Com. v. Shabazz, J. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JAMEEL SHABAZZ, :
:
Appellant : No. 2381 EDA 2016
Appeal from the Judgment of Sentence July 21, 2016
in the Court of Common Pleas of Montgomery County,
Criminal Division, No(s): CP-46-SA-0000555-2016
BEFORE: OLSON, SOLANO and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED May 19, 2017
Jameel Shabazz (“Shabazz”) appeals from the judgment of sentence
entered following his conviction of the summary offense of driving while
operating privilege is suspended or revoked.1 We affirm.
Shortly after midnight on November 25, 2015, Limerick Township
Police Sergeant Matthew Daywalt (“Sergeant Daywalt”) observed a large
sport utility vehicle cross the double-yellow lines into oncoming traffic, five
separate times, on Swamp Pike. Sergeant Daywalt also observed the
vehicle twice cross the fog line. When Sergeant Daywalt stopped the
vehicle, the driver, Shabazz, admitted that his driver’s license had been
suspended. Sergeant Daywalt returned to his vehicle, and confirmed the
suspension of Shabazz’s driver’s license.
1
See 75 Pa.C.S.A. § 1543(a).
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Following a bench trial, the trial court found Shabazz guilty of the
aforementioned summary offense, and imposed a $200.00 fine. Thereafter,
Shabazz filed the instant timely appeal.
Shabazz presents the following claims for our review:
1. WHETHER THE TRIAL COURT ERRED IN ADMITTING
[SHABAZZ’S] DRIVING RECORD INTO EVIDENCE[,] OVER HIS
OBJECTION[,] AND IN ALLOWING [SERGEANT DAYWALT] TO
TESTIFY FROM THE RECORD[,] OVER [SHABAZZ’S]
OBJECTION[,] WHERE THE RECORD WAS NOT CERTIFIED AND
CONSTITUTED INADMISSIBLE HEARSAY[?]
2. WHETHER THE TRIAL COURT ERRED IN FAILING TO SUSTAIN
[SHABAZZ’S] SUMMARY APPEAL DUE TO THE LACK OF
SUFFICIENCY OF THE EVIDENCE[,] WHERE THE
COMMONWEALTH HAD FAILED TO MEET ITS BURDEN BY
RELYING UPON A DRIVING RECORD WHICH WAS NOT
CERTIFIED[?]
Brief for Appellant at 4.
Shabazz first claims that the trial court improperly admitted his driving
record at trial, and allowed Sergeant Daywalt to testify regarding the
contents of the driving record. Id. at 8. Shabazz contends that the
Commonwealth had presented only a faxed copy of his driving record at
trial, which was not duly certified. Id. Shabazz argues that because the
driving record was a faxed copy of his record, and not certified, it constituted
inadmissible hearsay. Id. Shabazz acknowledges that, pursuant to 42
Pa.C.S.A. § 6104, a public record may be admissible as an exception to the
rule against hearsay. Brief for Appellant at 9. However, Shabazz contends
that this hearsay exception would apply “only where a copy of a
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governmental record is authenticated by being attested to by the custodian
of documents and contains the seal of the officer.” Id. at 10-11. Shabazz
asserts that Sergeant Daywalt read from the uncertified facsimile, over his
objection based upon the rule against hearsay. Id. at 12. Finally, Shabazz
argues that “even if it had been proper for a police officer to testify from a
document which was improperly admitted into evidence, it would
nevertheless be a violation of Pennsylvania’s Best Evidence Rule.” Id.
The following standard governs our review of the admissibility of
evidence:
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial
court clearly abused its discretion….
Judicial discretion requires action in conformity with law,
upon facts and circumstances judicially before the court, after
hearing and due consideration. An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record,
discretion is abused.
Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)
(quoting Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super.
2006) (en banc) (internal citations omitted)).
The Pennsylvania Rules of Evidence provide that hearsay “is not
admissible except as provided by these rules, … or by statute.” Pa.R.E. 802.
Pennsylvania Rule of Evidence 803(8) recognizes an exception to the rule
against hearsay for “public records,” if
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(A) the record describes the facts of the action taken or matter
observed;
(B) the recording of this action or matter observed was an official
public duty; and
(C) the opponent does not show that the source of the information or
other circumstances indicate a lack of trustworthiness.
Pa.R.E. 803(8). The Comment to Rule 803(8) states that the rule “reflects
the hearsay exception for public records provided in 42 Pa.C.S.[A.] § 6104.”
Pa.R.E. 803(8), cmt.
Section 6104 of the Judicial Code provides as follows:
(a) General rule.—A copy of a record of governmental action
or inaction authenticated as provided in section 6103
(relating to proof of official records) shall be admissible as
evidence that the governmental action or inaction disclosed
therein was in fact taken or omitted.
