J-S16013-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JAMES ROBERT SHOCK 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1617 MDA 2018

Appeal from the Judgment of Sentence Entered August 28, 2018

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0004340-2017

BEFORE: OTT, J., MURRAY, J., and MUSMANNO, J.

MEMORANDUM BY OTT, J.: FILED: MAY 20, 2019

James Robert Shock appeals from the judgment of sentence imposed 

on August 28, 2018, in the Court of Common Pleas of York County, following 

his jury conviction of one count of driving under the influence — highest rate 

of alcohol, fourth offense (DUI).1 The trial court then convicted him of one 

count each of driving under suspension — DUI related (DUS) and driving on 

roadways laned for traffic.2 The court sentenced him to 151⁄4 to 60 months’ 

imprisonment. On appeal, Shock challenges the sufficiency of the evidence

underlying his conviction for DUS. Based upon the following, we affirm.

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1 75 Pa.C.S.A. § 3802(c); we note that the Commonwealth nolle prossed a 

second count of DUI, 75 Pa.C.S.A. § 3802(a)(1).

2 75 Pa.C.S.A. §§ 1543(b)(1.1)(i) and 3309(1), respectively. 
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We take the underlying facts and procedural history in this matter from

the trial court’s November 30, 2018 opinion and our independent review of

the certified record.

On July 7, 2017, at approximately 1:41 a.m., Officer Joshua Poplin 

of the Southwest Regional Police Department conducted a traffic 

stop after observing [Shock] driving north in the southbound lane 

on Seven Valleys Road in North Codorus Township, York County. 

When Officer Poplin made contact with [Shock], he detected an 

aroma of alcoholic beverage on his breath. Officer Poplin later 

observed that [Shock’s] speech was slurred and his eyes were 

glassy and bloodshot. After [Shock] failed multiple field sobriety 

tests, Officer Poplin placed him under arrest and transported him 

to York County Central Booking where a blood draw ultimately 

yielded a .203 blood alcohol content (BAC).

Trial Court Opinion, 11/30/2018, at 2.

A jury trial took place on July 12, 2018. At trial, without objection, the 

Commonwealth submitted into evidence Shock’s certified driving record. N.T. 

Trial, 7/12/2018, at 98. The record showed that, at the time of the incident, 

Shock’s driver’s license was suspended because of a previous DUI. Id. The 

record also demonstrated that the Pennsylvania Department of Transportation 

(PennDOT) mailed notice of the suspension to Shock on August 29, 2016, and 

that the suspension was for five years. Id. at 99. When offered the 

opportunity to cross-examine Officer Poplin with respect to the certified 

record, defense counsel declined. Id.

At trial, Shock took the stand in his own defense. Id. at 109-116. While 

Shock vigorously contested the Commonwealth’s version of the events of July 
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7, 2017, at no point did he contend that he was unaware of the fact that 

PennDOT had suspended his driver’s license. Id. 

As noted above, the jury found Shock guilty of DUI and the trial court 

found him guilty of DUS and driving on roadways laned for traffic. Sentencing 

took place on August 28, 2018. At the sentencing hearing, the trial court 

specifically expressed its concern about Shock’s lengthy history of motor 

vehicle violations and driving under suspension. N.T. Sentencing, 8/28/2018, 

at 6-7. In response, Shock did not claim that he was unaware of the 

suspension, but rather apologized and stated he did not have a good reason 

for his actions. Id. at 7. The Commonwealth placed on the record that this 

was Shock’s fourth DUI and that PennDOT had designated him to be a habitual 

offender on August 18, 2015. Id. at 8-9. The trial court sentenced him to an 

aggregate sentence of 151⁄4 to 60 months’ imprisonment. Shock did not file 

any post-sentence motions.

The instant, timely appeal followed. In response to the trial court’s 

order, Shock filed a timely concise statement of errors complained of on 

appeal on October 22, 2018. The trial court issued an opinion on November 

30, 2018.

