J-S23036-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                :     IN THE SUPERIOR COURT OF
                                            :           PENNSYLVANIA
             v.                             :
                                            :
JAMEEL SHABAZZ,                             :
                                            :
                   Appellant                :         No. 2381 EDA 2016

              Appeal from the Judgment of Sentence July 21, 2016
             in the Court of Common Pleas of Montgomery County,
               Criminal Division, No(s): CP-46-SA-0000555-2016

BEFORE: OLSON, SOLANO and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                            FILED May 19, 2017

        Jameel Shabazz (“Shabazz”) appeals from the judgment of sentence

entered following his conviction of the summary offense of driving while

operating privilege is suspended or revoked.1 We affirm.

        Shortly after midnight on November 25, 2015, Limerick Township

Police Sergeant Matthew Daywalt (“Sergeant Daywalt”) observed a large

sport utility vehicle cross the double-yellow lines into oncoming traffic, five

separate times, on Swamp Pike.         Sergeant Daywalt also observed the

vehicle twice cross the fog line.     When Sergeant Daywalt stopped the

vehicle, the driver, Shabazz, admitted that his driver’s license had been

suspended.     Sergeant Daywalt returned to his vehicle, and confirmed the

suspension of Shabazz’s driver’s license.




1
    See 75 Pa.C.S.A. § 1543(a).
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      Following a bench trial, the trial court found Shabazz guilty of the

aforementioned summary offense, and imposed a $200.00 fine. Thereafter,

Shabazz filed the instant timely appeal.

      Shabazz presents the following claims for our review:

      1.   WHETHER THE TRIAL COURT ERRED IN ADMITTING
      [SHABAZZ’S] DRIVING RECORD INTO EVIDENCE[,] OVER HIS
      OBJECTION[,] AND IN ALLOWING [SERGEANT DAYWALT] TO
      TESTIFY   FROM   THE   RECORD[,]   OVER  [SHABAZZ’S]
      OBJECTION[,] WHERE THE RECORD WAS NOT CERTIFIED AND
      CONSTITUTED INADMISSIBLE HEARSAY[?]

      2. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUSTAIN
      [SHABAZZ’S] SUMMARY APPEAL DUE TO THE LACK OF
      SUFFICIENCY   OF    THE   EVIDENCE[,]     WHERE    THE
      COMMONWEALTH HAD FAILED TO MEET ITS BURDEN BY
      RELYING UPON A DRIVING RECORD WHICH WAS NOT
      CERTIFIED[?]

Brief for Appellant at 4.

      Shabazz first claims that the trial court improperly admitted his driving

record at trial, and allowed Sergeant Daywalt to testify regarding the

contents of the driving record.        Id. at 8.   Shabazz contends that the

Commonwealth had presented only a faxed copy of his driving record at

trial, which was not duly certified.    Id.   Shabazz argues that because the

driving record was a faxed copy of his record, and not certified, it constituted

inadmissible hearsay.       Id.   Shabazz acknowledges that, pursuant to 42

Pa.C.S.A. § 6104, a public record may be admissible as an exception to the

rule against hearsay. Brief for Appellant at 9. However, Shabazz contends

that this hearsay exception would apply “only where a copy of a



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governmental record is authenticated by being attested to by the custodian

of documents and contains the seal of the officer.” Id. at 10-11. Shabazz

asserts that Sergeant Daywalt read from the uncertified facsimile, over his

objection based upon the rule against hearsay. Id. at 12. Finally, Shabazz

argues that “even if it had been proper for a police officer to testify from a

document    which   was    improperly      admitted   into   evidence,   it   would

nevertheless be a violation of Pennsylvania’s Best Evidence Rule.” Id.

      The following standard governs our review of the admissibility of

evidence:

      Admission of evidence is within the sound discretion of the trial
      court and will be reversed only upon a showing that the trial
      court clearly abused its discretion….

            Judicial discretion requires action in conformity with law,
      upon facts and circumstances judicially before the court, after
      hearing and due consideration. An abuse of discretion is not
      merely an error of judgment, but if in reaching a conclusion the
      law is overridden or misapplied or the judgment exercised is
      manifestly unreasonable, or the result of partiality, prejudice,
      bias, or ill will, as shown by the evidence or the record,
      discretion is abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(quoting Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super.

2006) (en banc) (internal citations omitted)).

      The Pennsylvania Rules of Evidence provide that hearsay “is not

admissible except as provided by these rules, … or by statute.” Pa.R.E. 802.

Pennsylvania Rule of Evidence 803(8) recognizes an exception to the rule

against hearsay for “public records,” if


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     (A) the record describes the facts of the action taken or matter
     observed;

     (B) the recording of this action or matter observed was an official
     public duty; and

     (C) the opponent does not show that the source of the information or
     other circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(8). The Comment to Rule 803(8) states that the rule “reflects

the hearsay exception for public records provided in 42 Pa.C.S.[A.] § 6104.”

Pa.R.E. 803(8), cmt.

