HomeMy WebLinkAbout94-0889 Criminal COMMONWEALTH OF PENNSYLVANIA, : IN THE COURT OF COMMON PLEAS OF
: CUMBERLAND COUNTY, PENNSYLVANIA
:
v. : 94-0889 CRIMINAL TERM
MARK ALAN DAVIS, :
Defendant : APPEAL FROM SUMMARY
IN RE: OPINION PURSUANT TO PA. R.A.P. 1925
Oler, J., September 16, 1994.
In the present Vehicle Code case, Defendant appealed to this
Court from a summary conviction by a district justice for driving
under suspension (DUI-related) in violation of Section 1543(b) of
the Code.~ A trial de novo was held before the writer of this
Opinion on July 12, 1994, at the conclusion of which Defendant was
again found guilty of driving under suspension (DUi-related).2 He
was sentenced to pay a fine of $1,000.00 and to undergo
imprisonment in the Cumberland County Prison for a period of ninety
days.3 The sentence imposed was the mandatory sentence provided
for by statute.4
On August 4, 1994, Defendant filed a notice of appeal to the
~ Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa
C.S.A. 1543(b) (1994 Supp.). ·
2 Order of Court, In re Defendant Found Guilty and
Sentencing, July 12, 1994.
~ Id. Costs of prosecution, a CAT fund assessment of $30, and
an Emergency Medical Services Fund assessment of $10 were also
imposed.
4 Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa
C.S.A. 1543(b) (1994 Supp.). ·
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Superior Court from the judgment of sentence. Because of the
appeal, this Court continued his release on his own recognizance.5
Pursuant to an Order on August 8, 1994,~ Defendant filed a
statement of the matters complained of on appeal. In pertinent
part, the statement sets forth the basis of the appeal as follows:
The trial evidence read in a light most
favorable to the Commonwealth, was
insufficient to convict to [sic] the Defendant
of Driving Under Suspension (Driving Under the
Influence Related) as the suspension that the
Defendant was serving at the time of the
citation was not Driving Under the Influence
related.
The gravamen of the appeal is that Defendant was not in violation
of Section 1543(b) of the Vehicle Code, and thus subject to the
mandatory sentence provided for therein,7 because the suspension
that the Defendant was serving at the time of his offense was
imposed under Section 1542 of the Vehicle Code (habitual offender
revocation), as opposed to a more distinctly DUI-related
provision.
This Opinion in support of the judgment of sentence is written
pursuant to Pennsylvania Rule of Appellate Procedure 1925.
5 Order of Court, July 29, 1994.
See Pa. R.A.P. 1925.
Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa.
C.S.A. ~1543(b) (1994 Supp.).
Act of June 17, 1976, P.L. 162, Sl, 75 Pa. C.S.A. S1542.
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Statement of Facts
Evidence adduced at trial tended to establish the following
facts: At approximately 9:18 a.m. on Thursday, February 17, 1994,
Officer Andrew David Parsons of the Upper Allen Township Police
Department, while on routine patrol, observed a white Chevrolet
sedan traveling eastbound on Route 114 in Upper Allen Township in
Cumberland County. Officer Parsons, traveling in the opposite
direction from the vehicle, observed that the left headlight of the
vehicle was hanging down toward the fender of the car, with the
wires exposed. Officer Parsons identified this condition as an
equipment violation under the Vehicle Code.9 He turned his car
around, followed the vehicle, and eventually stopped it on Route 15
South in the area of Mill Road.
Officer Parsons approached the vehicle, which Defendant was
driving, and told Defendant why he had been stopped. Defendant
understood that he was stopped because of the condition of his
headlight. According to Officer Parson's testimony, during the
course of the conversation "Defendant stated that he did not have
a license and that his license was under suspension for DUI
9 67 Pa. Code S175.66(g) (1989) (headlamps to be properly
fastened); 67 Pa. Code S175.80 (xii)(A)(I), (II) (1989) (headlamps
to be properly aimed).
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purposes."~° The officer also testified that Cumberland County
Control advised him that "Defendant's license was under suspension
for DUI purposes or DUI related.-~
With regard to the equipment violation, Officer Parsons issued
Defendant a "five-day card.,,~2 Defendant was then permitted to
leave the scene.
Subsequently, on March 4, 1994, Officer Parsons filed a
citation against Defendant for violation of Section 1543(b) of the
Vehicle Code,~3 having received a certified copy of Defendant's
driving record.TM The driving record disclosed that within less
than a two-year period, (February, 1988-December, 1989) Defendant
had three previous offenses (all DUI-related) for purposes of the
~0 N.T. 5, Trial, Commonwealth v. Davis, No. 0889 Criminal
1994 (July 12, 1994) (hereinafter N.T. __).
