HomeMy WebLinkAboutCP-21-SA-0000197-2008
COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
: CHARGE: REGISTRATION AND CERTIFICATE
: OF TITLE REQUIRED (SUM.)
v. :
:
GEORGE MACKIE :
CORNWALL, III : CP-21-SA-0197-2008
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
OLER, J., March 17, 2009.
In this summary offense case in which Defendant was found guilty of
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operating his vehicle without a Pennsylvania registration, Defendant has filed an
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appeal from the judgment of sentence to the Pennsylvania Superior Court. A
timely response to an order directing Defendant to file a statement of errors
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complained of on appeal has not been filed as of the present date, and it will be
assumed that the issue being pursued on appeal is sufficiency of the evidence.
This opinion in support of the judgment of sentence is written pursuant to
Pennsylvania Rule of Appellate Procedure 1925(a).
STATEMENT OF FACTS
As the result of an incident occurring on July 18, 2008, a citation was
issued to Defendant for violation of Section 1301(a) of the Vehicle Code
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(Registration and Certificate of Title Required). He pled not guilty, failed to
appear for trial, and was found guilty in absentia by a magisterial district judge on
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September 16, 2008. Defendant filed an appeal to this court and a de novo trial
was held before the undersigned judge on December 16, 2008.
1
See Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1301(a).
2
Defendant’s Notice of Appeal, filed February 9, 2009.
3
Order of Court, dated February 17, 2009, entered February 18, 2009.
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Traffic Citation, issued July 18, 2008, filed July 23, 2008, Magisterial District Judge Transcript,
filed October 16, 2008.
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See generally Magisterial District Judge Transcript, filed October 16, 2008.
At the de novo trial the Commonwealth presented the testimony of the
police officer who issued the citation, and secured the admission of two exhibits.
Defendant presented the testimony of himself.
The testimony of Patrolman Jeffrey Petty of the Mount Holly Springs
Borough Police Department in Cumberland County, Pennsylvania, may be
summarized as follows. At about 7:00 p.m. on Friday, July 18, 2008, Patrolman
Petty was on patrol in the borough and observed Defendant, with whom he was
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familiar as a Mount Holly resident, operating his tan Mazda6 automobile. The
Oregon license plate on the back of the vehicle was obscured by tinting, and the
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front plate required by Oregon law for vehicles registered in that state was absent.
The officer stopped Defendant’s car and advised Defendant that the reason for the
stop was that Defendant lived in Pennsylvania but had another state’s license plate
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on his vehicle.
Defendant produced a Pennsylvania driver’s license, initially issued on
March 27, 2007, which gave his residence as 10 Orange Street, Mount Holly
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Springs, Pennsylvania. He was unable to present proof of insurance or a vehicle
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registration card. Nor did he have a driver’s license from the state of Oregon.
Defendant told the officer that his residence was shared with his minor son,
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and that Defendant also owned and rented out the townhouse next to it.
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Defendant paid real property taxes in the Commonwealth. When asked whether
he could produce any evidence that he lived in Oregon rather than Pennsylvania,
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Defendant’s Notice of Appeal from Summary Criminal Conviction, filed October 14, 2008.
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N.T. 3-4, Trial, December 16, 2008 (hereinafter N.T. __).
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N.T. 6, 8.
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N.T. 4.
10
N.T. 5.
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N.T. 5.
12
N.T. 6, 10.
13
N.T. 10-11.
14
N.T. 8-9.
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Defendant said that all he could find was an expired certification card indicating
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that he had been licensed as an accountant by the state of Oregon.
The Commonwealth introduced as an exhibit Defendant’s business card,
which was attached to a letter from Defendant to the Chief of the Mount Holly
Springs Borough Police Department dated the day of the stop, listing his
occupation as CPA, the company for which he worked as POC Consultants, LLC,
his capacity with the company as Project Principal, his telephone number as
having a Pennsylvania area code, and his address as “10 Orange Street, Mt. Holly
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Springs, PA 17065 USA.” The letterhead on the letter, however, gave an address
of 1897 Boca Ratan Drive, Lake Oswego, Oregon 97034.