     Section 6104 of the Judicial Code provides as follows:

     (a) General rule.—A copy of a record of governmental action
     or inaction authenticated as provided in section 6103
     (relating to proof of official records) shall be admissible as
     evidence that the governmental action or inaction disclosed
     therein was in fact taken or omitted.

     (b) Existence of facts.—A copy of a record authenticated as
     provided in section 6103 disclosing the existence or
     nonexistence of facts which have been recorded pursuant to an
     official duty or would have been so recorded had the facts
     existed shall be admissible as evidence of the existence or
     nonexistence of such facts, unless the sources of information or
     other circumstances indicate lack of trustworthiness.

42 Pa.C.S.A. § 6104 (emphasis added).

     Section 6103 provides the method for introducing official records into

evidence, without the necessity of having a records custodian appear in




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court to authenticate the documents.2    Section 6103 provides, in relevant

part, as follows:

      (a) General rule.—An official record kept within this
      Commonwealth by any court, magisterial district judge or other
      government unit, or an entry therein, when admissible for any
      purpose, may be evidenced by an official publication thereof or
      by a copy attested by the officer having the legal custody of the
      record, or by that officer’s deputy, and accompanied by a
      certificate that the officer has the custody. The certificate may
      be made by any public officer having a seal of office and having
      official duties with respect to the government unit in which the
      record is kept, authenticated by the seal of that office ….

42 Pa.C.S.A. § 6103(a) (emphasis added).

      In interpreting sections 6104 and 6103, we are cognizant that, when

considering statutory language, words and phrases shall be construed

according to rules of grammar and according to their common and approved

usage. 1 Pa.C.S.A. § 1903(a). Section 1922 of the Statutory Construction

Act prohibits courts from interpreting statutes in a way that makes words

used in the statute meaningless or mere surplusage. 1 Pa.C.S.A. § 1922.

      Consequently, to be admissible as a public record under section 6104,

(1) the agency officer having legal custody of Shabazz’s driving record (or

his/her deputy) must attest to the official copy; (2) a certificate verifying


2
  See Thorne v. DOT, Bureau of Driver Licensing, 727 A.2d 1205, 1207
(Pa. Cmwlth. 1999) (stating that “[t]he legislative purpose behind the
enactment of section 6103 is to allow a method by which official records may
be introduced into evidence without the need for bringing the records
custodian into court to authenticate the records.”). Although the decisions
of the Commonwealth Court are not binding upon this Court, they may serve
as persuasive authority. Commonwealth v. Ortega, 995 A.2d 879, 885
(Pa. Super. 2010).


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that the officer has custody of the original driving record must accompany

the faxed copy of the driving record; and (3) the public officer issuing the

certificate must authenticate the certificate with the seal of that official’s

office. See 42 Pa.C.S.A. §§ 6103(a), 6104.

     Here, the faxed copy of Shabazz’s driving record included an

attestation by Kara Templeton (“Templeton”), the Director of the Bureau of

Driver Licensing for the Secretary of Transportation. Commonwealth Exhibit

C-1. The facsimile also included a certification that Templeton is the legal

custodian of the records, and that she has custody of the original records,

“which are reproduced in the attached certification.”     Id.   The certification

concluded with the following statement:        “In testimony whereof, I have

hereunto set my hand and seal of this Department the day and year

aforesaid.” Id. This statement is followed by the signature of the Secretary

of Transportation and the word “SEAL.” Id. However, a blank space follows

the word “SEAL.”    Id.

     Upon review, we conclude that the faxed copy of Shabazz’s driving

record was not “authenticated by the seal of that office,” as required by 42

Pa.C.S.A. § 6103(a).         There is nothing of record indicating that a seal

appeared beneath the written word “SEAL” on the certification.               See

Commonwealth       Exhibit    C-1.     We   cannot   ignore   section   6103(a)’s

requirement of a seal, as such an interpretation would improperly render the

term meaningless.     See 1 Pa.C.S.A. § 1922 (stating that the court cannot



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construe a statute in a way that makes words used in the statute

meaningless or mere surplusage).

     At trial, Shabazz objected to the admission of his driving record

without the seal.   N.T., 7/21/16, at 7.       Consequently, we conclude that,

absent the seal required by 42 Pa.C.S.A. § 6103(a), the faxed copy of

Shabazz’s driving record was not admissible as a “public record.”           See 42

Pa.C.S.A. §§ 6103, 6104.

     The      Commonwealth    posits    that    Shabazz’s   driving       record   is

nevertheless admissible pursuant to the public record exception to the rule

against hearsay. Brief for the Commonwealth at 9-10. The Commonwealth

asserts that, as required by Pa.R.E. 803, Shabazz “failed to show that the

source   of   the   information   or   circumstances    indicated     a     lack   of

trustworthiness.” Id.

