J-S42021-17

2017 PA Super 347

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

SCOTTY JOE SALES

Appellant No. 2057 MDA 2016

Appeal from the Judgment of Sentence November 18, 2016

In the Court of Common Pleas of Fulton County

Criminal Division at No(s): CP-29-SA-0000009-2016

BEFORE: OLSON, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

OPINION BY MOULTON, J.: FILED NOVEMBER 06, 2017

Scotty Joe Sales appeals from the November 18, 2016 judgment of 

sentence entered in the Court of Common Pleas of the 39th Judicial District 

(Fulton County Branch) following his conviction for driving while commercial 

operating privilege is suspended, 75 Pa.C.S. § 1606(c)(1)(ii). For the 

reasons that follow, we reverse.

On May 16, 2016, Pennsylvania State Police Trooper Steven R. 

Morningstar stopped Sales’ tractor trailer on Interstate 70 in Brush Creek 

Township, Pennsylvania for a speeding violation. At the time, Sales was a 

Kentucky resident and had a Kentucky commercial driver’s license (“CDL”). 

Upon accessing Sales’ Kentucky driving record, Trooper Morningstar learned 

that Sales’ CDL had been suspended as of March 27, 2016. Trooper 
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Morningstar cited Sales for speeding1 and for driving while commercial 

operating privilege is suspended. 

On May 26, 2016, a magisterial district judge convicted Sales of 

speeding and driving while commercial operating privilege is suspended. 

Sales filed a summary appeal with the trial court, which held a de novo

hearing on November 18, 2016. The trial court summarized the evidence 

presented at the hearing as follows:

Trooper Morningstar testified that [on May 16, 2016] he 

confronted [Sales] about the status of his license; 

according to Trooper Morningstar, [Sales’] response was 

“kind of a head cock, a shoulder shrug.” It appeared to 

Trooper Morningstar that [Sales] was “indifferent” to the 

fact that his license was suspended.

Under cross-examination, Trooper Morningstar clarified 

that [Sales] did not state that he was unaware of the 

license suspension.[2] When asked why his license was 

suspended, [Sales] responded with “I don’t know” or 

“unknown.”

[Sales] took the stand in his own defense. [Sales] 

denied any knowledge of his license being suspended at 

the time he was stopped by Trooper Morningstar. He 

further denied receiving any letter or information from the 

[Commonwealth] of Kentucky indicating his license was 

suspended.

____________________________________________

1 75 Pa.C.S. § 3362.

2 Trooper Morningstar testified, “He didn’t tell me point-blank, I was 

unaware. It was, Okay or a shrug of the shoulders, cock of the head.” N.T., 

11/18/16, at 13.
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Opinion Sur Pa.R.A.P. 1925(a), 3/9/17, at 3-4 (internal citations omitted) 

(“1925(a) Op.”). Further:

The Commonwealth introduced Commonwealth’s Exhibit 1, 

which consisted of the driving record of [Sales] as reported 

by the [Commonwealth] of Kentucky. According to this 

record, [Sales’ CDL] was “suspended.” The driving record 

also establishes that Kentucky issued a suspension order 

on March 27, 2016 for a violation of some type. It further 

appears that the Kentucky Transportation Cabinet issued a 

previous order of suspension on June 27, 2015 for “Failure 

to Answer Court Summons.”

Id. at 3 (internal citations omitted). At the conclusion of the hearing, the 

trial court found Sales guilty of driving while commercial operating privilege 

is suspended and sentenced him to pay fines and costs in the amount of 

$1,065.3

On December 14, 2016, Sales timely appealed to this Court. After 

Sales filed his Pennsylvania Rule of Appellate Procedure 1925(b) statement, 

the trial court issued a Rule 1925(a) opinion. In its opinion, the trial court 

stated that it had erroneously convicted Sales and concluded that the 

evidence at trial was insufficient to support the conviction:

In short, there was no evidence presented by the 

Commonwealth to establish that the Kentucky 

Transportation Cabinet mailed notice of the suspension to 

[Sales] by first-class mail, as required by Kentucky law. 

Further, there was no evidence presented upon which this 

court could find [Sales] to have actual notice of the 

suspension, i.e., no admission by [Sales] that he was 

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3 The trial court also granted Sales’ request to withdraw his summary 

appeal from the speeding conviction.
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aware of the suspension or proof of receipt of notice of the 

suspension.

Accordingly, this court is constrained to opine that it 

erred in finding the Commonwealth’s evidence sufficient to 

prove beyond a reasonable doubt that [Sales] had notice 

of the suspension of his [CDL].

1925(a) Op. at 5 (internal citation omitted).

