Com. v. Harden, J. , 103 A.3d 107 ( 2014 )

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2014 PA Super 246COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAQUES MANTEL HARDEN
Appellant No. 421 WDA 2014
Appeal from the Judgment of Sentence of February 12, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No.: CP-02-SA-0001726-2013
BEFORE: FORD ELLIOTT, P.J.E., WECHT, J., and STRASSBURGER, J.*
OPINION BY WECHT, J.: FILED OCTOBER 27, 2014
Jaques Mantel Harden appeals his February 12, 2014 judgment of
sentence, which was imposed following a summary appeal hearing that
resulted in the affirmance of Harden’s conviction for driving while his
operating privileges were suspended or revoked.1 Harden’s counsel has filed
with this Court a petition to withdraw as counsel, together with an “Anders”
brief.2 We grant counsel’s petition to withdraw, and we affirm Harden’s
judgment of sentence.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
75 Pa.C.S. § 1543(b)(1).
2
See Anders v. California, 386 U.S. 738 (1967).
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On May 20, 2011, after being pulled over for a suspected DUI, Harden
was cited for a violation of 75 Pa.C.S. § 1547 because he refused to submit
to a chemical test. Pursuant to that violation, Harden was to receive a
license suspension of one year. Because Harden’s license was suspended
already due to previous Motor Vehicle Code violations, the suspension
relating to the violation of section 1547 did not become effective until July
29, 2013.
On July 15, 2013, Harden was cited for driving while his operating
privileges were suspended or revoked, in violation of 75 Pa.C.S.
§ 1543(b)(1). On July 23, 2013, Harden proceeded to a hearing before a
magisterial district judge, after which he was found guilty of subsection
1543(b)(1) and of summary disorderly conduct. On the same date, Harden
filed a summary appeal. Because Harden was detained for a probation
violation, he failed to appear for his summary appeal hearing, and the trial
court found him guilty in absentia. On December 19, 2013, Harden filed a
petition to vacate his sentence and for a new trial. On December 24, 2013,
the trial court granted the petition and scheduled a new summary appeal
hearing for February 12, 2014.
The Commonwealth’s sole witness at the summary appeal hearing was
Devin McGee, the police officer who cited Harden for violating subsection
1543(b)(1). Officer McGee testified that he encountered Harden during a
traffic stop. Notes of Testimony (“N.T.”), 2/12/2014, at 4. Officer McGee
testified that he observed Harden driving the vehicle, and that when he
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checked Harden’s driving record subsequent to the traffic stop, the status of
the driving record was “suspended DUI related.” Id. at 4. On cross-
examination, Officer McGee testified that he initiated the traffic stop because
the vehicle had a broken tail light. Id. at 6. Defense counsel questioned
Officer McGee about Harden’s action after being asked to produce
identification. In response, Officer McGee explained that Harden provided no
photo identification, but rather gave a “false identification.” Id. at 7.
Defense counsel objected to the latter statement, but the trial court neither
sustained nor overruled the objection. The trial court asked Officer McGee
what sort of identification Harden gave to him, and Officer McGee clarified
that Harden provided him only a name and date of birth. Officer McGee then
testified that he was able to identify Harden from the photo that he obtained
on the scene from the computer in his police cruiser, and that Harden
admitted that the name on the photo was his name. Id. at 8. After being
prompted by defense counsel, Officer McGee identified Harden in court as
the individual that he encountered during the traffic stop and recognized in
the photo.
Defense counsel called Harden as a witness and asked him two
questions. Id. at 9. Defense counsel asked if Harden remembered the
traffic stop, to which Harden responded in the affirmative. Defense counsel
then asked Harden if he was operating the vehicle at the time. Harden
responded in the affirmative.
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The Commonwealth admitted Harden’s driving record into evidence
without objection. Id. at 6. No party ever addressed whether Harden
received actual notice of his license suspension during the hearing, but his
driving record indicated that the Department of Transportation mailed the
official notice of suspension on June 16, 2011.
Following the summary appeal hearing, Harden was found guilty of 75
Pa.C.S. § 1543(b)(1). Harden was sentenced to sixty days’ incarceration
and a fine of five hundred dollars plus court costs. On March 12, 2014,
Harden filed a notice of appeal. On March 18, 2014, the trial court directed
Harden to file a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b), to be served on the court no later than April
8, 2014. Harden filed a timely concise statement on April 8, 2014. On April
30, 2014, the trial court issued an opinion pursuant to Pa.R.A.P. 1925(a).
