Commonwealth v. MinorCommonwealth v. Minor
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This is a direct appeal from the judgment of sentence entered by the lower court after appellant, Albert B. Minor, *37 was convicted of driving while his operator’s license was suspended or revoked for a DUI-rеlated offense. 1 We affirm.
District Justice Douglas Weimer found appellant guilty of the summary offense of driving while opеrating privileges are suspended, DUI-related. Appellant requested a trial de novo which was held before the Hоnorable Richard E. McCormick, Jr., who found appellant guilty. Judge McCormick denied appellant’s post-verdict motions and subsequently sentenced appellant to serve ninety (90) days imprisonment and to pay a finе of one thousand dollars ($1,000). The instant timely appeal followed in which appellant raises one issue: whether the trial court erred as a matter of law when determining that appellant’s failure to provide the Department of Transportation with a current address precluded his reliance on the defensе of lack of notice.
The heart of appellant’s argument is the claim that he was entitled to actual notice of the underlying suspension, despite the fact that he had failed to provide the Depаrtment of Transportation with his correct mailing address. This argument is premised upon the Pennsylvania Supreme Cоurt’s ruling that a defendant must receive actual notice that his operating privileges have been suspended or revoked before he may be convicted of the secondary offense of driving while those privileges are under suspension. Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975). The Commonwealth may not satisfy this requirement merely by introducing evidence of thе fact that the Department of Transportation sent a suspension notice to the defendant via first сlass mail. Id. at 586, 333 A.2d at 927.
Subsequent to
Kane,
several appellate cases have clarified the Supreme Court’s decision by holding thаt the Commonwealth proved “actual notice” where additional evidence was presented whiсh merely
implied
actual notice.
2
In
Common
*38
wealth v. Heckman,
404 Pa.Super.
335, 590
A.2d 1261 (1991), a panel of this court explicitly discussed the Pennsylvania Motor Vehicle Code’s requirement that motorists apprise the Department of Transportation regarding any address changes.
Id.
at
346, 590
A.2d at 1266 (citing
In the instаnt case, the. arresting officer testified that he observed appellant fail to obey a solidly red trаffic light, and therefore stopped him to issue a citation. N.T. 9/13/93 at 4. Appellant presented an expired operator’s license to the officer. Id. at 5. The officer thereupon checked appellant’s operator’s number and learned that appellant’s license had been seized and suspended for a DUI-related offense. Id. The address on the expired license did not correspond with the address listed on the certified driver’s record; and neither matched the location appellant gave as his current address. Id. at 8-12.
Judge McCormick explained the evidence admitted at trial in the following manner:
The Commоnwealth introduced the certification statement of the Department of Transportation indicating thе suspension notice herein was mailed to the defendant on February 20, 1992, to AP8244, Drawer A, Old Route 22, Cresson, Pa 16630. We knоw that that address was the State Correctional Facility at Cresson, where the defendant was incarcеrated for a period of time. Unfortunately, after he was *39 paroled from his incarceration, he fаiled to notify the Department of Transportation of his change of address, as required by75 Pa.C.S. § 1515 , wherein such notification of change of address is required within 15 days of the change.
Trial court opinion docketed Januаry 27, 1994 at 13-14. In light of all this evidence that appellant had not provided the Department of Transportatiоn with his current address, Judge McCormick found that appellant was precluded from presenting the defense that he lacked actual notice of the underlying suspension. We find this ruling to be correct and in conformity with Commonwealth v. Heckman, supra. 3
Judgment of sentence affirmed.
Notes
.
. See, e.g., Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987) (notiсe requirement met where evidence was presented that notice was mailed and defendant admittеd that he had received prior notice mailed to same address apprising him that he was required to *38 take special examination prior to reissuance of license); Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), appeal denied, 514 Pa. 638, 523 A.2d 345 (1987) (notice was sufficient when mailed to correct address and defendant had previously surrendered his license in response to notice mailed to him at same address); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982) (defendant had surrendered license and attempted to conceal fact he was driving by removing himself from driver’s seat).
. We are cognizant of the faсt that appellant believes he is entitled to relief because of sentiments expressed in the opinions in support of reversal in Commonwealth v. Warrenczuk, 534 Pa. 623, 633 A.2d 1167 (1993) , cert. denied, - U.S. -, 114 S.Ct. 1854, 128 L.Ed.2d 478 (1994) and Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993). Both cases are plurality decisions by an equally divided Pennsylvania Supreme Court. It is well-settled that plurality opinions do not have precedential authority. Commonwealth v. Bracero, 325 Pa.Super. 494, 590 n. 3, 473 A.2d 176, 179 n. 3 (1984), aff’d, 515 Pa. 355, 528 A.2d 936 (1987). Non-majority decisions оf the Pennsylvania Supreme Court are not binding on lower courts. Commonwealth v. Davenport, 462 Pa. 543, 559 n. 3, 342 A.2d 67, 75 n. 3 (1975); Commonwealth v. Mignogna, 401 Pa.Super. 188, 195 n. 1, 585 A.2d 1, 4 n. 1 (1990), appeal denied, 530 Pa. 660, 609 A.2d 167 (1992). Accord Commonwealth v. Covil, 474 Pa. 375, 378 A.2d 841 (1977) (opinion in support of affirmance had nо precedential value where it was adopted by only three of six justices, and could be cited only for its persuasive value). Unless or until a majority decision of the Pennsylvania Supreme Court decides otherwise, Commonwealth v. Heckman, supra constitutes viable precedent.