On appeal, Sales presents one question for our review: “Did the 

Commonwealth prove [sic] sufficient evidence beyond a reasonable doubt 

that [Sales] had been provided notice that his CDL was suspended so as to 

convict [Sales] under 75 Pa.C.S. § 1606(c)(1)(ii)?” Sales’ Br. at 6.

Our standard of review of a sufficiency of the evidence claim “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.” 

Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa.Super. 1996). 

Further:

[W]e 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. Vetrini, 734 A.2d 404, 406-07 (Pa.Super. 1999) 

(quoting Commonwealth v. Cassidy, 668 A.2d 1143, 1144 (Pa.Super. 

1995)). 
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The question in this appeal is whether the Commonwealth proved that 

Sales had notice of the suspension of his Kentucky CDL to support a 

conviction under section 1606(c)(1)(ii) of the Uniform Commercial Driver’s 

License Act (“UCDLA”). Our Court addressed the notice requirement under 

this section in Commonwealth v. Rose, 820 A.2d 164 (Pa.Super. 2003). 

In that case, Rose was convicted under section 1606(c)(1)(ii) of the UCDLA 

for driving with a suspended Florida CDL. On appeal, Rose argued that the 

evidence was insufficient to prove beyond a reasonable doubt that he had 

notice that his Florida CDL was suspended. Id. at 168-69. 

This Court began by noting that “[t]he issue of whether notice of 

suspension is required for conviction under [section] 1606-driving while 

commercial license is suspended, is an issue of first impression before this 

Court.” Id. at 169. 

We have examined [section] 1543 of the Vehicle Codedriving while operating privilege is suspended or revoked 

to guide our inquiry with respect to [section] 1606 [of the 

UCDLA]. Pennsylvania case law is well-settled that in 

order to sustain a conviction under [section] 1543, the 

Commonwealth must prove that the defendant had actual 

notice that his license had been suspended or revoked. 

Additionally, under [section] 1532(b), the Commonwealth’s 

failure to notify a person of their driver’s license 

suspension within a reasonable time may result in vacation 

of the suspension if the person is prejudiced as a result. 

Since actual notice is required to sustain a conviction for 

[section] 1543-driving while operating privileges 

suspended or revoked, we conclude that in order to 

convict for [section] 1606, the commercial license 

equivalent to [section] 1543, the Commonwealth 

must demonstrate that a person received actual 

notice that his [CDL] was suspended.
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Id. at 169-70 (internal citations omitted; emphasis added); see 

Commonwealth v. Crockford, 660 A.2d 1326, 1329 (Pa. Super. 1995) (en 

banc) (recognizing that actual notice is “a judicially created element, 

designed to protect a defendant’s due process rights”).

In determining whether Rose had actual notice of his Florida CDL 

suspension, we held that Florida law regarding proof of notice applied. 

Rose, 820 A.2d at 170. Thus, we examined the notice provision of Florida’s 

CDL suspension statute and the cases interpreting it. Id. at 170-71. We 

determined that, under Florida law, because Rose’s suspension resulted from 

his failure to pay a registration fee, the Commonwealth was required to 

prove that Rose had, in fact, received notice of the suspension to establish a 

violation under section 1606(c)(1)(ii) of the UCDLA. Id. at 171. We

concluded that although “the Commonwealth presented evidence that the 

notice of suspension was mailed to [Rose], it failed to present evidence that 

[Rose] received said notice.” Id. Therefore, we reversed Rose’s conviction. 

Id.

Following Rose, the Commonwealth must prove that the defendant 

had “actual notice” of the license suspension to support a conviction under 

section 1606(c)(1)(ii) of the UCDLA. The Commonwealth may establish 

“actual notice” either by: (1) presenting evidence that the defendant, in 

fact, received notice of the suspension, such as the defendant’s own 

admission or other evidence showing his or her receipt of notice; or 
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(2) satisfying the standard for proving notice in the state of the license 

suspension. As this Court explained in Crockford:

Notice is a question of fact, and anything that proves 

knowledge or is legal evidence showing that knowledge 

exists can be sufficient. As a practical matter, in most 

cases it is virtually impossible for the Commonwealth to 

prove positively that the defendant received express actual 

notice of suspension; only the defendant would have such 

knowledge. The Commonwealth, relying only upon the 

facts and circumstances of a case, can, at best, impute 

such knowledge to the defendant.

660 A.2d at 1330.4

Applying these principles to the facts of this case, we conclude that the 

Commonwealth failed to establish that Sales actually received notice of the 

Kentucky license suspension. Contrary to the Commonwealth’s assertion, 

Trooper Morningstar’s testimony that Sales did not expressly deny receiving 

notice at the time of the traffic stop was insufficient to prove that Sales, in 

fact, received notice. Absent any evidence of actual notice, the 

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4

In discussing the “actual notice” requirement, the Crockford Court 

contrasted actual notice with constructive notice as follows:

Constructive notice is information or knowledge of a 

fact imputed by law to a person (although he may not 

actually have it), because he could have discovered the 

fact by proper diligence, and his situation was such as to 

cast upon him the duty of inquiring into it. . . . 