(b) Existence of facts.—A copy of a record authenticated as
provided in section 6103 disclosing the existence or
nonexistence of facts which have been recorded pursuant to an
official duty or would have been so recorded had the facts
existed shall be admissible as evidence of the existence or
nonexistence of such facts, unless the sources of information or
other circumstances indicate lack of trustworthiness.
42 Pa.C.S.A. § 6104 (emphasis added).
Section 6103 provides the method for introducing official records into
evidence, without the necessity of having a records custodian appear in
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court to authenticate the documents.2 Section 6103 provides, in relevant
part, as follows:
(a) General rule.—An official record kept within this
Commonwealth by any court, magisterial district judge or other
government unit, or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or
by a copy attested by the officer having the legal custody of the
record, or by that officer’s deputy, and accompanied by a
certificate that the officer has the custody. The certificate may
be made by any public officer having a seal of office and having
official duties with respect to the government unit in which the
record is kept, authenticated by the seal of that office ….
42 Pa.C.S.A. § 6103(a) (emphasis added).
In interpreting sections 6104 and 6103, we are cognizant that, when
considering statutory language, words and phrases shall be construed
according to rules of grammar and according to their common and approved
usage. 1 Pa.C.S.A. § 1903(a). Section 1922 of the Statutory Construction
Act prohibits courts from interpreting statutes in a way that makes words
used in the statute meaningless or mere surplusage. 1 Pa.C.S.A. § 1922.
Consequently, to be admissible as a public record under section 6104,
(1) the agency officer having legal custody of Shabazz’s driving record (or
his/her deputy) must attest to the official copy; (2) a certificate verifying
2
See Thorne v. DOT, Bureau of Driver Licensing, 727 A.2d 1205, 1207
(Pa. Cmwlth. 1999) (stating that “[t]he legislative purpose behind the
enactment of section 6103 is to allow a method by which official records may
be introduced into evidence without the need for bringing the records
custodian into court to authenticate the records.”). Although the decisions
of the Commonwealth Court are not binding upon this Court, they may serve
as persuasive authority. Commonwealth v. Ortega, 995 A.2d 879, 885
(Pa. Super. 2010).
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that the officer has custody of the original driving record must accompany
the faxed copy of the driving record; and (3) the public officer issuing the
certificate must authenticate the certificate with the seal of that official’s
office. See 42 Pa.C.S.A. §§ 6103(a), 6104.
Here, the faxed copy of Shabazz’s driving record included an
attestation by Kara Templeton (“Templeton”), the Director of the Bureau of
Driver Licensing for the Secretary of Transportation. Commonwealth Exhibit
C-1. The facsimile also included a certification that Templeton is the legal
custodian of the records, and that she has custody of the original records,
“which are reproduced in the attached certification.” Id. The certification
concluded with the following statement: “In testimony whereof, I have
hereunto set my hand and seal of this Department the day and year
aforesaid.” Id. This statement is followed by the signature of the Secretary
of Transportation and the word “SEAL.” Id. However, a blank space follows
the word “SEAL.” Id.
Upon review, we conclude that the faxed copy of Shabazz’s driving
record was not “authenticated by the seal of that office,” as required by 42
Pa.C.S.A. § 6103(a). There is nothing of record indicating that a seal
appeared beneath the written word “SEAL” on the certification. See
Commonwealth Exhibit C-1. We cannot ignore section 6103(a)’s
requirement of a seal, as such an interpretation would improperly render the
term meaningless. See 1 Pa.C.S.A. § 1922 (stating that the court cannot
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construe a statute in a way that makes words used in the statute
meaningless or mere surplusage).
At trial, Shabazz objected to the admission of his driving record
without the seal. N.T., 7/21/16, at 7. Consequently, we conclude that,
absent the seal required by 42 Pa.C.S.A. § 6103(a), the faxed copy of
Shabazz’s driving record was not admissible as a “public record.” See 42
Pa.C.S.A. §§ 6103, 6104.
The Commonwealth posits that Shabazz’s driving record is
nevertheless admissible pursuant to the public record exception to the rule
against hearsay. Brief for the Commonwealth at 9-10. The Commonwealth
asserts that, as required by Pa.R.E. 803, Shabazz “failed to show that the
source of the information or circumstances indicated a lack of
trustworthiness.” Id.