On appeal, Shock claims that the evidence was insufficient to sustain 

his conviction for DUS because the Commonwealth failed to prove he had 

actual notice of the suspension. We disagree.
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Our standard of review for a claim of insufficient evidence is as follows:

The determination of whether sufficient evidence exists to support 

the verdict is a question of law; accordingly, our standard of 

review is de novo and our scope of review is plenary. In assessing 

[a] sufficiency challenge, we must determine whether viewing all 

the evidence admitted at trial in the light most favorable to the 

[Commonwealth], there is sufficient evidence to enable the 

factfinder to find every element of the crime beyond a reasonable 

doubt. [T]he facts and circumstances established by the 

Commonwealth need not preclude every possibility of innocence. 

. . . [T]he finder 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. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018) 

(quotation marks and citations omitted). Moreover, “[t]he Commonwealth 

may sustain its burden of proving every element of the crime beyond a 

reasonable doubt by means of wholly circumstantial evidence.” 

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation 

omitted), appeal denied, 32 A.3d 1275 (Pa. 2011).

To sustain a conviction pursuant to 75 Pa.C.S.A. § 1543(b), the 

Commonwealth must prove that the defendant had actual notice that his 

license had been suspended or revoked. Commonwealth v. Kane, 333 A.2d 

925 (Pa. 1975). Solely establishing that PennDOT mailed notice is insufficient 

to prove actual notice. Id. at 926. The Commonwealth has to establish actual 

notice, “which may take the form of a collection of facts and circumstances 

that allow the fact finder to infer that a defendant has knowledge of 

suspension.” Commonwealth v. Crockford, 660 A.2d 1326, 1331 (Pa. 

Super. 1995), appeal denied, 670 A.2d 140 (Pa. 1995). Further, “notice is a 
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question of fact, and anything that proves knowledge or is legal evidence that 

knowledge exists can be sufficient.” Id. at 1330. This Court has held that 

evidence of mailing of the notice paired with some other, additional evidence 

of knowledge is sufficient to show actual notice beyond a reasonable doubt. 

Id. at 1329. Our Supreme Court has discussed the factors we may look to in 

determining this issue as follows:

Factors that a finder of fact may consider in determining 

circumstantially or directly whether a defendant had actual notice 

of his or her suspension include, but are not limited to, evidence 

that the defendant was verbally or in writing apprised of the 

license suspension during the trial or a plea, statements by the 

accused indicating knowledge that he or she was driving during 

the period in which his or her license had been suspended, 

evidence that PennDOT sent by mail the notice of the suspension 

to appellant’s current address, evidence that PennDOT’s notice of 

suspension was not returned as undeliverable, attempts by the 

accused to avoid detection or a citation, and any other conduct 

demonstrating circumstantially or directly appellant’s knowledge 

of the suspension or awareness of guilt. 

Commonwealth v. Zimmick, 653 A.2d 1217, 1221 (Pa. 1995) (citation 

omitted).

Here, Shock’s certified driving record shows that PennDOT had 

suspended his license nearly one year prior to the time of the traffic stop 

underlying this case. N.T. Trial, 7/12/2018, at 98-99, Exhibit 2. It also 

reflects that PennDOT sent the notice to Shock’s address of record and the 

United States Postal Service (USPS) did not return the notice as undeliverable. 

Id. Moreover, the suspension was incurred because of a prior DUI; this was 

Shock’s fourth conviction for DUI; he was still on probation and/or parole for 
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two prior DUI offenses at the time of the incident; and PennDOT had 

designated him as a habitual offender approximately two years prior to this 

incident. See id.; N.T. Sentencing, 8/28/2018, at 7-9, 12, 14-17. At trial, 

Shock never testified that he did not receive the notice, nor did he object to 

the admission of the certified driving record. Thus, this evidence coupled with 

the evidence of mailing establishes actual notice beyond a reasonable doubt. 

See Zimmick, supra at 1221. Shock’s claim fails.

For all the foregoing reasons, we affirm Shock’s judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/20/2019