*1 Pennsylvania COMMONWEALTH CROCKFORD, Appellant. James William Pennsylvania. Superior Court Argued Feb. 8, 1995.
Filed June *3 Wilkes-Barre, Flora, Jr., appellant. for Albert J. Jr., Wilkes-Barre, Olszewski, Atty., Peter Paul Dist. Com., appellee. Cramer, Transp., for PA Philadelphia, Dept,
Harold H. amicus curiae. WIEAND, ROWLEY, P.J., CAVANAUGH,
Before BECK, TAMILIA, McEWEN, CIRILLO, ELLIOTT FORD SAYLOR, JJ. ELLIOTT, Judge: FORD judgment challenging us comes before
Appellant pursuant his conviction following him imposed upon sentence 1543(b), operat- driving while pertaining to 75 Pa.C.S.A. Finding no error or revoked. suspended are ing privileges below, we affirm. simply this case devolves setting from which
The factual witness presented single The Commonwealth recounted. that on March Halecky testified Trooper Robert trial. State car, he observed police in marked patrol on while inspection stick- expired with an a vehicle appellant operating Trooper appellant, stop to effect a traffic Prompted er. license and a driver’s appellant asked Halecky comply with the card, was unable appellant but owner’s discern- Upon one. carrying since he was request license birth, name, address, Trooper and date ing appellant’s check on and ran a records to his car returned Halecky that appellant’s check revealed The records appellant. ap- Halecky questioned Trooper When suspended. had been was appellant suspension, he was under why as to pellant reason. possible unable to state receipt testify subsequent Halecky went on Trooper Pennsylvania record from the certified of appellant’s (PennDOT) ap- revealed that Transportation Department driving under suspended for license had been driver’s pellant’s the license indicated that The record further the influence. 28, 1992, from October year effective for one on that appellant mailed to notice thereof was and that official *4 same date. Halecky’s testimony, the Commonwealth Trooper
Following into evidence and driving record certified appellant’s offered the basis that the demurred on thereupon Appellant rested. insofar proof meet its burden had failed to of his license actual notice that had demonstrating appellant as and a demurrer grant refused to The trial court suspension. case, a sole presenting its likewise with proceeded the defense witness, appellant. person in the testimony, appellant In the course of his admitted that he convictions for under the influence.1 He prior driving had two that suspended had been told that his license would be he Appellant by would be notified the state. was asked was told the court court to his license at trial and testimony, would him not if guilty find he could. Notes at 23. he did not his Appellant explained bring 2/2/94 so, he he did because was not instructed to do think on bring longer his own because it was no valid. Appellant was of driving suspension, convicted while under and now appeals.
Although couched by appellant arguments, as two he effec- tively single raises a issue on appeal. Appellant avers appellant Commonwealth must show that had actual notice of suspension, his and that it to meet failed this burden. We agree proving that the Commonwealth bears the burden of doubt, beyond a reasonable but find that the Common- trial, unrebutted, sufficiently proved wealth’s evidence at left Therefore, such notice. we affirm.
Preliminarily, begin we our standard of by reiterating review:
In examining challenge sufficiency to the of the evi- dence, appellate it is well established that an court must determine whether the evidence was sufficient to enable the find jury every charged beyond element the crime doubt, viewing reasonable all the evidence and reasonable inferences therefrom in the most favorable to the light verdict winner. Zimmick, 548, 554,
Commonwealth v. It would also be beneficial at this to set out point statute at issue: particular Appellant January was arrested on March 1991 and However, guilty pleas under the influence. because he entered day, on to both violations the same he was treated as a first offender on testimony, each. See notes of at 20-21. 2/2/94
28 suspended Driving operating privilege
§ is while or revoked
(b) who drives a motor Any person Certain offenses. — of this Commonwealth any trafficway on or highway vehicle is or privilege suspended at a time when their operating of Accelerated Rehabil- acceptance as a condition of revoked (relating for of section 3731 Disposition itative a violation substance) alcohol or controlled under influence of driving 1547(b)(1) (relating a or of violation of section because refusal) conviction, shall, be upon 3731 suspension for a summary pay and shall be sentenced to guilty of a offense $1,000 imprisonment for of undergo period fine of and to not 90 days. less than 1543(b). §
