Com. v. Bond, A.

J-S07043-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
AINSLEY ANDRE BOND
Appellant No. 879 MDA 2014
Appeal from the Judgment of Sentence May 6, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-SA-0000008-2014
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED FEBRUARY 26, 2015
Ainsley Andre Bond appeals from the judgment of sentence imposed
on May 6, 2014, in the Court of Common Pleas of Cumberland County. In a
de novo summary trial, Bond was found guilty of driving under suspension.1
The trial court sentenced Bond to a term of imprisonment of not less than 90
____________________________________________
1
Bond was convicted of violating Section 1543(b)(1) of the Motor Vehicle
Code, which provides, in pertinent part:
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 … 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).
J-S07043-15
days. In this appeal, the sole issue is a challenge to the sufficiency of the
evidence.2, 3 We affirm based upon on the sound reasoning of the trial court.
The trial court’s opinion fully sets forth the relevant facts and
procedural history of this case, and therefore, we do not restate them here.
See Trial Court Opinion, 6/26/2014, at 1–5.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable M. L. Ebert,
Jr., we conclude Bond’s issue merits no relief. See Trial Court Opinion,
supra at 5–9 (finding: (1) the critical element in this case is whether Bond
was driving,4 (2) Commonwealth presented two witnesses, who both
____________________________________________
2
Specifically, Bond presents the following question:
Was the evidence presented at trial sufficient to sustain a
conviction of driving under suspension when Trooper [Nicole]
Mark did not see [Bond] driving a car, and the Commonwealth
only presented the testimony of two witnesses, each of whom
had strong motive to fabricate incriminating testimony against
[Bond], to prove that he drove his wife’s vehicle?
Bond’s Brief, at 5.
3
Bond timely complied with the trial court’s order to file a Ra.R.A.P. 1925(b)
statement of matters complained of on appeal.
4
The trial court noted that Bond did not appear to contest the element of
driving on a highway, and this element was established by the testimony of
one of the Commonwealth witnesses who stated that Bond was driving on
Holly Pike, Route 34. The trial court further noted that Bond did not contest
that he had notice of his license suspension. See Trial Court Opinion,
6/26/2014, at 6 n.35.
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J-S07043-15
testified they saw Bond driving on September 29, 2013; (2) the
Commonwealth’s witnesses were credible and not clearly biased against
Bond; (3) the Commonwealth’s witnesses were more credible than Bond’s
witnesses;5 (4) there was also circumstantial evidence tending to show that
Bond drove that day, namely, (a) Bond was at his new apartment with the
truck, and his wife was at the old apartment, (b) one of the witnesses heard
Bond’s wife call him and tell him the trooper was there and not to drive
back, and Bond then walked back to the apartment, (c) Bond indicated he
believed his international license gave him permission to drive).
Accordingly, we adopt the trial court’s opinion as dispositive of the issue
raised in this appeal.
Judgment of sentence affirmed.6
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/26/2015
____________________________________________
5
We note that this finding relates to the weight of the evidence, which is not
at issue.
6
In the event of further proceedings, the parties are directed to attach a
copy of the Trial Court Opinion dated June 26, 2014.
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COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
V. : CP - 21- SA - 0008 - 2014
: CHARGES: DRIVING UNDER SUSPENSION
AINSLEY ANDRE BOND
CITATION NO. T1889733-6 : AFFIANT: TPR. NICOLE MARK
IN RE : OPINION PURSUANT TO PA.R.A.P. 1925
Ebert, J., June 26, 2014-
Defendant, Ainsley Andre Bond, appeals his conviction for driving under
suspension following a de novo summary trial held on April 15,2014. Defendant
complains of the following error on appeal:
There was insufficient evidence to sustain a conviction for driving under
suspension - DUI related because the record does not support the
determination that Defendant drove when the affiant did not witness
Defendant driving and relied on the assertions of two lay witnesses who
exhibited clear bias toward Defendant from past dealings.
