author: FORD ELLIOTT, Judge: WIEAND, Judge, CIRILLO, Judge,

text:
    660 A.2d 1326
    COMMONWEALTH of Pennsylvania v. James William CROCKFORD, Appellant.
    Superior Court of Pennsylvania.
    Argued Feb. 22, 1995.
    Filed June 8, 1995.

      Albert J. Flora, Jr., Wilkes-Barre, for appellant.
    Peter Paul Olszewski, Jr., Dist. Atty., Wilkes-Barre, for Com., appellee.
    Harold H. Cramer, Philadelphia, for PA Dept, of Transp., amicus curiae.
    Before ROWLEY, P.J., and CAVANAUGH, WIEAND, McEWEN, CIRILLO, BECK, TAMILIA, FORD ELLIOTT and SAYLOR, JJ.
   FORD ELLIOTT, Judge:

Appellant comes before us challenging the judgment of sentence imposed upon him following his conviction pursuant to 75 Pa.C.S.A. § 1543(b), pertaining to driving while operating privileges are suspended or revoked. Finding no error below, we affirm.

The factual setting from which this case devolves is simply recounted. The Commonwealth presented a single witness at trial. State Trooper Robert Halecky testified that on March 1, 1993, while on patrol in a marked police car, he observed appellant operating a vehicle with an expired inspection sticker. Prompted to effect a traffic stop of appellant, Trooper Halecky asked appellant to produce a driver’s license and an owner’s card, but appellant was unable to comply with the license request since he was not carrying one. Upon discerning appellant’s name, address, and date of birth, Trooper Halecky returned to his car and ran a records check on appellant. The records check revealed that appellant’s license had been suspended. When Trooper Halecky questioned appellant as to why he was under suspension, appellant was unable to state a possible reason.

Trooper Halecky went on to testify that subsequent receipt of appellant’s certified driving record from the Pennsylvania Department of Transportation (PennDOT) revealed that appellant’s driver’s license had been suspended for driving under the influence. The record further indicated that the license suspension was effective for one year from October 28, 1992, and that official notice thereof was mailed to appellant on that same date.

Following Trooper Halecky’s testimony, the Commonwealth offered appellant’s certified driving record into evidence and rested. Appellant thereupon demurred on the basis that the Commonwealth had failed to meet its burden of proof insofar as demonstrating that appellant had actual notice of his license suspension. The trial court refused to grant a demurrer and the defense proceeded with its case, likewise presenting a sole witness, in the person of appellant.

In the course of his testimony, appellant admitted that he had two prior convictions for driving under the influence. He had been told that his license would be suspended and that he would be notified by the state. Appellant was asked by the court to produce his license at trial and was told that the court would find him not guilty if he could. Notes of testimony, 2/2/94 at 23. Appellant explained that he did not bring his license because he was not instructed to do so, and he did not think to bring it on his own because it was no longer valid. Appellant was convicted of driving while under suspension, and now appeals.

Although couched by appellant as two arguments, he effectively raises a single issue on appeal. Appellant avers that the Commonwealth must show that appellant had actual notice of his suspension, and that it failed to meet this burden. We agree that the Commonwealth bears the burden of proving notice beyond a reasonable doubt, but find that the Commonwealth’s evidence at trial, left unrebutted, sufficiently proved such notice. Therefore, we affirm.

Preliminarily, we begin by reiterating our standard of review:

In examining a challenge to the sufficiency of the evidence, it is well established that an appellate court must determine whether the evidence was sufficient to enable the jury to find every element of the crime charged beyond a reasonable doubt, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner.

Commonwealth v. Zimmick, 539 Pa. 548, 554, 653 A.2d 1217, 1220 (1995). It would also be beneficial at this point to set out the particular statute at issue:

§ 1543. Driving while operating privilege is suspended or revoked
(b) Certain offenses. — Any person who drives a motor vehicle on any highway or trafficway of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension for refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S.A. § 1543(b).

The seminal case in this area is Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), which held that it is necessary for the Commonwealth to prove that the accused had actual notice of suspension in order to convict of driving while under suspension. Kane interpreted the former 75 P.S. § 624, our prior statute governing driving under suspension. Under § 624, driving while under suspension was a misdemeanor subject to the general culpability requirements of 18 Pa.C.S.A. §§ 301, 302, and proof of mens rea. 75 Pa.C.S.A. § 1543(b), however, is defined by the Legislature as a summary offense. As such, it is exempted from general culpability requirements pursuant to 18 Pa.C.S.A. § 305. Still, our supreme court has plainly held that proof of actual notice of suspension remains a necessary element of 75 Pa.C.S.A. § 1543. See Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993). See also Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). Notice is, therefore, a judicially created element, designed to protect a defendant’s due process rights.

In addition to requiring actual notice, Kane also ruled that proof that notice was mailed was not sufficient alone to prove the vital element of actual notice. As the Kane court stated:

[T]he issue now being discussed is not whether evidence of mailing is admissible evidence, but whether admissible evidence of mailing, standing alone, is sufficient evidence to establish one of the elements of the crime beyond a reasonable doubt. ... [E]ven though an inferred fact is more likely than not to follow from a proven fact, in a criminal case, the inference ‘must also satisfy the criminal “reasonable doubt” standard if proof of the crime charged or an essential element thereof depends upon its use.’
... Although the records stated that a notice had been mailed, there was no other proof that appellant had actual notice of his suspension. There was no evidence ... that appellant’s operator’s license was returned to the Bureau ... There was no evidence that the appellant resided at the address shown on the notice at the time the notice was mailed. Moreover, we note that the appellant’s address typed on the notice of suspension was different from the appellant’s address typed in two other places in the certified records.

Id., 460 Pa. at 584-86, 333 A.2d at 926, quoting Leary v. United States, 395 U.S. 6, 36 n. 64, 89 S.Ct. 1532, 1548 n. 64, 23 L.Ed.2d 57, 81, n. 64 (1969) (emphasis in original). The concern of the Kane court was, quite simply, that letters get lost in the mail; evidence of mailing alone might suffice to show a strong likelihood of actual notice, but it could not constitute proof beyond a reasonable doubt.

In the twenty years since Kane was decided, numerous rulings of both the supreme court and this court have refined its basic message. While these cases have set out no hard and fast rule as to the kinds of proof required to establish actual notice of suspension, they do indicate that evidence of mailing of notice coupled with some other, additional evidence of knowledge will suffice to establish actual notice beyond a reasonable doubt. The question has always been, how much evidence is sufficient.

In Commonwealth v. Burkett, supra, 300 Pa.Super. 72, 445 A.2d 1304, for example, this court held that evidence that notice was mailed, combined with evidence that defendant returned his license to the Bureau of Traffic Safety, and that, when stopped by police, defendant switched seats with a passenger, was sufficient to establish actual notice beyond a reasonable doubt.

In Commonwealth v. Martin, 346 Pa.Super. 129, 499 A.2d 344 (1985), this court was uncertain whether the additional evidence established actual notice, and therefore remanded for an evidentiary hearing. In Martin, the defendant’s certified driving record was admitted into evidence. This record showed the original mailing and also displayed a cryptic notation that an affidavit had thereafter been received. We remanded to determine if this affidavit evinced actual notice.

In Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986), allocatur denied, 514 Pa. 638, 523 A.2d 345 (1987), we found actual notice where there was evidence that notice was mailed, together with proof that the defendant had surrendered his license on a previous suspension for which notice was mailed to the same address, as well as evidence that the defendant was not carrying his license when he was stopped.

In Commonwealth v. Horney, supra, at 365 Pa.Super. 152, 529 A.2d 18, actual notice was found where there was evidence that notice was mailed, together with defendant’s admission that he received an earlier letter at the same address notifying him that he had to take a special exam to keep his driver’s license, and evidence that he failed to complete the exam.

More recently, in Commonwealth v. Dietz, supra, 423 Pa.Super. 366, 621 A.2d 160, actual notice was predicated upon mailing of notice combined with several additional factors. Defendant fled the scene of an accident on foot. When first questioned by investigators, he stated that his wife had been driving the vehicle. Defendant later admitted that he had been driving. The court found that the defendant’s flight and deception indicated that he knew he was not allowed to drive. The court was also swayed by the defendant’s history of convictions for driving while under suspension, and found it incredible that defendant could possibly believe that he was permitted to drive.

If this compilation of cases stands for any proposition, it is that the the type of actual notice contemplated and required in license suspension cases can be express or implied actual notice. As delineated in Black’s Law Dictionary:

Actual notice has been defined as notice expressly and actually given, and brought home to the party directly. The term ‘actual notice,’ however, is generally given a wider meaning as embracing two classes, express and implied; the former includes all knowledge of a degree above that which depends upon collateral inference, or which imposes upon the party the further duty of inquiry; the latter imputes knowledge to the party because he is shown to be conscious of having the means of knowledge. In this sense actual notice is such notice as is positively proved to have been given to a party directly and personally, or such as he is presumed to have received personally because the evidence within his knowledge was sufficient to put him upon inquiry.

Id. at 1061-1062 (6th ed. 1990).

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. To hold otherwise would make the provisions of § 1543 virtually unenforceable and unworkable.

Hence, in response to appellant’s inquiry as to whether the Commonwealth is required to prove actual notice of suspension to sustain a conviction under 75 Pa.C.S.A. § 1543(b), the courts of this Commonwealth have repeatedly answered in the affirmative. The Commonwealth is required 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. We now turn to the nature of the facts and circumstances that will satisfy the Commonwealth’s burden of establishing a prima facie case of notice.

