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HomeMy WebLinkAboutCP-21-CR-1457/1458-2002COMMONWEALTH V. MICHAEL BIRKMIRE IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 2002-1457 CRIMINAL NO. 2002-1458 CRIMINAL IN RE: OPINION PURSUANT TO Pa. R.A.P. 1925 Guido, J., August ,2003 On April 1, 2003, after a bench trial, we found the defendant guilty of driving under suspension (DUI related)~ and operating a vehicle without an official certificate of inspection.2 He has filed this timely appeal in which he raises the following issues: 3 1.) We erred in applying Commonwealth v. Tharp, 724 A.2d 368 (Pa. Super. 1999) rather than Rossi v. Commonwealth of Pennsylvania Department of Transportation, 798 A.2d 801 (Pa. Comwlth. 2002). 2.) We erred in failing to grant defense counsel's request for a continuance. 3.) We erred in directing counsel to file a brief in support of his "Concise Statement of Matters Complained of on Appeal." We will address each issue in the opinion that follows: Application of Commonwealth v. Tharp. The facts in the instant case are not in dispute. On March 16, 2002, the defendant 75 Pa. C.S.A. § 1543(b). 75 Pa. C.S.A. § 4703(A). See "Concise Statement of Matters Complained of on Appeal", p. 1. NO. 2002-1457 CRIMINAL NO. 2002-1458 CRIMINAL was stopped at about 5:50 p.m. on the Pennsylvania Turnpike in Upper Frankford Township. The defendant came to the attention of Pennsylvania State Police Trooper Dean Sarra because he was towing a trailer that did not display a current inspection sticker.4 Pursuant to the stop, the trooper determined that the defendant's Pennsylvania driver's license was under suspension for a DUI related offense.5 The defendant conceded that his license was under suspension.6 The defendant last held a valid license on April 9, 1990 when it was suspended as a result of his failing a driver's exam necessitated by his accumulation of points.7 Despite having no license, the defendant managed to incur an additional 9 years worth of suspensions for major violations which occurred in June and September of 1991.8 The suspension at issue resulted from convictions for driving under the influence and driving under suspension which arose out of an incident on September 27, 1991. Those convictions led to an additional five year suspension under the habitual offenders section of the Vehicle Code.9 The habitual offender suspension became effective May 25, 1994.~° While the defendant was eligible to have his license reinstated on May 25, 1999, he made no effort to obtain it. Consequently, when he was stopped by Trooper Sarra on March 16, 2002, the Penn DOT computers still showed that his license was under suspension for the DUI related offense that had occurred on September 27, 1991. Defendant's trial counsel conceded that we were bound by the Superior Court's decision in Commonwealth v. Tharp, supra. The facts in Tharp are indistinguishable See Transcript of Proceedings, pp. 12-13. See Transcript of Proceedings, p. 14. See Transcript of Proceedings, p. 14. See Commonwealth Exhibit 1. See Commonwealth Exhibit 1. 75 Pa. C.S.A. § 1542. lo See Commonwealth Exhibit 1. NO. 2002-1457 CRIMINAL NO. 2002-1458 CRIMINAL from those in the case at bar. Mr. Tharp's last period of suspension was under the habitual offender's provision of the Vehicle Code. Furthermore, he had been stopped after the suspension had expired, but before his license had been restored. The Superior Court noted: Based on the express, unambiguous language of Section 1543(b), and supporting case law, we hold that (1) a driver who operates a motor vehicle while his license is suspended due to his status as a habitual offender, DUI related, may be cited under subsection 1543(b)(1), even though the language referring to habitual offender suspensions is found in subsection 1543(b)(2), and (2)the penalties found in subsection 1543(b)(1) may be imposed if the driver operates a motor vehicle after the expiration of his habitual offender suspension but before the restoration of his license. Commonwealth v. Tharp, 724 A.2d at 370. Defense counsel now argues that we should have followed the Commonwealth Court' s holding in Rossi v. Commonwealth of Pennsylvania Department of Transportation. The Rossi Court held that "a period of suspension or revocation must end on the date certain determined by the length of the statutorily specified suspension." 798 A.2d 802. Thus, under the holding of Rossi, the defendant would not have been found guilty of driving under suspension. There are several reasons why Rossi was not applied. In the first instance, it was never brought to our attention by defense counsel. Furthermore, Rossi dealt with the propriety of an additional license suspension imposed upon the licensee by Penn DOT. In other words, the case arose out of an administrative action taken by Penn DOT and the appeal was to the Commonwealth Court. Tharp, on the other hand, was a criminal action identical to the one before us, with an appeal of right to the Superior Court. Where a conflict exists in our intermediate appellate courts, it is logical to conclude that we are NO. 2002-1457 CRIMINAL NO. 2002-1458 CRIMINAL bound to apply the interpretation of the court that will review our decision. Therefore, we were obligated to find the defendant guilty under the law applicable to this case. Denial of Continuance. Defendant did not attend the hearing. Rather, he retained counsel to appear in order to request a continuance. The following exchange occurred between the Court and defendant's counsel: THE COURT: Are you ready to proceed, Mr. Rominger? MR. ROM1NGER: I am not, Your Honor. Let me tell you how I've come to represent this fellow and what's going on here. Last evening, at approximately 