J-S42021-17

                             2017 PA Super 347



COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                        Appellee

                   v.

SCOTTY JOE SALES

                        Appellant                  No. 2057 MDA 2016


        Appeal from the Judgment of Sentence November 18, 2016
              In the Court of Common Pleas of Fulton County
           Criminal Division at No(s): CP-29-SA-0000009-2016


BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

OPINION BY MOULTON, J.:                       FILED NOVEMBER 06, 2017

     Scotty Joe Sales appeals from the November 18, 2016 judgment of

sentence entered in the Court of Common Pleas of the 39th Judicial District

(Fulton County Branch) following his conviction for driving while commercial

operating privilege is suspended, 75 Pa.C.S. § 1606(c)(1)(ii).      For the

reasons that follow, we reverse.

     On May 16, 2016, Pennsylvania State Police Trooper Steven R.

Morningstar stopped Sales’ tractor trailer on Interstate 70 in Brush Creek

Township, Pennsylvania for a speeding violation. At the time, Sales was a

Kentucky resident and had a Kentucky commercial driver’s license (“CDL”).

Upon accessing Sales’ Kentucky driving record, Trooper Morningstar learned

that Sales’ CDL had been suspended as of March 27, 2016.            Trooper
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Morningstar cited Sales for speeding1 and for driving while commercial

operating privilege is suspended.

       On May 26, 2016, a magisterial district judge convicted Sales of

speeding and driving while commercial operating privilege is suspended.

Sales filed a summary appeal with the trial court, which held a de novo

hearing on November 18, 2016.             The trial court summarized the evidence

presented at the hearing as follows:
               Trooper Morningstar testified that [on May 16, 2016] he
            confronted [Sales] about the status of his license;
            according to Trooper Morningstar, [Sales’] response was
            “kind of a head cock, a shoulder shrug.” It appeared to
            Trooper Morningstar that [Sales] was “indifferent” to the
            fact that his license was suspended.

                Under cross-examination, Trooper Morningstar clarified
            that [Sales] did not state that he was unaware of the
            license suspension.[2] When asked why his license was
            suspended, [Sales] responded with “I don’t know” or
            “unknown.”

               [Sales] took the stand in his own defense. [Sales]
            denied any knowledge of his license being suspended at
            the time he was stopped by Trooper Morningstar. He
            further denied receiving any letter or information from the
            [Commonwealth] of Kentucky indicating his license was
            suspended.



____________________________________________


       1   75 Pa.C.S. § 3362.

       Trooper Morningstar testified, “He didn’t tell me point-blank, I was
       2

unaware. It was, Okay or a shrug of the shoulders, cock of the head.” N.T.,
11/18/16, at 13.



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Opinion Sur Pa.R.A.P. 1925(a), 3/9/17, at 3-4 (internal citations omitted)

(“1925(a) Op.”). Further:
           The Commonwealth introduced Commonwealth’s Exhibit 1,
           which consisted of the driving record of [Sales] as reported
           by the [Commonwealth] of Kentucky. According to this
           record, [Sales’ CDL] was “suspended.” The driving record
           also establishes that Kentucky issued a suspension order
           on March 27, 2016 for a violation of some type. It further
           appears that the Kentucky Transportation Cabinet issued a
           previous order of suspension on June 27, 2015 for “Failure
           to Answer Court Summons.”

Id. at 3 (internal citations omitted). At the conclusion of the hearing, the

trial court found Sales guilty of driving while commercial operating privilege

is suspended and sentenced him to pay fines and costs in the amount of

$1,065.3

       On December 14, 2016, Sales timely appealed to this Court.         After

Sales filed his Pennsylvania Rule of Appellate Procedure 1925(b) statement,

the trial court issued a Rule 1925(a) opinion. In its opinion, the trial court

stated that it had erroneously convicted Sales and concluded that the

evidence at trial was insufficient to support the conviction:
              In short, there was no evidence presented by the
           Commonwealth        to  establish   that   the   Kentucky
           Transportation Cabinet mailed notice of the suspension to
           [Sales] by first-class mail, as required by Kentucky law.
           Further, there was no evidence presented upon which this
           court could find [Sales] to have actual notice of the
           suspension, i.e., no admission by [Sales] that he was

____________________________________________


       3The trial court also granted Sales’ request to withdraw his summary
appeal from the speeding conviction.



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           aware of the suspension or proof of receipt of notice of the
           suspension.

              Accordingly, this court is constrained to opine that it
           erred in finding the Commonwealth’s evidence sufficient to
           prove beyond a reasonable doubt that [Sales] had notice
           of the suspension of his [CDL].

1925(a) Op. at 5 (internal citation omitted).