As set forth in Commonwealth v. Zimmick, 539 Pa. 548, 653 A.2d 1217, our supreme court’s most recent pronouncement on the issue:

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. See, e.g., Commonwealth v. Dietz, 423 Pa.Super. 366, 370-71, 621 A.2d 160, [sic] appeal denied, 535 Pa. 634, 631 A.2d 1007 (1993) (driver’s flight from crash site and misleading conduct demonstrated that driver knew he was not permitted to drive; driver’s failure to produce a driver’s license is presumptive knowledge of suspension).

Zimmick, supra, 539 Pa. at 555-56, 653 A.2d at 1221.

Instantly, and contrary to appellant’s argument that the Commonwealth only produced evidence of a PennDOT suspension mailing, we decide that the Commonwealth presented evidence as to three crucial facts: 1) appellant’s license had been suspended for a DUI offense; 2) notice of appellant’s suspension had been mailed by PennDOT on October 28, 1992; and 3) appellant failed to produce a current driver’s license when he was stopped on March 1, 1993. Today, we hold that these factors, in conjunction, are sufficient to meet the Commonwealth’s burden to prove notice of suspension.

Both appellant and the Commonwealth have seized upon this court’s decision in Commonwealth v. Dietz, supra, 423 Pa.Super. 366, 621 A.2d 160, to make their various arguments on appeal. In Dietz, a panel of this court held that in order for a defendant to invoke the defense of lack of actual notice, it must be established at trial that a current driver’s license was produced at the time of the offense, or within 15 days thereafter, pursuant to the mandates of 75 Pa.C.S.A. § 1511 (which requires drivers to carry their licenses while operating their vehicles and to produce them upon demand). Dietz posited that when driving privileges are suspended, the driver is required to surrender his license under 75 Pa.C.S.A. § 1540. If a driver claims no actual notice of suspension, he should be able to produce a current license; the underlying assumption is that if the driver cannot produce such current license, it is either because he surrendered it or because he knows it is not valid. Dietz concluded that a defendant’s failure to possess a current license is presumptive knowledge of suspension. We observe that the supreme court denied allocatur in Dietz, and most recently cited it with approval for this very proposition in Zimmick, supra, 539 Pa. at 556, 653 A.2d at 1221.

The Commonwealth in the instant case has argued that the language utilized by the Dietz court places an affirmative duty on a defendant to produce a current driver’s license before availing himself of the “no notice” defense. Appellant counters that this approach abrogates the Commonwealth’s burden of proof to a “mere assertion that it mailed a notice to a defendant,” and seeks an application of § 1511(b) which the State Legislature did not envision. While we agree with the basic rationale of Dietz, we find that both the Commonwealth’s and appellant’s interpretations of Dietz require further review. We look first, however, to the underlying policy of the Commonwealth to ensure safe driving on Pennsylvania’s roadways, and the statutes promulgated to effect it.

As has often been stated, most recently by our supreme court in Commonwealth v. Zimmick, supra, and Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994), operating a motor vehicle in this Commonwealth is a privilege and not a right; as such it is subject to reasonable regulations. Zimmick, supra, at 559-60, 653 A.2d at 1222-23; Yarger, supra at 336, 648 A.2d at 531-532. Such regulations are set forth in 75 Pa.C.S.A. § 1501 and § 1511 which state in pertinent part:

§ 1501. Drivers required to be licensed
(a) General rule. — No person, except those expressly exempted, shall drive any motor vehicle upon a highway or public property in this Commonwealth unless the person has a driver’s license valid under the provisions of this chapter.
§ 1511. Carrying and exhibiting driver’s license on demand
(a) General rule. — Every licensee shall possess a driver’s license issued to the licensee at all times when driving a motor vehicle and shall exhibit the license upon demand by a police officer, and when requested by the police officer the licensee shall write the licensee’s name in the presence of the officer in order to provide identity.

The purpose of these sections is to provide assurance that those who operate vehicles on our highways are properly licensed to do so, after having met certain minimum qualifications. Licensing requirements thus give the Commonwealth a means of protecting the safety of its citizens. Having established the framework in which to consider the parties’ arguments, we next address appellant’s quarrel with Dietz, supra, 423 Pa.Super. 366, 621 A.2d 160.

Appellant argues that allowing the Commonwealth to rely upon appellant’s failure to produce a license as presumptive knowledge of suspension shifts the burden to a defendant to prove an element of the offense of which he is charged. Within the context of a license suspension case, we agree with the underlying logic of Dietz. It seems entirely likely that where notice of suspension has been mailed, and the subject driver is unable to produce a current license, it is either because he is unable to do so since the license has been surrendered, or he is unwilling to do so because he believes that tendering a suspended license is a futile gesture. The Commonwealth is entitled to such inferences to show actual notice and to satisfy its burden of establishing its prima fade case. Appellant is then entitled to rebut such a prima fade case by relying on any evidence which may show lack of actual notice of suspension, such as that at the time of his stop by police, appellant was in possession of, or able to produce, a current driver’s license.

Appellant claims that such a presumption removes from the Commonwealth the burden of proving notice beyond a reasonable doubt, as required by In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970), and Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975). After a thorough review of the case law and the parties’ briefs, however, we must disagree. The basis for our disagreement requires a review of the difference between burden of proof and burden of production.

Perhaps the most cogent statement of this distinction, although not directly applicable to the instant case, is found in Commonwealth v. Sojourner, 268 Pa.Super. 488, 408 A.2d 1108 (1979) (Sojourner II). In Sojourner II, the issue before the court was whether the Commonwealth was required to prove that a defendant was not authorized to possess a controlled substance beyond a reasonable doubt when nonauthorization is an element of the offense charged. Id. at 493, 495, 408 A.2d at 1111, 1112. After a carefully reasoned analysis, the court held that the Commonwealth was so required. Id. at 497, 408 A.2d at 1113. Recognizing the inherent impossibility in requiring that the Commonwealth prove nonauthorization, however, the majority held that the Commonwealth was entitled to a rebut-table presumption of nonlicensure; the Commonwealth could shift to the defendant the burden of production, but not the burden of persuasion, on the issue of authorization. If the defendant were able to introduce evidence of authorization sufficient to raise a reasonable doubt as to non-authorization, the Commonwealth would then have to disprove authorization beyond a reasonable doubt. Id. at 501, 408 A.2d at 1114-1115.

In articulating its holding, the majority relied upon Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), to describe the procedural device of shifting burdens. While we recognize that Patterson was an affirmative defense case, its language is instructive for our purposes. The Sojourner II majority noted that in Patterson, Mr. Justice Powell in dissent and Mr. Justice White writing for the majority, “both approved the Model Penal Code’s provisions for allocating to the defendant the burden of producing some evidence concerning ‘elements’ of a particular offense.” Sojourner II, supra, at 498, 408 A.2d at 1113. As Mr. Justice Powell stated in Patterson:

‘Furthermore, as we indicated in Mullaney [v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) ], even as to those factors upon which the prosecution must bear the burden of persuasion, the State retains an important procedural device to avoid jury confusion and prevent the prosecution from being unduly hampered. The State normally may shift to the defendant the burden of production, that is, the burden of going forward with sufficient evidence “to justify [a reasonable] doubt upon the issue.” ... If the defendant’s evidence does not cross this threshold, the issue — [whether it be] malice, extreme emotional disturbance, self-defense, or whatever — will not be submitted to the jury.’

Sojourner II, supra, 268 Pa.Super. at 498-499, 408 A.2d at 1113-1114, quoting Patterson, supra, 432 U.S. at 230-31, 97 S.Ct. at 2337-2338 (Powell, J. dissenting). In his concurrence in Sojourner II, Judge Spaeth agreed that the language quoted supra from Mr. Justice Powell’s dissent succinctly stated the correct analysis vis-a-vis the shifting burden of production; however, Judge Spaeth felt compelled to clarify that analysis further. To do so, he relied upon the following language from the Model Penal Code:

No single principle can be conscripted to explain when these shifts of burden to defendants are defensible, even if the burden goes no further than to call for the production of some evidence. Neither the logical point that the prosecution would be called upon to prove a negative, nor the grammatical point that the defense rests on an exception or proviso divorced from the definition of the crime is potently persuasive, although both points have been invoked---What is involved seems rather a more subtle balance which acknowledges that a defendant ought not be required to defend until some solid substance is presented to support the accusation but, beyond this, perceives a point where need for narrowing the issues, coupled with the relative accessibility of evidence to the defendant, warrants calling upon him to present his defensive claim. No doubt this point is reached more quickly if, given the facts the prosecution must establish, the normal probabilities are against the defense, but this is hardly an essential factor.

Sojourner II, supra, at 509, 408 A.2d at 1119 (Spaeth, J. concurring), quoting Model Penal Code, Comments, § 1.13 at 110-111 (Tent. Draft # 4, 1955).

While we recognize that there may be valid distinctions between the instant case and both Sojourner II and Patterson, nevertheless we believe that the use of a shifting burden of production analysis has application in the instant case and has met the test of Constitutional challenge. While the Commonwealth retains the burden of proving notice beyond a reasonable doubt, a rebuttable presumption of notice is raised where, as here, the Commonwealth introduces evidence of the three factors delineated supra at 10. Appellant may then introduce any evidence he can of lack of notice, evidence to which he has unique access. If he is successful in raising a reasonable doubt that he received notice, the burden of production would then shift back to the Commonwealth to introduce evidence sufficient to overcome that doubt.

