J-A16018-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

THOMAS DUFF CROCK

                            Appellant                  No. 870 WDA 2013


                      Appeal from the Order May 13, 2013
              In the Court of Common Pleas of Allegheny County
              Criminal Division at No(s): CP-02-SA-0002478-2012


BEFORE: DONOHUE, J., OTT, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.:                               FILED AUGUST 21, 2014

        Thomas Duff Crock appeals pro se from the order entered on May 13,

2013, in the Court of Common Pleas of Allegheny County, following his

convictions of the summary offenses of driving while his operator’s license

was suspended, and exhibiting a foreign license when his Pennsylvania

license was suspended,1 after a summary trial de novo.           The trial court

found Crock not guilty of failing to yield to a traffic control device.2 The trial

court ordered Crock to pay an aggregate fine of $400.00.          In this appeal,

Crock challenges the sufficiency of the evidence.           Alternatively, Crock


____________________________________________


1
    See 75 Pa.C.S. §§ 1543(a), and 1573(a), respectively.
2
    See 75 Pa.C.S. § 3111(a).
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challenges the denial of his oral suppression motion.         Based upon the

following, we affirm.

        This case arose on September 5, 2012, when Crock was issued

citations for driving while operating privilege is suspended or revoked,

exhibiting a foreign license when his license was suspended, as well as a

citation for turning movements and required signals.3 When Crock appeared

before the magisterial district judge, the charge for turning movements and

required signals was replaced with failing to yield to a traffic control device,

and Crock was convicted of all three offenses.      Crock then filed a pro se

appeal for a summary trial de novo, which the court held on May 13, 2013.

Following the summary trial de novo, at which Crock proceeded pro se, the

court convicted Crock as stated above, and imposed a $400.00 fine Crock.

Crock timely filed a notice of appeal pro se.4

____________________________________________


3
    75 Pa.C.S. § 3334(a).
4
  On May 23, 2013, the court ordered Crock to file a concise statement of
errors complained of on appeal within 21 days, pursuant to Pa.R.A.P.
1925(b). The order was docketed on May 29, 2013. Thereafter, Crock did
not comply with the court’s Rule 1925(b) order, and the court has opined
that Crock’s failure constitutes waiver. See Trial Court Opinion, 6/28/2013.

       However, Crock contends, and the record reflects, that the docket
does not indicate that the court’s Rule 1925(b) order was mailed to Crock,
as is required by Pa.R.Crim.P. 114. See Commonwealth v. Hart, 911 A.2d
939, 940 (Pa. Super. 2006) (“A docket entry shall promptly be made
containing the date and manner of service of the order. Pa.R.Crim.P.
114(C).”). Furthermore, the Commonwealth “agrees that the Allegheny
County Criminal Court’s docket does not show that the trial court’s order to
(Footnote Continued Next Page)


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      We first address Crock’s sufficiency challenge.5   According to Crock,

“[his] unrebutted testimony established that, despite complying with his

obligations under 75 Pa.C.S. [§] 1515(a) [Notice of change of name or

address], PennDOT sent his notification of license suspension to the wrong

address,” and, therefore, the Commonwealth failed to prove he had actual

notice of the license suspension. Crock’s Brief at 18.     Specifically, Crock

argues:

      Despite compliance with this statutory obligation [referring to 75
      Pa.C.S. § 1515(a)], PennDOT sent [his] Notice of License
      Suspension to P.O. Box 16394 Pittsburgh, PA 15242 — an
      address [he] discontinued years prior to the license suspension
      which gave rise to his charge[s] in this case.




                       _______________________
(Footnote Continued)

file a concise statement was mailed to [Crock’s] address.” Commonwealth’s
Brief at 2, n.1. Therefore, given that the docket does not evidence the date
and manner of service of the court’s May 23, 2013 order, we decline to find
waiver.
5
  Section 1543 of the Motor Vehicle Code provides, in relevant part, that
“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 and shall, upon conviction, be
sentenced to pay a fine of $ 200.” 75 Pa.C.S. § 1543(a).

Section 1573 of the Motor Vehicle Code prohibits “display [of] a license or
permit issued by any other jurisdiction or otherwise during the suspension or
after the recall, cancellation, revocation or disqualification until the
individual’s operating privilege has been restored by the department.” 75
Pa.C.S. § 1573(a).




