Com. v. Rosado, J. ( 2022 )

J-A27015-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JERONIMO ROSADO :
:
Appellant : No. 401 EDA 2021
Appeal from the Judgment of Sentence Entered March 23, 2021
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-SA-0000339-2020
BEFORE: PANELLA, P.J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED FEBRUARY 14, 2022
Jeronimo Rosado appeals, pro se, from the judgment of sentence
imposed following a summary appeal hearing that resulted in the affirmance
of his convictions of restrictions on use of limited access highways (driving in
right lane), driving while operating privilege is suspended (DUI-related),
vehicular hazard signal lamps, and depositing waste on a highway. 1 The
Commonwealth and the trial court urge us to quash Rosado’s appeal. For the
reasons discussed infra, we decline to do so, and affirm the judgment of
sentence.
On August 30, 2020, Pennsylvania State Police Trooper Brian McCabe
was patrolling London Grove Township when he observed a vehicle traveling
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1 See 75 Pa.C.S.A. §§ 3313(d), 1543(b)(1)(i), 4305(a), 3709(a).
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in the left lane of a limited access highway. Trooper McCabe searched the
vehicle’s registration and discovered that the vehicle was registered to
Rosado, whose license was suspended for failure to submit to chemical testing.
Trooper McCabe initiated a vehicle stop based upon this information. Rosado
exited his vehicle upon request, and while speaking to Trooper McCabe,
Rosado threw a lit cigarette into the road. Ultimately, Trooper McCabe issued
traffic citations for the above-mentioned summary offenses.
On October 9, 2020, a magisterial district court found Rosado guilty of
all offenses. On October 20, 2020, Rosado filed a pro se summary appeal to
the Court of Common Pleas of Chester County. Rosado additionally filed
several pro se documents, including a motion to dismiss, a motion for
discovery, and a motion to suppress.
The trial court conducted a de novo hearing on January 20, 2021. At the
start of the hearing, the trial court denied Rosado’s pre-trial motions.
Following the trial de novo, the trial court found Rosado guilty of all offenses,
and deferred sentencing.2
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2 We note that following a trial de novo, a trial judge generally must sentence
a defendant in open court immediately upon conclusion of the trial. See
Pa.R.Crim.P. 462(G) (stating that a trial judge may defer sentencing
proceedings only in cases where the defendant may be sentenced to
intermediate punishment, and the delay is necessary to confirm the
defendant’s eligibility for intermediate punishment); see also Pa.R.Crim.P.
704(A)(3). The trial court did not explain its reason for deferring sentencing,
nor does the record before us reflect that the court ordered Rosado to undergo
an alcohol evaluation. See 75 Pa.C.S.A. § 1543(b)(1)(i) (providing for
(Footnote Continued Next Page)
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On February 3, 2021, Rosado filed a motion for reconsideration of the
verdict, which the trial court denied. On February 8, 2021, Rosado filed a pro
se notice of appeal, which was docketed at 401 EDA 2021. Rosado also filed
a petition to proceed in forma pauperis, which the trial court denied, stating
that the matter was not yet ripe for appeal. Rosado filed another pro se notice
of appeal on March 1, 2021, referencing the date of the de novo hearing.3
On March 23, 2021, notwithstanding the notice of appeal pending in this
Court, the trial court sentenced Rosado to 90 days’ imprisonment for driving
while under a DUI-related suspension. The trial court also imposed the
mandatory $500 fine.
Rosado filed an application for relief on March 31, 2021, arguing that he
was denied his right to appeal and was illegally sentenced after he had filed
the instant appeal. On April 19, 2021, the Commonwealth filed an application
to quash Rosado’s appeal, asserting that Rosado’s notice of appeal was
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“imprisonment for a period of not less than 60 days nor more than 90 days”
for a first conviction of driving while under a DUI-related suspension); 42
Pa.C.S.A. § 9763(c)(1) (providing that “[a]ny person receiving a penalty
imposed pursuant to 75 Pa.C.S.[A.] § 1543(b) … may only have probation
imposed after undergoing an assessment under 75 Pa.C.S.[A.] § 3814
(relating to drug and alcohol assessments).”).
