Commonwealth v. Wilson, 1976 WDA 2013

111 A.3d 747

2015 PA Super 36

COMMONWEALTH of Pennsylvania, Appellee

v.Steve Edward WILSON, Appellant.

No. 1976 WDA 2013

Superior Court of Pennsylvania.

Submitted Dec. 10, 2014.

Filed Feb. 18, 2015.

Reargument Denied April 17, 2015.

Jessica L. Herndon, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

Opinion

OPINION BY ALLEN, J.:

Steve Edward Wilson (“Appellant”) appeals from the judgment of sentence imposed after the trial court convicted him of four counts of driving under the influence (“DUI”), one count of careless driving, and one count of obscured plates.¹

The trial court detailed the pertinent facts as follows:

At approximately 1:00 a.m. on May 7, 2013, Springdale Township police officer Joseph Martino was on patrol on Freeport Road in a marked police vehicle with external lights. Officer Martino approached a black Expedition, driven by [Appellant], which was completely stopped in the middle of the roadway. As Officer Martino drove toward the Expedition, it began to travel in the direction of Riddle Run Road. As it traveled, Officer Martino observed the vehicle cross the yellow line approximately four times. At this time, Officer Martino activated his lights and effectuated a traffic stop on the Expedition.

When Officer Martino activated his lights, his vehicle's dash camera turned on and recorded the traffic stop for approximately 37 minutes, including the periods immediately before and after the lights are activated. The camera records for approximately two minutes before the lights are turned on and 45 seconds after the lights are shut off. At 27 seconds, [Appellant's] brake lights are not on and the vehicle was able to move. At 44 seconds, the vehicle crossed the double yellow line. At 50 seconds, the vehicle crossed the double yellow line. At 51–52 seconds, the vehicle crossed the white “fog” line. At 1:08, the vehicle crossed the double-yellow line. At this point, the lights were activated.

Officer Martino noticed that there was a partially tinted license plate cover affecting his view of the registration. Though his police report did not reference the license plate, the criminal complaint did. Officer Martino then went to the driver's window where he identified the driver as [Appellant] and detected a strong odor of alcohol coming from the vehicle. He obtained [Appellant's] information and observed four children, all estimated to be under the age of twelve in the back of the vehicle, none of whom were wearing a seat belt. Officer Martino also observed a glass filled with wine in the middle console of the front seat. The substance was determined to be wine based on its smell and the passenger's statement that it was “just a little bit of wine.” The passenger did not say that it was her wine.

Based on the odor of alcohol, [Appellant's] bloodshot and glassy eyes, and his slurred speech, Officer Martino asked [Appellant] to exit the vehicle so that he could perform field sobriety tests. Officer Martino intended to conduct the [horizontal gaze nystagmus], the walk-and-turn, and one-legged stand tests. Appellant failed to complete the one-legged stand and during the performance of the walk-and-turn test, [Appellant] said, “Just take me to jail.” At this time, Officer Martino placed [Appellant] under arrest and placed him in the back of the patrol vehicle based on the results of the HGN, one-legged stand, and walk-and-turn tests, his observations of [Appellant's] red glassy eyes, slurred speech, and odor of alcohol. [Appellant] was taken into custody around the 18–minute mark of the recording.

Trial Court Opinion, 5/16/14, at 4–6 (citations to notes of testimony omitted).

Appellant was charged with four counts of DUI, one count of violating the restriction on open alcoholic beverages in a motor vehicle, one count of driving at less than normal speed, one count of careless driving, three counts of improper child restraints, and one count of obscured plates.

On November 6, 2013, Appellant filed a suppression motion. Following a hearing on November 14, 2013, the trial court denied Appellant's suppression motion. That same day, following a non-jury trial, the trial court found Appellant guilty of four counts of DUI, careless driving, and obscured license plates, and not guilty of the remaining charges.²

Following a sentencing hearing, the trial court, on November 14, 2013, sentenced Appellant at Count 1 to a sentence of 12 months of probation, and a concurrent sentence requiring him to attend 4 days of a DUI alternative to jail program, to commence 120 days from the date of sentencing, with no further penalty on the remaining charges.