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Id. at 15. See also Crock’s Reply Brief at 4 (“[PennDOT’s] Certified Driver

History of/for [Crock] displays an incorrect mailing address, ‘PO Box 16394,

Pittsburgh, Pa 15242’”).6

       When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:

       “The standard we apply in reviewing the sufficiency of 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 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.

           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 trier of fact while passing upon
           the credibility of witnesses and the weight of the evidence
____________________________________________


6
   Crock, in his reply brief, further asserts: “The Allegheny County Dept. of
Court Records sent their payment ‘request’, and warning/threat of imminent
license suspension to an incorrect address, PO BOX 16394, Pittsburgh, Pa
15242. [PennDOT] apparently relied upon/used that same incorrect mailing
address in mailing the Department’s notice of suspension to [Crock].”
Crock’s Reply Brief at 4–5.




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            produced, is free to believe all, part or none of the
            evidence.

Commonwealth v. Vetrini, 734 A.2d 404, 406–407 (Pa. Super. 1999)

(citations omitted).

      Pennsylvania case law is well settled with regard to the necessity of

“actual     notice   to   uphold   a   conviction   under    Section      1543(a).

Commonwealth v. Baer, 682 A.2d 802, 805 (Pa. Super. 1996) (citations

omitted).     “Proof of actual notice of the suspension of an appellant’s

operator’s license is necessary to establish an essential element of the crime

of operating a motor vehicle while one’s operator's license is suspended.”

Id. (citations omitted).    Merely establishing that notice was mailed is not

sufficient by itself to show actual notice. Vetrini, supra, 734 A.2d at 407.

However, “[n]otice is a question of fact, and anything that proves knowledge

or is legal evidence showing that knowledge exists can be sufficient.” Id.

      Evidence of mailing of the notice coupled with some additional

demonstration of knowledge can suffice to establish actual notice beyond a

reasonable doubt. Id. Therefore,

            [f]actors 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 … was driving during the period in
            which his … 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,

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           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.

       [Commonwealth v. Zimmick, 539 Pa. 548, 555-556, 653 A.2d
       1217, 1221 (1995)]. Hence the sending of written notice to the
       appellant’s current address is but one of many factors that may
       be considered. It is not obligatory that any combination of
       factors must be present. See, e.g., Commonwealth v. Dietz,
       423 Pa. Super. 366, 621 A.2d 160, appeal denied, 535 Pa. 634,
       631 A.2d 1007 (1993) (holding driver’s flight from crash site and
       misleading conduct demonstrated that driver knew he was not
       permitted to drive; and driver’s failure to produce a driver's
       license is presumptive knowledge of suspension).

Id., 734 A.2d at 408.

       Here, at the summary trial de novo, the Commonwealth presented the

testimony of Officer Turack. Officer Turack testified that on September 5,

2012,7 after he initiated a traffic stop of Crock’s vehicle,

             [Crock] was immediately combative. He was throwing his
       arms about the vehicle, he was shouting and cursing. Upon
       approach to the vehicle I requested his driving information.
       He failed to provide that to me. He was screaming about
       being pulled over.

            I was able to get the information from him, at which
       time he presented me with a – I believe it was an Ontario
       driver’s license, which was checked through NCIC and found to
       be current and valid, at which point I requested our dispatch
       check Mr. Crock by name and date of birth through the state of
       Pennsylvania, at which point it was determined that he had
       a suspended driver’s license.
____________________________________________


7
  While the officer testified that the date of the incident was September 15,
2012, see N.T. (corrected), 5/13/2013, at 14, the citations reflect the date
of the incident as September 5, 2012. See id. at 30.




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              Mr. Crock became increasingly combative and aggressive
        during the traffic stop. …

N.T. (corrected), 5/13/2013, at 13 (emphasis added).            Furthermore, the

Commonwealth, through Officer Turack, offered into evidence PennDOT’s

certified driving record for Crock, which was admitted into evidence over

objection.8 The certified driver’s record demonstrated that notice of Crock’s

license suspension, effective as of May, 2012, had been mailed on April

17, 2012,9 and that September 18, 2012 was the date of restoration of

driving privileges. See N.T. (corrected), 5/13/2013, at 29.