3 This appeal was docketed at 1708 EDA 2021. On September 3, 2021, this
Court issued a rule to show cause why the appeal should not be dismissed as
duplicative of the appeal docketed at 401 EDA 2021. Rosado filed a response,
arguing that his March 1, 2021 filing was intended as a supplement to the
notice of appeal at 401 EDA 2021. This Court thereafter dismissed the appeal
docketed at 1708 EDA 2021.
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prematurely filed prior to the imposition of sentence. This Court subsequently
issued an order denying Rosado’s application for relief without prejudice and
denying the Commonwealth’s application to quash without prejudice.
Additionally, this Court directed the trial court to determine Rosado’s eligibility
for in forma pauperis status and court-appointed counsel, and to either
appoint Rosado counsel or conduct a waiver hearing pursuant to
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). The trial court
subsequently granted Rosado leave to proceed in forma pauperis, and
determined, following a waiver hearing, that Rosado wished to proceed with
his appeal pro se.
On July 28, 2021, this Court issued a rule to show cause why Rosado’s
appeal should not be quashed, as no order was entered on the docket on
February 7, 2021. In his pro se response, Rosado argues that he appealed
from the entry of the verdict, which, he believes, was made final by the denial
of his motion for reconsideration. See Response to Rule to Show Cause,
8/9/21, at 2 (wherein Rosado indicates that the clerk of courts directed him
to write the date February 7, 2021 on his notice of appeal “from the verdict of
January 20, 2021, verdict of [s]ummary appeal”); see also id. at 3 (stating,
“a petition for reconsideration was filed February 3, 2021, subsequently
denied February 4, 2021, that triggered Exhibit[ B (a copy of the verdict)] to
go into effect”). This Court subsequently discharged the rule to show cause
and referred the issue to the merits panel for review.
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As a preliminary matter, we consider the propriety of the instant appeal.
The Commonwealth and the trial court ask us to quash Rosado’s appeal as
prematurely filed. See Commonwealth’s Brief at 7-11; Trial Court Opinion,
3/17/21, at 1-2. In criminal actions, which include summary appeals, an
appeal properly lies from the judgment of sentence rather than the denial of
any post-trial motions. See Commonwealth v. Lawrence, 99 A.3d 116, 117
n.1 (Pa. Super. 2014). Instantly, Rosado filed his pro se notice of appeal on
February 8, 2021, after the entry of the verdict, but prior to the imposition of
sentence. While we acknowledge that Rosado’s appeal properly lies from the
judgement of sentence, the trial court did, in fact, enter a final order after
Rosado filed his pro se notice of appeal. In light of the unique circumstances
of this case, and Rosado’s clear attempts to preserve his appellate rights, we
will consider Rosado’s appeal as though it was properly filed following the
entry of the judgment of sentence.4 See Pa.R.A.P. 905(a)(5) (providing that
“[a] notice of appeal filed after the announcement of a determination but
before the entry of an appealable order shall be treated as filed after such
entry and on the day thereof.”).
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4 We have corrected the caption accordingly.
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Rosado argues that he did not receive notice of his prior license
suspension.5 See Appellant’s Brief at 28. Rosado claims that he consistently
receives mail addressed to the West Chester Police Department, located at
401 East Gay Street, and his own mail, addressed to 401 West Gay Street, is
often delayed or does not arrive. See id.Rosado’s claim presents a challenge to the sufficiency of the evidence.
See generally Commonwealth v. Harden, 103 A.3d 107, 111 (Pa. Super.
2014). We review challenges to the sufficiency of the evidence with great
deference to the credibility determinations of the fact finder:
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
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5 Rosado identifies four issues in his statement of questions involved.
However, Rosado provides argument only as to his actual notice claim.
Accordingly, his remaining claims are waived. See Pa.R.A.P. 2119(a)
(providing that the argument section of an appellate brief “shall be divided
into as many parts as there are questions to be argued …, followed by such
discussion and citation of authorities as are deemed pertinent.”); see also
Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)
(concluding that appellant waived his claim by failing to adequately develop
his argument or provide citation to and discussion of relevant authority).
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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.
Id. (citation and brackets omitted).
