194 A.3d 159, 166 (Pa. Super.

2018) (citation omitted).    Credibility of witnesses and the weight of the

evidence produced is within the province of the trier of fact, who is free to

believe all, part, or none of the evidence. Commonwealth v. Scott, 146

A.3d 775, 777 (Pa. Super. 2016).

      In order to prove Appellant was guilty of driving without a valid

license, the Commonwealth needed to prove that Appellant was driving a

motor vehicle upon a highway or public property in the Commonwealth

without a driver’s license valid under the provisions of the Vehicle Code.

See 75 PaC.S. § 1501(a) (“No person, except those expressly exempted,

shall drive any motor vehicle upon a highway or public property in this

Commonwealth unless the person has a driver’s license valid under the

provisions of this chapter.”).

      Appellant’s   sufficiency challenge   is simple: he claims that the

Commonwealth’s case, which relied upon circumstantial evidence, was

insufficient to prove beyond a reasonable doubt that he was driving.

Appellant’s Brief at 15-16.      Appellant points to Corporal Nunemacher’s

testimony that due to the car’s tinted windows, he could not see into the car

while it was moving to observe who was driving.            Id.   According to

Appellant, because there were two people in the car, and Appellant testified

his brother was driving, not him, it is equally likely that Appellant’s brother


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was driving the car, and thus the Commonwealth failed to establish beyond

a reasonable doubt that Appellant was the driver. Id.

      Here, the trial court deemed the Commonwealth’s evidence to be

sufficient to establish the elements of the foregoing crime, relying upon the

following facts established through Corporal Nunemacher’s testimony:

Corporal Nunemacher recognized Appellant’s vehicle from a previous traffic

stop where he cited Appellant for operating a vehicle without a valid license;

he followed the vehicle, and observed it driving on the roadway and then

pulling into a convenience store parking lot; he pulled his police vehicle

behind the vehicle he was following, and observed Appellant exit the vehicle

from the driver’s side seconds after the vehicle stopped; and later that same

day, he obtained the certified record establishing that Appellant’s driver’s

license was suspended. Supplemental Trial Court Opinion, 8/17/2017, at 8-

9.

      Based upon Corporal Nunemacher’s testimony, which the trial court

credited, we find this case to be indistinguishable from Commonwealth v.

Carr, 887 A.2d 782 (Pa. Super. 2005). In that case, this Court reviewed the

trial court’s finding that the arresting officer followed Carr’s vehicle into a

parking lot and “within three seconds observed [Carr] exit the driver’s side

door.”   Id. at 783. This Court held that “[a] reasonable inference can be

made from this finding that [Carr] was the operator of the vehicle.”       Id.

This is the same situation here; Appellant’s quick exit from the driver’s side


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door after the car pulled into the parking lot is enough to establish

circumstantially that Appellant was driving the vehicle, regardless of how

many people were in the car. Furthermore, the trial court was entitled to

credit Corporal Nunemacher’s testimony over Appellant’s, and because the

Commonwealth is the verdict winner, Appellant’s testimony that he was not

driving and Corporal Nunemacher could not have observed him exiting the

car is of no significance. Accordingly, the trial court did not err in concluding

that the Commonwealth established all of the elements of 75 Pa.C.S. §

1501(a).

      We turn now to Appellant’s second issue, which presents a procedural

due process challenge to 75 Pa.C.S. § 6503, which is a statute imposing an

enhanced sentence to recidivist offenders. Appellant’s Brief at 9-14.

      As described supra, Appellant was convicted for driving without a valid

license pursuant to 75 Pa.C.S. § 1501(a).          Because he was a repeat

offender, the trial court sentenced Appellant pursuant to 75 Pa.C.S.

§ 6503(b), which provides as follows.

      Every person convicted of a second or subsequent violation of
      [sub]section 1501(a) (relating to drivers required to be licensed)
      within seven years of the date of commission of the offense
      preceding the offense for which sentence is to be imposed shall
      be sentenced to pay a fine of not less than $200 nor more than
      $1,000 or to imprisonment for not more than six months, or
      both.

75 Pa.C.S. § 6503(b).




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      Appellant does not contest his status as a repeat offender. Instead, he

claims that subsection 6503(b) violates his rights of procedural due process

guaranteed    by   the    United   States   and   Pennsylvania   Constitutions.

Appellant’s Brief at 9.    In Appellant’s view, it is unconstitutional for the

legislature to subject repeat offenders to a penalty that is consistent with a

misdemeanor of the third degree for a violation of a summary offense. Id.

at 10-14.    Specifically, he argues “a defendant convicted under [s]ection

1501 with a sentence enhancement under [s]ection 6503 is facing a

deprivation of his or her liberty consistent with a misdemeanor yet is

provided with [the] lesser procedural protections for summary offenses.”

Id. at 13.

      Our Supreme Court has described procedural due process as follows.

      In terms of procedural due process, government is prohibited
      from depriving individuals of life, liberty, or property, unless it
      provides the process that is due. While not capable of an exact
      definition, the basic elements of procedural due process are
      adequate notice, the opportunity to be heard, and the chance to
      defend oneself before a fair and impartial tribunal having
      jurisdiction over the case. Thus, courts examine procedural due
      process questions in two steps: the first asks whether there is a
      life, liberty, or property interest that the state has interfered
      with; and the second examines whether the procedures
      attendant to that deprivation were constitutionally sufficient.