As our supreme court effectively determined in Commonwealth v. Yarger, supra, 538 Pa. 329, 648 A.2d 529, allowing the Commonwealth to establish a prima facie case without having first to disprove all of a defendant’s possible arguments in rebuttal does not shift the burden of proof (persuasion) to a defendant. Rather, it merely requires that the defense rebut the Commonwealth’s case by coming forward with its own evidence (burden of production). A review of the supreme court’s holding in Yarger is instructive.

In Yarger, the supreme court revisited its decisions in Commonwealth v. Modaffare, 529 Pa. 101, 601 A.2d 1233 (1992), and Commonwealth v. Jarman, 529 Pa. 92, 601 A.2d 1229 (1992), cases that dealt with the introduction of relation-back expert testimony to determine blood alcohol level “while driving” for purposes of 75 Pa.C.S.A. § 3731(a)(4) (driving while blood alcohol content is 0.10% or greater). The Yarger court held that there is no requirement that the Commonwealth present such testimony to make out its prima facie case; rather, it is sufficient that the Commonwealth merely establish “that the driver’s blood alcohol content reflects an amount above 0.10%.” Id. at 334-335, 648 A.2d at 531. Once the Commonwealth has made out its prima facie case under § 3731(a)(4), the defendant is then permitted to introduce relation-back expert testimony to rebut the Commonwealth’s prima facie evidence that the driver was actually driving while his blood alcohol level was 0.10% or greater. If the defendant elects to do so, the Commonwealth may then present its own evidence in the form of expert testimony to refute defendant’s testimony. Id. It is then up to the trier of fact to weigh the evidence and determine the outcome. This analysis closely parallels the Sojourner II analysis, and our own analysis in the instant case. As a result, we find no merit to appellant’s claim that the trial court impermissibly allowed the Commonwealth to shift the burden of proof to appellant on the issue of actual notice. Rather, we find that the Commonwealth met its burden of proving notice beyond a reasonable doubt.

Having addressed appellant’s argument, we turn next to the Commonwealth’s argument that, under Dietz, supra, 423 Pa.Super. 366, 621 A.2d 160, appellant should not be allowed to introduce evidence of lack of notice unless he has produced a current driver’s license. As the Commonwealth avers, the Dietz court held that in order for a person to invoke the “no notice” defense, it is a necessary condition that the defendant establish at trial that a current driver’s license was produced at the time of the offense or within 15 days thereafter as provided by § 1511(b). While we agree with the Commonwealth’s interpretation of the holding in Dietz on this issue, we disagree with Dietz’s holding. As a result, we today decide that appellant is not precluded from raising a lack of notice defense based on a failure to produce a valid driver’s license at the time of the stop or within fifteen days thereafter. Rather, a defendant is still entitled to come forward with any evidence of lack of actual notice in an effort to rebut the Commonwealth’s prima facie case.

Instantly, although the Commonwealth relied upon this language in Dietz as precluding appellant from raising a lack of notice defense, we find that appellant was not so precluded in the court below. The trial court heard all the evidence and appellant’s testimony before relying upon appellant’s failure to produce a valid driver’s license as evidence of actual notice of suspension. As appellant was unable to rebut the Commonwealth’s prima facie case, we find the evidence sufficient to sustain the conviction.

For the foregoing reasons, judgment of sentence is affirmed, and jurisdiction is relinquished.

WIEAND, J., files a concurring statement which was joined by TAMILIA, J.

CIRILLO, J., files a concurring and dissenting opinion which was joined by SAYLOR, J.

WIEAND, Judge,

concurring:

I concur in the result. In my judgment, the evidence was sufficient to establish beyond a reasonable doubt that, when appellant drove a motor vehicle, his operating privileges were under suspension because of a conviction for driving while under the influence of alcohol and that he had actual knowledge of such suspension.

Because of the mischief which is being caused in these cases by the decision in Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), I would urge that the holding thereof might be reconsidered by the Supreme Court. If notice of suspension is sent, postage prepaid, to the motorist at his or her correct address, I can think of no good reason for holding that the well established inference of receipt thereof should not constitute prima facie evidence that notice of the suspension has been received.

CIRILLO, Judge,

concurring and dissenting:

I agree with the majority to the extent that the holding in Commonwealth v. Dietz, 423 Pa.Super. 366, 621 A.2d 160 (1993) cannot be accepted; specifically, an appellant cannot be precluded from raising a lack of notice defense based on a failure to produce a valid driver’s license at the time of a stop or within fifteen days thereafter. I cannot, however, countenance a result that places on a defendant the burden of producing evidence of his innocence, for he is protected by the presumption of that innocence. Thus, for the following reasons, I dissent. Crockford’s conviction should not be permitted to stand.

During Crockford’s trial, the only witness called by the Commonwealth was Trooper Robert Halecky. Trooper Halecky testified that on March 1, 1993, Crockford was stopped for an inspection sticker violation. At that time, Crockford was unable to provide a current driver’s license upon request from Trooper Halecky. An examination of Crockford’s driving record by the trooper revealed that Crockford’s license had been suspended. Crockford denied knowledge of his suspension when he was so informed by Trooper Halecky and stated that he left his license at home in his wallet. It was further established at trial that notice of the suspension was mailed by the Pennsylvania Department of Transportation (PennDOT) to Crockford on October 28, 1992; however, the Commonwealth could not verify to what address the notice was sent. Crockford did not produce a current license following the incident.

The Commonwealth rested its case at the conclusion of Trooper Halecky’s testimony. Crockford then demurred, arguing that the Commonwealth failed to prove that he had actual notice of the license suspension. The Commonwealth averred that Crockford could not avail himself of the “no notice defense” because he had not produced a current license at the time of the offense or within fifteen days thereafter pursuant to 75 Pa.C.S.A. § 1511.

§ 1511. Carrying and exhibiting driver’s license on demand
(a) General rule. — Every licensee shall possess a driver’s license issued to the licensee at all times when driving a motor vehicle and shall exhibit the license upon demand by a police officer....
(b) Production to avoid penalty. — No person shall be convicted of violating this section or section 1501(a) (relating to drivers required to be licensed) if the person produces at the office of the issuing authority or the arresting officer within 15 days a driver’s license valid in this Commonwealth at the time of the arrest.

75 Pa.C.S.A. § 1511. On the basis of Commonwealth v. Dietz, 423 Pa.Super. 366, 621 A.2d 160 (1993), discussed infra, the trial court denied the demurrer and convicted Crockford of driving with a suspended license, 75 Pa.C.S.A. § 1543(b).

Crockford filed post-verdict motions, arguing that he had no actual notice of his suspension prior to the incident. The motions were denied, and Crockford was sentenced to ninety days imprisonment. This appeal followed.

The following issues were raised for our consideration:

(1) Whether the lack of actual notice of a license suspension is a defense to the offense of driving while operating privilege is suspended or revoked under 75 Pa.C.S.A. § 1543(b), and, if so, whether such a defense is waived when one fails to produce a current license pursuant to 75 Pa.C.S.A. § 1511?
(2) Whether, assuming the failure to produce a driver’s license does not waive the defense of lack of notice, there was sufficient evidence presented to support Crockford’s conviction under section 1543(b)?

In examining a challenge to the sufficiency of the evidence, it is well settled that an appellate court must determine whether the evidence was sufficient to enable the jury to find every element of the crime charged beyond a reasonable doubt, viewing all the evidence and reasonable inferences therefrom in the light most favorable to the verdict winner. Commonwealth v. Thomas, 527 Pa. 511, 594 A.2d 300 (1991).

The statute in question, 75 Pa.C.S.A. 1543(b), provides in pertinent part:

§ 1543. Driving while operating privilege is suspended or revoked
(b) Certain offenses. — Any person who drives a motor vehicle on any highway or traffic way of this Commonwealth at a time when their operating privilege is suspended or revoked as a condition of acceptance of Accelerated Rehabilitative Disposition for a violation of section 3731 (relating to driving under influence of alcohol or controlled substance) or because of a violation of section 1547(b)(1) (relating to suspension of refusal) or 3731 shall, upon conviction, be guilty of a summary offense and shall be sentenced to pay a fine of $1,000 and to undergo imprisonment for a period of not less than 90 days.

75 Pa.C.S.A. § 1543(b).

The Pennsylvania Supreme Court, in Commonwealth v. Kane, 460 Pa. 582, 333 A.2d 925 (1975), held that it must be proven, beyond a reasonable doubt, that the defendant had actual notice of the suspension of his operator’s license in order to establish an essential element of the crime of driving with a suspended license. Accord Commonwealth v. Zimmick, 539 Pa. 548, 653 A.2d 1217 (1995); Commonwealth v. Minor, 436 Pa.Super. 35, 647 A.2d 229 (1994); Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991); Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990); Commonwealth v. Gamble, 376 Pa.Super. 590, 546 A.2d 681 (1988); Commonwealth v. Horney, 365 Pa.Super. 152, 529 A.2d 18 (1987); Commonwealth v. Gray, 356 Pa.Super. 299, 514 A.2d 621 (1986); Commonwealth v. Burkett, 300 Pa.Super. 72, 445 A.2d 1304 (1982). Additionally, Kane established that the Commonwealth may not satisfy the actual notice requirement by merely introducing evidence of the fact that the Department of Transportation sent a suspension notice to the defendant via first class mail. Kane, 460 Pa. at 586, 333 A.2d at 927. Accord Zimmick, supra, 539 Pa. 556, 653 A.2d 221; Minor, supra, 436 Pa.Super. 35, 647 A.2d 229; Heckman, supra, 404 Pa.Super. 335, 590 A.2d 1261; Taylor, supra, 437 Pa.Super. 102, 649 A.2d 453; Horney, supra, at 365 Pa.Super. 152, 529 A.2d 18; Gray, supra, 356 Pa.Super. 299, 514 A.2d 621; Burkett, supra, 300 Pa.Super. 72, 445 A.2d 1304.