~ N.T. 6.
~ Id. According to Officer Parsons, a five-day card explains
why the driver has been stopped and what the driver must have
repaired within five days. The five-day card also requires that
the driver supply the police department with proof that the repair
was done in the time given. Id.
~3 Act of June 17, 1976, P.L. 162, §1, as amended, 75 Pa.
C.S.A. S1543(b) (1994 Supp.).
~4 N.T. 6-7. "Prior to filing a citation for a violation of
this section with the issuing authority named in the citation, the
police officer shall verify the basis for the suspension with the
[D]epartment [of Transportation]. Upon receiving the verification,
the officer shall cite the appropriate subsection of this section
on the citation." Act of June 17, 1976, P.L. 162, Sl, as amended,
75 Pa. C.S.A. ~1543(d) (1994 Supp.).
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habitual offender statute.~5
Specifically, on February 1, 1988, Defendant committed an
alleged violation of Section 3731 of the Vehicle Code (driving
under the influence), and as a result of that incident Defendant
was admitted to ARD and received a license suspension for a period
of six months (July 29, 1988-February 1, 1989). On November 21,
1989, Defendant incurred a second alleged violation of Section 3731
of the Vehicle Code and as a result of a conviction for that
violation Defendant had his license suspended for a period of one
year (July 10, 1990-July 10, 1991). On December 13, 1989,
Defendant committed a third alleged violation of Section 3731 of
the Vehicle Code and as a result of a conviction for that offense
Defendant was classified as a habitual offender pursuant to Section
1542 of the Vehicle Code.~6 This section provides for revocation
of a habitual offender's license for a period of five years (July
10, 1991-July 10, 1996, in Defendant's case). The revocation
imposed by the Department of Transportation was apparently in lieu
of and not in addition to any further suspension for the DUI
~5 Act of June 17, 1976, P.L. 162, Sl, as amended, 75 Pa.
C.S.A. S1542.
~6 Commonwealth's Exhibit 1, Trial, Commonwealth v. Davis, No.
0889 Criminal 1994 (July 12, 1994) (hereinafter Commonwealth's
Exhibit ~); Act of June 17, 1976, P.L. 162, Sl, 75 Pa C.S A.
§1542. ' ·
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conviction.~7
Statement of Law
Standard for evaluation of sufficiency of evidence-:. "Where
the sufficiency of the evidence ... is challenged, the court ...
must apply a two part test. First, the evidence must be viewed in
the light most favorable to the Commonwealth .... Second, it must
be determined whether that evidence, with all reasonable inferences
from it, was sufficient to prove guilt beyond a reasonable doubt."
27 Standard Pennsylvania Practice 2d §135:201, at 284 (1985).
Offense under Vehicle Code. Section 1543(b) of the Vehicle
Code provides,, in pertinent part, as follows:
Certain offenses. - Any person who drives a
motor vehicle on any highway or trafficway in
this Commonwealth at a time when their
operating privilege is suspended or revoked
· .. because of a violation of . [section]
3731 [driving under influence ~ alcohol]
shall, upon conviction, be guilty of a summary
offense and shall be sentenced to pay a fine
of $1,000 and to undergo imprisonment for a
period of not less than 90 days.~8
Revocation or suspension of operatinq privilege under Vehicle
~7 Commonwealth,s Exhibit 1. An additional period of
suspension was imposable under Section 1532(b)(3) of the Vehicle
Code. Act of June 17, 1976, P.L. 162, 1, as amended, 75 Pa. C.S.A.
§1532(b)(3) (1994 Supp.).
It is noted that sentencing for both of Defendant's DUI
convictions had occurred on the same day. It is possible that the
generosity of the Department in not imposing an additional period
of suspension on the second conviction was inadvertent.
~8 Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa.
C.S.A. ~1543(b) (1994 Supp.).
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Code. Section 1542 of the Vehicle Code provides, in pertinent
part, as follows:
(a) General rule.- The department shall revoke
the operating privilege of any person found to
be a habitual offender pursuant to the
provisions of this section. A "habitual
offender" shall be any person whose driving
record, as maintained in the department, shows
that such person had accumulated the requisite
number of convictions for the separate and
distinct offenses described and enumerated in
subsection (b) committed after the effective
date of this title and within any period of
five years thereafter.
(b) Offenses enumerated.-Three convictions
arising from separate acts of any one or more
of the following offenses [ and committed
within a period of five years] shall result in
such person being designated as a habitual
offender:
(1) Any offense set forth in section
1532 ( relating to revocation or
suspension of operating
privilege ) ....