Rule of Evidence 803 provides that
[t]he following are not excluded by the rule against hearsay,
regardless of whether the declarant is available as a witness:
…
(6) Records of a Regularly Conducted Activity. A record (which
includes a memorandum, report, or data compilation in any
form) of an act, event or condition if:
(A) the record was made at or near the time by--or from
information transmitted by--someone with knowledge;
(B) the record was kept in the course of a regularly
conducted activity of a “business”, which term includes
business, institution, association, profession, occupation, and
calling of every kind, whether or not conducted for profit;
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(C) making the record was a regular practice of that
activity;
(D) all these conditions are shown by the testimony of
the custodian or another qualified witness, or by a
certification that complies with Rule 902(11) or (12)
or with a statute permitting certification; and
(E) the opponent does not show that the source of
information or other circumstances indicate a lack of
trustworthiness.
Pa.R.E. 803 (emphasis added).
Rule of Evidence 902(11) provides that “Certified Domestic Records of
a Regularly Conducted Activity” are self-authenticating, if the copy “meets
the requirements of Rule 803(6)(A)-(C), as shown by a certification of the
custodian or another qualified person that complies with Pa.R.C.P. No. 76.”
Pa.R.E. 902(11).3
Our review discloses that the certification attached to the driving
record states that the document reflects an accurate summary of all records
in Shabazz’s name. Commonwealth Exhibit C-1. The certification
additionally states that the Director of the Bureau of Driver Licensing is the
legal custodian of the driving records, “and has legal custody of the original,
facsimile, or microfiche records which are reproduced in the attached
certification.” Id. The certification, however, does not include any language
regarding the requirements of Pa.R.E. 803(6)(A)-(C). As a result, the
3
Pa.R.E. 902(12) is not applicable here, as it applies to “Certified Foreign
Records of a Regularly Conducted Activity.” Pa.R.E. 902(12).
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document is not self-authenticating pursuant to Pa.R.E. 902(11).
Consequently, the trial court improperly admitted the faxed copy of
Shabazz’s driving record at trial. Our analysis, however, does not conclude
at this point.
An error will be deemed harmless if
(1) the error did not prejudice the defendant or the prejudice
was de minimus; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence . . . was so
overwhelming and the prejudicial effect of the error was so
insignificant by comparison that the error could not have
contributed to the verdict.
Commonwealth v. Markman, 916 A.2d 586, 603 (Pa. 2007).
Here, the record reflects that Shabazz’s driving record was cumulative
of other properly admitted evidence. At trial, Sergeant Daywalt testified
that, upon stopping Shabazz’s vehicle, Shabazz stated that his driver’s
license was suspended “because he failed to respond to a violation.” N.T.,
7/21/16. Thus, the fact of Shabazz’s suspended license was established by
the testimony of Sergeant Daywalt. See Commonwealth v. Herb, 852
A.2d 356, 361 (Pa. Super. 2004) (concluding that circumstantial evidence
was sufficient to establish a violation of 75 Pa.C.S.A. § 1543(b) (driving
while operating privilege is suspended or revoked-DUI related), where
defendant admitted that his license was suspended (DUI related) and that
he drove the vehicle). Because Shabazz’s faxed copy of his driving record
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provided cumulative evidence of his suspended license, we conclude that the
admission of the copy constituted harmless error.
Shabazz next challenges the sufficiency of the evidence underlying his
conviction of driving while operating privilege is suspended or revoked. Brief
for Appellant at 14. Shabazz argues that the Commonwealth failed to
establish that he had notice of the suspension of his operating privilege. Id.
Shabazz also contends that, while Sergeant Daywalt’s testimony “may have
served to establish the element of actual notice, the Commonwealth did not
establish the fact of suspension even by a preponderance of the evidence,
let alone beyond a reasonable doubt.” Id. (footnote omitted).
In reviewing a challenge to the sufficiency of the evidence,
[t]he standard we apply … 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.
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Commonwealth v. Fabian, 60 A.3d 146, 150-51 (Pa. Super. 2013)
(citation omitted). “This standard of deference is not altered in cases
involving a bench trial, because the province of a trial judge sitting without a
jury is to do what a jury is required to do.” Commonwealth v. Lee, 956
A.2d 1024, 1027 (Pa. Super. 2008) (internal quotation marks and citation
omitted).
Pursuant to section 1543(a) of the Vehicle Code, “[e]xcept as provided
in subsection (b), 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.” 75 Pa.C.S.A.
§ 1543(a).
When viewed in a light most favorable to the Commonwealth, the
evidence established that on November 25, 2015, Sergeant Daywalt stopped
Shabazz’s vehicle, while he was driving on Swamp Pike in Limerick
Township. N.T., 7/21/16, at 5. When Sergeant Daywalt approached the
vehicle, Shabazz stated that his operating privilege was suspended “because
he failed to respond to a violation.” Id. We conclude that this evidence was
sufficient to sustain Shabazz’s conviction of driving while his operating
privilege was suspended or revoked. See Herb, 852 A.2d at 361.
Accordingly, we affirm Shabazz’s judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/19/2017
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