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HomeMy WebLinkAboutCP-21-SA-26-2004COMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA DENNIS ROBINSON, JR. CP-21-SA-0026-2004 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., July 22, 2004. In this summary offense case involving a charge of driving under suspension, Defendant has appealed from a guilty verdict entered by the court following a de novo trial.~ Subsequent to the entry of the verdict and filing of the appeal, he failed to appear for sentence and remains a fugitive at this time.2 Although a transcript of the trial notes of testimony has been prepared, it has not been filed due to Defendant's failure to pay for any portion of it.3 The basis of Defendant's appeal, as expressed in a statement of matters complained of on appeal, is that the evidence was insufficient to prove beyond a reasonable doubt that Defendant was aware that he was under suspension at the time of the alleged offense.4 This opinion, in support of the verdict of guilty, is written pursuant to Pennsylvania Rule of Appellate Procedure 1925. ~ The appealability of a verdict is beyond the scope of this opinion. But see Commonwealth v. Hurst, 367 Pa. Super. 214, 218, 532 A.2d 865,867 (1987). 2 See Order of Court, June 29, 2004 (bench warrant). The right of a fugitive to pursue an appeal is beyond the scope of this opinion. But see Commonwealth v. Albert, 260 Pa. Super. 20, 393 A.2d 991 (1978). ~ See Order of Court, July 16, 2004 (directing Defendant to pay for one-half cost of transcript pursuant to Pennsylvania Rule of Appellate Procedure 1911 (a) and Pennsylvania Rule of Judicial Administration 5000.6). The effect upon Defendant's appeal of this failure to provide a record for appellate review is beyond the scope of this opinion. But see Commonwealth v. Dennis, 421 Pa. Super. 600, 620, 618 A.2d 972, 982 (1992). 4 Defendant's Statement of Matters Complained of on Appeal, filed June 29, 2004, at 1-5. STATEMENT OF FACTS On a challenge to the sufficiency of the evidence in a criminal case, the evidence is to be viewed "in the light most favorable to the Commonwealth" and "all reasonable inferences in the Commonwealth's favor" are to be entertained. Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). Viewed in this light, the evidence in the present case may be briefly summarized as follows: On Friday, October 24, 2003, at 5:15 p.m., Officer Christopher Kaufman of the East Pennsboro Township Police Department observed Defendant driving a maroon minivan on Poplar Church Road in the borough.5 Defendant, whose driving record included nine previous convictions for driving under suspension, was under suspension at the time.6 A fair inference from Officer Kaufman's testimony at trial, in the court's view, was that Defendant was aware of his status at the time of the incident.7 Accordingly, a demurrer, or motion for judgment of acquittal, made on behalf of Defendant at the conclusion of the Commonwealth's case, on the ground that this element of the offense had not been proven, was denied.8 Following the denial of Defendant's motion, Defendant testified on his own behalf. The gist of this testimony was that the officer was mistaken in his 5 N.T. 15-17, 23, 29, Trial, May 18, 2004. 6 Commonwealth's Ex. 1, Trial, May 18, 2004. 7 The officer testified that, during an investigation of a domestic dispute at Defendant's home shortly prior to this incident, he had witnessed an argument between Defendant and his spouse over possession of their vehicles in which she made the point that he could not drive because his license was suspended. N.T. 17, 22, 25, 29, Trial, May 18, 2004. The officer had been at Defendant's residence twice within the six months preceding the incident subjudice. N.T. 17, 29, Trial, May 18, 2004. As of a notice mailed to Defendant on May 8, 2003, by the Department of Transportation, Defendant's license was suspended through May 24, 2006. Commonwealth's Ex. 1, Trial, May 18, 2004. His license had been physically turned in to the Department in 1994. Id. 8 N.T. 44, Trial, May 18, 2004. 2 identification of Defendant as the driver of the vehicle.9 Any question as to Defendant's awareness, as of the time of the incident, that his license was suspended was removed by his concession in his testimony that he had known at that time that his license was under suspension, l0 DISCUSSION On a challenge to the sufficiency of the evidence in a criminal case, the proper test is "whether, viewing the evidence admitted at trial in the light most favorable to the Commonwealth and drawing all reasonable inferences in the Commonwealth's favor, there is sufficient evidence to enable the trier of fact to find every element of the [crime] charged beyond a reasonable doubt." Commonwealth v. Jones, 449 Pa. Super. 58, 61, 672 A.2d 1353, 1354 (1996), quoting Commonwealth v. Carter, 329 Pa. Super. 490, 495-96, 478 A.2d 1286, 1288 (1984). The trier of fact is "free to believe all, part or none of the evidence." Commonwealth v. Petaccio, 2000 PA Super. 384, ¶5, 764 A.2d 582, 585, quoting Commonwealth v. Griscavage, 512 Pa. 540, 543,517 A.2d 1256, 1257 (1986). Where a defendant in a criminal case demurs to the evidence at the close of the Commonwealth's case-in-chief, but following the denial of the demurrer proceeds to present evidence, "a challenge on appeal to the propriety of [the ruling on the demurrer] may be considered only as a challenge to the sufficiency of the evidence as a whole." Commonwealth v. Dasilva, 440 Pa. Super. 291, 301, 655 A.2d 568, 573 (1995), citing Commonwealth v. Wallace, 522 Pa. 297, 315, 561 A.2d 719, 728 (1989). In the present case, the evidence viewed as a whole, including Defendant's admission under oath that he had been aware at the time of the incident in question that his license was under suspension, was, in the court's view, more than 9 N.T. 45-69, Trial, May 18, 2004. l0 N.T. 53, Trial, May 18, 2004. 3 sufficiem to prove this element of the offense of driving under suspension beyond a reasonable doubt. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Roger R. Laguna, Jr., Esq. 1119 North Front Street Harrisburg, PA 17102 Attorney for Defendant J. Wesley Oler, Jr., J. 4