February 24, 2014
COMMONWEALTH OF PENNSYLVANIA, Appellee
SHAVONDA TICE, Appellant
Appeal from the Judgment of Sentence Entered March 15, 2013, In the Court of Common Pleas of Philadelphia County, Criminal Division, at No. CP-51-CR-0000394-2013.
BEFORE: GANTMAN, SHOGAN and MUSMANNO, JJ.
Appellant, Shavonda Tice, appeals from the judgment of sentence imposed following a bench trial at which she was found guilty of driving under suspension-DUI related, a violation of 75 Pa.C.S.A. § 1543(b)(1). We reverse and discharge Appellant.
In its Pa.R.A.P. 1925(a) statement, the trial court set forth the following findings of fact:
1. [Appellant] refused a chemical test on June 23, 2012. (Notes of Testimony, March 15, 2012, p. 6). The Commonwealth was statutorily required to notify her at the time of her refusal that this would result in a license suspension. 75 Pa.C.S.A. § 1543(b).
2. The Commonwealth mailed notice of suspension to 5472 Baltimore Avenue, Philadelphia, P.A. 19143, on July 30, 2012. (Notes of Testimony, March 15, 2012, p. 4, 9). This is the address on file with the Commonwealth for [Appellant]; there were no typographical errors in this mailing. Id.
3. [Appellant's] suspension went into effect on September 3, 2012. Id. at 9.
4. [Appellant] was pulled over while driving a motor vehicle on September 13, 2012. She presented her license to Officer Rodriguez upon request. Id. at 5.
Trial Court Opinion, 7/3/13, at 2.
Following her conviction, Appellant was sentenced to incarceration for a term of sixty days to be served on successive weekends. This appeal followed.
Initially, we note that Appellant preserved a challenge to the sufficiency of the evidence in her Pa.R.A.P. 1925(b) statement of errors complained of on appeal. Additionally, we note that Appellant's brief includes a Table of Contents, which indicates that the Statement of Question Involved appears on page five of the brief. However, the brief does not contain either a Statement of Question Involved or a page five. Nevertheless, the Summary of Argument and Argument sections of Appellant's brief present an ample sufficiency challenge. Appellant's Brief at 7–10.
Therefore, as there is no impediment to appellate review, we shall address Appellant's sufficiency challenge. In doing so, we note that "[o]ur scope of review in a license suspension case is limited to determining whether the trial court's findings are supported by competent evidence in the record, whether the trial court committed an error of law, and whether the court's decision is a manifest abuse of discretion." Commonwealth v. Herb, 852 A.2d 356, 360 (Pa.Super. 2004). Additionally:
[t]he standard we apply in reviewing the sufficiency of evidence is whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the factfinder to find every element of the crime beyond a reasonable doubt. Commonwealth v. Heberling, 451 Pa.Super. 119, 678 A.2d 794, 795 (1996) (citing Commonwealth v. Williams, 539 Pa. 61, 650 A.2d 420 (1994)). In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. Commonwealth v. Cassidy, 447 Pa.Super. 192, 668 A.2d 1143, 1144 (1995) (citations omitted). The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence. Commonwealth v. Valette, 531 Pa. 384, 388, 613 A.2d 548, 549 (1992) (citations and quotation marks omitted).
Commonwealth v. Vetrini, 734 A.2d 404, 406–407 (Pa.Super. 1999) (underlining supplied).
Appellant was convicted of driving under suspension-DUI related. The relevant statute provides as follows:
A person who drives a motor vehicle on a highway or trafficway of this Commonwealth at a time when the person's operating privilege is suspended or revoked . . . because of a violation of section 1547(b)(1) (relating to suspension for refusal) . . . shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $500 and to undergo imprisonment for a period of not less than 60 days nor more than 90 days.
75 Pa.C.S.A. § 1543(b)(1).
At the bench trial, the Commonwealth's only witness was Officer Rodriguez. He testified that he encountered Appellant driving her vehicle "on September 13, 2012, about one o'clock in the morning" at the intersection of 63rd and Vine Streets in Philadelphia. N.T., 3/15/13, at 4–5. He observed her make a right turn without using a turn signal, and, therefore, he conducted a traffic stop. Id. at 5. When defense counsel declined to cross-examine Officer Rodriguez, the prosecutor marked as Exhibit C-1 Appellant's "certified driving record . . . showing a . . . chemical test refusal of June 23rd resulting in a suspension." Id. at 6. The prosecutor then rested.
In response, defense counsel referred the trial court to Commonwealth v. Kane, 333 A.2d 925 (Pa.Super. 1975), arguing the Commonwealth failed to present evidence that Appellant had actual notice of the suspension. N.T., 3/15/13, at 6–7. The trial court distinguished Kane, commenting that Appellant's case "was based upon refusal referring to DUI investigation." Id. at 7. The following exchange then occurred:
[Prosecutor]: As Your Honor actually indicated, this was for a refusal. This wasn't for a conviction. This wasn't for anything of that nature. When a person is placed in the position of taking a chemical test --
[Defense counsel]: Your Honor, the Commonwealth is arguing facts not submitted into the evidence.
THE COURT: Let him finish what he's saying.
[Defense counsel]: There's nothing on this record --
[Prosecutor]: -- that the statutes involving chemical testing require that the defendant be notified at the time of the consequences.
And I would submit that because this is a particular circumstance where a person would necessarily be advised prior to refusing to submit, that that was one form of notice compounded with the official notice that according to this record was mailed on July 30th of 2012, of the suspension effective September 3, 2012; as well as the fact in this record show prior offenses for not DUI related but for driving on a suspended that shows, frankly, no --
THE COURT: I would imagine he should object to that objection. [sic] Sustained.
N.T., 3/15/13, at 8–9.
It is axiomatic that we are limited to considering only those facts which have been duly certified in the record on appeal; thus, for purposes of appellate review, what is not of record does not exist. Commonwealth v. Edwards, 71 A.3d 323, 324 n.1 (Pa.Super. 2013), appeal denied, 81 A.3d 75 (Pa. 2013) (citation omitted). It is also understood that "the arguments of counsel are not evidence." Commonwealth v. Ligons, 773 A.2d 1231, 1238 (Pa. 2001) (citation omitted).
Here, upon review of "the entire record" and "all evidence actually received, " we conclude that the evidence was not sufficient to sustain Appellant's conviction of driving under suspension-DUI related. Officer Rodriguez's testimony was limited to the traffic stop. N.T., 3/15/13, at 4–5. As for Appellant's driving record, the Commonwealth marked, but did not offer Exhibit C-1 for admission; hence, the trial court did not admit it. Id. at 6. The prosecutor's remarks that Appellant's suspension was based on a DUI refusal on June 23, 2012, were not evidence. Moreover, defense counsel objected to the prosecutor's remarks because they were not based on facts in the record, and the trial court sustained the objection. Id. at 8– 9.
In sum, because no evidence of Appellant's DUI-related suspension was actually received in the record, the Commonwealth failed to establish every element of section 1543(b) beyond a reasonable doubt. Absent the admission of Exhibit C-1, the trial court's first three findings of fact are not supported by competent evidence in the record. Consequently, the trial court committed an error of law in concluding that the evidence was sufficient to sustain a conviction for driving under suspension-DUI related.
Having determined that the evidence was not sufficient to support Appellant's conviction under section 1543(b)(1), we are compelled to reverse Appellant's judgment of sentence. Moreover, as there are no other offenses for which she was convicted in this case, Appellant is ordered discharged forthwith.
Judgment of sentence reversed.