J-S73040-17


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, :               IN THE SUPERIOR COURT OF
                              :                     PENNSYLVANIA
             Appellee         :
                              :
        v.                    :
                              :
SCOTT ALLEN STOUFFER,         :
                              :
             Appellant        :                 No. 878 MDA 2017

              Appeal from the Judgment of Sentence May 17, 2017
                in the Court of Common Pleas of Lebanon County
              Criminal Division at No(s): CP-38-SA-0000098-2016

BEFORE: OLSON, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                   FILED JANUARY 04, 2018

      Scott Allen Stouffer (Appellant) appeals from the judgment of sentence

entered May 17, 2017, after he was found guilty of driving while operating

privilege is suspended or revoked. We affirm.

      The trial court summarized the pertinent factual and procedural history

as follows.

             This matter involves the de novo appeal from the decision
      of the Magistrate District Court. [Appellant] was charged with
      [d]riving while operating privilege is suspended or revoked. Trial
      was held before Magistrate Judge John W. Ditzler, after which
      [Appellant] was found guilty. [Appellant] was sentenced to a
      minimum of [45] days and a maximum of [90] days in Lebanon
      County Correctional Facility and fines, costs[,] and restitution. On
      November 3, 2016, [Appellant] appealed to th[e trial c]ourt and a
      hearing was therefore scheduled. After several continuances, the
      matter came before th[e trial c]ourt on May 17, 2017.

            At trial, the Commonwealth first called Lebanon County
      Probation Officer Susan Wright (“Officer Wright”) to testify.
      Officer Wright testified that on July 12, 2016, she and fellow


* Retired Senior Judge assigned to the Superior Court
J-S73040-17


     probation officer, Randy Stewart (“Officer Stewart”), were
     performing a home visit at 19 Park Drive in Grantville,
     Pennsylvania. As the officers were exiting their vehicle in [the]
     driveway, Officer Wright testified that she witnessed [Appellant]
     exit the house on the adjacent property, 21 Park Drive, enter into
     a large white pick-up truck in the driveway, back the truck out of
     the driveway and drive down the road for about 200 to 300 feet
     until the vehicle cleared her vision. Officer Wright testified that
     she was familiar with [Appellant] and knew that he had a
     suspended license due to a DUI. About twenty minutes later,
     Officers Wright and Stewart arrived at [Appellant’s] place of
     business, which is about five minutes away, and observed
     [Appellant’s] truck at his place of employment. Upon cross-
     examination, Officer Wright noted that the truck was visible on
     the roadway for several seconds.

            The Commonwealth then called Officer Stewart to testify.
     Officer Stewart also testified that he and Officer Wright were
     performing a home visit on an individual that he was supervising
     at 19 Park Drive and that, while exiting their vehicle, he observed
     [Appellant] enter into the driver’s side section of a white Ford F-
     250 pickup truck parked at 21 Park Drive, put the truck in reverse
     and drive east on Park Drive. Officer Stewart testified that he saw
     [Appellant] drive the truck for about 40 yards down the roadway
     until it was no longer visible. Upon cross-examination, Officer
     Stewart stated that the event from [Appellant] pulling out of the
     driveway until the truck was out of sight lasted about one minute.

            The defense called Treigh Mason, a friend and employee of
     [Appellant], as a witness. Mr. Mason testified that he had been
     with [Appellant] at 21 Park Drive on July 12, 2016. Mr. Mason
     then testified that [Appellant] then drove the pickup truck with
     Mr. Mason as a passenger, down the side of the road to
     [Appellant’s] nearby farm. Mr. Mason then noted that once they
     arrived at the farm, another employee then drove the truck to
     [Appellant’s] place of business. On cross examination, the District
     Attorney referred to Mr. Mason’s sworn testimony in the earlier
     district court proceeding in which he testified that [Appellant] was
     driving on the road. Mr. Mason then testified on redirect that
     [Appellant] was only driving on Park Drive for about 20 yards.

          At the conclusion of the hearing, th[e trial c]ourt found
     [Appellant] guilty of the charge set forth and sentenced
     [Appellant] to [90] days incarceration and fines.


