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                                  2014 PA Super 246



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAQUES MANTEL HARDEN

                            Appellant                   No. 421 WDA 2014


          Appeal from the Judgment of Sentence of February 12, 2014
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No.: CP-02-SA-0001726-2013


BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*

OPINION BY WECHT, J.:                                 FILED OCTOBER 27, 2014

       Jaques Mantel Harden appeals his February 12, 2014 judgment of

sentence, which was imposed following a summary appeal hearing that

resulted in the affirmance of Harden’s conviction for driving while his

operating privileges were suspended or revoked.1 Harden’s counsel has filed

with this Court a petition to withdraw as counsel, together with an “Anders”

brief.2   We grant counsel’s petition to withdraw, and we affirm Harden’s

judgment of sentence.

____________________________________________


*
       Retired Senior Judge assigned to the Superior Court.
1
       75 Pa.C.S. § 1543(b)(1).
2
       See Anders v. California, 386 U.S. 738 (1967).
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      On May 20, 2011, after being pulled over for a suspected DUI, Harden

was cited for a violation of 75 Pa.C.S. § 1547 because he refused to submit

to a chemical test.    Pursuant to that violation, Harden was to receive a

license suspension of one year.       Because Harden’s license was suspended

already due to previous Motor Vehicle Code violations, the suspension

relating to the violation of section 1547 did not become effective until July

29, 2013.

      On July 15, 2013, Harden was cited for driving while his operating

privileges   were   suspended    or   revoked,   in   violation   of   75   Pa.C.S.

§ 1543(b)(1).    On July 23, 2013, Harden proceeded to a hearing before a

magisterial district judge, after which he was found guilty of subsection

1543(b)(1) and of summary disorderly conduct. On the same date, Harden

filed a summary appeal.      Because Harden was detained for a probation

violation, he failed to appear for his summary appeal hearing, and the trial

court found him guilty in absentia. On December 19, 2013, Harden filed a

petition to vacate his sentence and for a new trial. On December 24, 2013,

the trial court granted the petition and scheduled a new summary appeal

hearing for February 12, 2014.

      The Commonwealth’s sole witness at the summary appeal hearing was

Devin McGee, the police officer who cited Harden for violating subsection

1543(b)(1).     Officer McGee testified that he encountered Harden during a

traffic stop. Notes of Testimony (“N.T.”), 2/12/2014, at 4. Officer McGee

testified that he observed Harden driving the vehicle, and that when he

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checked Harden’s driving record subsequent to the traffic stop, the status of

the driving record was “suspended DUI related.”        Id. at 4.    On cross-

examination, Officer McGee testified that he initiated the traffic stop because

the vehicle had a broken tail light. Id. at 6. Defense counsel questioned

Officer   McGee about Harden’s action after        being asked to     produce

identification. In response, Officer McGee explained that Harden provided no

photo identification, but rather gave a “false identification.”     Id. at 7.

Defense counsel objected to the latter statement, but the trial court neither

sustained nor overruled the objection. The trial court asked Officer McGee

what sort of identification Harden gave to him, and Officer McGee clarified

that Harden provided him only a name and date of birth. Officer McGee then

testified that he was able to identify Harden from the photo that he obtained

on the scene from the computer in his police cruiser, and that Harden

admitted that the name on the photo was his name. Id. at 8. After being

prompted by defense counsel, Officer McGee identified Harden in court as

the individual that he encountered during the traffic stop and recognized in

the photo.

      Defense counsel called Harden as a witness and asked him two

questions.   Id. at 9.   Defense counsel asked if Harden remembered the

traffic stop, to which Harden responded in the affirmative. Defense counsel

then asked Harden if he was operating the vehicle at the time.         Harden

responded in the affirmative.




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      The Commonwealth admitted Harden’s driving record into evidence

without objection.   Id. at 6.     No party ever addressed whether Harden

received actual notice of his license suspension during the hearing, but his

driving record indicated that the Department of Transportation mailed the

official notice of suspension on June 16, 2011.

      Following the summary appeal hearing, Harden was found guilty of 75

Pa.C.S. § 1543(b)(1).      Harden was sentenced to sixty days’ incarceration

and a fine of five hundred dollars plus court costs.    On March 12, 2014,

Harden filed a notice of appeal. On March 18, 2014, the trial court directed

Harden to file a concise statement of errors complained of on appeal

pursuant to Pa.R.A.P. 1925(b), to be served on the court no later than April

8, 2014. Harden filed a timely concise statement on April 8, 2014. On April

30, 2014, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).

Having determined that an appeal would be frivolous, Harden’s counsel filed

with this Court a petition to withdraw as counsel, together with an Anders

brief, on July 10, 2014.