        On cross examination, when Crock questioned Officer Turack, he asked

“whenever this traffic stop occurred, I believe I provided you with a copy of

this letter.” N.T. (corrected), 5/13/2013, at 27.       Crock then identified the

letter for the record as follows:          “It is a letter from PennDOT dated or

processed 9-14 of 11 saying Your driving privilege is restored effective 9-14

of ’11.” N.T. (corrected), 5/13/2013, at 27–28. Although the court did not

formally admit the letter, Crock handed a copy of the letter to the court.

Officer Turack testified he did not recall that letter. See id. at 28. On cross

examination, Officer Turack further testified that the notice of license

____________________________________________


8
    See N.T. (corrected), 5/13/2013, at 15.
9
  The license suspension was in connection with a violation that occurred on
June 7, 2007. See 75 Pa.C.S. § 1533, “Suspension of operating privilege for
failure to respond to citation.”




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suspension is mailed to “wherever your listed address is on your driver’s

license.” See id. at 34.

     Following Officer Turack’s testimony, Crock showed the court a “bag

for groceries,” containing “correspondence from [PennDOT] to me – I’m not

going to put them in the record – but to corroborate that the department

has my correct mailing address[.]”     N.T. (corrected), 5/13/2013, at 40.

Crock maintained PennDOT “had my address and didn’t notify me.”         N.T.

(corrected), 5/13/2013, at 43.

     Crock, in his argument to this Court, relies upon Commonwealth v.

Taylor, 568 A.2d 1320, 1324 (Pa. Super. 1990), wherein this Court

determined that the Commonwealth’s evidence was insufficient to prove

defendant received actual notice of his license suspension because there was

unrebutted evidence that the defendant no longer resided at the address

where his license was registered. See Crock’s Brief at 16, 18. We are not

persuaded that Taylor applies to this case.

     Here, Officer Turack testified that the notice of license suspension was

mailed on April 17, 2012, and that notice is mailed to the address listed on

the driver’s license. See N.T. (corrected), 5/13/2013, at 29, 34. Moreover,

at trial, Crock acknowledged receiving a restoration of operating privileges

letter from PennDOT, dated September 14, 2011. Id. at 27–28. This letter

is consistent with the driver’s history recorded on PennDOT’s Certified




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Driver’s Record for Crock.10 There was no evidence that Crock had changed

his address since his driving privileges were restored. Finally, Crock failed to

produce his Pennsylvania driver’s license when he was stopped by Officer

Turack.

       The facts of this case more closely align with Commonwealth v.

Gray, 514 A.2d 621 (Pa. Super. 1986), appeal denied, 523 A.2d 345 (Pa.

1987).    In Gray, this Court found evidence that notice was mailed to the

defendant’s correct address coupled with the fact the defendant had

surrendered his license on a previous, recent suspension for which notice

was mailed to the same address, as well as evidence that he was not

carrying his license when he was stopped, sufficient to establish he had

received actual notice.      Id. at 622–623.     Like the defendant in Gray who

had received an earlier notice of suspension, Crock had received an earlier,

recent notice of restoration of driving privileges, notwithstanding the P.O.

Box address listed on his certified driver’s history. Also, there was evidence

that the notice of suspension had been mailed,11 no evidence that Crock’s

address changed since his receipt of the PennDOT restoration letter, and

although apparently having had his license restored, Crock did not have his

____________________________________________


10
   See PennDOT Certified Driver’s History for Thomas Duff Crock, dated
7/2/2013, filed 5/13/2013, at 4 (“Action: Restoration of operating privileges
Sep 14 2011”).
11
   There was no evidence indicating that the notice was returned as
undeliverable.



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Pennsylvania driver’s license when stopped by Officer Turack. Therefore, on

this record, and applying Gray, we find the Commonwealth’s evidence was

sufficient to prove beyond a reasonable doubt that Crock had actual notice of

the license suspension.