Having determined that an appeal would be frivolous, Harden’s counsel filed
with this Court a petition to withdraw as counsel, together with an Anders
brief, on July 10, 2014.
Before addressing the merits of the underlying issue that Harden
presents for our review, we first must pass upon counsel’s petition to
withdraw as counsel. Commonwealth v. Goodwin, 928 A.2d 287, 290
(Pa. Super. 2007) (en banc). Prior to withdrawing as counsel on a direct
appeal under Anders, counsel must file a brief that meets the requirements
established by our Supreme Court in Commonwealth v. Santiago, 978
A.2d 349, 361 (Pa. 2009). The brief must:
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(1) provide a summary of the procedural history and facts,
with citations to the record;
(2) refer to anything in the record that counsel believes
arguably supports the appeal;
(3) set forth counsel’s conclusion that the appeal is frivolous;
and
(4) state counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of the
Anders brief to the appellant. Attending the brief must be a letter that
advises the appellant of his or her right to “(1) retain new counsel to pursue
the appeal; (2) proceed pro se on appeal; or (3) raise any points that the
appellant deems worthy of the court’s attention in addition to the points
raised by counsel in the Anders brief.” Commonwealth v. Nischan, 928
A.2d 349, 353 (Pa. Super. 2007); see Commonwealth v. Daniels, 999
A.2d 590, 594 (Pa. Super. 2010); Commonwealth v. Millisock, 873 A.2d
748, 751-52 (Pa. Super. 2005).
Our review of counsel’s petition to withdraw and the accompanying
brief reveals that counsel substantially has complied with the Santiago
procedural requirements. Counsel has provided a factual and procedural
history detailing the events relevant to the instant appeal in her brief, along
with appropriate citations. Brief for Harden at 6-8. Harden identified one
claim to counsel that he wanted to raise on appeal: a challenge to the
sufficiency of the evidence. Id. at 5. Counsel addresses the applicable facts
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and principles of law, ultimately concluding that this claim would be
frivolous. Id. at 12-15. In her petition to withdraw as counsel filed with this
Court, counsel again certified that she “is constrained to conclude that there
are no non-frivolous issues to raise on appeal.” See Petition to Withdraw as
Counsel, 7/10/2014, ¶9. Counsel has identified one additional issue that
could arguably support Harden’s claim on appeal—the minimal evidence
demonstrating Harden’s notice of the suspension—but ultimately determined
that a claim advanced on this basis would be frivolous. Brief for Harden at
12-14.
Additionally, in accordance with Nischan, counsel has sent Harden a
copy of the Anders brief and a letter informing him that he has the right to
hire a new attorney, to proceed with an appeal on his own, and to raise any
additional points that he thinks are worthy of this Court’s attention. Letter,
7/10/2014. Counsel also explains to Harden her conclusion that an appeal
would be frivolous. Accordingly, counsel substantially has complied with the
requirements set forth in Nischan, 928 A.2d at 353. See also Millisock,
873 A.2d at 751-52.
We now must conduct an independent review of the record to
determine whether the issues identified by Harden in this appeal are, as
counsel claims, wholly frivolous, or if there are any other meritorious issues
present in this case. Santiago, 978 A.2d at 354 (quoting Anders, 386 U.S.
at 744) (“[T]he court – not counsel – then proceeds, after a full examination
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of all the proceedings, to decide whether the case is wholly frivolous. If it so
finds, it may grant counsel’s request to withdraw.”).
We begin with Harden’s challenge to the sufficiency of the evidence.
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.
Commonwealth v. Phillips, 93 A.3d 847, 856 (Pa. Super. 2014) (citations
omitted; bracketed material in original). 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. Widmer, 744 A.2d 745, 751
(Pa. 2000).
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Harden was convicted of driving while his operating privileges were
suspended or revoked. That crime 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) (emphasis added).
In support of his challenge to the sufficiency of the evidence, Harden
offers several facts. First, Harden argues that the evidence was not
sufficient because he had not been convicted of a DUI offense until
September of 2013. Brief for Harden at 10. Presumably, Harden takes
issue with the characterization of his license suspension as “DUI related,”
because he had not been convicted of an offense under 75 Pa.C.S. § 3802 at
the time of the instant violation. As the plain text of the statute provides,
however, a suspension for refusal to submit to a chemical test is a
suspension that will satisfy the requirements of subsection 1543(b)(1).