Constructive notice is a presumption of law, while actual 

notice requires proof of facts and circumstances 

showing knowledge actually received.

660 A.2d at 1330 n.3 (quotation and internal citation omitted) (emphasis 

added).
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Commonwealth was required to satisfy the standard for proving notice under 

Kentucky law. Therefore, we must look to Kentucky law to determine if the 

Commonwealth satisfied its burden of proof. See Rose, 820 A.2d at 170.

The Kentucky statute governing the suspension of a driver’s license, 

whether commercial or non-commercial, provides:

The [Kentucky Transportation C]abinet or its agent 

designated in writing for that purpose shall provide any 

person subject to the suspension, revocation, or 

withdrawal of their driving privileges, under provisions of 

this section, an informal hearing. Upon determining that 

the action is warranted, the [C]abinet shall notify the 

person in writing by mailing the notice to the person 

by first-class mail to the last known address of the 

person. The hearing shall be automatically waived if not 

requested within twenty (20) days after the [C]abinet 

mails the notice. The hearing shall be scheduled as early 

as practical within twenty (20) days after receipt of the 

request at a time and place designated by the [C]abinet.

Ky. Rev. Stat. (“KRS”) § 186.570(4) (emphasis added). Therefore, to 

establish that Sales violated section 1606(c)(1)(ii) of the UCDLA, the 

Commonwealth was required to establish that the Kentucky Transportation 

Cabinet sent notice of the license suspension via first-class mail to Sales’ last 

known address.5

The Commonwealth contends that the trial court erred in applying 

Rose’s notice requirement because Kentucky law does not require proof of 

actual notice of the suspension, citing Commonwealth v. Duncan, 939 

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5 Like the trial court, we have found no Kentucky case law interpreting 

KRS § 186.570(4). See 1925(a) Op. at 3.
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S.W.2d 336 (Ky. 1997). We conclude, however, that the Commonwealth’s 

reliance on Duncan is misplaced. 

In Duncan, the Kentucky Supreme Court held that a certified copy of 

the Kentucky Transportation Cabinet’s driver history is sufficient proof, by 

itself, of a license suspension to support a conviction under Kentucky’s 

statute prohibiting operation of motor vehicle with a suspended license. Id.

at 338-39 (citing KRS § 186.620(2)).6 Thus, the Commonwealth is correct 

that Kentucky law does not require actual notice of the suspension to 

support a conviction for driving with a suspended license under KRS 

§ 186.620(2). However, KRS § 186.620(2) does not govern the resolution 

of this case.

Unlike Kentucky, Pennsylvania law does require proof of actual notice 

to support a conviction under section 1606(c)(1)(ii) of the UCDLA. We look 

to Kentucky law only to determine the standard for proving notice of the 

suspension, which is codified in KRS § 186.570(4). Under that provision, the 

____________________________________________

6 KRS § 186.620(2) provides:

No person who has not applied for an operator’s license 

or whose operator’s license has been denied, canceled, 

suspended or revoked, or whose privilege to operate a 

motor vehicle has been withdrawn, shall operate any 

motor vehicle upon the highways while the license is 

denied, canceled, suspended, or revoked or his privilege to 

operate a motor vehicle is withdrawn, or the license has 

not been applied for.
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Kentucky Transportation Cabinet must provide written notice of the 

suspension to the licensee by first-class mail. 

Here, the Commonwealth presented Sales’ Kentucky driving record, 

which merely states the date on which his license was suspended. See

Cmwlth.’s Ex. 1. This document does not indicate that either a notice of 

informal hearing or a notice of suspension was mailed to Sales as required 

by KRS § 186.570(4). As the trial court found:

[T]here was no evidence presented by the Commonwealth 

to establish that the Kentucky Transportation Cabinet 

mailed notice of the suspension to [Sales] by first-class 

mail, as required by Kentucky law. Further, there was no 

evidence presented upon which this court could find 

[Sales] to have actual notice of the suspension, i.e., no 

admission by [Sales] that he was aware of the suspension 

or proof of receipt of notice of the suspension.

1925(a) Op. at 4-5. Without any evidence of mailing of a notice to Sales, 

the Commonwealth failed to prove beyond a reasonable doubt that Sales 

had actual notice of his Kentucky license suspension. Therefore, we agree 

with the trial court’s conclusion in its Rule 1925(a) opinion that the evidence 

was insufficient to sustain Sales’ conviction.

Judgment of sentence reversed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/6/2017