Statement of Facts
On September 29, 2013, Amanda Barbour noticed the back window on her car
was smashed and told Gordon Bowermaster, the grounds keeper and apartment
manager at the apartment complex where she resides in Mount Holly Springs,
Cumberland County, Pennsylvania 2 Amanda then called the police and Trooper Nicole
Mark arrived at the scene.' Amanda told Trooper Mark that she believed Defendant
1 Concise Statement of the Errors Complained of on Appeal , filed Jun 10, 2014
2 Notes of Testimony, In Re: Appeal from Summary Conviction, 20, April 15. 2014 (hereinafter NT _)
J N.T. 5
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was respons ible for damaging her window' Gordon and Amanda also told Trooper
Mark that Defendant was moving that day and that they saw him driving .'
After receiving Defendant's name, Trooper Mark ran the Defendant's driving
record on her pa trol car computer and ascertained that his Pennsylvania driver's license
was currently DUI suspended ' In facl, Defendant's Pennsylvania driver's license had
been suspended since 2005.' While she was running his information, Defendant
walked up to the apartment complex.' After Defendant arrived, Trooper Mark issued
Defenda nt a traffic citation for driving under suspension based on all the information she
had received·
Gordon testified Ihat wh ile he and Amanda were waiting for the officer to arrive
that day, he saw Defendant driving. He stated that Defendant and his wife were moving
oul of their apartment and he saw Defendant driving at least two or three times that day
around 9:30-10:00 a.m. in a black Ford Ranger.'o Gordon was about 200 feel away
from the vehicle when Defendant was driving and he had a clear view of the driver's
side of the truck. Gordon has known Defendant for about six yea rs and was familiar
with the type of vehicle Defendant drove." Gordon relayed this infonmation to Trooper
Mark and also provided her with a photograph of Defendant's license plate." Gordon
also testified Claudine Bond , Defendant's wife, was at the apartment when Trooper
~ NT 6
s N.T. 7-8
6 NT 6; Com. Ex. 1
7 N.T. 8; Com. Ex. 1
' N.T. 6
9 N.T. 8
10 N.T. 14-15, 17
11N.T. 16
12N.T. 18. Gordon testified he took the picture of Defendant's license plate when the landlord of the
apartment complex requested him to.
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Mark arrived and she called Defendant to tell him the trooper was there and not to drive
back." It was at this point that Defendant walked back to the apartment complex."
Amanda, who lived below Defendant at the apartment complex, testified she saw
Defendant driving "at least three or four" times on September 29, 2013." She
estimated she was probably 50 feet away fro m Defendant's vehicle at some point while
he was driving and she had a clear view of him." She saw Defendant driving on the
Holly Pike, (Pa. Route 34) that day." Amanda knew Defendant drove a black truck, but
did not know the model. 18 Amanda was not aware that Defendant was not licensed to
drive until this incident, because Defendant had previously told her he had a special
license and was able to drive. In fact , Amanda testified she saw Defendant drive every
day'S
Defendant maintained that he did not drive on September 29,2013,20 While he
maintains that he was not driving on September 29, 2013, Defendant testified that he
has an international driver's license wh ich his brother-in-law procured for him from
Texas," Defendant stated he has never used this international driver's license in the
United States, but indicated he believed it gave him the privilege to drive in
Pennsylvania.22
13 N.T. 14, 45
14 N.T. 45
15 N.T. 22, 23
16 N.T. 22
17N.T.24
18 N.T. 22
19 N.T. 21, 23
ZON. T.41
:21N.T. 40-41 . Defendant stated that he mentioned to Amanda that he had this special license along with
other things he was studying. Defendant and his brolher-in·law are ~ jnto studyi ng about the UCC and
sovereigntyN, and Defendant likes to mention these things to other people.
22 N.T. 43
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Defendant testified that his wife, Claudine Bond, and his friend, Martin Brinton,
were helping with the move on September 29, 2013. Since the new apartment was only
a few blocks away, Claudine would drive the truck to the new apartment and Defendant
would remain there to unload the truck, while Ctaudine walked back to the old
apartment to load another vehiCle." Martin testified that he was helping Defendant and
Claudine move." Martin stated that he did not see Defendant drive that day." Martin
said they used both Defendant's truck and his truck to move, but Defendant's wife was
driving Defendant's truck the entire day'· Claudine also testified that Defendant did not
drive at all that day.27 She testified that ''we would take the truck down, [Defendant and
Martin] would unload the trucks " and she would come back to get her car to take down
to the new apartment. 28
Defendant also indicated that both Amanda and Gordon had problems with him.