(c) Accelerative Rehabilitative Disposition
as an offense.- Acceptance of Accelerative
Rehabilitative Disposition for any offense
enumerated in subsection (b) shall be
considered an offense for the purposes of this
section.
(d) Period of revocation.- The operating
privilege of any person found to be a habitual
offender under the provisions of this section
shall be revoked by the department for a
period of five years.~9
Section 1532 of the Vehicle Code provides, in pertinent part,
Act of June 17, 1976, P.L. 162, Sl, 75 Pa. C.S.A. S1542.
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as follows:
The department shall suspend the operating
privilege of any driver for 12 months upon
receiving a certified record of the driver's
conviction of section 3731 (relating to
driving under influence of alcohol or
controlled substance .... 20
"This is a mandatory suspension and it is to become effective on a
date set by the Department of Transportation as authorized by 75
Pa. C.S.A. ~1540(b) .... ..2~ Commonwealth v. Ryan, 383 Pa. Super.
370, 372, 556 A.2d 1377, 1378 (1989). Section 1540(b) of the
Vehicle Code provides the following: "The suspension ... shall be
effective upon a date determined by the department or the date of
surrender of the license to the department if that date is
subsequent to the department's notice to surrender the license,
whichever occurs first.',22
Furthermore, when two convictions on charges of driving while
intoxicated are obtained simultaneously, the Department of
Transportation should "impose add-on and consecutive periods of
suspension or revocation, and they cannot be imposed concurrently."
Schultz v. Commonwealth, Dep't of Transp., 111 Pa. Commw. 456, 458,
533 A.2d 1154, 1155 (1987).
20 Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa.
C.S.A. §1532(b)(3) (1994 Supp.).
2~ Act of June 17, 1976, P.L. 162, ~1, as amended, 75 Pa.
C.S.A. ~1540(b) (1994 Supp.).
22 Id.
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Statutory construction. Several rules of statutory
construction are of assistance herein. "[T]he object of all
interpretation and construction of statutes is to ascertain and
effectuate the intention of the General Assembly.-23 "When the
words of a statute are not explicit, the intention of the General
Assembly may be ascertained by considering, among other matters:
(3) the mischief to be remedied; (4) the object to be obtained.24
"In ascertaining the intention of the General Assembly in the
enactment of a statute, the following presumptions ... may be used:
(1) that the General Assembly does not intend a result that is
absurd ... or unreasonable.-~5
Furthermore, with regard to the interpretation of words and
phrases of statutes, "[w]ords and phrases shall be construed
according to ... their common and approved usage.-2~
Principle that greater power includes lesser power. It is a
well established principle of law "that the greater power includes
the lesser." Commonwealth, Dep't. of Highways v. Pa. Pub. Util.
Comm'n, 198 Pa. Super. 87, 98, 182 A.2d 267, 272 (1962); see
23 Act of December 6, 1972, P.L. 1339, S3, 1 Pa. C.S.A.
§1921(a) (1994 Supp.).
24 Act of December 6, 1972, P.L. 1339, ~3, 1 Pa. C.S.A.
§1921(c)(3), (4) (1994 Supp.).
25 Act of December 6, 1972, P.L. 1339, ~3, 1 Pa. C.S.A.
§1922(1) (1994 Supp.).
26 Act of December 6, 1972, P.L. 1339, S3, 1 Pa. C.S.A.
§1903(a) (1994 Supp.).
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Commonwealth v. Wilsbach Distributors, 513 Pa. 215, 519 A.2d 397
(1986); Commonwealth v. One Dodge Motor Truck, 326 Pa. 120, 191A.
590 (1937); Gordon v. Norton, 186 Pa. 168, 40 A. 312 (1989).
Judicial Precedent. Several cases are helpful to an analysis
of when a habitual offender who is driving under suspension may be
considered to be driving under suspension (DUI-related) for
purposes of Section 1543(b) of the Vehicle Code. In one such case,
Commonwealth v. Taylor, 390 Pa. Super. 571, 568 A.2d 1320 (1990),
the Pennsylvania Superior Court reversed a conviction under Section
1543(b) where the defendant was driving while under a habitual
offender revocation, where the revocation had resulted from
offenses under Sections 1501(a) (drivers required to be licensed),
3733 (fleeing or attempting to elude police officer), and 3731
(driving under the influence) of the Vehicle Code, where the latter
offense resulted in an ARD disposition, and where the ARD license
suspension had expired at the time of driving.27
In Taylor, the Court stressed the importance of a careful
reading of the terms used in Section 1543(b) so as not to impart a
meaning not fairly conveyed by the language. Id. at 575, 568 A.2d
at 1321 (equation of habitual offender revocation resulting from
ARD entry with suspension "as a condition of" such entry held
~ Cf. Commonwealth v. Rosenberger, 426 Pa. Super. 37, 626
A.2d 181 (1993) [conviction under Section 1543(b) reversed where
DUI-related suspension had expired but defendant's right to seek
license remained suspended due to subsequent non-DUI-related
suspensions].