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Trial Court Opinion, 7/31/2017, at 1-3 (footnotes and citations omitted)

        This timely-filed appeal followed, wherein Appellant presents the

following issues for our review, which we have reordered for ease of

disposition.1

        1. Did the Commonwealth fail to establish that Appellant had
           actual notice that his license was suspended?

        2. Did the trial court violate the due process rights of Appellant
           when it began to announce the verdict of the court before
           hearing any argument on behalf of Appellant and then failed to
           allow adequate opportunity to be heard before it summarily
           dismissed the same?

        3. Did the trial court err in determining that the instant offense
           was not de minimis as defined in the crimes code?

Appellant’s Brief at 6 (suggested answers and unnecessary capitalization

omitted). We address these issues sequentially.

        First, we find Appellant’s claim that the Commonwealth failed to

establish that Appellant had actual notice of his license suspension, waived for

failure to preserve properly this issue in his 1925(b) statement. 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. Poncala, 915

A.2d 97, 100 (Pa. Super. 2006) (“[A]s a general rule, the failure to raise an

issue in an ordered Rule 1925(b) statement results in the waiver of that issue

on appeal.”).




1
    Both Appellant and the trial court complied with Pa.R.A.P. 1925.


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      Next, we address Appellant’s claim that the trial court violated his due

process rights when it: (1) began to announce its verdict prior to closing

arguments, and (2) disallowed defense counsel to finish his closing remarks.

Appellant’s Brief at 14-16.

      “[F]undamental procedural due process in our system of jurisprudence

embodies the bedrock principle that each participant in the adjudicative

process be given adequate notice and the opportunity to be heard.”

Commonwealth v. Parks, 768 A.2d 1168, 1172 (Pa. Super. 2001). “A due

process inquiry, in its most general form, entails an assessment as to whether

the challenged proceeding or conduct offends some principle of justice so

rooted in the traditions and conscience of our people as to be ranked as

fundamental and that define[s] the community’s sense of fair play and

decency.”     Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008)

(citations and internal quotation marks omitted).

      Here, Appellant argues that

      [f]irst, [] the [t]rial [c]ourt had no intention of listening to any
      argument Appellant’s counsel was prepared to make, as
      evidenced by the announcement of the verdict without even
      providing for the opportunity to make oral argument. Second,
      that once Appellant’s counsel began to outline Appellant’s de
      minim[i]s argument, he was again vociferously interrupted
      without so much as an opportunity to flesh out said argument for
      the record. And third, that by [its] very nature in handling the
      conclusion of the case in this manner, the [t]rial [c]ourt absolutely
      prejudiced Appellant.

Appellant’s Brief at 15-16 (citing Commonwealth v. Thompson, 281 A.2d

856 (Pa. 1971) (finding that Thompson’s trial “failed to satisfy the


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fundamental requisites of due process” when, after the Commonwealth

presented three witnesses, the defense called Thompson to the stand who

began to testify; his testimony was interrupted by the trial court, who

summarily found him guilty of the charged crime)).

     The pertinent part of the transcript in this case reveals the following.

     [Trial Court]: Thank you, you may step down.             Any other
     witnesses?

     [Defense Counsel]: No, Your Honor. The defense rests.

     [Trial Court]: This action number, after hearing and consideration
     of all testimony adduced –

     [Defense Counsel]: I’m sorry.

     [Trial Court]: Go ahead.

     [Defense Counsel]: Do I have a chance to make a[n] argument?

     [Trial Court]: Oh, you want to make an argument? Go ahead. I
     want to hear this one.

     [Defense Counsel]: Sure, absolutely. Judge, I know perhaps
     judging by the sound of your voice, you may be skeptical to hear
     --

     [Trial court]: Skeptical? Your own witnesses testified he drove on
     a roadway.

     [Defense Counsel]: Right, for a matter of a few seconds.

     [Trial Court]: It doesn’t matter.

     [Defense Counsel]: The argument that I have today, Judge, is that
     section 312 of the crimes code provides for a de minimis offense.

     [Trial Court]: That is not a de minimis offense. I’ll tell you what a
     de minimis offense is. Perhaps if you were driving down the
     driveway and the wheel might have just touched the road. 20


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      yards. Your own witnesses said 20 yards. That is not even close
      to de minimis. That is your own witness, and [] I believe the other
      witnesses that it was a 140 feet, perhaps 200 feet. Either way, if
      your argument to me is de minimis under 312, I don’t accept that
      argument at all.

      [Defense Counsel]: Understood, Your Honor.