Second, Harden asserts in his concise statement that the evidence was
insufficient to support his conviction because his suspension for the refusal
to submit to a chemical test did not become effective until July 29, 2013,
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and because his citation occurred on July 15, 2013, he was not driving under
that specific suspension. However, Harden’s license was suspended for prior
violations at the time of the traffic stop. In fact, the prior suspensions were
the reason that the suspension at issue did not become effective for more
than two years after the underlying offense.
The courts of Pennsylvania have addressed the precise argument that
Harden raises concerning the timing of his suspensions, and have
determined that a prior suspension unrelated to DUI offenses does not
preclude the application of subsection 1543(b)(1) where a defendant has
received notice that a DUI-related suspension is pending. In
Commonwealth v. Nuno, this Court concluded:
We hold that when a person receives notice that their [sic]
operating privilege is or will be suspended or revoked for a
D.U.I. related offense, that person is subject to the penalties of
§ 1543(b). That person will be subject to the penalties of
§ 1543(b) throughout any current suspension or revocation
and any subsequent suspensions or revocations until the end of
their D.U.I. related suspension or revocation.
Commonwealth v. Nuno, 559 A.2d 949, 951 (Pa. Super. 1989) (emphasis
added). Our Supreme Court considered several cases arising from similar
factual scenarios in Commonwealth v. Jenner, 681 A.2d 1266 (Pa. 1996).
There, the Court held that, once a driver is notified of a DUI-related
suspension, “he is subject to the enhanced sentencing provisions of
§ 1543(b) for the duration of any prior periods of suspension or
revocation until the completion of the DUI-related suspension.” Jenner,
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681 A.2d at 1273-74 (emphasis added). Because Harden’s argument
concerning the timing of his suspensions is not supported by the law of our
Commonwealth, that argument is frivolous.
Our own review of the record reveals that there is one issue that, while
ultimately frivolous, is worthy of discussion. As noted, above, counsel
recognized that no party ever addressed whether Harden actually received
notice of his license suspension during the summary appeal hearing. The
sole evidence of notice produced by the Commonwealth consisted of
Harden’s driving record, which listed the date when the Department of
Transportation mailed the official notice. Brief for Harden at 12-14.
In Commonwealth v. Kane, 333 A.2d 925, 927 (Pa. 1975), our
Supreme Court held 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. As this Court described the
requirement in Commonwealth v. Crockford, 660 A.2d 1326, 1329 (Pa.
Super. 1995), actual notice is “a judicially created element, designed to
protect a defendant’s due process rights.”
The Supreme Court’s decision in Kane is particularly relevant to the
instant case. In Kane, the Court determined that the evidence offered to
prove actual notice was insufficient where the only evidence of actual notice
was a notice of suspension that was mailed to the defendant. Kane, 333
A.2d at 927. “Mailed letters do go astray for a variety of reasons. Criminal
conviction requires proof beyond a reasonable doubt and that standard is not
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satisfied when one of the elements which must be proven is actual notice,
and the only evidence presented is that a notice was mailed.” Id. As this
Court has held, however, “[w]hen notice is mailed to the appellant and
additional evidence exists indicating that appellant received notice of
suspension, then the evidence can be sufficient to prove actual notice.”
Commonwealth v. Gray, 514 A.2d 621, 622 (Pa. Super. 1986) (citing
Commonwealth v. Burkett, 445 A.2d 1304 (Pa. Super. 1982)).
Since the rule in Kane was announced, this Court has found numerous
factors that, in conjunction with evidence that a notice was mailed, satisfy
the element of actual notice. In Gray, 514 A.2d at 622-23, we found actual
notice where a notice of the suspension was mailed, the appellant had
surrendered his license to the Bureau of Traffic Safety, and did not produce
a license when stopped by the police. In Commonwealth v. Burkett, 445
A.2d 1304, 1305 (Pa. Super. 1982), we found actual notice where the notice
was mailed, the appellant returned his license to the Bureau of Traffic Safety
and, when stopped by the police, the appellant attempted to switch seats
with a passenger. In Commonwealth v. Horney, 529 A.2d 18, 20 (Pa.
Super. 1987), we found actual notice where the notice was mailed and the
appellant admitted that he had received an earlier letter at the same
address. In Commonwealth v. Dietz, 621 A.2d 160, 162 (Pa. Super.