Defendant testified that he made complaints against Amanda because of the traffic and
noise at her apartment. 29 There 'also had been an argument between Defendant and
Amanda's husband." However, Amanda testified that she had no disagreements with
Defendant and was neighborly to him." Defendant also testified that he did not get
along with Gordon Bowermaster because Gordon had a pit bull and dogs were not
allowed on the lease. Defendant worried the dog would harm his children. " Gordon
23 N.T. 39-40
24 N.T. 27
25 N.T. 28
26 N.T. 28
27 N.T. 34
28 N,T. 34
" N.T. 37-38.
" N. T. 25-26, 38
31 N.T. 25~26
32 N.T, 38~39
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testified that he had a conversation about the dog with Defendant, but he would not
really call it a disagreement."
Following the conclusion of the testimony on April 15, 2014, this Court found
Defendant guilty beyond a reasonable doubt of driving under suspension." Defendant
was sentenced to incarceration for a period of not less than 90 days.
Discussion
Defendant complains that there was insufficient evidence to sustain his
conviction for driving under suspension, because Trooper Mark did not actually witness
Defendant driving and only relied on the statements made by Gordon and Amanda, who
he claims both have a bias against him.
When reviewing the sufficiency of the evidence, an appellate court views all the
evidence admitted at trial in the light most favorable to the verdict winner to conclude
whether there was sufficient evidence to enable the fact-finder to find every element of
the crime beyond a reasonable doubt. Commonwealth v. Costa-Hernandez, 802 A.2d
671, 673 (Pa. Super. 2002). The appellate court may not weigh the evidence and
substitute its own judgment for that of the fact-finder. Id. The trier of fact, while
determining the 'credibility of witnesses, is free to believe all, part, or none of the
evidence. Commonwealth v. Herb, 852 A.2d 356, 361 (Pa. Super. 2004).
In order to sustain a conviction for driving under suspension, the Commonwealth
must show that Defendant drove a motor vehicle on a highway or traffic way at a time
when Defendant's operating privilege is suspended or revoked for a reason related to a
33 N.T. 18
34 N.T. 48
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previous DUI. 75 Pa.C.SA § 1543(b)(1).35 The critical element, in this case, is
whether Defendant was driving. Costa-Hernandez, 802 A.2d at 673. In order to prove
that one "drives" a vehicle, the Commonwealth must prove that the car was in motion at
the time in question. 1Q. at 674. However, the Commonwealth does not need to
produce direct evidence of driving, but may instead rely on circumstantial evidence that
the vehicle had been in motion in order to meet its burden. !!L
At the de novo summary trial, the Commonwealth presented two witnesses who
both testified they saw Defendant driving on September 29, 2013. Defendant testified
he was not driving and also presented two witnesses who testified he was not driving.
As Trooper Mark did not see Defendant driving, the evidence comes down to the
credibility of the witnesses.
Defendant argues that the Commonwealth's witnesses, Amanda and Gordon,
are not credible because they both had problems with Defendant in the past and
exhibited a clear bias against him at trial. Defendant implied that Amanda only informed
Trooper Mark that she saw Defendant driving that day once it became dear that
Defendant would not be charged with breaking her car window." However, Amanda
also testified that she was not aWare that Defendant was unable to drive prior to this
incident, because Defendant had told her about his special international license.
Defendant also implied that Gordon had a problem with Defendant because Defendant
did not like the fact that Gordon had a dog. However, Gordon did not seem to think
35 Defendant does not appear to contest the element of driving on a highway or traffic way. There was
testimony by Amanda that Defendant was in fact driving on Holly Pike, Route 34, satisfying this element.