      [Trial Court]: Your own witnesses, two of your own witnesses said
      he drove 20 yards at 60 feet [sic]. The other witness, that is your
      witness, said he was on the roadway, which is violation. It doesn’t
      say in the act so many feet, less than so many feet, whatever. It
      says driving and it’s a roadway. This isn’t even in the nature of a
      de minimis infraction. All right, anything further?

      [The Commonwealth]: The only thing the Commonwealth would
      add is …

N.T., 5/17/2017, at 38-40.

      The trial court rejected Appellant’s claim that his due process rights were

violated, setting forth the following response to Appellant’s argument.

             After hearing all of the testimony and evidence presented,
      and the defense having rested, th[e trial court] began to announce
      its findings. At that time, defense counsel declared that he wished
      to make an argument to the [trial c]ourt. Th[e trial c]ourt then
      allowed for defense counsel to make his argument. After hearing
      defense counsel’s argument, which th[e trial c]ourt ultimately
      rejected, we proceeded to announce our verdict, finding
      [Appellant] guilty.

            [Appellant] was afforded an opportunity to be heard and a
      chance to defend himself before th[e] fair and impartial [trial
      c]ourt. [Appellant] had the opportunity to present evidence and
      testimony in his favor, as he did. Defense counsel was likewise
      afforded the opportunity to present his argument to th[e trial
      court]. Furthermore, [Appellant] did not present any evidence that
      he was prejudiced in any way.

Trial Court Opinion, 7/31/2017, at 6 (unnecessary capitalization omitted).




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      We agree with the trial court that Appellant was afforded the opportunity

to be heard and provide evidence and testimony as he sought fit. We likewise

find that the trial court did not violate Appellant’s procedural due process

rights, as the court allowed Appellant’s counsel to make a closing argument

when he requested to do so. The fact that the trial court, after hearing all the

evidence presented, concluded that Appellant’s de minimis argument was

without merit, explaining its reasoning after defense counsel noted that the

court seemed “skeptical,” does not demonstrate that the court failed to

consider thoughtfully all the evidence prior to announcing its verdict. N.T.,

5/17/2017, at 38. Further, we note that Appellant only baldly asserts that he

was “absolutely prejudiced” by the trial court’s actions, but fails to elaborate

exactly what prejudice was actually suffered and how that prejudice warranted

a new trial.

      Moreover, we reject Appellant’s contention that the Thompson case

has a “similarly situated fact pattern” and thus, like Thompson, Appellant is

entitled to a new trial. Appellant’s Brief at 16. Here, unlike in Thompson,

Appellant was able to put forth his case, including calling two defense

witnesses to testify on Appellant’s behalf.      Furthermore, the trial court

indulged Appellant’s request to make a closing argument, and after explaining

its reasoning for rejecting counsel’s de minimis defense, the trial court asked

if there was anything further.         N.T., 5/17/2017, at 40. Only the

Commonwealth responded.        Based upon the foregoing, we find that the trial



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court neither violated Appellant’s due process rights, nor did its actions

prejudice Appellant.

     Lastly, Appellant avers the trial court erred in failing to find that his

actions were de minimis. Appellant’s Brief at 17-25. Appellant acknowledges

that there was a factual dispute among testifying witnesses as to the length

he drove. Appellant nonetheless argues that his travel on Park Drive was (1)

for a very short period of time; (2) on a roadway that was not heavily

traversed; and (3) done for the purposes of getting from one parcel of land

he owned to another. Id. at 19. Appellant further contends “that his conduct

should be construed as that which was within a customary license or tolerance

for farm machinery as it relates to subsection 312(a)(1)” because, according

to Appellant, he only drove from one property he owned and was working on

at 21 Park Drive to another property he owned at 29 Park Drive. Id. at 18.

     We review this claim mindful of the following.

     A person who drives a motor vehicle on a highway or trafficway of
     this Commonwealth at a time when the person’s operating
     privilege is suspended or revoked as a condition of acceptance of
     Accelerated Rehabilitative Disposition for a violation of section
     3802 (relating to driving under influence of alcohol or controlled
     substance) or the former section 3731, because of a violation of
     section 1547(b)(1) (relating to suspension for refusal) or 3802 or
     former section 3731 or is suspended under section 1581 (relating
     to Driver's License Compact) for an offense substantially similar
     to a violation of section 3802 or former section 3731 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. § 1543(b)(1).