Subsequent to the Kane decision, several appellate decisions have clarified our Supreme Court’s ruling by holding that when notice is mailed to the defendant and additional evidence exists to infer that the defendant received notice of suspension, then the evidence may be sufficient to prove actual notice. See Zimmick, supra (where appellant based his challenge of lack of actual notice solely on the alleged failure to obtain written notice from PennDOT, evidence was sufficient to demonstrate that appellant had actual notice where Commonwealth proved that: appellant pleaded guilty to the underlying DUI offense, and at that time was informed that his license would be suspended; appellant was aware the he had not had a valid license for years; and, appellant asked the police officer not to cite him for a section 1543(b) violation because it would mean jail time for him); Horney, supra, 365 Pa.Super. 152, 529 A.2d 18 (actual notice proven when evidence established that notice was mailed and appellant admitted that he received prior notice, mailed to the same address, notifying him that he had to take an exam in order to keep his license, and he did not take the exam); Gray, supra, 356 Pa.Super. 299, 514 A.2d 621 (evidence was sufficient to prove actual notice where it was established that notice was mailed to appellant’s correct address and appellant had previously surrendered his license in response to a notice mailed to the same address); Burkett, supra, 300 Pa.Super. 72, 445 A.2d 1304 (evidence that appellant had surrendered his license and attempted to conceal the fact that he was driving by removing himself from the driver’s seat when his vehicle was pulled over by police was found probative of actual notice).

Notwithstanding the principles set forth thus far, the appellate courts of this Commonwealth have determined that a defendant cannot avail himself/herself of the defense of lack of actual notice under certain circumstances. Specifically, the question has arisen as to whether one who does not notify PennDOT of his or her change of address is precluded from asserting that the Commonwealth did not provide them with actual notice. In Commonwealth v. Heckman, supra, 404 Pa.Super. 335, 590 A.2d 1261, a panel of this court enunciated the following rule: “[W]e today hold that when a defendant fails to notify PennDOT of a change in address pursuant to 75 Pa.C.S.A. § 1515, the defendant cannot rely on this violation of the law to insulate him from more serious violations by claiming lack of actual notice.” Heckman, 404 Pa.Super. at 346, 590 A.2d at 1267. See Minor, supra, at 436 Pa.Super. 35, 647 A.2d 299 (applying Heckman, court held that appellant was precluded from presenting the defense that he lacked notice of suspension where he had not provided PennDOT with his current address). Most recently, this rule was validated by the Pennsylvania Supreme Court in Commonwealth v. Zimmick, supra, 539 Pa. 556, 653 A.2d 221. There it was held that sufficient evidence existed to demonstrate that appellant had actual notice that his license was suspended and, additionally, that appellant was estopped from basing his lack of notice defense on PennDOT’s failure to mail his notice to his current address since he failed to provide PennDOT with his correct address as required by 75 Pa.C.S.A. § 1515. See also Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993) (evenly divided decision).

In the instant case, the Commonwealth claims that, as a “logical extension” of the Heckman holding, a defendant seeking to invoke the defense of no notice must produce a current license at the time of the offense, or within fifteen days thereafter, pursuant to 75 Pa.C.S.A. § 1511. The authority for the Commonwealth’s argument is derived from a decision by a panel of this court in Commonwealth v. Dietz, 423 Pa.Super. 366, 621 A.2d 160 (1993).

In that case, appellant Dietz was convicted of driving with a suspended license pursuant to 75 Pa.C.S.A. § 1543(a). Dietz was involved in an accident and fled the scene, leaving a trail of blood which led the police to his home. When questioned by investigators, Dietz initially lied to them, denying that he was driving the car involved in the accident. Additionally, Dietz’s driving record revealed other convictions for driving with a suspended license. Based on these facts, this court, adopting the reasoning of the trial court, logically held that the Commonwealth produced sufficient additional evidence that Dietz had actual notice of the suspension.

While the Commonwealth did not prove beyond a reasonable doubt that Mr. Dietz received actual notice through the mail, the Commonwealth did present sufficient additional evidence to prove beyond a reasonable doubt the receipt of actual notice____ By fleeing the crash site and by misleading the investigators, Mr. Dietz demonstrated that he knew he was not permitted to drive. Secondly, Dietz’s driving record shows three driving under suspension ... convictions and one driving without a valid license conviction____

Dietz, 423 Pa.Super. at 368, 621 A.2d at 162. Additionally, and more relevant to the instant case, the court extended its holding to include the following:

Furthermore, we hold that in order for a person to invoke the defense that there was no notice of the suspension or revocation of the license, at a minimum, it must be established at trial, that a current driver’s license was produced at the time of the offense, or within 15 days thereafter, as provided for in 75 Pa.C.S.A. [§] 1511. When the penalties of 75 Pa.C.S.A. [§] 1532 have been applied, resulting in suspension or revocation of a driver’s license, under 75 Pa.C.S.A. [§] 1540, the driver is required to surrender the license. The operating privileges cannot then be restored until expiration of the suspension/revocation period at which time one must reapply for a new driver’s license. 75 Pa.C.S.A. [§] 1541. Therefore, it is logical to require of a driver who claims that no notice of a suspension was received, to at least prove possession of a current license at the time of the incident. Otherwise, a defendant’s failure to possess a current license is presumptive knowledge of suspension.

Id. at 370-371, 621 A.2d at 162-63 (emphasis added).

It is a basic tenant of our law that, in criminal cases, there is a continuing presumption of innocence. Commonwealth v. Bonomo, 396 Pa. 222, 151 A.2d 441 (1959).

[The] presumption of innocence ... represents the law’s humane approach to the solution of a dispute which may result in the loss of life or liberty. Because of this concern the law has ordained that any government which seeks to take from any person his life or liberty has the burden of proving justification for doing so. It is the continuing presumption of innocence which is the basis for the requirement that the state has a never-shifting burden to prove guilt beyond a reasonable doubt.

Id. at 229, 151 A.2d at 445. See Commonwealth v. Hilbert, 476 Pa. 288, 297, 382 A.2d 724, 729 (1978) (“[A] state carries a never-shifting burden of proof beyond a reasonable doubt of all the elements of a crime, such elements being contained in either statutory or common-law definitions.”); Turner v. Commonwealth, 86 Pa. 54, 74 (1878) (the burden of proof never shifts but rests with the prosecution throughout); Commonwealth v. Wagaman, 426 Pa.Super. 396, 401, 627 A.2d 735, 737 (1993) (same). See also Hankerson v. North Carolina, 432 U.S. 233, 97 S.Ct. 2339, 53 L.Ed.2d 306 (1977); Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

In light of the Commonwealth’s burden to persuade the jury of a defendant’s guilt, the defendant is not required to present any evidence in order to prevail. Commonwealth v. Loccisano, 243 Pa.Super. 522, 535-537, 366 A.2d 276, 283 (1976). “A man charged with a crime is not required to explain anything. It is the Commonwealth’s obligation to prove guilt.” Commonwealth v. Clinton, 391 Pa. 212, 216, 137 A.2d 463, 465 (1958). “It is hornbook law that a person charged with a crime is under no duty to ... produce evidence of his innocence but may stand mute protected by the presumption of innocence and demand that the Commonwealth sustain its burden of proving his guilt beyond a reasonable doubt.” Commonwealth v. Jacobs, 247 Pa.Super. 373, 379, 372 A.2d 873, 876 (1977). “The Due Process Clause of the United States Constitution prohibits placing a burden of proof upon a criminal defendant to negate an element of the crime with which he or she is charged.” Hilbert, 476 Pa. at 294, 382 A.2d at 727 (citing Mullaney, supra, 421 U.S. 684, 95 S.Ct. 1881). There can be no burden on an accused to disprove an element of the offense. Loccisano, 243 Pa.Super. at 537-539, 366 A.2d at 284. Furthermore, “[t]he due process burden of proof applies to summary offenses as well as to other criminal charges.” Wagaman, 426 Pa.Super. at 401, 627 A.2d at 737 (citing Commonwealth v. Karl, 340 Pa.Super. 493, 490 A.2d 887 (1985)).

Here, the Commonwealth, by way of the rationale espoused in Dietz, essentially takes the position that the burden should be placed on defendant/appellant Crockford to negate an essential element of the offense of driving with a suspended license, namely, actual notice of the suspension. Crockford’s failure to establish at trial that a current driver’s license was produced at the time of the offense or within fifteen days thereafter, as provided in 75 Pa.C.S.A. § 1511, is, the Commonwealth contends, presumptive knowledge of suspension; it avers that only after a current license is produced should the prosecution be required to prove actual notice of the suspension through additional evidence. Such a result shall not be tolerated. To place such a burden on a defendant of having to affirmatively prove compliance with section 1511, or be deemed to have had notice of suspension, runs afoul of the constitutional due process requirement that the government, with its never-shifting burden, must prove every element necessary to constitute the crime beyond a reasonable doubt. Bonomo, supra, 396 Pa. 222, 151 A.2d 441.

