Com. v. Merwine, B.

C
J-S04040-21


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    BRADLEY L. MERWINE                         :
                                               :
                       Appellant               :   No. 1085 MDA 2020

          Appeal from the Judgment of Sentence Entered July 27, 2020
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                        No(s): CP-54-CR-0002114-2019

BEFORE: OLSON, J., STABILE, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.:                             FILED MARCH 12, 2021

        Bradley L. Merwine (“Merwine”) appeals from the judgment of sentence

entered following his convictions of driving while operating privilege is

suspended or revoked, registration and certificate of title required, and

unauthorized transfer or use of registration.1

        On the morning of May 4, 2019, Michael Ernst (“Ernst”) arrived at a

property he owned in Barry Township, Schuylkill County. Though he lived in

Reading, Berks County, Ernst and his fiancée spent their weekends improving

the Schuylkill County property.         The property was protected with motion-

activated surveillance cameras, the footage of which Ernst would review upon

arriving at the Schuylkill County property.




____________________________________________


1   75 Pa.C.S.A. §§ 1543(a), 1301(a), 1372(1), (3).
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      Upon reviewing the footage, Ernst observed that the cameras had taken

several still photos the morning before they arrived. The photos included a

black Jeep, entering Ernst’s driveway from the roadway in front of Ernst’s

property. The photos also depicted an individual, later identified as Merwine,

standing near the Jeep in Ernst’s driveway, with the driver’s door of the Jeep

open. No other individual appeared in the photos taken by Ernst’s camera.

Ernst proceeded to take an inventory and discovered that items had been

stolen from the property, including car parts, tractor batteries, and power

tools. Ernst called police. Upon arriving at the property, Pennsylvania State

Trooper Matthew Hoke (“Trooper Hoke”) reviewed the photos taken by Ernst’s

surveillance camera, and was able to identify the license plate number on the

Jeep. Trooper Hoke ran the license plate number, which revealed that the

license plate was registered to a Ford pickup truck, not a Jeep.

      Later that day, Trooper Hoke received a dispatch that the Jeep was

located in Barry Township.    Upon arriving at that location, Trooper Hoke

observed that the Jeep still bore the same license plate as the one shown on

Ernst’s property. Trooper Hoke ran the Vehicle Identification Number (“VIN”)

for the Jeep, which identified Merwine as the Jeep’s owner. Trooper Hoke

further reviewed Merwine’s driver’s license photograph. Upon reviewing the

photograph, Trooper Hoke recognized Merwine as the same person depicted

in Ernst’s security camera photographs. Trooper Hoke further discovered that




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Merwine’s driver’s license was suspended as a result of several previous

convictions for driving with a suspended license.

       Merwine subsequently was charged with the above-referenced offenses,

plus one additional count each of theft by unlawful taking and receiving stolen

property. On July 27, 2020, Merwine proceeded to a jury trial on the two theft

offenses, and a bench trial on the summary vehicle offenses. The jury found

Merwine not guilty of the two theft offenses. However, the trial court found

Merwine guilty of the summary vehicle offenses. The trial court sentenced

Merwine to serve 30 to 90 days in prison for his conviction of driving while

operating privilege is suspended, plus fines for the remaining convictions.

       Merwine did not file a post-sentence Motion.    Merwine filed a pro se

timely Notice of Appeal, and a counseled court-ordered Pa.R.A.P. 1925(b)

Concise Statement of matters complained of on appeal.2

       Merwine raises the following issue for our review:


____________________________________________


2 Merwine’s pro se Notice of Appeal did not specify which order from which he
sought to appeal, or whether his court-appointed counsel had been granted
leave to withdraw from representation. On October 7, 2020, this Court issued
an Order remanding for the trial court to conduct a hearing pursuant to
Commonwealth v. Grazier, 

713 A.2d 81

(Pa. 1998), to determine whether
Merwine sought to waive his right to counsel. During the Grazier hearing,
Merwine indicated that wished to be represented by counsel, and trial counsel
continued to represent Merwine on appeal. This Court subsequently issued a
November 12, 2020, Rule to Show Cause as to whether Merwine’s appeal
should be quashed pursuant to Pa.R.A.P. 301(a)(1). On the same day,
Merwine filed a counseled Response, indicating that his timely Notice of Appeal
was taken from the July 27, 2020, judgment of sentence. On November 25,
2020, this Court discharged the show-cause Order and referred the issue to
the merits panel. Accordingly, we decline to quash Merwine’s appeal.

