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HomeMy WebLinkAbout01-1899 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA V. NATHANIEL E. BOWERS 01-1899 CRIMINAL TERM IN RE: OPINION AND VERDICT Bayley, J., February 12, 2002:-- Defendant, Nathaniel E. Bowers, is charged with a summary count of driving while his operating privilege was suspended in violation of the Vehicle Code at 75 Pa.C.S. Section 1543(a). A bench trial was conducted on February 5, 2002. The evidence is as follows. On August 12, 2001, at 6:45 p.m., Officer Robert Powers of the Upper Allen Police Department stopped a vehicle in Upper Allen Township, which had an expired inspection sticker. Defendant, Nathaniel E. Bowers, was the driver. The owner of the vehicle, Mark Munoz, was a passenger. Defendant produced his driver's license. When Officer Powers ran a radio check, the license came up suspended. Officer Powers subsequently obtained a certified copy of defendant's driving record from the Department of Transportation. That record shows that the Department suspended defendant's operating privilege, effective March 20, 2001, pursuant to the Vehicle Code at 75 Pa.C.S. Section 1533(a), for failure to respond to a citation. Notice of the suspension was mailed to defendant on February 27, 2001, at 274 Carlisle Road, Dillsburg, Pennsylvania. The certified record notes that "POLICE PICKUP ISSUED 01-1899 CRIMINAL TERM MAY 14, 2001." Officer Powers testified that he did not recall defendant making any comment to him regarding his driver's license. Nathaniel Bowers testified that he now lives at 348 South 13th Street, Harrisburg, Dauphin County. He testified that he never received notice of the suspension of his driving privilege, and did not know that his license was suspended when he was stopped by Officer Powers. Defendant testified that he told Officer Powers that he did not know that his license was suspended, and he asked him why. Officer Powers told him that he did not know the reason. Defendant testified that on August 12, 2001, his address was 9 Locust Lane, Dillsburg, Pennsylvania. He moved there from 247 Carlisle Road, Dillsburg, Pennsylvania, approximately six months earlier, but he did not notify the Department of Transportation of his change in address.~ Defendant testified that after the move, other than sending out a few notices of his change of address, most of his mail continued to be sent to 247 Carlisle Road, Dillsburg. He was no longer on speaking terms with the owner, so he did not pick it up. Defendant testified that within a few days of Officer Powers telling him that his license was suspended, he paid a citation for having an inoperable headlight, which was the underlying offense for which the suspension was issued for failure to respond. He then obtained his driver's ~ The Vehicle Code at 75 Pa.C.S. § 1515, provides: "Whenever any person after applying for or receiving a driver's license moves from the address named in the application or in the driver's license issued.., such person shall within 15 days thereafter, notify the department in writing of the old and new address.., and of the number of any license then held by the person." -2- 01-1899 CRIMINAL TERM license from the Department. In Commonwealth v. Kane, 460 Pa. 582 (1975), the Supreme Court of Pennsylvania concluded that introduction of evidence of a certified driving record, which shows that notice of suspension was mailed to defendant, is not sufficient to establish beyond a reasonable doubt that defendant had actual notice of the suspension. In Commonwealth v. Crockford, 443 Pa. Super. 23 (1995), the Superior Court of Pennsylvania stated: In the twenty years since Kane was decided, numerous rulings of both the Supreme Court and this court have refined its basic message. While these cases have set out no hard and fast rule as to the kinds of proof required to establish actual notice of suspension, they do indicate that evidence of mailing of notice coupled with some other, additional evidence of knowledge will suffice to establish actual notice beyond a reasonable doubt. [Footnote omitted]. In Commonwealth V. Baer, 452 Pa. Super. 547 (1996), the Superior Court stated that factors to be considered in determining whether a defendant had actual notice of suspension include evidence that the Pennsylvania Department of Transportation sent notice to defendant's current address, any statements made by the defendant indicating knowledge, and any conduct demonstrating circumstantially or directly that defendant had knowledge of the suspension. In Commonwealth v. Erb, 721 A.2d 386 (Pa. Super. 1998), the defendant was convicted of driving under suspension (DUI-related). On appeal, he maintained that the Commonwealth had failed to prove beyond a reasonable doubt that he had actual notice of a driving under the influence related suspension. The facts were: -3- 01-1899 CRIMINAL TERM At trial, the sole witness was Officer Carter Fisher of the Rosemont section of the Radnor Township, Delaware County police. He testified that while he was on routine patrol he observed appellant driving fifteen to twenty miles an hour in a thirty-five mile per hour zone. His routine radio check on the Virginia license on appellant's car revealed that the license was registered to an Oldsmobile, and the car appellant was driving was a Chevrolet. Officer Fisher then followed the vehicle until he made a stop on Charles Drive near the Broadlawn apartments. He testified that he noticed a strong odor of alcohol on appellant's breath, that his eyes were bloodshot, and his speech was slurred. Officer Fisher asked appellant to produce his driver's license, and appellant responded that he did not have one. "1 asked him if he met [sic] he didn't have it with him or he didn't have one at all. And my recollection is he indicated he didn't have one at all." Appellant was arrested and charged with driving under the influence of alcohol (for which he was subsequently acquitted), and driving while operating privileges were suspended or revoked (the subject of this appeal). At trial, appellant stipulated that his license was suspended for a prior DUI and that notice of the instant suspension had been mailed to him on February 29, 1996. Evidence established that appellant then lived at the same address on Conestoga Road to which the suspension notice had been sent. (Footnote omitted.) (Emphasis added.) The Superior Court concluded: [a]ppellant's license suspension was evidenced at trial by his certified driving record. Notice was mailed to his current address. Appellant failed to produced [sic] a valid, current license when the officer stopped him, and he stated that he did not have a driver's license. Taken together, we conclude that this evidence was sufficient to meet the standard of Crockford and Baer that appellant had actual notice that his license was suspended. In the case sub judice, when the Department mailed the notice of the suspension of defendant's driver's license to 247 Carlisle Road, Dillsburg, Pennsylvania, on February 27, 2001, that was no longer defendant's address. He had moved to 9 Locust Lane, Dillsburg. When defendant was stopped on August 12, 2001, -4- 01-1899 CRIMINAL TERM he had his driver's license that had never been picked up pursuant to the directive of the Department. Considering all of the evidence, we are not satisfied that the Commonwealth has proven beyond a reasonable doubt that defendant had received notice of the suspension of his driving privilege before he was stopped by Officer Powers on August 12, 2001 .: Accordingly, the following verdict is entered. VERDICT AND NOW, this day of February, 2002, I find defendant NOT GUILTY. By the Court, Edgar B. Bayley, J. Jaime Keating, Esquire Assistant District Attorney Madelaine Baturin, Esquire For Defendant Gayle A. Elder, District Justice :saa : Despite the fact that Commonwealth v. Kane, supra, was decided in 1975, and that Section 1515 of the Vehicle Code requires that a licensee must notify the department in writing within fifteen days of a change of address, the legislature has not chosen to make notice of suspension sent to the last address provided to the Department by the licensee constructive notice of receipt. -5-