75 Pa.C.S.A. Kane, 460 area is Commonwealth v. The seminal case this 582, necessary it is A.2d 925 which held that Pa. 333 had actual notice Commonwealth to accused prove under driving convict of while suspension order to 624, § our 75 P.S. suspension. interpreted Kane former suspension. under Under governing driving statute prior § was a misdemeanor while under requirements of Pa.C.S.A. subject general culpability to the 18 1543(b), § §§ mens rea. 75 Pa.C.S.A. proof however, as a offense. Legislature summary is defined such, exempted general culpability it is from requirements As Still, supreme § 305. our court has to 18 Pa.C.S.A. pursuant suspension remains a proof of actual notice of plainly held Pa.C.S.A. 1543. See Common necessary element 75 (1993). Pa. A.2d 569 See McDonough, v. 533 621 wealth 18 Horney, also Commonwealth Burkett, (1987); A.2d element, is, therefore, judicially Notice created rights. due designed protect process defendant’s notice, Kane also ruled requiring In addition to actual alone to that notice was mailed was sufficient proof Kane notice. As the court stated: the vital element is not whether evidence being issue now discussed [T]he evidence, admissible evi- is admissible but whether mailing alone, dence of evidence to mailing, standing sufficient *6 beyond establish one of the elements of the crime a reason- able ... inferred fact is more though doubt. an [E]ven fact, in likely proven than not to follow from a a criminal case, the inference ‘must also the criminal “reason- satisfy if proof charged able doubt” standard of the crime or an essential element its depends upon thereof use.’ ... Although the records stated that a notice had been mailed, there was no other had actual proof appellant notice of his no ... suspension. There was evidence appellant’s operator’s license was returned to the Bureau ... There was no evidence that resided at appellant address shown on the notice at the time the notice was Moreover, mailed. we note that address appellant’s typed on the notice of was different from the appellant’s places address two other in the certified typed records.
Id., 584-86, 926, 460 Pa. at quoting Leary 333 A.2d at v. States, 6, 64, United 395 U.S. 36 n. 89 S.Ct. 1548 n. (1969) 57, 81, 23 L.Ed.2d n. 64 (emphasis original). The was, concern of the quite simply, get Kane court that letters mail; lost in the of mailing might evidence alone suffice to notice, strong show a likelihood of actual but it could not proof beyond constitute a reasonable doubt. decided,
In twenty years since Kane was numerous rulings of both the court supreme and this court have refined message. its basic While these cases have set out no hard and fast proof rule as to the kinds of establish suspension, they notice of do indicate that evidence of mailing other, coupled notice with some additional evidence of knowledge beyond will suffice to establish actual notice a been, reasonable doubt.2 The has how much question always evidence sufficient. pause to note We two other related lines of cases that have devolved Gamble, from Commonwealth v. Kane. In Commonwealth v. 376 Pa.Su- (1988), per. although A.2d 546 681 this court ruled that (to address) mailing prior, presented appellant a stale was and was
30 Burkett,
In court held that evidence example, A.2d this mailed, that defendant combined with evidence was that, Safety, Bureau of Traffic his license returned seats with by police, defendant switched stopped when beyond establish actual notice was sufficient to passenger, doubt. reasonable Martin, A.2d
In
this court was uncertain whether
additional
notice,
therefore remanded for
evidence established actual
Martin,
certified
evidentiary hearing.
an
the defendant’s
into evidence. This record
driving record
admitted
mailing
displayed
cryptic
and also
original
showed the
We
had thereafter been received.
notation that
affidavit
*7
if
evinced actual notice.
remanded to determine
this affidavit
299,
v.
Gray,
More recently, Commonwealth v. supra, 423 predicated notice was upon mailing of notice combined with several additional factors. Defendant fled the scene of an accident on foot. When first questioned by investigators, he stated that his wife had been driving the vehicle. Defendant later admitted that he had been driving. The court found that the flight defendant’s deception indicated that he knew he was not allowed to drive. The court swayed was also by the defendant’s history of convictions for driving while under suspension, and found it incredible that defendant could possibly believe that he was permitted to drive.
