Com. v. Crock, T. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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