      Before addressing the merits of the underlying issue that Harden

presents for our review, we first must pass upon counsel’s petition to

withdraw as counsel.       Commonwealth v. Goodwin, 928 A.2d 287, 290

(Pa. Super. 2007) (en banc).      Prior to withdrawing as counsel on a direct

appeal under Anders, counsel must file a brief that meets the requirements

established by our Supreme Court in Commonwealth v. Santiago, 978

A.2d 349, 361 (Pa. 2009). The brief must:

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      (1)   provide a summary of the procedural history and facts,
            with citations to the record;

      (2)   refer to anything in the record that counsel believes
            arguably supports the appeal;

      (3)   set forth counsel’s conclusion that the appeal is frivolous;
            and

      (4)   state counsel’s reasons for concluding that the appeal is
            frivolous. Counsel should articulate the relevant facts of
            record, controlling case law, and/or statutes on point that
            have led to the conclusion that the appeal is frivolous.

Santiago, 978 A.2d at 361.       Counsel also must provide a copy of the

Anders brief to the appellant.    Attending the brief must be a letter that

advises the appellant of his or her right to “(1) retain new counsel to pursue

the appeal; (2) proceed pro se on appeal; or (3) raise any points that the

appellant deems worthy of the court’s attention in addition to the points

raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928

A.2d 349, 353 (Pa. Super. 2007); see Commonwealth v. Daniels, 999

A.2d 590, 594 (Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d

748, 751-52 (Pa. Super. 2005).

      Our review of counsel’s petition to withdraw and the accompanying

brief reveals that counsel substantially has complied with the Santiago

procedural requirements.    Counsel has provided a factual and procedural

history detailing the events relevant to the instant appeal in her brief, along

with appropriate citations. Brief for Harden at 6-8. Harden identified one

claim to counsel that he wanted to raise on appeal:        a challenge to the

sufficiency of the evidence. Id. at 5. Counsel addresses the applicable facts


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and principles of law, ultimately concluding that this claim would be

frivolous. Id. at 12-15. In her petition to withdraw as counsel filed with this

Court, counsel again certified that she “is constrained to conclude that there

are no non-frivolous issues to raise on appeal.” See Petition to Withdraw as

Counsel, 7/10/2014, ¶9.     Counsel has identified one additional issue that

could arguably support Harden’s claim on appeal—the minimal evidence

demonstrating Harden’s notice of the suspension—but ultimately determined

that a claim advanced on this basis would be frivolous. Brief for Harden at

12-14.

      Additionally, in accordance with Nischan, counsel has sent Harden a

copy of the Anders brief and a letter informing him that he has the right to

hire a new attorney, to proceed with an appeal on his own, and to raise any

additional points that he thinks are worthy of this Court’s attention. Letter,

7/10/2014. Counsel also explains to Harden her conclusion that an appeal

would be frivolous. Accordingly, counsel substantially has complied with the

requirements set forth in Nischan, 928 A.2d at 353. See also Millisock,

873 A.2d at 751-52.

      We now must conduct an independent review of the record to

determine whether the issues identified by Harden in this appeal are, as

counsel claims, wholly frivolous, or if there are any other meritorious issues

present in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S.

at 744) (“[T]he court – not counsel – then proceeds, after a full examination




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of all the proceedings, to decide whether the case is wholly frivolous. If it so

finds, it may grant counsel’s request to withdraw.”).

      We begin with Harden’s challenge to the sufficiency of the evidence.

When reviewing challenges to the sufficiency of the 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
      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 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
      [finder] 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. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations

omitted; bracketed material in original). Further, in viewing the evidence in

the light most favorable to the Commonwealth as the verdict winner, the

court must give the prosecution the benefit of all reasonable inferences to be

drawn from the evidence. Commonwealth v. Widmer, 744 A.2d 745, 751

(Pa. 2000).



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     Harden was convicted of driving while his operating privileges were

suspended or revoked. That crime is defined as follows:

     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) (emphasis added).

     In support of his challenge to the sufficiency of the evidence, Harden

offers several facts.    First, Harden argues that the evidence was not

sufficient because he had not been convicted of a DUI offense until

September of 2013.      Brief for Harden at 10.   Presumably, Harden takes

issue with the characterization of his license suspension as “DUI related,”

because he had not been convicted of an offense under 75 Pa.C.S. § 3802 at

the time of the instant violation. As the plain text of the statute provides,

however, a suspension for refusal to submit to a chemical test is a

suspension that will satisfy the requirements of subsection 1543(b)(1).

