J-S15013-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                            Appellee

                       v.

ADAM QUENTIN MICHAEL

                            Appellant                   No. 1254 MDA 2014


             Appeal from the Judgment of Sentence June 25, 2014
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-SA-0000151-2014


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY LAZARUS, J.:                               FILED APRIL 15, 2015

        Adam Quentin Michael appeals from the judgment of sentence

imposed in the Court of Common Pleas of York County, following his

conviction for driving under suspension.1 Upon careful review, we reverse.

        On September 23, 2013, Patrolman Todd E. Wise of the Northern York

County Regional Police Department initiated a traffic stop after he observed

Michael make an illegal U-turn.          While issuing a citation for the one-way

violation, Officer Wise learned that Michael’s license was suspended.

Accordingly, Officer Wise also cited Michael for driving under a suspended

license.



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1
    75 P.S. § 1543(a).
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        On February 4, 2014, Michael pled guilty before the Magisterial District

Court to both offenses. Thereafter, Michael filed a summary appeal on the

driving under a suspended license charge.

        On June 25, 2014, the court held a hearing de novo.          Officer Wise

testified on behalf of the Commonwealth that Michael’s driving privileges had

initially been suspended because he failed to renew his inspection.             The

Commonwealth introduced into evidence a copy of the citation issued to

Michael following the vehicle stop and a certified copy of Michael’s driving

record.    Michael also testified on his own behalf, claiming that he never

received notice that his license was suspended. Following the testimony, the

court convicted Michael of driving under a suspended license.

        On June 30, 2013, Michael filed a motion for reconsideration of verdict

with the trial court.   When the trial court did not respond, Michael filed a

notice of appeal on July 22, 2013. On August 3, 2014, the trial court issued

an order to schedule argument, but later concluded that it lacked jurisdiction

over Michael’s case and filed its Pa.R.A.P. 1925(a) opinion on October 16,

2014.     In its opinion, the trial court conceded that the evidence was

insufficient. Relying on Commonwealth v. Crockford, 660 A.2d 1326 (Pa.

Super. 1995), the court held, “upon further review of the evidence

presented, along with relevant case law, the trial court has determined that

despite    the   evidence   of   mailing   of   the   Notice   presented   by   the

Commonwealth, there is insufficient additional evidence of knowledge to




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establish notice of the suspension beyond a reasonable doubt.” Trial Court

Opinion, 10/16/14, at 3.

      On appeal, Michael presents a single issue for our review: whether the

Commonwealth presented sufficient evidence that he had notice his license

was suspended.      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.

      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. Harden, 103 A.3d 107 (Pa. Super. 2014) (citations

omitted).




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       The offense of driving while operating privileges are suspended or

revoked 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).

       Regarding notice of license suspension, our Supreme Court held in

Commonwealth v. Kane, 333 A.2d 925, 927 (Pa. 1975), 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.     Since the rule in Kane was announced, this Court has found

numerous factors2 that, in conjunction with evidence that a notice was

____________________________________________


2
  Such factors 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
(Footnote Continued Next Page)


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mailed, satisfy the element of actual notice. See Crockford, 660 A.2d at

1330-31 (“[t]he 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.”)

      Instantly, the Commonwealth presented only one piece of evidence

regarding notice – Michael’s Certified Driving History, which indicates that

notice of the suspension was mailed on June 19, 2013. The address listed

on the Certified Driving History matches the address Michael provided Officer

Wise during the traffic stop.         Accordingly, the Commonwealth established

that notice of the suspension was mailed to Michael’s current address.

However, this is insufficient to establish actual notice of suspension.    See

Kane, 333 A.2d at 927 (evidence offered to prove actual notice insufficient

where only evidence of actual notice was notice of suspension mailed to

defendant). Because the Commonwealth was unable to prove Michael had

actual notice of the suspension, we determine that the trial court did not

abuse its discretion when it concluded the evidence was insufficient to

sustain a conviction for driving while license suspended. Harden, supra.

      Judgment of sentence reversed.




                       _______________________
(Footnote Continued)

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).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/15/2015




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