J-S48022-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    J. JESUS LANDEROS                          :
                                               :
                       Appellant               :   No. 1034 EDA 2018

            Appeal from the Judgment of Sentence March 21, 2018
    In the Court of Common Pleas of Northampton County Criminal Division
                      at No(s): CP-48-SA-0000341-2017

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

MEMORANDUM BY MURRAY, J.:                          FILED SEPTEMBER 12, 2018

       J. Jesus Landeros (Appellant) appeals from the judgment of sentence

imposed following his conviction of driving while operating privilege is

suspended or revoked – DUI related.1 We affirm.

       On August 7, 2017, Officer Brandon Schippers (Officer Schippers) of the

Forks Township Police Department was on patrol near George Street in Forks

Township, Northampton County, Pennsylvania. Officer Schippers initiated a

traffic stop when he observed Appellant driving southbound on George Street

in a white Chevrolet van that was missing a rearview mirror and had a cracked

windshield. During the stop, Appellant provided Officer Schippers with a Texas

driver’s license. While running a check on Appellant’s Texas license on his




____________________________________________


1   75 Pa.C.S.A. § 1543(b)(1).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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patrol     car’s   computer,   Officer   Schippers   discovered   that   Appellant’s

Pennsylvania driving privileges were suspended.

         Officer Schippers cited Appellant for driving while operating privilege is

suspended or revoked – DUI related, a summary offense. See 75 Pa.C.S.A.

§ 1543(b)(1). On November 13, 2017, the magisterial district judge found

Appellant guilty of that offense and Appellant filed a timely summary appeal.

On March 21, 2018, the trial court held a summary appeal hearing. At the

hearing, Appellant’s certified driving record was entered into evidence without

objection. Appellant’s driving record indicated that he had a prior conviction

of DUI for which his license was suspended. Importantly, Appellant’s driving

record revealed that Appellant participated in an accelerated rehabilitative

disposition (ARD) program that he had entered following his DUI conviction.

Appellant did not dispute that he was required to turn in his license at the

beginning of the ARD program. Appellant’s driving record further revealed

that the Pennsylvania Department of Transportation (PennDOT) mailed an

official notice of suspension to Appellant at his address of record at the time

of the suspension. Appellant’s driving record indicated that as of the date of

the traffic stop at issue in this case, Appellant’s Pennsylvania driver’s license

remained suspended.

         At the conclusion of the hearing, the trial court determined that

Appellant had actual notice of his license suspension and sustained the

magisterial district judge’s decision finding him guilty of violating Section


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1543(b)(1) of the Vehicle Code.           The same day, the trial court sentenced

Appellant to 60 days of incarceration in the Northampton County Prison and

assessed a fine of $500.00. On March 28, 2018, Appellant timely appealed to

this Court.2

       On appeal, Appellant raises the following issue for review:

       DID THE COMMONWEALTH PRESENT SUFFICIENT EVIDENCE TO
       PROVE BEYOND A REASONABLE DOUBT THAT APPELLANT HAD
       ACTUAL NOTICE OF A DUI RELATED SUSPENSION?

Appellant’s Brief at 5.

       Appellant argues that the trial court erred in concluding that Appellant

had actual knowledge of his license suspension based on his entry into the

ARD program and his presentation of a Texas driver’s license during the traffic

stop. Appellant asserts that the trial court’s conclusion that he had actual

knowledge of the license suspension was based on “pure speculation” because


____________________________________________


2 On April 12, 2018, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal pursuant to Rule 1925(b) of the
Pennsylvania Rules of Appellate Procedure. On April 17, 2018, Appellant
timely filed his Rule 1925(b) statement. On April 25, 2018, the trial court filed
a statement indicating that in lieu of filing a memorandum opinion, the court
would “rely on the record and that no further statement was necessary.” Rule
1925(a) Statement, 4/25/18. We remind the trial court that under Rule
1925(a)(1), the judge who entered the order giving rise to the notice of appeal
“shall forthwith file of record at least a brief opinion of the reasons for the
order, or for the rulings or other errors complained of, or shall specify in
writing the place in the record where such reasons may be found.” Pa.R.A.P.
1925(a). Here, the trial court’s 1925(a) statement neither provides its
reasons for the order nor indicates the place in the record where such reasons
may be found. Because we can discern the reasoning underlying the trial
court’s decision in this case from the transcript of the summary appeal
hearing, we decline to remand for a filing of a proper Rule 1925(a) opinion.

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nothing in the record imputes actual knowledge of the suspension onto

Appellant.

      In reviewing a challenge to the sufficiency of the evidence, our standard

of review is as follows:

         As a general matter, our standard of review of sufficiency
      claims requires that we evaluate the record in the light most
      favorable to the verdict winner giving the prosecution the benefit
      of all reasonable inferences to be drawn from the evidence.
      Evidence will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. Any doubt about the defendant’s guilt is
      to be resolved by the fact finder unless the evidence is so weak
      and inconclusive that, as a matter of law, no probability of fact
      can be drawn from the combined circumstances.