     Second, Harden asserts in his concise statement that the evidence was

insufficient to support his conviction because his suspension for the refusal

to submit to a chemical test did not become effective until July 29, 2013,

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and because his citation occurred on July 15, 2013, he was not driving under

that specific suspension. However, Harden’s license was suspended for prior

violations at the time of the traffic stop. In fact, the prior suspensions were

the reason that the suspension at issue did not become effective for more

than two years after the underlying offense.

      The courts of Pennsylvania have addressed the precise argument that

Harden     raises    concerning   the   timing   of   his   suspensions,   and   have

determined that a prior suspension unrelated to DUI offenses does not

preclude the application of subsection 1543(b)(1) where a defendant has

received    notice     that   a   DUI-related    suspension      is   pending.     In

Commonwealth v. Nuno, this Court concluded:

      We hold that when a person receives notice that their [sic]
      operating privilege is or will be suspended or revoked for a
      D.U.I. related offense, that person is subject to the penalties of
      § 1543(b). That person will be subject to the penalties of
      § 1543(b) throughout any current suspension or revocation
      and any subsequent suspensions or revocations until the end of
      their D.U.I. related suspension or revocation.

Commonwealth v. Nuno, 559 A.2d 949, 951 (Pa. Super. 1989) (emphasis

added).    Our Supreme Court considered several cases arising from similar

factual scenarios in Commonwealth v. Jenner, 681 A.2d 1266 (Pa. 1996).

There, the Court held that, once a driver is notified of a DUI-related

suspension, “he is subject to the enhanced sentencing provisions of

§ 1543(b) for the duration of any prior periods of suspension or

revocation until the completion of the DUI-related suspension.”             Jenner,



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681 A.2d at 1273-74 (emphasis added).            Because Harden’s argument

concerning the timing of his suspensions is not supported by the law of our

Commonwealth, that argument is frivolous.

      Our own review of the record reveals that there is one issue that, while

ultimately frivolous, is worthy of discussion.     As noted, above, counsel

recognized that no party ever addressed whether Harden actually received

notice of his license suspension during the summary appeal hearing.       The

sole evidence of notice produced by the Commonwealth consisted of

Harden’s driving record, which listed the date when the Department of

Transportation mailed the official notice. Brief for Harden at 12-14.

      In Commonwealth v. Kane, 333 A.2d 925, 927 (Pa. 1975), our

Supreme Court held that it is necessary for the Commonwealth to prove that

the defendant had actual notice of a suspension in order to sustain a

conviction of driving while under suspension.     As this Court described the

requirement in Commonwealth v. Crockford, 660 A.2d 1326, 1329 (Pa.

Super. 1995), actual notice is “a judicially created element, designed to

protect a defendant’s due process rights.”

      The Supreme Court’s decision in Kane is particularly relevant to the

instant case. In Kane, the Court determined that the evidence offered to

prove actual notice was insufficient where the only evidence of actual notice

was a notice of suspension that was mailed to the defendant.       Kane, 333

A.2d at 927. “Mailed letters do go astray for a variety of reasons. Criminal

conviction requires proof beyond a reasonable doubt and that standard is not

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satisfied when one of the elements which must be proven is actual notice,

and the only evidence presented is that a notice was mailed.” Id. As this

Court has held, however, “[w]hen notice is mailed to the appellant and

additional evidence exists indicating that appellant received notice of

suspension, then the evidence can be sufficient to prove actual notice.”

Commonwealth v. Gray, 514 A.2d 621, 622 (Pa. Super. 1986) (citing

Commonwealth v. Burkett, 445 A.2d 1304 (Pa. Super. 1982)).

      Since the rule in Kane was announced, this Court has found numerous

factors that, in conjunction with evidence that a notice was mailed, satisfy

the element of actual notice. In Gray, 514 A.2d at 622-23, we found actual

notice where a notice of the suspension was mailed, the appellant had

surrendered his license to the Bureau of Traffic Safety, and did not produce

a license when stopped by the police. In Commonwealth v. Burkett, 445

A.2d 1304, 1305 (Pa. Super. 1982), we found actual notice where the notice

was mailed, the appellant returned his license to the Bureau of Traffic Safety

and, when stopped by the police, the appellant attempted to switch seats

with a passenger.   In Commonwealth v. Horney, 529 A.2d 18, 20 (Pa.

Super. 1987), we found actual notice where the notice was mailed and the

appellant admitted that he had received an earlier letter at the same

address.   In Commonwealth v. Dietz, 621 A.2d 160, 162 (Pa. Super.