A second exhibit introduced by the Commonwealth was a letter written by
Defendant and received, if at all, after issuance of the citation by the Pennsylvania
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Department of Transportation, purporting to declare Oregon as his residence.
This letter bore a return address of 1897 Boca Ratan Drive, Lake Oswego, Oregon
97034-1625, and stated, inter alia, that he regularly resided in Pennsylvania,
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California and Oregon.
In his testimony, Defendant claimed that his “mailing address” was 1897
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Boca Ratan Drive, Lake Oswego, Oregon, 97034, and that he regarded this as his
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primary residence. He stated that he was a registered voter, licensed Certified
Public Accountant, and income-tax payer in Oregon, that he divided his time
between Oregon and California, and that he owned property in California, Idaho,
15
N.T. 6.
16
Commonwealth’s Ex. 2, Trial, December 16, 2008 (hereinafter Commonwealth’s Ex. __).
17
Commonwealth’s Ex. 1. Defendant’s letter to the Department was dated the same day as the
citation was issued and, according to his testimony, was mailed to the Department on the day it
was dated. Commonwealth’s Ex. 1; N.T. 25.
18
Commonwealth’s Ex. 1.
19
N.T. 12.
20
N.T. 13.
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and Pennsylvania. Defendant testified further that the vehicle in question was
registered in Oregon, and that the insurance on the vehicle was “issued out of”
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Oregon.
Defendant denied that he had ever lived in the Commonwealth for a period
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of 60 continuous days, and claimed that he had arrived for trial the preceding day
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from China. When asked where he had spent his nights immediately preceding
issuance of the citation, Defendant said that the night immediately preceding
issuance of the citation he had spent in Mount Holly, Cumberland County,
Pennsylvania, and that immediately prior to that he had been in the Cumberland
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County Prison for a week in connection with a “parking lot problem.” He
claimed that most of May and June, and “a good bit of July,” 2008, had been spent
in California in connection with a problem involving tenants, interspersed with
visits to Pennsylvania to exercise custodial rights to his 10-year-old son in
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Cumberland County, conceded that he had spent “very few” days of that period
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in Oregon, and conceded that he had spent more days of that period in
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Pennsylvania than in Oregon.
Defendant conceded that he had had a Pennsylvania driver’s license listing
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his address as Mount Holly Springs, Pennsylvania, since the spring of 2007. He
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N.T. 13-14.
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N.T. 15.
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N.T. 13.
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N.T. 13.
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N.T. 23, 32.
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N.T. 18, 23-24, 32.
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N.T. 31.
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N.T. 32.
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N.T. 33-35. Defendant attributed this fact to his need for a Pennsylvania driver’s license in
connection with his employment. N.T. 27.
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also conceded that his business card at the time of the citation gave his address as
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being in Mount Holly Springs.
He conceded that he had owned the two aforementioned residences in
Mount Holly Springs since 2006, one of which he rented out and the other of
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which he was “in the process of” putting in trust for his child. He also conceded
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that he had no Oregon driver’s license and that with respect to a custody order
filed in the Office of the Prothonotary in Cumberland County his address for
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purposes of notices was the Mount Holly Springs address.
Finally, Defendant presented no documentary evidence at trial to support
his position that he actually lived somewhere other than Pennsylvania.
At the conclusion of the de novo trial, the court took the matter under
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advisement. After a careful review of all the evidence, the court found Defendant
guilty of operating his vehicle without the required Pennsylvania registration and
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imposed the statutory fine of $75.00.
From the judgment of sentence, Defendant has filed an appeal to the
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Pennsylvania Superior Court.
DISCUSSION
Statement of the law. On a challenge to the sufficiency of the evidence in a
criminal case, the proper test is “whether, viewing the evidence in the light most
favorable to the Commonwealth as verdict winner and drawing all proper
inferences favorable to the Commonwealth, the trier of fact could have determined
30
N.T. 28. Defendant attributed this fact to the need for him to have an eastern United States
address for purposes of his dealings with prospective clients. N.T. 29.