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error).
On the other hand, in Commonwealth v. Nuno, 385 Pa. Super. 6,
559 A.2d 949 (1989), the Superior Court affirmed a conviction under
Section 1543(b) where the defendant was driving while under a
habitual offender revocation, resulting from offenses unrelated to
driving under the influence, and where a suspension arising out of
a driving under the influence conviction was scheduled to take
effect after the revocation period. In rejecting defendant's
argument that he was not technically under suspension, dui-related,
while driving during the habitual offender revocation, the Court
observed that
[defendant] has put together an unbroken
string of operating privilege suspensions and
revocations which began in 1981 and will last
well into the next decade. He has shown total
disregard for the regulations of the
Department of Motor Vehicles as well as the
laws of the Commonwealth. For eight years he
has been stripped of his operating privilege
yet he continues to use the roads of the
Commonwealth, oblivious to his ever increasing
list of suspensions and revocations. We will
not reward such behavior by adopting
[defendant's] argument today.
Id. at 8-9, 559 A.2d at 950. Emphasis was placed, in Nuno, on the
fact that the defendant was well aware of the pendency of a dui-
related suspension. Id. at 8-9, 559 A.2d at 950. In addition, it
was pointed out that a contrary conclusion would have resulted in
the defendant's being allowed "to escape punishment for driving
while suspended, D.U.I. related, simply because he had incurred
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prior suspensions and revocations .... '. Id. at 9, 559 A.2d at 950-
51. A similar conclusion to that of Nuno was reached in
Commonwealth v. Yetsick, 402 Pa. Super. 615, 587 A.2d 788 (1991)
(case remanded on other grounds).
Application of Law to Facts
In the present case, several factors militate in favor of the
Commonwealth's position that Defendant was properly found guilty
of, and sentenced for, driving under suspension (DUI-related), in
violation of Section 1543(b) of the Vehicle Code. These factors
involve (a) an interpretation of the statutory provision on the
basis of common and approved usage, (b) utilization of other
principles of statutory construction respecting avoidance of
unreasonable results and consideration of legislative objectives,
(c) the implication of the authority vested in the Department of
Transportation in this area, and (d) Defendant's acknowledged
awareness of the nature of his suspension.
First, under Section 1543(b) a suspension imposed "because of
a violation of Section 3731 [of the Vehicle Code]" is a dui-related
suspension for present purposes. In common and approved usage, the
term "because of" is synonymous with "on account of.-28 Where, as
in this case, the only license consequence arising out of a
driver's third driving-under-the-influence offense was a habitual
offender revocation, it would seem that the revocation was in fact
28 Webster's Third New International Dictionary 194 (1961).
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"on account of" - "because of" - a violation of Section 3731 of the
Vehicle Code, and properly considered within the category of
d.u.i.-related suspensions.
Second, a contrary conclusion would have the effect in this
case of classifying a revocation based upon three separate offenses
of driving under the influence as non-dui-related, and would permit
Defendant's unauthorized operation of his vehicle for many months
in the future without the deterrence of the mandatory penalties
provided for in Section 1543(b). Such a result is neither
reasonable, nor compatible with the objectives of the legislation.
Third, an imposition by the Department of Transportation of an
additional period of suspension at the conclusion of the period of
Defendant's habitual offender status clearly would have resulted in
treatment of this revocation period as DUI-related. Thus, the
Department had the power to effect a six-year period of DUI-related
revocation/suspension in Defendant's case.29 Such a power implies
the existence of a lesser power to effect a five-year DUI-related
period, as is herein found to have occurred.
Finally, Defendant himself understood the nature of the
revocation which had been imposed as a result of his three prior
driving-under-the-influence incidents. This understanding tends to
support both the interpretation given the statute herein on the
basis of common usage, and the proposition that the serious
29 I.e., five years' revocation plus one year's suspension.
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consequences of Defendant's decision to drive on this occasion were
a matter of prior knowledge.
For the reasons stated above, and under the unique
circumstances of this case, it is believed that the Court's verdict
of guilty was permissibly returned and that the judgment of
sentence was properly entered.
Thomas A. Placey, Esq.
Assistant District Attorney
James K. Jones, Esq.
Attorney for Defendant
:rc
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