If this compilation cases stands for any proposition, it is that the type of actual notice contemplated and cases can be express implied actual notice. As delineated in Black’s Law Dictionary:
Actual notice has been defined as notice expressly and actually given, and brought home to the party directly. The notice,’ however, term ‘actual is generally given a wider meaning classes, as embracing two express and implied; the *8 former includes all of a knowledge degree above that which depends upon inference, collateral or imposes upon which party the the further duty inquiry; of imputes the latter knowledge party to the because he is shown to be conscious of having the means of knowledge. In this sense actual notice is such notice positively proved as is to have been given to a party directly and personally, or such as he is presumed to have personally received because the evidence within knowledge his was him put sufficient to upon inquiry. (6th 1990). Id. at 1061-1062 ed. fact,
Notice is a question and anything proves that knowledge legal or is showing evidence that knowledge exists matter, in is most cases it practical be sufficient. As a
can prove positively to virtually for the Commonwealth impossible notice of express suspen- the received actual that defendant sion; knowledge. have such only the defendant would Commonwealth, only the facts and circumstances relying upon case, can, best, knowledge to the defen- impute such of a § make of 1543 provisions To otherwise would the dant.3 hold and unworkable. virtually unenforceable Hence, as response appellant’s inquiry in to to whether is actual notice of required prove suspen- Commonwealth 1543(b), to sustain a conviction under Pa.C.S.A. sion repeatedly answered in the courts of this Commonwealth have is actu- required The Commonwealth establish affirmative. facts may take the form of a collection of al notice which infer the fact finder to defen- allow circumstances now to the knowledge has We turn suspension. dant satisfy that will of the facts and circumstances nature case of establishing prima burden Commonwealth’s facie notice. Zimmick, 539 Pa.
As forth in set pro our court’s most recent supreme on the issue: nouncement may determining that a finder of fact consider in
Factors had circumstantially directly or whether a defendant include, not suspension or but are limited notice of his her to, verbally writing that the defendant or evidence or a suspension during plea, of the trial apprised that he or by indicating knowledge the accused statements which his or her license driving during period she was by mail suspended, been PennDOT sent had address, appellant’s current the notice of the more than We note that notice: constructive imputed by knowledge of a notice is information fact Constructive it), may actually person (although he have because he law to a proper diligence, the fact and his situation could have discovered upon duty inquiring it. him the into was such as cast supra pre- is a Dictionary, at 1062. Constructive notice Black's Law law, requires proof of and circum- sumption while actual notice facts showing knowledge actually received. stances *9 evidence that PennDOT’s notice of suspension was not undeliverable, returned as attempts by the accused to avoid citation, detection or a any demonstrating other conduct circumstantially or directly appellant’s knowledge of the See, suspension or guilt. awareness of Commonwealth e.g., Dietz, 366, 370-71, 423 Pa.Super. 160, 621 A.2d [sic] denied, (1993) (driver’s appeal flight from crash site and misleading conduct demonstrated drive; that driver knew he was not permitted to driver’s failure to produce a driver’s license is presumptive knowl- edge suspension).
Zimmick,
555-56,
supra,
Instantly, contrary appellant’s argument only produced evidence of a PennDOT suspension mailing, we decide that the pre 1) sented evidence as to three crucial facts: appellant’s license 2) suspended offense; had been for a DUI appellant’s notice of had mailed by been on PennDOT October 3) 1992;4 and appellant failed to produce a current driver’s license when he stopped on March Today, 1993. we factors, hold that these in conjunction, are sufficient to meet the Commonwealth’s burden to prove suspension.5 notice of
Both appellant and the Commonwealth have upon seized Dietz, this court’s decision Commonwealth v. to make their arguments various
on
appeal.
a panel of this court held that in order
for a defendant to invoke the
notice,
defense of lack of actual
must be established at trial that a current driver’s license was
offense,
produced at the time of the
days
or within 15
thereaf-
ter,
(which
pursuant
to the mandates of 75
Pa.C.S.A.
requires drivers to carry their licenses while operating their
appeal, appellant
4. On
argue
does not
that the notice was sent to an
incorrect address. See note
infra.
sufficient,
necessary,
We note that these factors are
but not
for the
prima
Commonwealth to establish its
case. The Commonwealth is
facie
certainly
any
free to introduce
other evidence available to establish
Furthermore,
actual notice.
in the event that a defendant
is able to
thereafter,
stopped
a current
license when
or
other
some
notice,
rely
evidence of lack of
the Commonwealth must
on other
available evidence to meet its burden.