4:00 in the evening, ! received a phone call from Jay Abom, Esquire, here in town, of Abom& Kutulakis. He informed me that he had been in communication with Michael Birkmire about this matter that apparently Mr. Birkmire had been attempting to secure counsel early yesterday. No one was available to attend in Mr. Abom's firm. ! spoke with Mr. Birkmire last evening. He has a driving license problem. He apparently lives in the northwest counties, near Erie, Pennsylvania. He was not able to secure transportation down here. He did, however, retain my law firm to request a continuance. ! did apprise the District Attorney of this this morning, that that would be our request. ! believe they are opposed, as they have told me. All ! can tell you is ! talked with this fellow last night. It's his intention to fight the charge. He obviously did not secure transportation or do what he needed to do in advance. ~2 ~ In the subsequent case of Commonweal& v. Byrne, 815 A.2d 637, (Pa. Super. 2002), the superior Court found "Rossi to be unpersuasive." 815 A.2d at 638. The Byrne Court went on to state: Tharp requires a person whose license is suspended to seek restoration of his driving privileges, anything short of such an accomplishment will subject the operator to the penalties associated with violating Section 1543 despite the expiration of the license suspension period during the time of operation. In light of the express language of Section 1543(b)(2), and giving it a common sense reading not at odds with the intent of the Legislature, we conclude that Appellant, who operated a vehicle after the expiration of his suspension- - DUI related but before the restoration of his license, was cited properly for violation of 75 Pa. C.S.A. § 1543 (b). Transcript of Proceedings, pp. 3-4. NO. 2002-1457 CRIMINAL NO. 2002-1458 CRIMINAL We asked the Commonwealth to outline the basis for its opposition. The following version of events was related to us by the Commonwealth. The defendant filed the instant summary appeal on July 3, 2002.~3 The first hearing was scheduled for August 27, 2002.14 It was continued at the request of defendant's prior counsel.~5 The next hearing was scheduled for October 29, 2002 .~6 Since it appeared as though the matter would be resolved by an agreement, the hearing was continued in order for the details to be worked out.~7 The hearing was rescheduled before the Honorable Kevin A. Hess on February 11, 2003. The Commonwealth's witness, Trooper Sarra, was in attendance. However, prior to the hearing, he was released because an agreement had been reached. ~8 After he left the courthouse, the defendant refused to go forward with the agreement.~9 Rather, he sought to dismiss his attorney.2° Judge Hess continued the matter and allowed the defendant's counsel to withdraw.2~ The hearing was rescheduled, yet again, for April 1, 2003. Notice of the hearing was sent to the defendant on March 11, 2003.22 Despite dismissing his attorney almost two months prior to the rescheduled hearing, and despite receiving notice almost three weeks prior to the hearing, the defendant took no steps to seek counsel nor to obtain a continuance until the eve of the scheduled hearing. Based upon the above, we denied the request for a continuance. We also denied the Commonwealth's motion to dismiss the Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, Transcript of Proceedings, p. 6. pp. 6-7. p. 7. p. 8-9. p. 8. p. 9. p. 8. p. 9. See also, order of Judge Hess dated February 11, 2003. p. 9. NO. 2002-1457 CRIMINAL NO. 2002-1458 CRIMINAL appeal pursuant to Pennsylvania Rule of Criminal Procedure 462(D).23 Rather, we proceeded to take evidence, allowing the defendant to participate through his counsel.24 Requiring a Brief in Support of Concise Matters Complained of on Appeal. We directed that defendant's counsel file a brief in support of his concise matters complained of on appeal. He correctly points out that nothing in the Rules of Appellate Procedure requires him to file such a brief. Nor is their specific authority in the rules which allows us to require such a brief. However, we submit that we have inherent authority to require counsel to supply briefs on any matter before us. Therefore, we often direct that counsel file such a brief. We do so for several reasons. In the first instance, it assists us in the preparation of these opinions.25 Additionally, and perhaps more importantly, the requirement discourages counsel from raising, and prevents us from having to address, patently frivolous issues. It has been our experience that some counsel do not do any legal research before preparing their concise statement. Rather, they will raise any issue that comes to mind, even though there is no authority to support it. Since we have been directing that a brief accompany the concise statement, we have seen a dramatic decrease in the frivolous and boiler plate issues being raised. Consequently, unless we are directed otherwise, we will continue our practice. 23 Transcript of Proceedings, p. 11. See Commonwealth v. McConley, 754 A.2d 724 (Pa. Commonwealth 2000) for the proposition that appearance by counsel is sufficient to preclude dismissal of the appeal. 24 We note that we offered to allow the defendant to participate by phone if counsel wished. We also offered to adjourn the proceedings until the following morning. Defense counsel declined both offers. (See Transcript, pp. 18-20). 2s Since the filing of post trial motions is no longer a prerequisite to preserve an issue for appeal, we are often faced with an issue that is unaccompanied by supporting authority. NO. 2002-1457 CRIMINAL NO. 2002-1458 CRIMINAL DATE Edward E. Guido, J. District Attorney Karl Rominger, Esquire For the Defendant :sld