In essence, under the Commonwealth’s view, since Crock-ford did not put forth any evidence that he was in possession of a current license pursuant to section 1511 he was, in effect, deemed to have forfeited his right to assert a lack of actual notice under section 1543. The right to actual notice required by Kane, supra, 460 Pa. 582, 333 A.2d 925, is grounded in the constitutional right to due process of law. Kane, 460 Pa. at 585, 333 A.2d at 926 (citing Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969)). Under Dietz, Crockford’s failure to exhibit a valid/current driver’s license as evidence of actual notice would essentially subject him to a loss of liberty; proof of actual notice is not an element that can be essentially “waived” by an accused’s inaction, rather, it must be affirmatively proven by the Commonwealth. See Zimmick, supra, 539 Pa. 556, 653 A.2d 221 (Justice Zappala, concurring) (since the violation of section 1543(a) could result in imprisonment, definitely a loss of liberty, due process requires actual notice of suspension as an element of the offense); see also Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993) (Justice Flaherty, opinion in support of reversal).

I am mindful of the potential difficulty facing prosecutors in their efforts to obtain convictions in these matters. A prosecutor who proves that a license has been suspended and notice has been mailed, may find it challenging to present the additional evidence necessary to prove the element of actual notice. These concerns, however, can never overshadow a defendant’s constitutionally protected presumption of innocence, the Commonwealth’s never-shifting burden of proving guilt beyond a reasonable doubt, and a defendant’s constitutional right to due process via the notice requirements. Therefore, to the extent that the Dietz decision places an affirmative duty on a defendant to produce a current driver’s license before asserting a defense of no notice, I would reject the imposition of such a requirement.

Since Crockford cannot be obligated to establish that he was in possession of a valid driver’s license, I find that the Commonwealth did not sustain its burden of proving actual notice of the license suspension, an essential element under section 1543. Kane, supra, 460 Pa. 582, 333 A.2d 925. Because proof of mailing is not sufficient, in and of itself, to prove that Crockford had notice that his license was suspended, Kane, supra, and, since the Commonwealth presented no additional evidence of actual notice, Burkett, supra, 300 Pa.Super. 72, 445 A.2d 1304, his conviction must be reversed. Thomas, supra, 527 Pa. 511, 594 A.2d 300.

      . Appellant was arrested on March 29, 1991 and January 26, 1992, for driving under the influence. However, because he entered guilty pleas to both violations on the same day, he was treated as a first offender on each. See notes of testimony, 2/2/94 at 20-21.

      . We pause to note two other related lines of cases that have devolved from Commonwealth v. Kane. In Commonwealth v. Gamble, 376 Pa.Super. 590, 546 A.2d 681 (1988), this court ruled that although evidence of mailing (to a prior, stale address) was presented and appellant was under the belief that his license was suspended, judgment was nevertheless properly arrested. Appellant believed that his license was suspended for failure to respond to citations. In fact, it was suspended for driving under the influence. Appellant claimed he was unaware of the nature of his suspension. This court held that appellant not only had to have actual notice of his suspension, but actual notice of the true nature of the suspension. The court refused to subject appellant to the more severe penalties of 75 Pa.C.S.A. § 1543(b).
      Recently, in Commonwealth v. Dean M. Taylor, 437 Pa.Super. 102, 649 A.2d 453 (1994), this court echoed the holding in Gamble. Dean M. Taylor refused to apply the precept announced in Commonwealth v. Dietz, 423 Pa.Super. 366, 621 A.2d 160 (1993), allocatur denied, Dietz v. Commonwealth, 535 Pa. 634, 631 A.2d 1007 (1993), to the effect that the Commonwealth can prove actual notice by demonstrating mailing combined with the fact that the driver failed to produce a license when stopped. The Dean M. Taylor court reasoned that while failure to possess a license might indicate knowledge of suspension, it does not indicate knowledge that the suspension is for a driving under the influence offense. Nevertheless, the court found actual notice based on evidence of mailing combined with the fact that appellant was advised that he would undergo a six-month suspension when he entered an ARD program. This is not an issue in the instant case.

      . We note that the Commonwealth is required to prove more than constructive notice:
      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.

        Black's Law Dictionary, supra at 1062. Constructive notice is a presumption of law, while actual notice requires proof of facts and circumstances showing knowledge actually received.

      . On appeal, appellant does not argue that the notice was sent to an incorrect address. See note 9, infra.

      . We note that these factors are sufficient, but not necessary, for the Commonwealth to establish its prima facie case. The Commonwealth is certainly free to introduce any other evidence available to establish actual notice. Furthermore, in the event that a defendant is able to produce a current license when stopped or thereafter, or some other evidence of lack of notice, the Commonwealth must rely on other available evidence to meet its burden.

      . Appellant argues that to avail itself of § 1511’s production requirement, the Commonwealth must establish that the officer informed appellant of subsection (b) of § 1511 which provides that “No person shall be convicted of this section or section 1501(a) if the person produces at the office of the issuing authority or the arresting officer within 15 days a driver’s license valid in this Commonwealth at the time of the arrest.” 75 Pa.C.S.A. § 1511(b). We find no such obligation on the part of the officer and place no such requirement on the Commonwealth. As noted by appellant, he has not been charged with a violation of § 1511, and § 1511 is only relied upon to the extent that it presents a reasonable exercise of regulatory authority by the Commonwealth.

      . See n. 4, supra.

      . "Elements” as used by the Model Penal Code included some so-called affirmative defenses such as justification (self-defense), excuse, and some exculpating mistakes. "Elements” were distinguished from "material elements” which were defined as those that do not "relate exclusively to ... (ii) the existence of a justification or excuse for such [forbidden] conduct.” Model Penal Code, Definitions, § 1.14 at 118 (Tent. Draft #4, 1955). See also discussion of the evidentiary burden on a defendant, supra at 110.

      . Sojourner II was an en banc decision of this court from which no appeal was taken. Since Sojourner II was decided after Commonwealth v. McNeil, 461 Pa. 709, 337 A.2d 840 (1975), and since Sojourner II’s holding has remained undisturbed since 1979, we find that it is still good law. See, for example, Commonwealth v. Woods, 432 Pa.Super. 428, 638 A.2d 1013 (1994) (noting that McNeil was decided before Patterson v. New York, supra, and distinguishing McNeil from Sojourner II); and Commonwealth v. South, 408 Pa.Super. 486, 597 A.2d 137 (1991) (noting that the Sojourner II analysis has been incorporated into Pennsylvania Suggested Standard Jury Instruction (Criminal) § 13.13(a)(16)(A) (1980), relating to the defendant’s burden of production of authorization evidence before the Commonwealth must produce evidence of nonauthorization, and relying for its own analysis of the defendant’s burden of production on Sojourner II).

      . The need for relation-back testimony was, in most cases, abrogated by statute subsequent to the supreme court’s decision in Yarger. See 75 Pa.C.S.A. §§ 3731(a)(5) and (a)(5)(a.1).

      . We recognize that a defendant can be effectively estopped from raising the lack of notice argument where notice of suspension is mailed to an old address because the driver has failed to notify the Commonwealth of an address change, as required under 75 Pa.C.S.A. § 1515. The driver cannot rely on this violation to insulate himself from the more serious charge of driving under suspension by claiming no notice'. This was the holding announced by this court in Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991), and reaffirmed more recently in Commonwealth v. Minor, 436 Pa.Super. 35, 647 A.2d 229 (1994). Compare Commonwealth v. Donald R. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990). We should note that this line of cases does not have the full support of our supreme court. Although the court affirmed the estoppel concept in Commonwealth v. McDonough, 533 Pa. 283, 621 A.2d 569 (1993), it was evenly divided on the decision. Lately, the court has revisited this issue in Commonwealth v. Zimmick, supra, 539 Pa. 556, 653 A.2d 221, and the majority appears to approve, although in Zimmick, the defendant presented a full defense, after which the trial court found that "the evidence and the reasonable inferences therefrom, sufficiently demonstrated that appellant had actual notice of his suspension.” Id. at 552, 653 A.2d at 1219-20. However, the majority drew several concurrences. Writing separately, Mr. Justice Zappala agreed with that part of the majority’s opinion that found sufficient evidence of actual notice of suspension, but re-asserted his opinion that failure to notify the Commonwealth of an address change should not result in a waiver of the “no notice” defense.

      . We note that proof of actual notice could be made much simpler, and thereby preclude the necessity to engage in the kind of "tempest in a teapot” created in the instant case, if trial judges were simply to require defendants to surrender their licenses at the time of sentencing in DUI convictions requiring license suspension. We urge that such a practice be adopted where it is feasible to do so.

      . Crockford was not told by Trooper Halecky that he had fifteen days to produce a current license. Furthermore, when asked by the court to produce a current license during trial, Crockford responded that he was not instructed to bring the license. When the court pressed the matter, asking Crockford why he did not bring the license when he knew he was facing ninety days mandatory jail time, Crockford answered that he did not see the significance of producing the license, since he was now aware that it was not current. Crockford also repeated that, had he been so instructed, he would have brought the license.

      . For purposes of clarity, I have taken the liberty of rewording Crock-ford’s issues on appeal.

      . In Kane, the notice of suspension was not sent to the address listed in PennDOT’s records but rather, due to a typographical error, was mailed to an address at which the defendant never resided.

      . We have not been asked to rule upon this particular issue in the instant case. There was no evidence presented regarding the address to which PennDOT mailed Crockford's suspension notice.