*10
demand).
posited
Dietz
produce
upon
them
vehicles and
are
the driver
driving privileges
suspended,
that when
§ his license under 75 Pa.C.S.A.
required to surrender
of
he should be
suspension,
If
claims no
a driver
license;
underlying assumption
able to
a current
the
produce
license, it is
produce
if
driver
such current
is that
cannot
it or
he knows it is
either
he surrendered
because
because
a
possess
that a defendant’s failure
valid. Dietz concluded
of
We
knowledge
suspension.
is presumptive
current license
Dietz,
in
and
supreme
that the
court denied allocatur
observe
in
very proposition
it
for this
recently
approval
most
cited with
Zimmick,
§ 1501. Drivers to be licensed (a) those ex- person, except expressly General rule. —No empted, any upon highway shall drive motor vehicle person this Commonwealth unless the public property of this provisions has a driver’s license valid under chapter. Carrying exhibiting
§ 1511. driver’s license on de- mand
(a)
Every
possess
General
licensee shall
a driver’s
rule. —
issued to the licensee at all times when
upon
motor vehicle and shall exhibit the license
demand
officer,
aby
police
requested by
police
and when
*11
in
officer the licensee shall write the licensee’s name
in
presence
provide identity.
of the officer
order to
purpose
provide
The
of these sections is to
assurance that
operate
highways
those who
vehicles on our
are properly
so,
having
qualifica-
licensed to do
after
met certain minimum
Licensing requirements
give
tions.
thus
the Commonwealth a
protecting
safety
means of
of its citizens.6
estab-
Having
lished the framework in which to
parties’ argu-
consider the
ments,
we
appellant’s quarrel
next address
with
423
Appellant argues allowing the Commonwealth to rely upon appellant’s failure to a license as presump knowledge tive of suspension shifts the burden to a defendant prove charged. element the offense of which he is case, Within the context of a agree license we with underlying logic of Dietz. It seems entirely likely that mailed, of suspension subject where notice has been and the license, driver is unable to produce a current it is either Appellant argues production require- § that to avail itself of 1511’s ment, the Commonwealth must establish that the officer informed (b) appellant provides person § of subsection 1511 which that “No 1501(a) person shall be of this convicted section or section if the produces issuing authority arresting at the office of the or the officer days within 15 a driver’s license valid in this Commonwealth at the 1511(b). § We time of the arrest.” 75 Pa.C.S.A. find no such obli- gation part place requirement on the of the officer and no such on the by appellant, charged Commonwealth. As noted he has not been with a upon § only violation of 1511 extent that it is relied to the presents regulatory authority by a reasonable exercise of Common- wealth. 36 do he is so since the license has been
because unable surrendered, he or to do so believes unwilling he because is a tendering suspended gesture. a futile to show actual is entitled such inferences prima its its satisfy establishing notice and to burden fade a prima rebut is then entitled to such Appellant case. fade may lack of actual by relying any on evidence which show case by as at the of his suspension, stop notice of such time of, police, possession produce, was able appellant driver’s current license.7 such a removes from the presumption claims that
Appellant beyond reason- proving Commonwealth the burden Winship, In re doubt, 90 as 397 U.S. required able Wilbur, Mullaney 25 368 S.Ct. L.Ed.2d 44 L.Ed.2d After S.Ct. U.S. briefs, parties’ law and the review of case thorough however, disagreement disagree. we must The basis our burden of proof a review of the difference between requires of production. and burden distinction, al
Perhaps cogent the most statement this case, is found to the instant though directly applicable 488, 408 Sojourner, Commonwealth v. A.2d II, (1979) II). (Sojourner Sojourner the issue before the court whether the Commonwealth was *12 possess not authorized to controlled that a defendant was when beyond a reasonable doubt nonauthorization substance Id. at 493, 495, 408 at charged. of the offense A.2d element the held 1111, 1112. carefully analysis, After a reasoned court Id. at A.2d required. was so 408 that the Commonwealth in Recognizing impossibility requiring at the inherent 1113. nonauthorization, however, the that the Commonwealth to a rebut- majority held that the Commonwealth was entitled nonlicensure; the Commonwealth could table presumption production, the but not the to the defendant burden shift If the persuasion, on the issue authorization. burden to introduce evidence of authorization were able defendant non-authorization, as to raise a reasonable doubt sufficient 4, supra. 7. See n.
37
disprove
would then have to
authorization
the Commonwealth
Id. at
doubt.