                                           -3-
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       Did the trial court err in determining th[at Merwine] was guilty of
       four summary offenses on July 27, 2020[,] when there was
       insufficient evidence that would have identified [Merwine] as the
       person driving the vehicle based merely upon video still
       shots/photographs[,] and the jury found him not guilty of the
       felony theft offenses where the vehicle purportedly went to and
       from the subject real property?

Brief for Appellant at 3 (some capitalization omitted).

       Merwine argues that the evidence was insufficient to support his

convictions, because the Commonwealth did not establish Merwine’s identity

as the person driving the Jeep.

Id. at 8-12.

Merwine points to Trooper Hoke’s

testimony that he did not personally observe Merwine driving the Jeep at any

point, but rather, that he identified Merwine from the surveillance photos and

Merwine’s driver’s license photo.

Id. at 9-10.

Merwine also asserts that the

jury’s not guilty verdicts for the theft offenses is inconsistent with the trial

court’s guilty verdicts on the summary driving offenses, as the jury’s verdict

indicates a finding that he was not on Ernst’s property.

Id. at 10.

Merwine

further claims that his convictions under section 1372 were not supported by

sufficient evidence, as the Commonwealth failed to demonstrate that

“someone else’s actual vehicle registration was used on [Merwine]’s vehicle.”

Id. at 11-12.

Finally, regarding his conviction under section 1301, Merwine

asserts that the Commonwealth failed to prove that Merwine knew that the

Jeep   was   improperly    registered,    citing   to   this   Court’s   decision   in




                                         -4-
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Commonwealth v. Karl, 

490 A.2d 887

(Pa. Super. 1985).3                    Brief for

Appellant at 8, 11-12.

              The standard we apply in reviewing the sufficiency of the
       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 fact-finder to find every element of the
       crime beyond a reasonable doubt. In applying [the above] test,
       we may not weigh the evidence and substitute our judgment for
       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. 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. Smith, 

97 A.3d 782

, 790 (Pa. Super. 2014) (citation

omitted).

       In order to establish a violation of driving while operating privilege is

suspended or revoked, section 1543(a) of the Motor Vehicle Code provides



____________________________________________


3 In Karl, this Court concluded that the defendant did not “knowingly” operate
a vehicle without proper registration, as the defendant’s girlfriend, the
vehicle’s owner, testified at trial that she did not inform the defendant that
the vehicle’s registration had lapsed because they did not intend to drive the
vehicle on the day in question. 

Karl, 490 A.2d at 891

. Accordingly, this Court
determined that there was insufficient evidence to support the defendant’s
conviction under section 1301, as there was “no evidence of scienter as to the
non-registration of the vehicle he was seen driving.”

Id. (emphasis omitted). -5-

J-S04040-21


that, “any person who drives a motor vehicle on any highway or trafficway of

this Commonwealth after the commencement of a suspension, revocation or

cancellation of the operating privilege and before the operating privilege has

been restored is guilty of a summary offense[.]”           75 Pa.C.S.A. § 1543(a).

Additionally, the Commonwealth must demonstrate that the defendant had

actual notice that his license was suspended or revoked. Commonwealth v.

Baer, 

682 A.2d 802

, 805 (Pa. Super. 1996); see also Commonwealth v.

Kane, 

333 A.2d 925

, 927 (Pa. 1975) (stating that it is necessary for the

Commonwealth to prove that the accused had actual notice of suspension in

order    to   sustain   a   conviction   of   driving   while   under   suspension);

Commonwealth v. McDonough, 

621 A.2d 569

, 572 (Pa. 1993) (explaining

that the Kane Court’s holding applies to the current statute, 75 Pa.C.S.A.

§ 1543).

        Section 1301 of the Motor Vehicle Code states that “no 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….” 75 Pa.C.S.A. § 1301(a).

        Pursuant to section 1372 of the Motor Vehicle Code, a person is guilty

of the offense of unauthorized transfer or use of registration if he:

        (1) allow[s] a registration card or plate or permit to be used by
        any person not authorized to use it or on any vehicle other than
        the vehicle for which it was issued; [or]

                                    ***



                                         -6-
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      (3) display[s] a registration card or plate in, on or in connection
      with any vehicle other than the vehicle for which it was issued.