      . This court in Commonwealth v. Taylor, 390 Pa.Super. 571, 568 A.2d 1320 (1990) held that the Commonwealth did not prove actual notice of a license suspension where there was evidence that the defendant no longer resided at the address to which his license was registered. The decision, however, does not reveal whether the defendant notified PennDOT of his change of address pursuant to 75 Pa.C.S.A. § 1515. See also Commonwealth v. Gamble, 376 Pa.Super. 590, 546 A.2d 681 (1988).

      . The Commonwealth contends that this approach would mirror the approach adopted by the Pennsylvania Supreme Court in Commonwealth v. Yarger, 538 Pa. 329, 648 A.2d 529 (1994). There, the Court found it unnecessary to require the Commonwealth to present expert testimony in cases where the driver has failed to rebut the Commonwealth’s prima facie evidence that his blood alcohol content was 0.10% while operating a motor vehicle. By antilogy, the Commonwealth would apply the procedural framework set forth in Yarger to the instant case. Specifically, the Commonwealth’s brief suggests the following:
      [T]he Commonwealth would maintain the initial burden of establishing that the defendant’s driver’s license was suspended and that notice of the suspension was mailed to thé defendant. Following such evidence, a prima facie case would be established. At this point, evidence that the defendant produced a valid driver’s license could be introduced by the defendant to rebut the Commonwealth’s prima facie evidence. If evidence rebutting the Commonwealth’s prima facie case was produced, then the Commonwealth would bear the additional burden of proving actual notice of suspension through additional evidence.
      I reject this analogy, as these two statutes can be clearly distinguished. Section 3731(a)(4) of the Vehicle Code, at issue in Yarger, requires as a statutory element of the offense that the Commonwealth prove a 0.10% blood alcohol content as part of its prima facie case. The 0.10% rule, built into the statute itself, specifies a quantum of evidence which is legally sufficient to sustain proof of this element of the crime. See Commonwealth v. Hernandez, 339 Pa.Super. 32, 488 A.2d 293 (1985). Section 1543, as interpreted by the Commonwealth through Dietz, would essentially bring the requirements of another statute (section 1511) through the “back door,” thereby impeding a defendant’s right to notice and seeking an application of sections 1511 and 1543 that the legislature did not envision. I decline to accept the Commonwealth’s invitation to follow the procedural approach set forth in Yarger and apply it to a section 1543 case. The framework set up in Yarger does not result in hindering a defendant’s fundamental right to notice, as it would here.

      . I reject the Commonwealth’s contention that actual notice of suspension in prosecutions under section 1543 should no longer be an element of the offense of driving with a suspended/revoked license. Specifically, the Commonwealth points out that Kane was decided pursuant to the Act of April 29, 1959, P.L. 58 § 624, as amended, 75 P.S. § 624. Since an offense under section 624 was a misdemeanor, the general requirements of culpability applied. Section 624 was repealed, and now 75 Pa.C.S.A. § 1543 establishes two separate summary offenses for driving with a suspended/revoked license. The Commonwealth contends that since violations of section 1543 are always summary offenses, there is no mens rea requirement that the Commonwealth must prove. See 18 Pa.C.S.A. § 305(a)(1) and (2). Since the 75 Pa.C.S.A. § 1543 statutory scheme has replaced that found in section 624, the Commonwealth avers that Kane and its progeny no longer has a valid statutory base. In other words, since the Commonwealth need not prove that a defendant was knowingly driving with a suspended license, it need not prove actual notice.
      I reiterate what this court stated in Commonwealth v. Heckman, 404 Pa.Super. 335, 590 A.2d 1261 (1991), where a similar argument was rejected. There, we stated: "While we agree that § 1543(b) does not include a culpability requirement in its definition, we cannot agree that such a requirement is ‘patently inconsistent’ with effective enforcement of driving under suspension---- [W]e do not hold that actual notice of suspension is no longer necessary.” Id. at 347 n. 6, 590 A.2d at 1267 n. 6. I would decline the Commonwealth’s request to reexamine and reevaluate this area of the law.


source: Caselaw Access Project

author: CAVANAUGH, Judge:

license: Public Domain

text:
    660 A.2d 1341
    DUQUESNE LIGHT COMPANY, Appellant, v. NEW WARWICK MINING COMPANY.
    Superior Court of Pennsylvania.
    Argued Feb. 9, 1995.
    Filed June 12, 1995.

      Edmund M. Carney, Pittsburgh, for appellant.
    Raymond G. McLaughlin, Pittsburgh, for appellee.
    Before CAVANAUGH, JOHNSON and SAYLOR, JJ.
   CAVANAUGH, Judge:

This is an appeal from a judgment entered in favor of appellee New Warwick Mining Company (“New Warwick”) and against appellant Duquesne Light Company (“Duquesne”), following the trial court’s denial of Duquesne’s petition to vacate or modify an arbitration award. After careful review, and for the reasons which follow, we affirm.

In 1990, the parties entered into two agreements which required New Warwick to supply coal to Duquesne. Both of these agreements provided for arbitration of any disputes arising between the parties. Subsequently, a dispute arose over Duquesne’s obligation to purchase in excess of 700,000 tons of coal from New Warwick during 1993, and the matter was submitted to arbitration. On February 16, 1994, a panel of three arbitrators rendered a decision and award, finding, inter alia, that Duquesne is obligated, under the agreements between the parties, to accept and pay for 737,000 tons of coal annually from New Warwick; and that Duquesne owed New Warwick $302,290 for Duquesne’s breach in accepting less than 737,000 tons of coal during 1993. Duquesne then filed a petition to vacate or modify the arbitration award. In response, New Warwick filed both an answer and preliminary objections to Duquesne’s petition. The trial court subsequently denied Duquesne’s petition to vacate and overruled New Warwick’s preliminary objections. Judgment was entered. This appeal followed.

Before examining the merits of this appeal, we will first address the preliminary question of whether the present dispute is governed by the provisions of the Federal Arbitration Act, or by Pennsylvania law. This question was not decided by the arbitration panel. The trial court also did not decide this question. The court simply concluded, in disposing of Duquesne’s motion to vacate, that under either federal or state law, Duquesne was not entitled to relief. Duquesne contends that federal law applies because the transactions between the parties involve interstate commerce. New Warwick, however, maintains that the record does not support the conclusion that the transactions between the parties involve interstate commerce, and that, in any event, this Court may not, in the first instance, make the determination of whether or not federal law is applicable in this case.

In order for the provisions of the Federal Arbitration Act to apply, the contract at issue must evidence a transaction in or relating to interstate commerce. Emlenton Area Mun. Authority v. Miles, 378 Pa.Super. 303, 306 n. 2, 548 A.2d 623, 625 n. 2 (1988). This inquiry involves a factual determination. Id. Where the factfinder makes no such findings, and otherwise fails to indicate whether it is applying federal or state law to the arbitration issue, an appellate court is prohibited from determining the applicability of federal law. Id. In the present case, the arbitration panel did not decide this issue, and it appears from the record that it was not even presented to or considered by the panel. In these circumstances, we could remand for a specific finding of fact on this point. See Emlenton, supra. However, because we agree with the trial court that Duquesne is not entitled to relief under either federal or state law, remand for such a finding is unnecessary. Id. We will thus undertake an examination of Duquesne’s claims in light of both federal and state law.

We begin by examining Duquesne’s argument under federal law. The Federal Arbitration Act presumes that reviewing courts will confirm arbitration awards and that a court’s review of the arbitration process will be severely limited. Robbins v. Day, 954 F.2d 679 (11th Cir.1992). Under the Act, a reviewing court may vacate the arbitrators’ award “where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” 9 U.S.C. § 10(a)(4). An award will not, however, be vacated under § 10 solely on the basis of an error of law or interpretation; but rather, requires something more, such as misconduct, on the part of the arbitrators or the parties, which pertains to the proceedings. Robbins, supra.

In addition to § 10, the federal courts have recognized several limited instances where an arbitration award will be vacated. Fine v. Bear, Stearns & Co., Inc., 765 F.Supp. 824, 827 (S.D.N.Y.1991). There is not uniform agreement, however, among the federal circuits on these various standards for vacatur, or on how they are to be applied. Robbins, supra, 954 F.2d 679. Here, Duquesne contends that the arbitrators either exceeded or improperly exercised their powers in violation of § 10(a)(4); and also that their decision was in manifest disregard of the law and was fundamentally irrational.

Under federal caselaw, an award may be vacated or modified if it was rendered in manifest disregard of the law, Wilko v. Swan, 346 U.S. 427, 74 S.Ct. 182, 98 L.Ed. 168 (1958), or if the award is fundamentally irrational, Swift Industries, Inc. v. Botany Industries, Inc., 466 F.2d 1125 (3d Cir.1972). In order to vacate the award due to alleged “manifest disregard of the law” it must be shown that the law alleged to have been disregarded is well-defined, explicit and clearly applicable, such that the error is capable of being readily and instantly perceived by the average person qualified to serve as an arbitrator. Fine, supra, at 765 F.Supp. 824. To demonstrate that the award was “fundamentally irrational” it must be shown that the award was based on reasoning so palpably faulty that no judge could ever conceivably have made such a ruling. Local 1466, International Brotherhood of Electrical Workers, AFL-CIO v. Columbus & Southern Ohio Electric Co., 455 F.Supp. 471, 474 (S.D.Ohio 1978), aff’d., 627 F.2d 1091 (6th Cir.1980).