1993), we found actual notice where, in addition to evidence that the notice

was mailed, the appellant had a history of license suspensions, fled the

scene of an accident, misled investigators, and failed to produce a driver’s

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license.   The Court held that “a defendant’s failure to possess a current

license is presumptive knowledge of suspension.” Id. at 162-63.

      Our Supreme Court addressed the issue of actual notice in license

suspension cases most recently in Commonwealth v. Zimmick, 653 A.2d

1217 (Pa. 1995).      In Zimmick, the Court, citing Dietz, provided a non-

exhaustive list of factors which may be considered in determining if an

individual accused of violating subsection 1543(b)(1) has actual notice of

license suspension.

      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
      or directly appellant’s knowledge of the suspension or awareness
      of guilt. See, e.g., Commonwealth v. Dietz, 621 A.2d 160,
      162 (Pa. Super. 1993) (driver’s flight from crash site and
      misleading conduct demonstrated that driver knew he was not
      permitted to drive; driver’s failure to produce a driver’s license is
      presumptive knowledge of suspension).

Zimmick, 653 A.2d at 1221 (citation modified).              In Crockford, we

summarized the applicable standard as: “The Commonwealth is required to

establish actual notice which may take the form of a collection of facts and




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circumstances that allow the fact finder to infer that a defendant has

knowledge of suspension.” Crockford, 660 A.2d at 1330-31.

     In the instant case, no party at Harden’s summary appeal hearing

specifically addressed the essential element of actual notice of suspension.

The Commonwealth presented only one piece of evidence regarding notice—

Harden’s driving record, which merely states that a notice of suspension was

mailed to some address.        The Commonwealth made no attempt to

demonstrate that Harden lived at the address, that he regularly received

mail at the address, that the mail was not returned as undeliverable, or any

other fact which would support an inference that Harden received the notice.

Kane and its progeny instruct that evidence that a notice of suspension was

mailed is not sufficient, standing alone, to sustain a conviction for driving

with a suspended license. Kane, 333 A.2d at 927. Some other factor, or

“collection of facts and circumstances” that allow an inference of knowledge

is required in addition to evidence of the mailing. Crockford, 660 A.2d at

1330-31.

     As defense counsel at the summary appeal hearing noted, the

Commonwealth’s examination of the sole witness was rather “perfunctory.”

N.T. at 6.   The result of this meager production of evidence is that the

Commonwealth arguably failed to present sufficient evidence of an essential

element of the crime.     That is not to say, however, that no facts or

circumstances existed which would permit an inference of Harden’s

knowledge of his suspension. The information that defense counsel elicited

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on cross-examination established that Harden failed to provide photo

identification to Officer McGee during the traffic stop.     Under Dietz and

Crockford, that fact, in conjunction with evidence that notice was mailed, is

sufficient to permit the inference of knowledge.     See Dietz, 621 A.2d at

162-63; Crockford, 660 A.2d at 1335.          The result of defense counsel’s

objection to Officer McGee’s statement that Harden provided him “false

identification” is unclear from the notes of testimony, but if that statement is

to be considered competent evidence, then it would support an inference of

knowledge as well.     Lastly, Harden’s history of suspensions for previous

violations, as detailed in his driving record, also supports an inference of

knowledge.

      Our standard in reviewing the sufficiency of the evidence requires us

to view all the evidence admitted at trial in the light most favorable to the

Commonwealth. Phillips, 93 A.3d at 856 (emphasis added). Further, we

must “accept as true all evidence and all reasonable inferences therefrom

upon which, if believed, the fact finder properly could have based its

verdict.”   Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa. Super.

2014) (citations omitted).   Thus, although the Commonwealth, itself, may

not have presented sufficient evidence of Harden’s actual notice of his

license suspension, defense counsel’s cross-examination provided enough

additional information such that the record contains a “collection of facts and

circumstances” that allow an inference of actual notice.      Crockford, 660

A.2d at 1330-31.

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      Even if we were not to consider the testimony regarding “false

identification” to which defense counsel objected, the evidence of record still

demonstrates that the notice of suspension was mailed, that Harden had a

long history of license suspensions, and that Harden failed to present a

driver’s license during the traffic stop.    See Dietz, 621 A.2d at 162-63.

These facts are sufficient to permit a reasonable inference, upon which the

trial court properly could have based its verdict, that Harden had knowledge

of his license suspension.   A challenge to the sufficiency of the evidence

based upon the Commonwealth’s failure to prove the element of actual

notice, therefore, would ultimately be frivolous.     We have discovered no

other issues of arguable merit that would sustain an appeal in this case.

      Judgment of sentence affirmed.         Counsel’s motion to withdraw as

counsel granted.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/27/2014




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