‘Furthermore, Mullaney 421 [v. as we indicated (1975) ], U.S. L.Ed.2d 508 even as to S.Ct. upon prosecution those factors must bear the which persuasion, important proce- burden of the State retains an jury prevent prose- dural device to avoid confusion and being unduly hampered. normally cution from The State is, may production, shift to the defendant the burden going the burden of forward with sufficient evidence “to ... If justify upon doubt the issue.” [a reasonable] threshold, defendant’s evidence does not cross this malice, extreme emotional distur- [whether be] issue — bance, self-defense, or not be submitted to whatever —will jury.’ II, 498-499, Sojourner supra, 408 A.2d at Patterson, 1113-1114, 230-31, quoting U.S. at (Powell, dissenting). at 2337-2338 J. his concurrence S.Ct. II, Sojourner Judge Spaeth agreed language quoted supra succinctly from Mr. Powell’s dissent Justice by the Model Code some so-called "Elements” as used Penal included excuse, (self-defense), justification such as affirmative defenses distinguished exculpating mistakes. "Elements” were from "ma- some terial elements” which were defined as those that do not "relate (ii) justification exclusively for such to ... the existence of a excuse Code, Definitions, § Model Penal 1.14 at 118 [forbidden] conduct.” *13 (Tent. #4, 1955). evidentiary the burden Draft See also discussion of defendant, supra on a at 110. shifting correct vis-a-vis the burden of analysis
stated the however, to Judge Spaeth compelled clarify felt production; so, he the analysis upon following further. To do relied from the Model Penal Code: language when explain No can be single principle conscripted defensible, even if shifts of to defendants are these burden goes production burden no further than call for the the the logical point prosecu- some evidence. Neither the nor negative, would be the upon tion called exception the defense rests on an grammatical point that potently divorced the definition of the crime is proviso from invoked---- although points both have been persuasive, which is involved rather a more subtle balance What seems ought acknowledges that a defendant not be support until substance is presented defend some solid this, but, beyond perceives point accusation where the issues, coupled narrowing for with relative need defendant, accessibility calling to the warrants evidence doubt present him to his defensive claim. No this upon if, given prosecu- is reached the facts quickly more point establish, probabilities against must the normal are tion defense, hardly but this an essential factor. II, 509, 408 supra,
Sojourner
(Spaeth,
at
A.2d at 1119
J.
Code, Comments, § 1.13
quoting
concurring),
Model Penal
1955).9
(Tent.
4,#
110-111
Draft
we
that there
be valid distinctions
recognize
may
While
Patterson,
II
Sojourner
the instant case and both
and
between
Sojourner
which
II was
banc decision
this court from
no
an en
Sojourner
appeal was taken.
II was decided after
Since
McNeil,
Sojourner
As our
determined
court
529, allowing
538 Pa.
Yarger, supra,
wealth v.
case without
prima
the Commonwealth to establish
facie
possible arguments
of a
having
disprove
first to
all
defendant’s
proof (persuasion)
in rebuttal does not shift the burden
Rather, merely
that the defense rebut
requires
defendant.
by coming forward with its own
the Commonwealth’s case
(burden
A
of the supreme
review
production).
in
is instructive.
holding Yarger
court’s
in
court revisited its decisions
Yarger,
supreme
A.2d 1233
Modaffare,
529 Pa.
Jarman,
(1992),
A.2d
and Commonwealth
with
introduction of relation-
cases that dealt
level
testimony to determine blood alcohol
“while
expert
back
3731(a)(4)
§
driving”
(driving
of 75 Pa.C.S.A.
purposes
for
The
greater).10
Yarger
alcohol
is 0.10% or
while blood
content
is no
the Common
requirement
court held
there
testimony
prima
make out its
such
present
wealth
facie
case; rather,
merely
it is sufficient that the Commonwealth
content reflects an
“that the driver’s blood alcohol
establish
334-335,
Having appellant’s argument, we that, under argument next to the Commonwealth’s 621 A.2d should not Pa.Super. appellant allowed to introduce evidence of lack of notice unless he has be a current driver’s license. As the Commonwealth produced the Dietz court held avers, that in for a person order invoke defense, condition that the necessary the “no notice” is establish at trial that a current license was defendant driver’s 15 days at the time of the offense within thereaf produced 1511(b). § by agree ter as While we with the provided in Dietz on this of the interpretation holding Commonwealth’s result, issue, disagree holding. today we with Dietz’s As a we is from a lack of appellant precluded raising decide that on a driver’s produce notice defense based failure valid time of the or within fifteen thereaf stop days license at the Rather, a defendant is still entitled to come forward with ter. in an any evidence of lack of actual notice effort to rebut prima case.11 Commonwealth’s facie although upon the Commonwealth relied this Instantly, Dietz as language precluding appellant raising from a lack recognize effectively estopped from 11. We that a defendant can be raising argument where notice of is the lack of notice notify an old address because the driver has failed to mailed to change, as under 75 address Pa.C.S.A. rely The driver cannot on this violation to insulate himself charge suspension by claiming serious under from more precluded so defense, was not appellant we find that of notice evidence and court heard all the in the court below. trial failure to upon appellant’s testimony relying before appellant’s actual notice of as evidence of driver’s license a valid the Common- unable to rebut appellant As was suspension. prima case, find the sufficient we wealth’s facie sustain the conviction.12 reasons, sentence is af- judgment of foregoing
For firmed, relinquished. jurisdiction and J., joined
WIEAND, concurring files a statement which TAMILIA, by J. opinion
CIRILLO, J., concurring dissenting files SAYLOR, by J. joined which was WIEAND, concurring: Judge, evidence was my judgment, result.