31
N.T. 14. Defendant attributed his residence in Cumberland County to one of convenience,
relating to exercise of his custodial rights to his son. N.T. 14.
32
N.T. 27.
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N.T. 21-22. Defendant attributed this fact to the fact that “[Cumberland County attorney] Brad
Griffie has a young poorly trained, in my opinion, associate.]” N.T. 22.
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Order of Court, December 16, 2008.
35
Order of Court, January 9, 2009.
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all the elements of the crime have been established beyond a reasonable doubt.”
Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290,
quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995). In
this regard, 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).
A challenge to the sufficiency of the evidence does not implicate a
weighing of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856
A.2d 131, 135.
Under Section 1301(a) of Pennsylvania’s Vehicle Code,
[n]o person shall drive or move and no owner or motor carrier shall
knowingly permit to be driven or moved upon any highway any vehicle
which is not registered in this Commonwealth unless the vehicle is exempt
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from registration.
An exemption from this requirement of Pennsylvania registration, pertinent
to the present case, is found in Section 1303(a) of the Vehicle Code, which reads
as follows:
A nonresident owner of any foreign vehicle may operate or permit the
operation of the vehicle within this Commonwealth without registering the
vehicle in this Commonwealth or paying any fees to the Commonwealth,
provided the vehicle at all times when operated in this Commonwealth is
duly registered and in full compliance with the registration requirements of
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the place of residence of the owner . . . .
A “resident” is defined under the Vehicle Code as
[a] person dwelling permanently or continuously for a period exceeding 60
consecutive days within this Commonwealth, except that a person who
regularly dwells in two or more states shall declare residence to be in any
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one of the states.
36
Defendant’s Notice of Appeal, filed February 9, 2009.
37
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1301(a).
38
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1303(a) (emphasis added).
39
Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §102 (emphasis added) (2008
Supp.).
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Under Section 1510 of the Vehicle Code, relating to the issuance and
content of Pennsylvania drivers’ licenses, it is provided that the applicant’s
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address for purposes of the license is to be his or her “residence address.”
Finally, under Oregon law a front and rear license plate are to be displayed
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on a vehicle of the type owned and operated by Defendant. The plates may not
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be obscured by tinting so as to be less than easily read.
Application of law to facts. In the present case, which was admittedly a
close one, a number of factors led the court to conclude that Defendant had been
proven guilty beyond a reasonable doubt of operating his vehicle without the
required Pennsylvania registration. First, the evidence of Defendant’s actual,
physical place of abode favored Pennsylvania rather than Oregon. Second,
Defendant himself declared his residence to be Pennsylvania when he applied for
his driver’s license in 2007 and had not changed that declaration with the
Department of Transportation as of the time of the offense herein. Third,
Defendant did not have a resident driver’s license from Oregon. Fourth, Defendant
presented himself as a Pennsylvania resident on his business card, and notices for
purposes of his custody order were to be sent to him at the Pennsylvania address.
Fifth, Defendant presented no documentary evidence to support an actual, physical
residence in a state other than Pennsylvania. Sixth, the absence of a second plate
on Defendant’s vehicle rendered its operation inconsistent with Oregon
requirements. Finally, the tinting of the license plate also rendered the vehicle’s
operation inconsistent with Oregon requirements, and at least suggested the
possibility of consciousness of guilt on the part of Defendant with respect to his
use of a foreign plate.
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Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa. C.S. §1510(a).
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Or. Rev. Stat. §§803.525, 803.540(b) (2009).
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Or. Rev. Stat. §803.540(c) (2009).
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For the foregoing reasons, it is believed that the evidence was sufficient to
sustain the court’s finding of guilt of the summary offense in this case, and that the
judgment of sentence was thus properly entered.
BY THE COURT,
_________________
J. Wesley Oler, Jr., J.
Michelle H. Sibert, Esq.
Chief Deputy District Attorney
John Joseph Mangan, III, Esq.
17 West South Street
Carlisle, PA 17013
Attorney for Defendant
The Honorable Susan K. Day
Magisterial District Judge
229 Mill Street
P.O. Box 167
Mt. Holly Springs, PA 17065
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