Although we are presented with several standards of review, a single argument underlies Duquesne’s contentions. Under the agreements between Duquesne and New Warwick, Duquesne was to receive a discount in the price of the coal when an amount in excess of 737,000 tons was supplied by New Warwick. Duquesne maintains that it had the absolute right to order between 737,000 and 775,000 tons of coal per year, and that the arbitrators should have based their damage calculations on Duquesne’s right to order tonnage in this range, because the law of damages requires consideration of non-breaching alternatives which are available and which would limit the damages caused by a party’s breach. According to Duquesne, however, the arbitrators failed to consider Duquesne’s right to order in upper range and consequently failed to consider the corresponding discount. This omission by the arbitrators, Duquesne maintains, resulted in a fundamentally erroneous award, which should now be vacated.

Under the arbitration provision of the agreements between the parties, any disputes were to be submitted to a panel of three arbitrators. Each party had the right to choose one of the arbitrators, and the two arbitrators chosen by the parties would then choose the third. The arbitration panel which heard the present controversy, resolved the dispute in favor of New Warwick, with the arbitrator appointed by Duquesne dissenting from the majority’s award. The majority did not issue an opinion explaining its rationale for the award. See Robbins, supra, 954 F.2d 679 (arbitrators are not required to explain award, and silence cannot be used as grounds for vacating the award). Duquesne, however, points to language in the brief decision issued by the majority, which it contends supports its position that it had the absolute right to purchase coal in the upper tonnage range. Duquesne contends that the majority improperly failed to consider both this right, and the corresponding discount Duquesne would receive for an order in the upper range, when the majority calculated the damage award. The language in the majority’s decision which Duquesne relies on states the following:

Duquesne Light Company is not obligated to accept and pay for tonnage between 737,000 and 775,000 from New Warwick Mining Company under the contracts. New Warwick Mining Company does not have the right under the contracts to sell annual tonnage from 737,000 to 775,000 to Duquesne Light Company.

To further support this position, Duquesne points to the dissent, prepared at its request, by the arbitrator which it chose for the panel. This statement provides, in pertinent part, as follows:

The Chairman apparently did not apply these basic principles of the law of damages because, he thought that the Panel was not asked the question concerning Duquesne’s rights in the higher range of tonnage. But, of course, we were. Duquesne’s and New Warwick’s statements of the issue and answer both address the entire range. Secondly, the Majority has already ruled on New Warwick’s rights and Duquesne’s obligations concerning the 737,000 to 775,-000 range. Only Duquesne’s rights in that range remain unstated in the Majority’s award, but, as stated, those rights are present as the Chairman himself so said to the other members of the Panel on two separate occasions.

After reviewing the record in this case, we find Duquesne’s assertion to be fundamentally flawed. While we agree that the issue of the upper range discount was before the arbitrators, we do not agree that the majority believed that Duquesne had an absolute right to purchase coal in the upper range. From a fair reading of the majority’s decision it is clear that it concluded that New Warwick did not have an absolute right to deliver coal in the upper range which Duquesne was then obligated to purchase. Although the majority’s statement leaves open the possibility that Duquesne may have indeed had an absolute right to purchase coal in the upper range, the majority’s statement also leaves open the possibility that the parties had corresponding rights and obligations (not rising to the level of an absolute right or obligation) regarding the delivery and purchase of tonnage in the upper range. Additionally, after reviewing the relevant provisions of the contracts between the parties, we find no clear indication as to their intent with regard to their respective rights and obligations concerning tonnage in the upper range. See Sociedad Comercializadora v. Quizada, 434 Pa.Super. 48, 641 A.2d 1193 (1993) (in any event, the intent of contracting parties is a question for the factfinder and not for a reviewing court).

Furthermore, with respect to the dissenting arbitrator’s assertion that the Chairman believed that Duquesne had an absolute right to purchase tonnage in the upper range, we point out that neither the deliberations of the arbitrators nor the majority’s rationale are matters of record. We cannot base our decision in this case upon hearsay and what amounts to nothing more than the speculation and conjecture of a party-appointed arbitrator. See Smith v. Smith, 431 Pa.Super. 588, 637 A.2d 622 (1993) (it is black letter law that an appellate court may not consider anything which is not part of the record in disposing of the case). The record evidence simply does not bear out Duquesne’s argument. Viewing the record before us, we can only conclude that the majority rejected Duquesne’s argument that it had an absolute right to order coal in the upper range, and that it likewise rejected Duquesne’s damage theory. As such, there is no basis upon which the majority’s award can be vacated.

We will, nonetheless, assume arguendo, that Duquesne had an absolute right to order tonnage in the upper range. After reviewing Duquesne’s damage theory, we must still conclude that Duquesne is not entitled to relief under federal law. First, we note that Duquesne has failed to point out any misconduct in the procedure or proceedings, and thus, is not eligible for relief under § 10(a)(4). See Robbins, supra, 954 F.2d 679. Furthermore, where the arbitrators have made a lump sum award and have given no rationale for it, at least one federal circuit has held that the award will be confirmed (and the judicially created grounds for vacatur will not be examined) if a rational ground for the arbitrators’ decision can be inferred from the facts of the case. Id.

Here, the panel majority, after finding that Duquesne was obligated to purchase an additional 37,000 tons of coal from New Warwick, apparently performed a standard damage calculation in a case where a contracting party has breached. It appears the majority arrived at the damage award based on the difference between the price per ton agreed upon in the contract (for 737,000 tons) and the lower price per ton at which New Warwick was forced to resell the coal after Duquesne’s breach. As such, we find that a rational ground existed for the majority’s award in view of the facts of this case.

Finally, we note that even under the judicially created “manifest disregard of the law” and “fundamentally irrational” standards, we find no grounds for vacating the award. With respect to the former standard, we cannot conclude that Duquesne’s theory was so clearly applicable that the average arbitrator would have readily and instantly perceived that the majority’s calculation was in error. Nor can we conclude, under the latter standard, that the majority’s reasoning was so palpably faulty, that no judge could ever conceivably make such a ruling. Here, two of the three arbitrators agreed on the calculation of damages, and implicitly rejected Duquesne’s theory; and a trial judge, in reviewing the arbitrators award, explicitly agreed with the panel majority’s calculation. Moreover, the panel majority’s award is based upon standard contract law remedies and is rationally related to the damage suffered (37,000 tons of coal not accepted by Duquesne) by New Warwick because of Duquesne’s breach. As such, there is no basis under federal law for vacating the majority’s award.

We will now examine the validity of Duquesne’s claim under state law. In Pennsylvania, the scope of judicial review of common law arbitration awards is very narrow. Mellon v. Travelers Ins. Co., 267 Pa.Super. 191, 195, 406 A.2d 759, 761 (1979).

In arbitration agreements under common law, the arbitrator is the final judge of both law and fact, and there is no authority which sanctions the vacatur of his decision for a mistake of either. [ ] Allstate Insurance Co. v. McMonagle, 449 Pa. 362, 296 A.2d 738 (1972); Harwitz v. Selas Corp. of America, 406 Pa. 539, 178 A.2d 617 (1962). Every presumption is in favor of the award’s validity. Reinhart v. State Automobile Insurance Association, 242 Pa.Superior Ct. 18, 363 A.2d 1138 (1976). Nevertheless, a party can succeed in having an arbitrator’s award vacated if it is alleged and proven, by clear, precise and convincing evidence, that he was “denied a hearing or that there was fraud, misconduct, corruption or some other irregularity of this nature on the part of the arbitrator which caused him to render an unjust, inequitable or unconscionable finding.” International Brotherhood of Firemen and. Oilers, AFL-CIO Local 1201 v. School District of Philadelphia, 465 Pa. 356, 350 A.2d 804 (1976), quoting Nationwide Mutual Insurance Co. v. Barbera, 443 Pa. 93, 95, 277 A.2d 821, 823 (1971). See 42 Pa.C.S.A. § 7341.

Parking Unlimited v. Monsour Med. Foundation, 299 Pa.Super. 289, 292-93, 445 A.2d 758, 760-61 (1982).

Duquesne contends that an irregularity occurred in the present case because the board of arbitrators, in calculating the damage award, failed to consider the discount Duquesne would receive for ordering tonnage in the upper range. Our courts have held that an irregularity refers to the process employed in reaching the result of the arbitration, and not to the result itself. Chervenak, Keane & Co. v. Hotel Rittenhouse Assoc., 328 Pa.Super. 357, 362, 477 A.2d 482, 485 (1984). Moreover, an irregularity will not be found simply upon a showing that an incorrect result was reached. Mellon, supra, 267 Pa.Super. 191, 406 A.2d 759.

Here, our review leads us to conclude that the irregularity alleged by Duquesne does not entitle it to relief. An irregularity will only be found where there is a defect in the process or procedure employed in the arbitration, which rises to a level commensurate with fraud, misconduct or corruption; it will not be found where the arbitrators deliberations, with respect to the parties legal and factual arguments, result in an incorrect decision. Cf. Paugh v. Nationwide Insurance Co., 278 Pa.Super. 108, 420 A.2d 452 (1980) (irregularity found when plaintiffs kept relevant and material testimony from arbitrators) with Runewicz v. Keystone Insurance Co., 476 Pa. 456, 383 A.2d 189 (1978) (in common law arbitration, an award patently at odds with contract is not an irregularity which would serve as a basis for setting aside the award).