I concur in the that, when a reasonable doubt beyond to establish sufficient court in holding announced this Common- no This was notice'. Heckman, wealth v. Minor, recently reaffirmed more in Commonwealth *16 Taylor, Compare R. 390 A.2d Commonwealth v. Donald 647 229 (1990). We note that this line of A.2d should 568 1320 Although supreme our court. support have the cases does not full concept v. estoppel in McDon- the Commonwealth the court affirmed (1993), evenly the ough, divided on 533 Pa. this in Commonwealth v. Lately, the court revisited issue decision. has Zimmick, majority appears Pa. A.2d the to and defense, Zimmick, a full approve, although presented in the defendant "the and the reasonable trial court found that after which the therefrom, appellant sufficiently had actu- demonstrated that inferences suspension.” 1219-20. Id. at 653 A.2d at Howev- al notice of his er, Writing separately, Mr. majority the drew several concurrences. opinion majority’s that agreed part of Zappala with that the Justice suspension, but notice of re-asserted found evidence of actual sufficient of an address opinion notify failure the Commonwealth his that notice” change result waiver of “no defense. in a the should simpler, much proof of notice could be made We note engage "tempest kind of in necessity in the thereby preclude case, simply were teapot” judges in the if instant trial created sentencing time of require their licenses at the defendants surrender suspension. urge We that such a requiring license in DUI convictions adopted so. practice where it is feasible do be vehicle, were operating privileges drove a motor his appellant because of a conviction for while suspension under alcohol and that he had actual knowl- under the influence of of such edge suspension. in cases being of the mischief which is caused these
Because Kane, by the decision urge holding might A.2d 925 I would that the thereof If notice of by Supreme suspen- be reconsidered Court. sent, to the motorist at his or her postage prepaid, sion is address, good holding correct I can think of no reason for thereof should not receipt the well established inference of notice of the prima constitute facie evidence that has been received.
CIRILLO, Judge, concurring
dissenting:
holding
I
to the extent that the
agree
majority
with the
366,
During Halecky. Robert Ha- Trooper Trooper Commonwealth was 1, 1993, that on March Crockford was lecky stopped testified time, At that inspection for an sticker violation. Crockford provide upon request was unable to a current driver’s license An Halecky. from examination of Crockford’s driv- Trooper revealed that Crockford’s license ing trooper record knowledge had been Crockford denied his suspended. *17 Halecky so suspension by Trooper when he was informed left his license at home his wallet. It was stated that he suspension at trial that notice of the was further established Pennsylvania Department Transportation the of by mailed 1992; however, (PennDOT) the on October to Crockford the notice to what address verify could not a current license follow- produce did not was sent. Crockford the ing incident. the conclusion of its case at rested demurred, ar- then testimony. Crockford
Trooper Halecky’s had failed to he that the Commonwealth guing The Commonwealth suspension. notice of the license actual “no could not avail himself the averred that Crockford a current produced had not license notice defense” because he thereafter days or within fifteen at time the offense § 1511. to 75 Pa.C.S.A. pursuant exhibiting de- Carrying § driver’s license on mand
(a) possess shall driv- Every licensee General rule. — driving at all times when to the licensee er’s license issued by upon demand motor shall exhibit the license vehicle and police officer.... (b) be penalty. person shall Production avoid —No 1501(a) (relating violating this section section convicted licensed) if person produces to drivers be authority arresting or the officer issuing of the office valid in this Commonwealth days a license within 15 driver’s at the time of arrest. § Commonwealth v. 1511.1 On the basis of
75 Pa.C.S.A. infra, discussed demurrer and convicted Crockford the trial court denied the 1543(b). license, suspended 75 Pa.C.S.A. with a motions, he no arguing that had post-verdict Crockford filed the incident. The prior of his Trooper Halecky days he fifteen by told had was not 1. Crockford Furthermore, asked the court to when a current license. trial, responded during that he was Crockford produce a current matter, pressed the bring When the license. the court not instructed bring he he asking why he the license when knew did Crockford time, mandatory jail he days Crockford answered that facing ninety license, now producing the since he was significance did not see that, repeated had he Crockford also aware that it was not current. instructed, brought license. he have been so would *18 44 denied,
motions were and Crockford was ninety sentenced to days imprisonment. This appeal followed. following
The issues were raised for our consideration: (1) Whether the lack of actual notice of a license suspension is a defense to the offense of driving while operating privi- lege is suspended 1543(b), § or revoked under 75 Pa.C.S.A. and, so, if whether such a defense is waived when one fails to produce a current license pursuant to 75 Pa.C.S.A. § 1511?