      On appeal, Sales presents one question for our review: “Did the

Commonwealth prove [sic] sufficient evidence beyond a reasonable doubt

that [Sales] had been provided notice that his CDL was suspended so as to

convict [Sales] under 75 Pa.C.S. § 1606(c)(1)(ii)?” Sales’ Br. at 6.

      Our standard of review of a sufficiency of the evidence claim “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.”

Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa.Super. 1996).

Further:
           [W]e may not weigh the evidence and substitute our
           judgment for that of 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.

Commonwealth v. Vetrini, 734 A.2d 404, 406-07 (Pa.Super. 1999)

(quoting Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa.Super.

1995)).


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     The question in this appeal is whether the Commonwealth proved that

Sales had notice of the suspension of his Kentucky CDL to support a

conviction under section 1606(c)(1)(ii) of the Uniform Commercial Driver’s

License Act (“UCDLA”). Our Court addressed the notice requirement under

this section in Commonwealth v. Rose, 820 A.2d 164 (Pa.Super. 2003).

In that case, Rose was convicted under section 1606(c)(1)(ii) of the UCDLA

for driving with a suspended Florida CDL. On appeal, Rose argued that the

evidence was insufficient to prove beyond a reasonable doubt that he had

notice that his Florida CDL was suspended. Id. at 168-69.

     This Court began by noting that “[t]he issue of whether notice of

suspension is required for conviction under [section] 1606-driving while

commercial license is suspended, is an issue of first impression before this

Court.” Id. at 169.
            We have examined [section] 1543 of the Vehicle Code-
        driving while operating privilege is suspended or revoked
        to guide our inquiry with respect to [section] 1606 [of the
        UCDLA]. Pennsylvania case law is well-settled that in
        order to sustain a conviction under [section] 1543, the
        Commonwealth must prove that the defendant had actual
        notice that his license had been suspended or revoked.
        Additionally, under [section] 1532(b), the Commonwealth’s
        failure to notify a person of their driver’s license
        suspension within a reasonable time may result in vacation
        of the suspension if the person is prejudiced as a result.
        Since actual notice is required to sustain a conviction for
        [section]    1543-driving    while   operating    privileges
        suspended or revoked, we conclude that in order to
        convict for [section] 1606, the commercial license
        equivalent to [section] 1543, the Commonwealth
        must demonstrate that a person received actual
        notice that his [CDL] was suspended.


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Id.   at   169-70   (internal    citations   omitted;   emphasis   added);   see

Commonwealth v. Crockford, 660 A.2d 1326, 1329 (Pa. Super. 1995) (en

banc) (recognizing that actual notice is “a judicially created element,

designed to protect a defendant’s due process rights”).

      In determining whether Rose had actual notice of his Florida CDL

suspension, we held that Florida law regarding proof of notice applied.

Rose, 820 A.2d at 170. Thus, we examined the notice provision of Florida’s

CDL suspension statute and the cases interpreting it.       Id. at 170-71. We

determined that, under Florida law, because Rose’s suspension resulted from

his failure to pay a registration fee, the Commonwealth was required to

prove that Rose had, in fact, received notice of the suspension to establish a

violation under section 1606(c)(1)(ii) of the UCDLA.          Id. at 171.    We

concluded that although “the Commonwealth presented evidence that the

notice of suspension was mailed to [Rose], it failed to present evidence that

[Rose] received said notice.” Id. Therefore, we reversed Rose’s conviction.

Id.

      Following Rose, the Commonwealth must prove that the defendant

had “actual notice” of the license suspension to support a conviction under

section 1606(c)(1)(ii) of the UCDLA.         The Commonwealth may establish

“actual notice” either by:      (1) presenting evidence that the defendant, in

fact, received notice of the suspension, such as the defendant’s own

admission or other evidence showing his or her receipt of notice; or




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(2) satisfying the standard for proving notice in the state of the license

suspension. As this Court explained in Crockford:
            Notice is a question of fact, and anything that proves
            knowledge or is legal evidence showing that knowledge
            exists can be sufficient. As a practical matter, in most
            cases it is virtually impossible for the Commonwealth to
            prove positively that the defendant received express actual
            notice of suspension; only the defendant would have such
            knowledge. The Commonwealth, relying only upon the
            facts and circumstances of a case, can, at best, impute
            such knowledge to the defendant.

660 A.2d at 1330.4

        Applying these principles to the facts of this case, we conclude that the

Commonwealth failed to establish that Sales actually received notice of the

Kentucky license suspension.          Contrary to the Commonwealth’s assertion,

Trooper Morningstar’s testimony that Sales did not expressly deny receiving

notice at the time of the traffic stop was insufficient to prove that Sales, in

fact,   received    notice.      Absent    any   evidence   of   actual   notice,   the

____________________________________________


        In discussing the “actual notice” requirement, the Crockford Court
        4

contrasted actual notice with constructive notice as follows:

               Constructive notice is information or knowledge of a
            fact imputed by law to a person (although he may not
            actually have it), because he could have discovered the
            fact by proper diligence, and his situation was such as to
            cast upon him the duty of inquiring into it. . . .
            Constructive notice is a presumption of law, while actual
            notice requires proof of facts and circumstances
            showing knowledge actually received.