1993), we found actual notice where, in addition to evidence that the notice
was mailed, the appellant had a history of license suspensions, fled the
scene of an accident, misled investigators, and failed to produce a driver’s
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license. The Court held that “a defendant’s failure to possess a current
license is presumptive knowledge of suspension.” Id. at 162-63.
Our Supreme Court addressed the issue of actual notice in license
suspension cases most recently in Commonwealth v. Zimmick, 653 A.2d
1217 (Pa. 1995). In Zimmick, the Court, citing Dietz, provided a non-
exhaustive list of factors which may be considered in determining if an
individual accused of violating subsection 1543(b)(1) has actual notice of
license suspension.
Factors 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 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
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) (driver’s flight from crash site and
misleading conduct demonstrated that driver knew he was not
permitted to drive; driver’s failure to produce a driver’s license is
presumptive knowledge of suspension).
Zimmick, 653 A.2d at 1221 (citation modified). In Crockford, we
summarized the applicable standard as: “The Commonwealth is required to
establish actual notice which may take the form of a collection of facts and
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circumstances that allow the fact finder to infer that a defendant has
knowledge of suspension.” Crockford, 660 A.2d at 1330-31.
In the instant case, no party at Harden’s summary appeal hearing
specifically addressed the essential element of actual notice of suspension.
The Commonwealth presented only one piece of evidence regarding notice—
Harden’s driving record, which merely states that a notice of suspension was
mailed to some address. The Commonwealth made no attempt to
demonstrate that Harden lived at the address, that he regularly received
mail at the address, that the mail was not returned as undeliverable, or any
other fact which would support an inference that Harden received the notice.
Kane and its progeny instruct that evidence that a notice of suspension was
mailed is not sufficient, standing alone, to sustain a conviction for driving
with a suspended license. Kane, 333 A.2d at 927. Some other factor, or
“collection of facts and circumstances” that allow an inference of knowledge
is required in addition to evidence of the mailing. Crockford, 660 A.2d at
1330-31.
As defense counsel at the summary appeal hearing noted, the
Commonwealth’s examination of the sole witness was rather “perfunctory.”
N.T. at 6. The result of this meager production of evidence is that the
Commonwealth arguably failed to present sufficient evidence of an essential
element of the crime. That is not to say, however, that no facts or
circumstances existed which would permit an inference of Harden’s
knowledge of his suspension. The information that defense counsel elicited
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on cross-examination established that Harden failed to provide photo
identification to Officer McGee during the traffic stop. Under Dietz and
Crockford, that fact, in conjunction with evidence that notice was mailed, is
sufficient to permit the inference of knowledge. See Dietz, 621 A.2d at
162-63; Crockford, 660 A.2d at 1335. The result of defense counsel’s
objection to Officer McGee’s statement that Harden provided him “false
identification” is unclear from the notes of testimony, but if that statement is
to be considered competent evidence, then it would support an inference of
knowledge as well. Lastly, Harden’s history of suspensions for previous
violations, as detailed in his driving record, also supports an inference of
knowledge.
Our standard in reviewing the sufficiency of the evidence requires us
to view all the evidence admitted at trial in the light most favorable to the
Commonwealth. Phillips, 93 A.3d at 856 (emphasis added). Further, we
must “accept as true all evidence and all reasonable inferences therefrom
upon which, if believed, the fact finder properly could have based its
verdict.” Commonwealth v. Orie, 88 A.3d 983, 1013-14 (Pa. Super.
2014) (citations omitted). Thus, although the Commonwealth, itself, may
not have presented sufficient evidence of Harden’s actual notice of his
license suspension, defense counsel’s cross-examination provided enough
additional information such that the record contains a “collection of facts and
circumstances” that allow an inference of actual notice. Crockford, 660
A.2d at 1330-31.
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Even if we were not to consider the testimony regarding “false
identification” to which defense counsel objected, the evidence of record still
demonstrates that the notice of suspension was mailed, that Harden had a
long history of license suspensions, and that Harden failed to present a
driver’s license during the traffic stop. See Dietz, 621 A.2d at 162-63.
These facts are sufficient to permit a reasonable inference, upon which the
trial court properly could have based its verdict, that Harden had knowledge
of his license suspension. A challenge to the sufficiency of the evidence
based upon the Commonwealth’s failure to prove the element of actual
notice, therefore, would ultimately be frivolous. We have discovered no
other issues of arguable merit that would sustain an appeal in this case.
Judgment of sentence affirmed. Counsel’s motion to withdraw as
counsel granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/27/2014
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