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     The court shall dismiss a prosecution if, having regard to the
     nature of the conduct charged to constitute an offense and the
     nature of the attendant circumstances, it finds that the conduct of
     the defendant:

           (1) was within a customary license or tolerance, neither
           expressly negatived by the person whose interest was
           infringed nor inconsistent with the purpose of the law
           defining the offense;

           (2) did not actually cause or threaten the harm or evil
           sought to be prevented by the law defining the offense or
           did so only to an extent too trivial to warrant the
           condemnation of conviction; or

           (3) presents such other extenuations that it cannot
           reasonably be regarded as envisaged by the General
           Assembly or other authority in forbidding the offense.

18 Pa.C.S. § 312(a).

     The trial court responded to Appellant’s claim as follows.

           To the extent that [Appellant] is claiming that his actions
     was [sic] not inconsistent with the purpose of the law, [the trial
     court refers] to the Superior Court who stated:

           Section 1543(b) was enacted in coordination with the
           new Drunk Driving Law as part of the legislature’s
           broad response to the serious problem of intoxicated
           drivers. The economic losses, social disruptions and
           personal tragedies resulting from drunk driving are
           well documented and the subject of increasing public
           awareness. The legislature’s intent, in enacting 75
           Pa.C.S [] § 1543(b), was to strictly enforce DUI
           suspensions, in direct response to a severe threat to
           public safety.

     Comm[onwealth] v. Guthrie, 616 A.2d 1019, 1021 (Pa. Super.
     1992) (internal quotation marks and citations omitted). [The trial
     court] likewise f[ound] that any such argument by [Appellant] that
     his conduct was not inconsistent with the purpose of the law is
     clearly unsupported. [Appellant’s] license had been suspended



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     due to a previous DUI and enforcing the suspension is an evident
     intention of the statute.

            The basis for [Appellant’s] argument, as th[e trial court]
     deduces from the record, is that [Appellant’s] contact with the
     roadway was so minimal that it represented a violation too trivial
     to warrant the condemnation of conviction. Defense counsel
     argued to th[e trial court] that [Appellant] was only on the
     roadway for “a few seconds.” Despite the fact that there was
     conflicting testimony as to the amount of time and distance that
     [Appellant] operated the truck on the roadway, [the trial court]
     find[s] it irrelevant as to the offense. [The] Superior Court heard
     a similar matter in Commonwealth v. Eliason, 509 A.2d 1296
     (Pa. Super. 1986), in which the defendant was found guilty of
     driving under suspension “as a result of operating a three-wheeled
     vehicle on a public highway for approximately ten seconds.” In
     rejecting defendant’s argument that the trial judge had abused his
     discretion in not dismissing the matter as de minim[i]s under
     Section 312, the [Superior] Court stated:

           Notwithstanding the brevity of the offense committed
           against the Commonwealth, this was the type of
           conduct which the legislature sought to prevent. Just
           as we upheld a shoplifting prosecution for $1.59 in
           Commonwealth v. Campbell, [417 A.2d 712 (Pa.
           Super. 1980)], so must we uphold appellant’s
           momentary infraction of the law. The seriousness of
           an offense cannot always be determined by the
           quantity or quality of the injury to the Commonwealth.

     [The trial court is] constrained to the same analysis in the matter
     sub judice. [Appellant] argues that for a matter of only a few
     seconds, he strayed from the side and onto the roadway. The
     Commonwealth’s witnesses testified that they observed
     [Appellant] on the roadway for about 200 to 300 feet.
     [Appellant’s] own witness testified that they were on the roadway
     for 20 yards. [The trial court finds] that the distance is not so
     trivial as to be deemed de minim[i]s. Further still, we find that
     any such infraction, despite the length in time or distance, is
     reprehensible to the spirit and letter of the law.

Trial Court Opinion, 7/31/2017, at 7-8.




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      We discern no abuse of discretion in the trial court’s conclusion. We

agree that our case law supports the court’s finding that Appellant’s conduct

was not de minimis. See Eliason. Further, as Appellant acknowledged in his

brief, Appellant cites no case law to support his proposition that “his conduct

should be construed as that which was within a customary license or tolerance

for farm machinery[.]” Appellant’s Brief at 18. No relief is due.

      Accordingly, after a thorough review of the record and briefs, we find

Appellant has presented no issue on appeal which would convince us to disturb

his judgment of sentence.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 1/4/2018




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