     Rule of Evidence 803 provides that

     [t]he following are not excluded by the rule against hearsay,
     regardless of whether the declarant is available as a witness:

     …

     (6) Records of a Regularly Conducted Activity. A record (which
     includes a memorandum, report, or data compilation in any
     form) of an act, event or condition if:

         (A) the record was made at or near the time by--or from
         information transmitted by--someone with knowledge;

         (B) the record was kept in the course of a regularly
         conducted activity of a “business”, which term includes
         business, institution, association, profession, occupation, and
         calling of every kind, whether or not conducted for profit;


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         (C) making the record was a regular practice of that
         activity;

         (D) all these conditions are shown by the testimony of
         the custodian or another qualified witness, or by a
         certification that complies with Rule 902(11) or (12)
         or with a statute permitting certification; and

         (E) the opponent does not show that the source of
         information or other circumstances indicate a lack of
         trustworthiness.

Pa.R.E. 803 (emphasis added).

      Rule of Evidence 902(11) provides that “Certified Domestic Records of

a Regularly Conducted Activity” are self-authenticating, if the copy “meets

the requirements of Rule 803(6)(A)-(C), as shown by a certification of the

custodian or another qualified person that complies with Pa.R.C.P. No. 76.”

Pa.R.E. 902(11).3

      Our review discloses that the certification attached to the driving

record states that the document reflects an accurate summary of all records

in Shabazz’s name.        Commonwealth Exhibit C-1.          The certification

additionally states that the Director of the Bureau of Driver Licensing is the

legal custodian of the driving records, “and has legal custody of the original,

facsimile, or microfiche records which are reproduced in the attached

certification.” Id. The certification, however, does not include any language

regarding the requirements of Pa.R.E. 803(6)(A)-(C).         As a result, the


3
 Pa.R.E. 902(12) is not applicable here, as it applies to “Certified Foreign
Records of a Regularly Conducted Activity.” Pa.R.E. 902(12).


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document     is   not   self-authenticating     pursuant   to   Pa.R.E.   902(11).

Consequently, the trial court improperly admitted the faxed copy of

Shabazz’s driving record at trial. Our analysis, however, does not conclude

at this point.

      An error will be deemed harmless if

      (1) the error did not prejudice the defendant or the prejudice
      was de minimus; or (2) the erroneously admitted evidence was
      merely cumulative of other untainted evidence which was
      substantially similar to the erroneously admitted evidence; or (3)
      the properly admitted and uncontradicted evidence . . . was so
      overwhelming and the prejudicial effect of the error was so
      insignificant by comparison that the error could not have
      contributed to the verdict.

Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007).

      Here, the record reflects that Shabazz’s driving record was cumulative

of other properly admitted evidence.          At trial, Sergeant Daywalt testified

that, upon stopping Shabazz’s vehicle, Shabazz stated that his driver’s

license was suspended “because he failed to respond to a violation.” N.T.,

7/21/16. Thus, the fact of Shabazz’s suspended license was established by

the testimony of Sergeant Daywalt.       See Commonwealth v. Herb, 852

A.2d 356, 361 (Pa. Super. 2004) (concluding that circumstantial evidence

was sufficient to establish a violation of 75 Pa.C.S.A. § 1543(b) (driving

while operating privilege is suspended or revoked-DUI related), where

defendant admitted that his license was suspended (DUI related) and that

he drove the vehicle). Because Shabazz’s faxed copy of his driving record




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provided cumulative evidence of his suspended license, we conclude that the

admission of the copy constituted harmless error.

      Shabazz next challenges the sufficiency of the evidence underlying his

conviction of driving while operating privilege is suspended or revoked. Brief

for Appellant at 14.    Shabazz argues that the Commonwealth failed to

establish that he had notice of the suspension of his operating privilege. Id.

Shabazz also contends that, while Sergeant Daywalt’s testimony “may have

served to establish the element of actual notice, the Commonwealth did not

establish the fact of suspension even by a preponderance of the evidence,

let alone beyond a reasonable doubt.” Id. (footnote omitted).

      In reviewing a challenge to the sufficiency of the evidence,

      [t]he standard we apply … 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.




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Commonwealth v. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013)

(citation omitted).   “This standard of deference is not altered in cases

involving a bench trial, because the province of a trial judge sitting without a

jury is to do what a jury is required to do.” Commonwealth v. Lee, 956

A.2d 1024, 1027 (Pa. Super. 2008) (internal quotation marks and citation

omitted).

      Pursuant to section 1543(a) of the Vehicle Code, “[e]xcept as provided

in subsection (b), any person who drives a motor vehicle on any highway or

trafficway of this Commonwealth after the commencement of a suspension,

revocation or cancellation of the operating privilege and before the operating

privilege has been restored is guilty of a summary offense.”      75 Pa.C.S.A.

§ 1543(a).

      When viewed in a light most favorable to the Commonwealth, the

evidence established that on November 25, 2015, Sergeant Daywalt stopped

Shabazz’s vehicle, while he was driving on Swamp Pike in Limerick

Township.    N.T., 7/21/16, at 5.   When Sergeant Daywalt approached the

vehicle, Shabazz stated that his operating privilege was suspended “because

he failed to respond to a violation.” Id. We conclude that this evidence was

sufficient to sustain Shabazz’s conviction of driving while his operating

privilege was suspended or revoked.          See Herb, 852 A.2d at 361.

Accordingly, we affirm Shabazz’s judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/19/2017




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