Duquesne has failed to point to any irregularity in the procedure of the arbitration. Rather, Duquesne seeks to have this Court relitigate the legal and factual arguments it made to the arbitrators on the issue of damages. The arbitrators are the final judges of both law and fact, and this Court is without authority to vacate or modify these determinations. We remind Duquesne, that even were we to conclude that the arbitrators erred in calculating the damage award (which we have not) such error would not provide a basis for reversal, as mistakes of judgment and mistakes of either fact or law are among the contingencies parties assume when they submit disputes to common law arbitration. McGrew v. Travelers Indemnity Company, 231 Pa.Super. 217, 331 A.2d 668 (1974); Allstate Insurance Company v. Fioravanti, 451 Pa. 108, 299 A.2d 585 (1973). As such, Duquesne’s argument under state law must fail.

After a thorough review of Duquesne’s arguments and the record in this case, we conclude that Duquesne has failed to meet its burden, under either federal or state law, for vacating the arbitration panel’s award. We, therefore, affirm the judgment entered in the lower court in favor of New Warwick and against Duquesne.

Judgment affirmed.

      . See 9 U.S.C. § 1 et seq.

      . See 42 Pa.C.S.A. § 7341 (Common Law Arbitration).

      . More specifically, the upper range price discount would have brought the average contract price per ton of coal down to $27.54 at 760,000 tons or $24.80 at 775,000 tons. At either of these price figures, it would have been less than the average price of $29.16 at which New Warwick resold the excess coal to third parties. Thus, Duquesne contends that using the upper range discount would have resulted in zero damages because New Warwick realized a greater return than it would have had there been no breach and the contract had been completed.

      . In urging this court to accept its damage theory, Duquesne has steadfastly maintained that it had the absolute right to order tonnage in the upper range, and that, as such, it would always order in the upper range because of the substantial price discount per ton, and also because its annual need for coal exceeded 775,000 tons. Such being the case, and regardless of New Warwick’s ability to provide 775,000 tons of coal per year, we are puzzled as to why Duquesne did not order 775,000 tons in 1993, but instead ordered only 700,000 tons.


author: DEL SOLE, Judge: BECK, Judge,

text:
    660 A.2d 1347
    COMMONWEALTH of Pennsylvania, v. Dennis P. DUNKEL, Appellant.
    Superior Court of Pennsylvania.
    Argued March 7, 1995.
    Filed June 16, 1995.

      Hugh C. Clark, Philadelphia, for appellant.
    Michael A. O’Pake, Asst. Dist. Atty., Pottsville, for the Com., appellee.
    Before DEL SOLE, BECK and CERCONE, JJ.
   DEL SOLE, Judge:

This appeal follows a jury’s pronouncement of guilt on charges of Theft by Deception and Securing Execution of Documents By Deception and the sentence subsequently entered. The sole question presented is whether the trial court erred in denying Appellant’s request to proceed in forma pauperis and refusing to have court appointed counsel for Appellant during his trial. Since we conclude that Appellant was wrongly denied representation, we vacate his Judgment of Sentence and remand for the appointment of counsel and order a new trial.

The underlying action was initiated as a result of a private criminal complaint filed by Appellant’s father. The District Attorney’s Office approved the complaint and Appellant was charged with two crimes resulting from what was alleged to be the wrongful withdrawal of $25,500.00 from his father’s bank account. The withdrawals took place after Appellant presented to the bank a signed general power of attorney, which Appellant’s father asserts was obtained under false pretenses. The father maintained that he was presented with the legal document while he was ill in the hospital and that Appellant concealed language in the document pertaining to the general power of attorney and had him view only hand written language regarding a pending custody action. Appellant defended the charges by arguing that he withdrew the money at his father’s request and gave the money to his father in the hospital room. Prior to filing the Complaint Appellant’s father retained Mr. Harry A. Rubright, Esquire who wrote to Appellant requesting a return on all money received as a result of the execution of the General Power of Attorney.

Appellant applied for legal representation by the Office of the Public Defender of Schuykill County. Attorney Rubright was also the Chief Public Defender for Schuykill County. Despite Appellant’s claim that he was unemployed, receiving food stamps and about to file for bankruptcy, Mr. Rubright informed Appellant that he was not entitled to the services of a public defender. Appellant filed a pro se motion for court-appointed counsel and a request to proceed in forma pauperis, after which the court scheduled a hearing. At the hearing Appellant’s father testified regarding the missing money and the fact that the bank documents demonstrated to him that Appellant withdrew the funds from his account. Mr. Rubright also testified. He advised the court that he denied Appellant the service of a Public Defender for the following reason:

I had personal knowledge from Community Banks of a transaction that Mr. Dunkel had been involved in wherein he received a cash distribution through a recorded Federal Currency Transport Report on 2-26-93 where Community Banks delivered to Mr. Dunkel $20,500.00 in cash. Mr. Dunkel failed to disclose any of that information on his application, and we denied him for financial reasons.
N.T. 8-26-93 at 39.

At the hearing Appellant testified that he was unemployed and he owned no real or personal property with the exception of a 1988 automobile on which he owes “more than what it is worth.” After receipt of the testimony, the court entered an order denying Appellant’s requests and requiring him to proceed to trial without court appointed counsel, or stand-by counsel. In making this decision the court reasoned that absent any denial from Appellant to receipt of the monies and explanation for how or where they were expended it was “constrained to believe the testimony of George Dunkel and Attorney Rubright without qualification.” Because it concluded that Appellant was the recent recipient of $25,500.00 the court determined that he had a sum sufficient to enable him to hire counsel.

The error with the trial court’s analysis is that it premises a conclusion based on the ultimate issue in the underlying case. The trial court maintained that it had not passed upon the question of whether or not the withdrawals were authorized or whether Appellant intended to permanently deprive the owner of the funds, but the court did necessarily conclude that Appellant had possession of the funds and retained possession of the funds. The conclusion is based upon the court’s determination of the two witnesses’ credibility, one of whom was the victim in the case and another, who at one time represented the victim with respect to this matter and who was also acting as Chief Public Defender. The conflicts here are evident and it is clear that the court’s decision that Appellant had the funds necessary to employ his own counsel was premised upon a finding that Appellant had in fact retained control and possession of the $25,500.00, the theft of which he was required to defend in the upcoming action.

It is well known that an accused has a constitutional right to assistance of counsel for defense in all criminal prosecutions. Commonwealth v. Kale, 331 Pa.Super. 155, 480 A.2d 291 (1984). Where a defendant cannot afford counsel, one is to be appointed for him. Here the court did not rule that Appellant possessed any funds independent of the $25,-500.00 he was accused of taking from his father. Because the question of whether he took the money and whether he retains possession and control over it is the issue to be decided at trial, it was inappropriate for the court to deny his request on that basis. For this reason we find it necessary for Appellant to be awarded a new trial at which he can be represented by court appointed counsel. We add that it would be inappropriate in this case for court appointed counsel to come from the public defender’s office since chief counsel from that office has a conflict of interest in this case. Mr. Rubright not only represented the victim in this case prior to charges being filed, but he also testified against Appellant based upon his “personal knowledge” during the hearing. Therefore, it would be improper for him or a member of his staff to undertake the Appellant’s defense in this action. Accordingly, we remand this matter to the trial court for proceedings consistent with this opinion.

Judgment of Sentence vacated. Case remanded for appointment of counsel and new trial. Jurisdiction relinquished.

BECK, J., files a concurring opinion.

BECK, Judge,

concurring:

I concur in the result. The majority states “[t]he error with the trial court’s analysis is that it premises a conclusion on the ultimate issue in the underlying case,” that appellant had possession and retained possession of the funds. I do not find that the court erred in engaging in that line of inquiry in its attempt to answer the question before it.

The procedural posture of the case was a pre-trial In Forma Pauperis (IFP) determination as to whether the appellant was indigent and entitled to the appointment of counsel. The evidence adduced at this hearing was independent of the trial itself. The IFP hearing did not compromise the Commonwealth’s burden of proving at trial appellant’s guilt by introducing evidence to prove each element of the crime beyond a reasonable doubt. At trial the Commonwealth could not rely on evidence adduced at the IFP hearing. A well-reasoned Third Circuit opinion, United States v. Pavelko, 992 F.2d 32 (3d Cir.1993), holds that the “government should not be permitted to use as part of its direct case any testimony given by a defendant at a hearing where he is seeking forma pauperis relief or the assignment of counsel on the ground of his financial inability to ... secure counsel.” Id. at 34 (quoting United States v. Branker, 418 F.2d 378 (2d Cir.1969)). The rationale of the Pavelko court was that it was impermissible to make the defendant choose “between the privilege of self incrimination and the right to court-appointed counsel.” Id. I therefore disagree with the majority that a remand is necessary because the IFP hearing drew a conclusion on the ultimate issue to be decided at trial.

The basis for my remand, therefore, differs from the majority’s. My rationale is that the record reveals that the IFP hearing was totally inadequate under the standard established in Commonwealth v. Brown, 327 Pa.Super. 505, 476 A.2d 381 (1984).

Because appellant proceeded to trial without counsel based on the court’s failure adequately to inquire into his IFP status, I would grant a new trial. I would also remand for a new IFP hearing to determine if appellant at his retrial is entitled to counsel.

      . I point out the law’s strong mandate that at trial a criminal defendant be represented by counsel. The United States Constitution provides that "[i]n all criminal prosecutions, the accused shall enjoy the right to ... have the Assistance of Counsel for his defense.” U.S. Const.Amend. VI. An accused unable to afford counsel has the right to have counsel appointed for him. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). This right extends to everyone charged with an offense punishable by imprisonment, Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and is binding upon the states, Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).