660 A.2d at 1330 n.3 (quotation and internal citation omitted) (emphasis
added).



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Commonwealth was required to satisfy the standard for proving notice under

Kentucky law. Therefore, we must look to Kentucky law to determine if the

Commonwealth satisfied its burden of proof. See Rose, 820 A.2d at 170.

       The Kentucky statute governing the suspension of a driver’s license,

whether commercial or non-commercial, provides:
              The [Kentucky Transportation C]abinet or its agent
           designated in writing for that purpose shall provide any
           person subject to the suspension, revocation, or
           withdrawal of their driving privileges, under provisions of
           this section, an informal hearing. Upon determining that
           the action is warranted, the [C]abinet shall notify the
           person in writing by mailing the notice to the person
           by first-class mail to the last known address of the
           person. The hearing shall be automatically waived if not
           requested within twenty (20) days after the [C]abinet
           mails the notice. The hearing shall be scheduled as early
           as practical within twenty (20) days after receipt of the
           request at a time and place designated by the [C]abinet.

Ky. Rev. Stat. (“KRS”) § 186.570(4) (emphasis added).             Therefore, to

establish that Sales violated section 1606(c)(1)(ii) of the UCDLA, the

Commonwealth was required to establish that the Kentucky Transportation

Cabinet sent notice of the license suspension via first-class mail to Sales’ last

known address.5

       The Commonwealth contends that the trial court erred in applying

Rose’s notice requirement because Kentucky law does not require proof of

actual notice of the suspension, citing Commonwealth v. Duncan, 939

____________________________________________


       Like the trial court, we have found no Kentucky case law interpreting
       5

KRS § 186.570(4). See 1925(a) Op. at 3.



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S.W.2d 336 (Ky. 1997). We conclude, however, that the Commonwealth’s

reliance on Duncan is misplaced.

       In Duncan, the Kentucky Supreme Court held that a certified copy of

the Kentucky Transportation Cabinet’s driver history is sufficient proof, by

itself, of a license suspension to support a conviction under Kentucky’s

statute prohibiting operation of motor vehicle with a suspended license. Id.

at 338-39 (citing KRS § 186.620(2)).6 Thus, the Commonwealth is correct

that Kentucky law does not require actual notice of the suspension to

support a conviction for driving with a suspended license under KRS

§ 186.620(2). However, KRS § 186.620(2) does not govern the resolution

of this case.

       Unlike Kentucky, Pennsylvania law does require proof of actual notice

to support a conviction under section 1606(c)(1)(ii) of the UCDLA. We look

to Kentucky law only to determine the standard for proving notice of the

suspension, which is codified in KRS § 186.570(4). Under that provision, the


____________________________________________


       6   KRS § 186.620(2) provides:

               No person who has not applied for an operator’s license
            or whose operator’s license has been denied, canceled,
            suspended or revoked, or whose privilege to operate a
            motor vehicle has been withdrawn, shall operate any
            motor vehicle upon the highways while the license is
            denied, canceled, suspended, or revoked or his privilege to
            operate a motor vehicle is withdrawn, or the license has
            not been applied for.



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Kentucky Transportation Cabinet must provide written notice of the

suspension to the licensee by first-class mail.

      Here, the Commonwealth presented Sales’ Kentucky driving record,

which merely states the date on which his license was suspended.          See

Cmwlth.’s Ex. 1.    This document does not indicate that either a notice of

informal hearing or a notice of suspension was mailed to Sales as required

by KRS § 186.570(4). As the trial court found:
         [T]here was no evidence presented by the Commonwealth
         to establish that the Kentucky Transportation Cabinet
         mailed notice of the suspension to [Sales] by first-class
         mail, as required by Kentucky law. Further, there was no
         evidence presented upon which this court could find
         [Sales] to have actual notice of the suspension, i.e., no
         admission by [Sales] that he was aware of the suspension
         or proof of receipt of notice of the suspension.

1925(a) Op. at 4-5. Without any evidence of mailing of a notice to Sales,

the Commonwealth failed to prove beyond a reasonable doubt that Sales

had actual notice of his Kentucky license suspension. Therefore, we agree

with the trial court’s conclusion in its Rule 1925(a) opinion that the evidence

was insufficient to sustain Sales’ conviction.

      Judgment of sentence reversed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2017



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