(2) Whether, assuming the
failure to
a driver’s
license does
notice,
not waive the defense of lack of
there
was sufficient evidence presented to support Crockford’s
1543(b)?2
conviction under section
examining
challenge
evidence,
to the sufficiency of the
is well settled that
appellate
court must determine
whether the evidence was sufficient to enable
jury
to find
every element of the crime charged beyond a reasonable
doubt, viewing all the evidence and reasonable inferences
therefrom in the
most
light
favorable to the verdict winner.
Thomas,
Commonwealth v.
527 Pa.
§ Driving operating 1543. privilege while suspended is or revoked
(b) Certain Any person who drives a motor offenses. — vehicle on any highway or traffic way of this Commonwealth at a time when their operating privilege suspended revoked as a condition of acceptance of Accelerated Rehabil- Disposition itative for a violation of section (relating substance) driving under influence alcohol or controlled 1547(b)(1) or because of a violation of section (relating to refusal) suspension shall, or 3731 upon conviction, be guilty of a summary offense shall be pay sentenced to $1,000 fine of and to undergo imprisonment for a period of days. less than 90 1543(b). 75 Pa.C.S.A. purposes clarity, liberty For I have taken the of rewording Crock- appeal. ford’s issues on Court, in Commonwealth Pennsylvania Supreme
Kane,
that it must be
Pa.
A.2d 925
held
doubt,
had
that the defendant
beyond a reasonable
proven,
operator’s
his
of the crime of
an essential element
order
establish
v. Zim
license. Accord Commonwealth
suspended
with
(1995);
mick,
A.2d 1217
Minor,
(1994);
*19
Pa.Super.
436
(1991);
Heckman,
335,
1261
Com
590 A.2d
Pa.Super.
v.
404
(1990);
571,
A.2d 1320
Pa.Super.
v.
390
568
Taylor,
monwealth
Gamble,
590,
lying DUI that time was informed that suspended; appellant license would be aware the he had and, years; appellant not had a valid license asked 1543(b) cite him police officer not to for a section violation him); jail because it would time for Horney, supra, mean 365 (actual A.2d Pa.Super. proven notice when evi established notice was and appellant dence mailed admit address, notice, prior ted that he received mailed to the same notifying him had to take an his that he exam order to keep license, exam); and he did take the Gray, supra, (evidence was sufficient to prove actual notice where was established that notice was mailed appellant’s appellant previously correct address and had surrendered his response license to a mailed to the Burkett, address); same (evidence appellant had surrendered his
attempted
driving by removing
to conceal
fact that he was
himself from the
seat when
vehicle was pulled
driver’s
his
over
notice).
by police
probative
was found
of actual
far,
set
thus
Notwithstanding
principles
appel-
forth
late courts of this Commonwealth have determined that a
*20
defendant cannot avail
of the defense of
of
lack
himself/herself
notice
certain
Specifically,
under
circumstances.
the
question
notify
has arisen as whether one who does not
change
PennDOT of
her
is precluded
his or
address
from
that
asserting
provide
the Commonwealth did
them with
Heckman,
actual notice.4 In
v.
supra,
Commonwealth
1261,
Pa.Super.
590 A.2d
a
of this court
panel
enunciated
the
when
following
today
“[W]e
rule:
hold that
a defendant
of a
in
notify
change
pursuant
fails
PennDOT
address
to 75
§
defendant
rely
Pa.C.S.A.
the
cannot
on this violation
him
the law to
from
by
insulate
more serious violations
Heckman,
claiming lack
notice.”
of actual
Pa.Super.
