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Home My WebLink About92-1255 CriminalCOMMONWEALTH V. ALEX DELAY IN THE COURT OF COMM09 PLEAS OF CUMBERLAND COUNTY, PE NSYLVANIA 1255 CRIMINAL 1992 CHARGE: APPEAL FROM UMMARY: DRIVING UNDESUSPENSION AFFIANT: CHIEF JAMES HERMAN BEFORE_OLER. J. ORDER OF COURT AND NOW, this ��'� day of November, 1992, upon of Defendant's Post -Verdict Motion in arrest of consideration udgment, the briefs submitted thereon, and the record, Defendant's Motion is DENIED. Defendant is directed to appear for sentencing at the call of the District Attorney. BY THE COURT, � _ 1 J{IWesley Oler, r., J Kathleen Dick Leslie, Intern District Attorney's Office James M. Bach, Esq. 352 South Sporting Hill Road Mechanicsburg, PA 17055 Attorney for Defendant :rc COMMONWEALTH V. ALEX DELAY IN THE COURT OF COMMO11 PLEAS OF CUMBERLAND COUNTY, PE NSYLVANIA 1255 CRIMINAL 1992 CHARGE: APPEAL FROM UMMARY: DRIVING UNDE1 SUSPENSION AFFIANT: CHIEF JAMES HERMAN BEFORE OLER, J. OPINION AND ORDER OF COURT Oler, J. The present case arises out of an incident occurring on January 23, 1992, in the Borough of West Fairview, Cumberland County, Pennsylvania,' in which Defendant allegedly drove his Mercedes automobile while his operating privilege was under suspension, in violation of Section 1543(a) of the Vehicle Code.Z Following a trial before the Court, Defendant was fund guilty.' Defendant has filed a pro se post -verdict motio in arrest of judgment, contending that the evidence did not support the verdict.° For the reasons set forth in this Opinion, the motion must be denied. It has been noted that "[t]he effect of a motion in arrest of judgment is to admit all facts which the Commonwealth's evidence tends to prove. All of the evidence must be read in 1he light most ' Commonwealth v. Alex Delay, No. 1255 CriminaL 1992, Trial Notes of Testimony 17 (hereinafter N.T. ). 2 Act of June 17, 1976, P.L. 162, 91, as amende , 75 Pa. C.S. §1543(a) (1992 Supp.). 1992. 3 N.T. 47. The trial before the Court was held lon August 11, 4 Defendant's Motion in Arrest of Judgement, a4 2. 1255 Criminal 1992 favorable to the Commonwealth, which is entitled to 1 reasonable inferences arising therefrom." Commonwealth v. Rawles, 501 Pa. 514, 520, 462 A.2d 619, 622 (1983). To grant a motion in arrest of judgment, the Court must find that "such evide ce and such inferences would ... be insufficient as a matter of 1 w to find the defendant guilty of the crime charged beyond a reascinable doubt." Commonwealth v. Bagley, 296 Pa. Super. 43, 47, 442 A.2d 287, 289 (1982). Viewed in the light most favorable to the Commonwealth, the facts of this case may be briefly stated. On January 22, 1992, Chief James Herman of the West Fairview Borough Police Department learned from Pennsylvania State Trooper Charles Reed that Defendant's operating privilege was under suspension.5 The trooper testified as follows: ... I informed Chief Herman person lly that even though the individual may possess what appears to be a valid ... operat 's license, that he was currently suspended under operator's license No. 18430071, and he ha license in his possession at that time wit a different number.' In addition to verbally informing Chief Herman of the status of Defendant's driving privileges, Trooper Reed also provided the Chief with a computer print-out from the Pennsylvania epartment of Transportation indicating that Defendant's operating rivilege was 5 N. T. 17. 6 N.T. 6. 2 1255 Criminal 1992 suspended.' On January 23, 1992, Chief Herman observed Defendant driving toward his place of business on Pennsylvania Avenue in the Borough of'West Fairview.' However, before the Chief could stop Defendant, the latter had already entered his business premises.' Consequently, Chief Herman approached Defendant while he was in his business in order to investigate Defendant's alleged driving violation." The Chief asked the Defendant for his driver's license, registration and proof of insurance." Chief Herman testified as follows: I ran the license he gave me through PennDot. It came back valid. After the dispatcher gave me the valid information he also stated Mr. Delay had another license number which was 18430071 and that license was, in fact, under suspension. They Also told me at that time that the license that Mr. Delay had in his possession was Alex D pe iod L -a -y, Not D -e -1 -a -y." Based on this information, indicating that the Defeidan ' N.T. 17, 20-21. e N.T. 17, 22. 9 N.T. 21-22. 10 N.T. 21-22. 11 N.T. 17. 12 N.T. 18-19. 