Com. v. Severino, J. ( 2014 )

J-S42025-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES J. SEVERINO, JR.
Appellant No. 1856 WDA 2013
Appeal from the Judgment of Sentence October 23, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-SA-0000925-2013
BEFORE: PANELLA, J., JENKINS, J., and MUSMANNO, J.
MEMORANDUM BY JENKINS, J.: FILED SEPTEMBER 15, 2014
Appellant James Severino, Jr. appeals the judgment of sentence
imposed on October 23, 2013, following his conviction for driving while
operating privilege is suspended or revoked DUI related.1 After careful
review, we reverse and discharge Appellant.
The trial court summarized the procedural posture, facts, and trial
testimony as follows:
[Appellant] filed a summary appeal from a citation for
driving while his
related offense in violation of 75 Pa.C.S.A. § 1543(b). Following
a de novo hearing on October 23, 2013, the [c]ourt found
[Appellant] guilty and imposed a sentence of 60 days in the
Allegheny County Jail, time served, and a fine in the amount of
$500 plus costs. [Appellant] filed a timely appeal to the
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1
75 Pa.C.S. § 1543(b)(1).
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23, 2013.
At the de novo hearing, [Appellant] was represented by
counsel from the Allegheny County Office of the Public Defender.
that on February 22, 2013, he stopped [Appellant] after he
observed [Appellant] fail to use signals when changing lanes on
the road. Deputy Grossman asked [A
license but [Appellant] failed to produce it. [Appellant] provided
Deputy Grossman with his name, date of birth and a Social
information through the Allegheny County Sheriff
Office and found that the Social Security number did not match
the name and date of birth provided by [Appellant]. Deputy
Security number and [Appellant] provided the same, incorrect
number.
[Appellant] finally provided a Pennsylvania Identification
through J-
Off
license was suspended for a DUI related offense. [Appellant]
confirmed to Deputy Grossman that his license was suspended
and explained that was the reason he provided the Deputy with
false information. Deputy Grossman identified [Appellant] as the
[driver of the car that changed lanes without signaling] on
February 22, 2013.
[Appellant] acknowledged that he had heard Deputy
right not to answer any further questions.
The Commonwealth was unable to enter the certified copy
of Transportation responded that due to the size of the record,
the data was unable to be transmitted. The certified copy of the
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(record citations omitted).
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On October 23, 2013, the court convicted Appellant of driving while
operating privilege is suspended or revoked DUI related. On the same
day, the court sentenced Appellant as previously stated. Appellant did not
file post-sentence motions, and instead filed a notice of appeal on November
22, 2013.2 The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement of matters complained of on appeal and Appellant timely
complied. The trial court filed its 1925(a) Opinion on February 4, 2013.
Appellant raises three issues3 for our review:
[1.] Was trial counsel ineffective for failing to properly
investigate, review and communicate with [Appellant] on the
defense of his case as [Appellant] believes he was subject only
to a conviction under 75 Pa.C.S. § 1543(a)?
[2.] Was trial counsel ineffective for failing to object to the
at the time of sentencing?
[3.] Was the evidence sufficient to find [Appellant] guilty of 75
Pa.C.S. § 1543(b) when the Commonwealth failed to prove
[Appellant] was under a DUI suspension at the time of the
current issue in question?
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2
On November 6, 2013, while still represented by counsel, Appellant filed a
pro se
Office, also filed a timely notice of appeal on November 22, 2013. However,
because both notices were timely filed, we will apply the filing date of
See
Commonwealth v. Ellis, 626 A.2d 1137, 1139 (Pa.1993) (noting there is
no constitutional right to hybrid representation either at trial or on appeal).
3
This Court has re-
stated by Appellant.
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to introduce sufficient evidence to sustain his conviction for driving while
operating privilege is suspended or revoked. See -
introduce his certified Pennsylvania Department of Transportation
Commonwealth failed to prove his license suspension was DUI-related as
required for a conviction under 75 Pa.C.S. § 1543(b). Id. at 32-33. We
was DUI-related.
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 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
[trier] of fact while passing upon the credibility of witnesses and
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the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal
denied, 32 A.3d 1275 (Pa.2011).
The trial court convicted Appellant of violating Section 1543(b) of the
Vehicle Code, which states:
(1) A person who drives a motor vehicle on a highway or
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). Thus, to convict a defendant of a violation of Section
1543(b), the Commonwealth must produce evidence that proves that a
defendant (1) operated a motor vehicle, (2) while his operating privilege is
suspended or revoked for a DUI-related reason.
certified driving record is the usual manner in which a DUI-related
suspension is proved, it is not the only method to prove a DUI-related
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reason for a suspension. See Commonwealth Brief, pp. 17-18.
4
records entered into evidence can
prove a DUI-related suspension. See Commonwealth v. Carr, 887 A.2d
suspended for a DUI-related reason can also prove the fact. See
Commonwealth v. Herb, 852 A.2d 356, 361 (Pa.Super.2004)
(circumstantial evidence sufficient in Section 1543(b) case where defendant
admitted that his license was DUI-suspended and that he drove the vehicle).
Here, upon review of the record and all the evidence actually received,
we conclude that the admitted competent evidence was not sufficient to
suspended or revoked DUI related. The trial testimony revealed that, after
repeatedly providing incorrect information designed to mislead the police,
Appellant produced an identification card bearing his correct information.
See N.T. 10/23/2013, pp. 8-10. Using the identification card, the police ran
was suspended for a DUI-related reason. Id. at 10. Appellant then
admitted his license was suspended and that he had provided fake
information to avoid detection for operating a motor vehicle while his license
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4
See Commonwealth v. Carr, 887 A.2d 782, 783 (Pa.Super.2005) (noting
information contained in JNET reports and information contained in PennDOT
records was equivalent).
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was suspended. Id. at 10, 13. However, the trial testimony did not
establish that Appellant admitted that his suspension was for a DUI-related
reason. See id. Additionally, the Commonwealth did not admit a printout of
testimony about the contents of those records, which is hearsay. Further,
why it had not el
not the certified driver history records themselves.5 See id. at 6-7.
was DUI-related was actually received in the record, the Commonwealth
failed to establish every element of Section 1543(b) beyond a reasonable
doubt. Consequently, the trial court committed an error of law in concluding
that the evidence was sufficient to sustain a conviction for driving while
operating privilege is suspended or revoked DUI related.
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5
See Commonwealth Brief, p. 19. We find this claim unconvincing. The
PennDOT document that the Commonwealth did admit into evidence (a)
large for electronic transmission, and (b) provided instructions as to how the
Commonwealth could obtain the certified driving record by faxing a request
for the same. See PennDOT Bureau of Driver Licensing Certified Driver
History Request Response. That the Commonwealth did not follow the
certified driver history from PennDOT does not equal an inability to do so.
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Having determined that the evidence was not sufficient to support
no
other offenses in this case, Appellant is ordered discharged forthwith.
Judgment of sentence reversed. Appellant discharged.
Judge Musmanno joins in this memorandum.
Judge Panella files a dissenting statement.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2014
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