N.T. 24 . Defendant also does not contest that he had notice of his license suspension. Trooper Mark
testified that after reviewing Defendant's certified driving history from PennDOl, she was able to see that
Defendant had notice of his Pennsylvania driver's license suspension. N.T. 8; Com. Ex. 1.
36 See N.T. 25
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there was a real disagreement or problem with Defendant. It did not appear to this
Court, as the fact-finder, that Amanda and Gordon were clearly biased against ·
Defendant.
Instead, Defendant would have this Court believe that the witnesses who testified
on his behalf were not biased. However, Defendant's witnesses were, perhaps, even
more biased than the Commonwealth's witnesses. Defendant himself certainly had a
personal stake in the outcome of the trial and an interest in keeping himself out of jail.
Defendant's other witnesses consisted of Claudine Bond, his wife, and Martin Brinton,
his former co-worker and friend of several years. These are not unbiased witnesses.
Claudine Bond admitledon the stand that she was also charged and found guilty of
Permitling Violation of Title for allowing Defendant to drive the Ford Ranger which was
registered to her while his driver's license was suspended." Claudine, therefore, also
has a huge interest in Defendant being found not guilty. She stated she was appealing
her conviction. This means that if the Defendant was found not guilty her guilty verdict
would likely be reversed.
Martin Brinton testified that he had been friends with the Defendant for 3 to 3 Y,
years. It was clear from examining the Defendant's driving record (Comm. Ex. No.1),
that the Defendant's license status from 2005 on was listed as suspended! cancelled!
revoked!expired. Frankly, it appears that the Defendant will not be eligible to apply for a
new driver's license until June 28, 2020. Brinton testified that in all the time he knew the
Defendant he neve r saw him d rive and that the Defendant's wife always was the person
driving. Brinton says he never discussed this clearly unusual circumstance with the
37 N.T. 36
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Defendant because he was "always raised to mind your own business."" This Court
finds Mr. Brinton's testimony totally incredible. After hearing the witnesses testify and
viewing their demeanor on the stand, this Court found the Commonwealth's witnesses
to be more credible than Defendant and the witnesses he presented .
In addition to the direct evidence of the witnesses who saw Defendant driving,
there was other circumstantial evidence tend ing to show that Defendant drove that day.
When Trooper Mark arrived, Defendant was at his new apartment, along with the truck,
and Claudine Was at the old apartment. Gordon heard Claudine call Defendant and tell
him not to drive back. Shortly thereafter, Defendant was seen walking back from his
new apartment. If Defendant was at the new apartment, along with his truck, it is logical
to conclude that Defendant drove the truck to the new apartment, especially after two
witnesses saw him drive .
Defendant also testified that he had an international driver's license. He
indicated he was studying the UCC (presumably the Uniform Commercial Code) and
"sovereignty." These terms are familiar to the Court and indicated that the Defendant
may have considered himself a "sovereign citizen" who is not required to follow the
mandates of state law. Defendant indicated that he believed his international driver's
license gave him permission to drive, even though his Pennsylvania license was
suspended'S In fact, "an international driving permit...does not permit a Pennsylvania
resident whose driving privileges had been suspended to operate a motor vehicle in
Pennsylvania." Commonwealth v. Soder, 906 A.2d 502, 503 (Pa. Super. 2006). While
Defendant maintained he did not drive that day, the fact that Defendant believed he
" N.T. 31-32
39
N.T. 40, 41, 43
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could drive, combined with all the other evidence establishes that Defendant did in fact
drive a vehicle on September 29,2013, beyond a reasonable doubt.
After considering all the evidence presented, including two eye-witnesses who
saw Defendant driving, there was enough evidence for this Court to conclude that
Defendant was guilty of the offense of driving while operating privilege is suspended or
revoked beyond a reasonable doubt.
Conclusion
This Court did not err in finding sufficient evidence to convict Defendant of driving
under suspension beyond a reasonable doubt. The Commonwealth's witnesses did not
exhibit a clear bias against Defendant such that their testimony was not credible.
By the Cou rt,
M. L. Ebert, Jr.,
District Attorney's Office
F. Clay Merris, IV, Esquire
Attorney for Defendant
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