3 t had 1255 Criminal 1992 obtained a second driver's license under a diff t name, 13 as well as the computer print-out received from Trooper Reed, Chief Herman filed a citation against Defendant on Januar 28, 1992, for driving under suspension." On February 3, 1992, Chief Herman recei certified driving record from the Pennsylvania Transportation." This record confirmed the inform to Chief Herman by Trooper Reed: Defendant's opera was under suspension on January 23, 1992.16 On August 11, 1992, after a trial in this Court found guilty of operating a motor vehicle while Defendant's nt of tion conveyed ng privilege Defendant was his operating 13 Under the "remarks" section of the citation Chief Herman opines that "Def went to PennDot obtained false lice se under Alex D. Lay 22-230-399, was operating under that license.' Defendant's testimony as to the second license was somewhat confusing: Q ... Mr. Delay, did you apply for two licenses with PennDot, one under the narte D period L -a -y and one under the name D -e-1- -y? A Back in 174, I applied for a license, And when I was unable to have my license f bund when I returned from Germany, I applied for a license as well. Q What were the name on the two licenses you applied for? A Alexander Delay and Alexander D period Lay. Q So D period Lay and D -e -1 -a -y? A I'm not sure. I don't have the recordi. N.T. 41-42. 14 N.T. 19, 23. 15 N.T. 19, 23; see Commonwealth's Exhibit 1, T.T. 9, 27. 16 N.T. 19. 4 1255 Criminal 1992 privilege was under suspension." Subsequently, the present post -verdict motion seeking an arres based on lack of evidentiary support for the ve regard, the motion contains the following specifics fendant filed of judgment, t. In this (a) The officer issuing the ticket had approached the Defendant after a communica ion with the State Police, not at the time the Defendant was operating his vehicle. (b) The officer testified that he had no written proof of Defendant's suspensior of driving privilege. Still, he had vis ted Defendant's office which is his place of business upon assumption and by hearsay investigated whether Defendant had driven the vehicle under suspension. (c) Since the officer did not have pr per knowledge, he should have not vis ted Defendant's place of business. Consequen ly, he should not have issued the ticket. (d) The officer had contradictory testimony as to the time and place and sequences of events. He had incorrectly issued the ticket." In response to Defendant's motion, the Court i�sued an order on August 24, 1992, directing the submission of the Defendant's and Commonwealth's briefs by September 4 and Septem4er 10, 1992, respectively. The Commonwealth's brief was filed onitime, but the Defendant's brief was not submitted until a month 17 N.T. 47. 18 Defendant's Post -Verdict Motion, at 1-2. 5 a half beyond 1255 Criminal 1992 the deadline.19 On the merits, the Defendant's motion in arre4t of judgment based on insufficiency of the evidence is not compel Ling. Section 1543(a) of the Vehicle Code provides that "[a]ny per on who drives a motor vehicle on any highway or trafficway of thi Commonwealth after the commencement of a suspension, revocation o cancellation of the operating privilege and before the operating privilege has been restored is guilty of a summary offense .... "20 Chief Herman observed Defendant driving hi3 vehicle on Pennsylvania Avenue, in the Borough of West Fairview, on January 23, 1992. Knowing that Defendant's driving privilege was under suspension at that time, the Chief filed a citation on January 28, 1992. Subsequently, on February 3, 1992, he obtai ed additional confirmation of the suspension in the form of a cer ified driving record, which constituted a Commonwealth exhibit a trial. This evidence was more than sufficient to support the conclusion that the Defendant drove his vehicle on a highway in the Commonwealth when his operating privilege was suspended." 19 Cf. C.C.C.P. No. 210-7 (issues not briefed deemed waived). As noted previously, Defendant's post -verdict motion was filed pro se, and nothing herein is intended to attribute the lack of timeliness to Defendant's present counsel. 20 Act of June 17, 1976, P.L. 162, §1, as amendE §1543(a) (1992 Supp.). 21 Specific allegations contained in Defendant' motion (a) that the officer "approached the Defe communication with the State Police," (b) that M , 75 Pa. C.S. post -verdict dant after a the officer 1255 Criminal 1992 For this reason, the following Order will be ORDER OF COURT AND NOW, this 46t- day of November, 1992, ntered: consideration of Defendant's Post -Verdict Motion in arrest of 1judgment, the briefs submitted thereon, and the record, Defe DENIED. Defendant is directed to appear for sentenci of the District Attorney. BY THE COURT, J. Wesley Oler, Jr., Kathleen Dick Leslie, Intern District Attorney's Office James M. Bach, Esq. 352 South Sporting Hill Road Mechanicsburg, PA 17055 Attorney for Defendant :rc investigated the Defendant "upon assumption and by that the officer "did not have proper knowledge" ar have visited Defendant's place of business" and "[c]o: should not have issued the ticket," and (d) that the contradictory testimony as to the time and place anc events," do not warrant a conclusion that the evi support the verdict. 7 is Motion is at the call T. hearsay," (c) d "should not sequently ... officer "had sequences of ence did not