Minor,
590 A.2d at
See
at 436
supra,
1267.
Heckman,
court held that
(applying
appellant
precluded
that
presenting
was
from
the defense
he lacked
provided
notice of
where he had not
suspension
PennDOT
upon
particular
We have not
to rule
been asked
this
issue in the
presented regarding
instant
no
case. There was
the address
to which PennDOT mailed Crockford's
notice.
address).5
this rule was
recently,
Most
with his current
in Common-
Supreme Court
by
Pennsylvania
validated
the
Zimmick,
There it
In that
1543(a).
Dietz
pursuant
75 Pa.C.S.A.
suspended license
scene,
a trail
leaving
in an
and fled the
was involved
accident
led
to his home. When
police
questioned
of blood which
the
them,
initially
denying
Dietz
that he
by investigators,
lied
Additionally,
car
accident.
driving
involved
convictions for
driving
Dietz’s
record revealed other
facts,
court,
with a
Based on these
this
suspended license.
court,
logically
of the trial
held
adopting
reasoning
produced
sufficient additional evidence
suspension.
actual notice of the
that Dietz had
reason-
prove beyond
did not
While
through
Mr.
received actual notice
able doubt that
Dietz
*21
Pa.Super.
Taylor,
390
5. This court in Commonwealth
(1990)
did not
actual notice of
held that the Commonwealth
no
suspension
there was evidence that
defendant
where
registered.
was
longer
to which his license
resided at
address
decision, however,
notified
not reveal whether
the defendant
does
change
pursuant
1515.
of
of address
Pa.C.S.A.
PennDOT
his
Gamble,
Id. at
[The] innocence the law’s approach to the dispute humane solution which may result in the loss of life or liberty. Because this concern has any government the law ordained that which seeks to from any person take his life or liberty has the burden justification proving doing so. It is the continuing
49
for the require-
which is the basis
of innocence
presumption
never-shifting
a
burden to
has
ment
state
a reasonable doubt.
guilt beyond
Hilbert,
v.
See Commonwealth
229,
445.
Id.
at
151 A.2d at
(“[A]
(1978)
724,
a
288, 297,
state carries
Pa.
382 A.2d
729
476
a reasonable doubt
never-shifting
proof beyond
burden of
crime,
being
such elements
contained
all the elements
a
definitions.”); Turner v.
Com-
statutory or common-law
either
monwealth,
(1878) (the
54,
never
proof
86 Pa.
74
burden
throughout); Common-
prosecution
shifts but rests with the
401,
396,
735,
Wagaman,
wealth v.
Pa.Super.
426
627 A.2d
737
Carolina,
(1993) (same).
v. North
See also Hankerson
432
v.
(1977);
Mullaney
233,
2339,
97
ford did not
forth
effect,
was, in
1511 he
to section
pursuant
of a current
a lack of actual
his
to assert
right
have forfeited
deemed to
notice
right
to actual
under section 1543.
in the
Kane,
grounded
Pa.
supra, 460
Kane, 460 Pa. at
process of law.
right
to due
constitutional
States,
395 U.S.
(citing Leary v. United
I am mindful
A prose-
in
matters.
these
to obtain convictions
their efforts
and notice
suspended
been
a license has
proves
cutor who
mailed,
present
to
challenging
find it
may
has been
of actual
the element
necessary
prove
additional
however,
concerns,
can never overshadow
notice. These
of inno-
constitutionally protected presumption
defendant’s
never-shifting
proving
burden
cence,
Commonwealth’s
doubt,
constitu-
and a defendant’s
a reasonable
beyond
guilt
up
set
in
The framework
apply
a section 1543 case.
Yarger and
it to
right fundamental
hindering a defendant’s
Yarger
not result in
does
notice, as it would here.
requirements.
via the notice
right
process
tional
to due
Therefore,
Dietz decision
places
to the extent
a current driver’s
duty
affirmative
on
defendant
notice,
reject
of no
I would
asserting
license before
a defense
requirement.
of such a
imposition
that he was
obligated
cannot be
establish
Since Crockford
license,
I
a valid driver’s
find
possession of
proving
did not sustain its burden
an essential element under
suspension,
notice of the license
Kane,
582,
rejected.
we stated: "While we
definition,
agree
requirement
we cannot
culpability
include a
in its
requirement
‘patently inconsistent’ with effective enforcement
such a
suspension----
do not hold that actual notice of
[W]e
under
longer necessary.” Id. at 347