       Accordingly, viewing all of the evidence and any inferences drawn

therefrom in the light most favorable to the Commonwealth as the verdict

winner, we conclude the evidence was sufficient to support Crock’s

convictions pursuant to Section 1543(a) and 1573(a). Therefore, no relief is

due on Crock’s sufficiency claim.12

       Nor do we find merit in Crock’s alternative argument that the court’s

order denying his oral motion to suppress must be reversed and the case

remanded because the seizure of his vehicle was effectuated without

probable cause.      Our standard and scope of review are well settled:

           The standard and scope of review for a challenge to the
           denial of a suppression motion is whether the factual
           findings are supported by the record and whether the
           legal conclusions drawn from those facts are correct.
           When reviewing the rulings of a suppression court, this
           Court considers only the evidence of the prosecution and
           so much of the evidence for the defense as remains
____________________________________________


12
   Crock asserts that “as [his] driving record evidences, [he] is well-
acquainted with the Pennsylvania Vehicle Code, and thus would not have
purposefully rendered himself subject to prosecution under 75 Pa.C.S. §
1573(a) by displaying a foreign license while driving operating privileges
were suspended.” Crock’s Brief at 17–18, n.2. This argument, however,
ignores our standard of review to view the evidence in the light most
favorable to the Commonwealth as verdict winner.



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             uncontradicted when read in the context of the record as
             a whole. When the record supports the findings of the
             suppression court, we are bound by those facts and may
             reverse only if the legal conclusions drawn therefrom are
             in error.

Commonwealth v. Downey, 39 A.3d 401, 405 (Pa. Super. 2012) (citation

omitted), appeal denied, 50 A.3d 124 (Pa. 2012).

       Crock argues that because the officer testified at the summary trial de

novo that he had no evidence to support the amended charge of failure to

yield to a traffic control device, 75 Pa.C.S. § 3111, the seizure of his vehicle

was effectuated without probable cause.              See Crock’s Brief at 21; N.T.

(corrected),     5/13/2013,      at   21–22.       Crock’s   argument,   however,   is

unavailing.

       As already discussed, Officer Turack testified at trial that he had

observed Crock driving at a high rate of speed around a bus, swerve in front

of it without signaling, and then spike the brakes, causing the bus driver to

lock up his brakes and the bus passengers to be jolted forward.                 N.T.

(corrected), 5/13/2013, at 12–13.              The officer’s observation of Crock’s

failure to use a signal while making a lane change created probable cause to

suspect a violation of Section 3334 (“turning movements and required

signals”).13     See Commonwealth v. Brown, 64 A.3d 1101, 1105–1106
____________________________________________


13
  Section 3334 of the Pennsylvania Motor Vehicle Code provides, in relevant
part:

       (a)     General rule. --Upon a roadway no person shall turn a
               vehicle or move from one traffic lane to another or enter
(Footnote Continued Next Page)


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(Pa. Super. 2013), appeal denied, 79 A.3d 1096 (Pa. 2013) (finding officer

had probable cause to stop truck driver after observing driver make left turn

without using turn signal).         The fact that the officer admitted he had no

evidence Crock violated the Motor Vehicle Code with respect to the

amended charge is irrelevant to the issue of whether the stop was valid in

the first instance. Furthermore, even dismissal of the original Section 3334

charge would not require suppression, since the proof beyond a reasonable

doubt standard applicable at trial has no bearing on the probable cause

analysis attendant to a suppression motion.          For these reasons, Crock’s

suppression argument fails.




                       _______________________
(Footnote Continued)

             the traffic stream from a parked position unless and until
             the movement can be made with reasonable safety nor
             without giving an appropriate signal in the manner
             provided in this section.

      (b)    Signals on turning and starting. --At speeds of less than 35
             miles per hour, an appropriate signal of intention to turn
             right or left shall be given continuously during not less
             than the last 100 feet traveled by the vehicle before
             turning. The signal shall be given during not less than the
             last 300 feet at speeds in excess of 35 miles per hour. The
             signal shall also be given prior to entry of the vehicle into
             the traffic stream from a parked position.

75 Pa.C.S. § 3334(a), (b).




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       Having reviewed the contentions of Crock, and having found them to

be meritless, we affirm.14

       Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/21/2014




____________________________________________


14
   Although Crock raises an additional argument in his reply brief that the
judge was biased against him, citing his motion for recusal that the trial
judge denied at the outset of the summary trial de novo, this argument is
subject to waiver since it is well settled that it is improper to raise new
issues in a reply brief. See Commonwealth v. Williams, 909 A.2d 383,
386 n.6 (Pa.Super. 2006).



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