Commonwealth v. Turner, 80 A.3d 754, 764 (Pa. 2013) (internal citations

and quotation marks omitted).

      “There is … a strong and fundamental presumption that the legislature

has acted within constitutional bounds. Consequently, one challenging the


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constitutionality of a legislative enactment bears the heavy burden of

demonstrating that it clearly, plainly and palpably violates some specific

mandate or prohibition of the constitution.”     Commonwealth v. Parker

White Metal Co., 515 A.2d 1358, 1362 (Pa. 1986).

      Upon review, we conclude that Appellant has failed to meet this heavy

burden.    First, Appellant has waived this issue.   Although Appellant’s prior

counsel generally alluded to this issue at the de novo hearing, see N.T.,

12/1/2016, at 28, he never raised a constitutional argument before the trial

court. Thus, the first time Appellant’s constitutional challenge appears is in

his supplemental     concise   statement.    “Even issues     of constitutional

dimension cannot be raised for the first time on appeal.” Commonwealth

v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008).           Thus, Appellant has

waived this issue. Id.; Pa.R.A.P. 302(a).

      Second, even if Appellant did not waive this issue, he has failed to

convince us that he has been deprived of due process. The legislature has

the “exclusive power to pronounce which acts are crimes, to define crimes,

[] to fix the punishment for all crimes[,]” and “to classify crimes.”

Commonwealth v. Davis, 618 A.2d 426, 428 (Pa. Super. 1992).

Subsection 6502(a) of the Vehicle Code establishes that all violations of Title

75 are graded as a summary offense, “unless the violation is by this title or

other statute of this Commonwealth declared to be a misdemeanor or

felony.”   75 Pa.C.S. § 6502(a).    The legislature has designated expressly


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that a violation of subsection 1501(a) is a summary offense that is

punishable by a fine of $200. 75 Pa.C.S. § 1501(d) (“Any person violating

subsection (a) is guilty of a summary offense and shall, upon conviction, be

sentenced to pay a fine of $200….”).

     The legislature elected to enhance the penalties for repeat offenders of

subsection 1501(a) by expanding the range of fines from $200 at a

minimum to $1,000 at a maximum, including a term of imprisonment for not

more than six months, or imposition of both a fine and imprisonment. 75

Pa.C.S. § 6503(a).    Ordinarily, this would alter the grade of the offense,

because the Crimes Code in Title 18 specifies that any offense that imposes

a fine up to $1,000 and/or imprisonment of up to six months is deemed to

be a misdemeanor of the third degree. See 18 Pa.C.S. § 106(c) and (e).

“However, ... [sub]section 6502(c) [of the Vehicle Code] specifically states

that [Title 18’s] classification ‘as it relates to fines and imprisonment for

convictions   of   summary   offenses,   is   not   applicable   to   [Title   75].’”

Commonwealth v. Postie, 110 A.3d 1034, 1042 n.10 (Pa. Super. 2015)

(citing 75 Pa.C.S. § 6502(c)).   As a result, this Court has held repeatedly

that the underlying offense remains a summary offense, notwithstanding the

increased penalties. Commonwealth v. Lyons, 576 A.2d 1105, 1106 (Pa.

Super. 1990) (en banc) (concluding that the legislature intended to grade all

violations of the Vehicle Code as “summary offenses unless otherwise

expressly classified by statute,” even if the Vehicle Code subjects repeat


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offenders to penalties that are consistent with misdemeanors); Postie, 110

A.3d at 1042 n.10 (explaining that even though Postie was appealing his

twentieth conviction of a summary offense under the Vehicle Code, it

remained a summary offense under the code); Commonwealth v.

Soboleski, 617 A.2d 1309, 1311 (Pa. Super. 1993) (explaining that section

6503 is a penalty enhancement provision, not a separately chargeable

offense, and the nature and grade of the underlying Vehicle Code offense

remains the same despite the enhanced penalties); Commonwealth v.

Bernal, 600 A.2d 993, 995 (Pa. Super. 1992) (relying on Lyons and 75

Pa.C.S. § 6502(c) to conclude that an offense expressly classified as a

summary offense remains so “notwithstanding the penalty enhancement” for

repeat offenders).

       While Appellant baldly claims the procedural protections afforded to

those accused of summary offenses do not adequately protect his liberty

interest and create a risk of erroneous conviction, he fails to explain how

providing enhanced procedural protections would affect those subject to the

penalty enhancement.1 Appellant was afforded notice of the enhancement

on the traffic citation, and had the opportunity to be heard and defend

himself at a de novo hearing before the trial court. Often application of the

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1 Appellant does not cite any cases in which either this Court or our Supreme
Court has concluded that the repeat offender penalty enhancement provision
in the Vehicle Code violates a defendant’s due process rights.



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penalty enhancement is quite straightforward and involves a calculation of

whether the defendant committed the specified offense within the specified

lookback period. The Commonwealth may establish the applicability of the

penalty enhancement by obtaining a certified record of conviction, which is

“admissible in any court of law without any need for further documentation.”

75 Pa.C.S. § 6501. This is consistent with what happened in this case. See

N.T., 12/1/2016, at 10-11 (introducing into evidence without objection

Appellant’s certified driving record showing his prior convictions).   Thus,

Appellant has failed to convince this Court that the imposition of enhanced

penalties pursuant to subsection 6503(b) violated his procedural due process

rights.

      Based on the foregoing, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/19




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