Rosado was convicted of driving while under a DUI-related suspension
pursuant to 75 Pa.C.S.A. § 1543(b)(1)(i):
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 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)
… shall, upon a first 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.A. § 1543(b)(1)(i) (emphasis added).
The Commonwealth must prove that the defendant had actual notice of
his license suspension in order to sustain a conviction under section 1543.
See Commonwealth v. Brewington, 779 A.2d 525, 527 (Pa. Super. 2001).
Actual notice may be established through either direct or circumstantial
evidence. See Commonwealth v. Zimmick, 653 A.2d 1217, 1221 (Pa.
1995); see also Brewington, 779 A.2d at 527 (stating that “[a]ctual notice
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.” (citation
and quotation marks omitted)).
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During the trial de novo, Officer McCabe testified that on August 30,
2020, he observed a vehicle “traveling in the left lane of a limited access
highway with no other vehicles present on the roadway.” N.T., Summary
Appeal, 1/20/21, at 8. When Officer McCabe verified the vehicle’s registration,
he learned that the vehicle was registered to Rosado, and that Rosado had a
DUI-related license suspension at that time. See id. at 8-9. Officer McCabe
initiated a traffic stop based on that information. See id. at 9. Officer McCabe
testified that when he asked Rosado for his license, registration and insurance,
Rosado indicated that he did not have a license and supplied a photo
identification card instead. See id. Specifically, Officer McCabe testified that
Rosado had stated that his license was suspended based on DUI charges. See
id. at 10.
The Commonwealth also introduced into evidence a copy of Rosado’s
certified driving record. See id. at 12 (wherein Rosado’s certified driver history
was admitted into evidence as Commonwealth’s Exhibit 1); see also
Commonwealth’s Exhibit 1 (PennDOT Certified Driver History as of 1/20/21).
Rosado’s driving record includes a multitude of prior violations and
suspensions, including several suspensions for driving with a suspended
license. See Commonwealth’s Exhibit 1 (PennDOT Certified Driver History as
of 1/20/21), at 2-10. The record indicates that on July 21, 2017, Rosado was
issued a citation under 75 Pa.C.S.A. § 1547, for refusal of chemical testing,
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which resulted in a license suspension effective starting January 25, 2030.6
See id. at 9-10. The record reflects that PennDOT mailed the notice of this
license suspension to Rosado on August 30, 2017. See id. at 10; see also id.
at 1 (correctly identifying Rosado’s address as 401 West Gay Street). Further,
during the trial de novo, Rosado acknowledged that he presented only an
identification card to Trooper McCabe, and stated, “I never applied for a
driver’s license….” N.T., Summary Appeal, 1/20/21, at 16-17. Evidence that
PennDOT mailed the notice of suspension to Rosado, together with the
surrounding circumstances, was sufficient to support the court’s finding that
Rosado had actual notice that his license was suspended. See Harden, 103
A.3d at 114-15 (concluding that appellant’s history of suspensions for prior
violations, as detailed in his certified driving record, supported an inference of
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6 The record reflects an additional driving under suspension violation on July
31, 2018. See Commonwealth’s Exhibit 1 (PennDOT Certified Driver History
as of 1/20/21), at 10. For this violation, Rosado received a one-year license
suspension, with an effective date of January 25, 2031. Id. at 10. During the
trial de novo, the trial court asked about the effective date, and the district
attorney explained that it was result of all of Rosado’s prior suspensions. See
N.T., Summary Appeal, 1/20/21, at 27-28; see also 75 Pa.C.S.A. § 1544(b)
(providing that when an additional suspension is assessed during a period of
suspension, the existing suspension will be extended); Commonwealth v.
Jenner, 681 A.2d 1266, 1270 (Pa. 1996) (explaining that license suspensions
are not tolled until all earlier suspensions are completed). Notwithstanding the
anticipatory effective date of Rosado’s section 1547 suspension, the law is
clear 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.’” Harden, 103 A.3d at 112 (emphasis in original) (citing
Jenner, 681 A.2d at 1273-74).
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actual knowledge of his license suspension). Accordingly, Rosado is not
entitled to relief on his claim.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2022
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