          The Commonwealth may sustain its burden by means of wholly
      circumstantial evidence. Accordingly, [t]he fact that the evidence
      establishing a defendant’s participation in a crime is circumstantial
      does not preclude a conviction where the evidence coupled with
      the reasonable inferences drawn therefrom overcomes the
      presumption of innocence. Significantly, we may not substitute
      our judgment for that of the fact finder; thus, so long as the
      evidence adduced, accepted in the light most favorable to the
      Commonwealth, demonstrates the respective elements of a
      defendant’s crimes beyond a reasonable doubt, the appellant’s
      convictions will be upheld.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(internal quotations and citations omitted). “[I]n a license suspension case,

our scope of review is limited to determining whether the trial court’s findings

are supported by competent evidence, whether any error of law was

committed and whether the decision is a manifest abuse of discretion.”




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Commonwealth v. Rose, 820 A.2d 164, 169 (Pa. Super. 2003) (quotations

and citations omitted).

      Appellant challenges his conviction of driving while operating privilege

is suspended or revoked under Section 1543(b)(1) of the Vehicle Code, which

states:

      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) . . . 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).

      Regarding convictions under Section 1543(b)(1), we have explained:

         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.”

         . . . 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 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

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      notice.” Commonwealth v. Gray, [] 514 A.2d 621, 622 ([Pa.
      Super.] 1986)[.]

Commonwealth v. Harden, 103 A.3d 107, 112-13 (Pa. Super. 2014). “The

Commonwealth is required to establish actual notice which may take the form

of a collection of facts and circumstances that allow the fact finder to infer that

a defendant has knowledge of suspension.” Id. at 114.

      In Commonwealth v. Zimmick, 653 A.2d 1217 (Pa. 1995), our

Supreme Court set forth a non-exhaustive list of factors courts may consider

in determining whether an individual accused of violating subsection

1543(b)(1) had actual notice of a 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.

Zimmick, 653 A.2d at 1221.

      In this case, the trial court determined that Appellant had actual

knowledge of the license suspension based on his application to and

involvement in the ARD Program and his presentation of a Texas driver’s

license during the traffic stop. The transcript of Appellant’s summary appeal

reflects the following:

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     THE COURT: . . . The testimony is that [Appellant] proffered a
     Texas driver’s license here.

     [Defense Counsel]: Right.

     THE COURT: Ostensibly, that gives an indication that he may have
     dual citizenship and may be permitted to have a Texas driver’s
     license.    But it also creates the inference that [Appellant]
     displayed the Texas license because he had the knowledge, based
     upon his experience with the Pennsylvania system, ARD et cetera,
     that his driver’s privileges were suspended.

                                *     *     *

     THE COURT: Well, I mean, if you want to offer evidence that the
     records of the Commonwealth do not contain notice that
     [Appellant] knew about the, you know, the suspension, of course
     there is this hurdle called the ARD Application. He went through
     the ARD process, which imputes to him a specific knowledge about
     being notified, being charged, making an application for the ARD
     Program, participating in the program. There’s a whole body of
     knowledge which can’t be ignored within the context of notice.

                                *     *     *

     THE COURT: . . . . I’m going to deny your motion. And in so
     doing, I’m going to just go a little bit further in our discussion
     again. Because evidence takes the form of not only written
     documents, but evidence comes in through the testimony of the
     parties that are before the Court. You know that. It’s axiomatic.
     This case, the testimony in this case, which hoists your client on
     his own guitar [sic], if you know what I mean by that expression,
     is his participation in the ARD Program. And his knowledge,
     therefore, that he was charged, that he made an attempt to avoid
     the charges; that is, to resolve the charges, by making an
     application to the ARD Program, and participating in the Program.
     Independent of that fact, I would be more focused on the notice
     issue. And I’m denying your motion because of that reason.
     Because the evidence in this case is such that I believe your client
     – make a finding that your client had notice of a previous
     suspension of his license.

N.T., 3/21/18, at 13, 15, 18-19.


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      Upon review, we conclude that the evidence was sufficient to support

the trial court’s finding that Appellant had actual notice of his license

suspension. Appellant’s certified driving record indicates that his license was

suspended at the time of the traffic stop underlying this case. N.T., 3/28/18,

at 8-10, Exhibit 1.     Additionally, Appellant’s driving record reveals that

PennDOT received from Appellant an affidavit acknowledging his license

suspension. Id. at 10, Exhibit 1. Appellant’s driving record also reflects that

as a result of the DUI conviction that led to the license suspension, he enrolled

and participated in an ARD program.       Id.   As the trial court pointed out,

Appellant’s involvement in the ARD program created the inference that

Appellant was aware of his prior DUI conviction and the consequences of that

conviction, including the license suspension. Appellant’s driving record further

indicates that PennDOT mailed notice of the license suspension to him. Id. at

Exhibit 1. There is no evidence that this notice was returned to PennDOT as

undeliverable.    Moreover, the record reveals that despite residing in

Pennsylvania, Appellant presented Officer Schippers with a Texas driver’s

license, leading to the reasonable implication that Appellant knew that his

Pennsylvania license was suspended. Id. at 6.

      These facts and circumstances, taken together, support the trial court’s

finding that Appellant had knowledge of his license suspension at the time of

his traffic stop. See Harden, 103 A.3d at 114. Accordingly, we find no merit

to Appellant’s sufficiency claim.


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     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/12/18




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