75 Pa.C.S.A. § 1372(1), (3).

      Here, the Commonwealth presented evidence, in the form of Merwine’s

certified driver’s history, that Merwine’s license was suspended at the time of

the incident.   See Commonwealth’s Exhibit 14 (Certified Driving Record);

N.T., 7/27/20, at 115-18 (wherein Trooper Hoke testified that his investigation

revealed that Merwine’s license was suspended, and Exhibit 14 was admitted

into evidence at trial).       The Commonwealth also presented several

photographs, taken by Ernst’s surveillance camera and reviewed by Trooper

Hoke during his investigation, depicting Merwine’s black Jeep pulling off of a

public road and into Ernst’s driveway. See Commonwealth’s Exhibits 7-13

(surveillance photographs); N.T., 7/27/20, at 53-55 (wherein Ernst describes

the contents of the photographs taken by his camera);

id. at 79

(wherein

Exhibits 7-13 were admitted into evidence at trial).      The Commonwealth

presented another series of photographs depicting the Jeep parked in Ernst’s

driveway, with an individual standing next to the open driver’s door of the

Jeep, with no other individual in the vicinity. See Commonwealth’s Exhibits

2-4; N.T., 7/27/20, at 47 (wherein Ernst describes the contents of the

photographs);

id. at 79

(wherein Exhibits 2-4 were admitted into evidence at

trial). The Commonwealth also presented a photograph that showed a clear

view of Merwine as the driver of the Jeep. See Commonwealth’s Exhibit 6;

N.T., 7/27/20, at 48-49 (wherein Ernst describes the contents of the

                                     -7-
J-S04040-21


photograph);

id. at 79

(wherein Exhibit 6 was admitted into evidence at trial).

In light of this evidence, the trial court, sitting as the fact-finder, found that

the individual in the photographs was, indeed, Merwine, and that he had been

the individual driving the Jeep.       See Trial Court Opinion, 12/3/20, at 3

(wherein the trial court stated that “[t]he [trial c]ourt also observed that

[Merwine] was the man seen in the surveillance photos.”). Accordingly, the

Commonwealth presented sufficient evidence to prove that Merwine was the

individual driving the Jeep, and that he was driving with a suspended license.

See 

Smith, supra

; see also 75 Pa.C.S.A. § 1543(a).

      Further, regarding Merwine’s argument that the Commonwealth failed

to present sufficient evidence that Merwine knew that the vehicle was not

registered, Trooper Hoke testified that when he ran a search of the Jeep’s VIN,

the search reflected that Merwine was listed as the owner of the Jeep. N.T.,

7/27/20, at 85-86.      Trooper Hoke also testified that the Jeep was not

registered.

Id. at 123.

Merwine, as the legal owner of the Jeep, was certainly

aware of his legal requirement to register his vehicle.          Cf. 

Karl, supra

.

Accordingly,   we   conclude   that,   in   the   light   most   favorable   to   the

Commonwealth as the verdict winner, sufficient evidence existed to

demonstrate that Merwine knowingly drove his Jeep on a highway while it was

not registered. 

Smith, supra

; see also 75 Pa.C.S.A. § 1301(a).

      Moreover, the Commonwealth presented evidence concerning Merwine’s

knowledge of the vehicle’s improper registration. As to section 1372(1), the


                                       -8-
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Commonwealth presented evidence that the Jeep, which was owned by

Merwine, was affixed with a license plate registered to a different vehicle;

Trooper Hoke observed the Jeep parked outside of Merwine’s residence; and

Ernst’s surveillance photos showed the Jeep, displaying the incorrect license

plate, at Ernst’s property. See N.T., 7/27/20, at 84-85, 120. As to subsection

(3), the photographs taken by Ernst’s cameras, and Trooper Hoke’s

observations of the Jeep at Merwine’s residence, established that Merwine’s

vehicle displayed a license plate on a vehicle other than the vehicle for which

it was issued.

Id. As a result

of the foregoing, the Commonwealth presented

sufficient evidence to prove that Merwine allowed a license plate to be used

on a vehicle other than the one for which it was issued, and that he displayed

such a plate on a vehicle other than the one for which it was issued. See

Smith, supra

; see also 75 Pa.C.S.A. § 1372(1), (3).

      Thus, the evidence, viewed in the light most favorable to the

Commonwealth as the verdict winner, was sufficient to support Merwine’s

convictions. Further, we note that despite any apparent inconsistencies, we

permit inconsistent verdicts “in a variety of contexts.” Commonwealth v.

Moore, 

103 A.3d 1240

, 1246 (Pa. 2014); see also

id. at 1249

(stating that

“juries may issue inconsistent verdicts and [] reviewing courts may not draw

factual inferences in relation to the evidence from a jury’s decision to acquit a

defendant of a certain offense.”). Accordingly, we can grant Merwine no relief

on his claim. See 

Smith, supra

.


                                      -9-
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     Judgment of sentence affirmed.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/12/2021




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