Appellant filed a timely notice of appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

Appellant presents two issues for our review:

I. IS A SENTENCE ILLEGAL WHEN A PERSON RECEIVES A SENTENCE EXCEEDING THE STATUTORY MAXIMUM OF SIX MONTHS ON A FIRST–TIME DUI CONVICTION UNDER 75 PA.C.S.A. § 3803(B), EVEN THOUGH THE OFFENSE IS GRADED AS A FIRST DEGREE MISDEMEANOR?

II. DID LAW ENFORCEMENT HAVE REASONABLE SUSPICION TO BELIEVE THAT [APPELLANT] COMMITTED A VIOLATION OF THE MOTOR VEHICLE CODE IN ORDER TO LEGALLY PERFORM A TRAFFIC STOP?

Appellant's Brief at 6.

In his first issue, Appellant argues that the trial court imposed a sentence that exceeded the permissible statutory maximum for a first-time DUI offense, and that the sentence was therefore illegal. Appellant's Brief at 13–30. Appellant argues that the trial court's sentence of 12 months of probation plus 4 days at a DUI alternative program for his conviction for violating 75 Pa.C.S.A. § 3802(b) (DUI-high rate of alcohol with a minor in the vehicle) exceeded the statutory maximum.

Appellant asserts that 75 Pa.C.S.A. § 3803(b)(1), which pertains to the grading of DUI offenses, provides that a first-time DUI (high rate of alcohol) offender can only receive a maximum sentence of 6 months, and that the trial court's sentence of 12 months of probation exceeds the statutory maximum.

Appellant acknowledges that pursuant to 75 Pa.C.S.A. § 3803(b)(5), DUI offenses where a minor under 18 years of age is an occupant of the vehicle, are graded as first degree misdemeanors which carry a statutory maximum sentence of five years. See 18 Pa.C.S.A. § 106(b)(6). However, Appellant argues that the plain language of 75 Pa.C.S.A. § 3803(b) limits the sentence in such circumstances to six months.

The trial court disagreed with Appellant. Noting that there was an apparent conflict in the statute, the trial court concluded that under the plain meaning of 75 Pa.C.S.A. § 3803(b)(5), Appellant's conviction of DUI (high rate of alcohol) with a minor as an occupant of the vehicle, was a first degree misdemeanor with a statutory maximum of five years of imprisonment.

Where reviewing a claim that raises an issue of statutory construction, our standard of review is plenary. We recognize:

Our task is guided by the sound and settled principles set forth in the Statutory Construction Act, including the primary maxim that the object of statutory construction is to ascertain and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In pursuing that end, we are mindful that “[w]hen the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S. § 1921(b). Indeed, “[a]s a general rule, the best indication of legislative intent is the plain language of a statute.” In reading the plain language, “[w]ords and phrases shall be construed according to rules of grammar and according to their common and approved usage,” while any words or phrases that have acquired a “peculiar and appropriate meaning” must be construed according to that meaning. 1 Pa.C.S.1903(a). However, when interpreting non-explicit statutory text, legislative intent may be gleaned from a variety of factors, including, inter alia: the occasion and necessity for the statute; the mischief to be remedied; the object to be attained; the consequences of a particular interpretation; and the contemporaneous legislative history. 1 Pa.C.S. § 1921(c). Moreover, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, 1 Pa.C.S. § 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant.

Notwithstanding the primacy of the plain meaning doctrine as best representative of legislative intent, the rules of construction offer several important qualifying precepts. For instance, the Statutory Construction Act also states that, in ascertaining legislative intent, courts may apply, inter alia, the following presumptions: that the legislature does not intend a result that is absurd, impossible of execution, or unreasonable; and that the legislature intends the entire statute to be effective and certain. 1 Pa.C.S. § 1922(1), (2). Most importantly, the General Assembly has made clear that the rules of construction are not to be applied where they would result in a construction inconsistent with the manifest intent of the General Assembly. 1 Pa.C.S. § 1901.

Commonwealth v. Shiffler, 583 Pa. 478, 879 A.2d 185, 189–190 (2005) (citations omitted).

The applicable statutory provisions at issue here, set forth in Title 75 (relating to vehicles), provide in pertinent part:

§ 3802. Driving under influence of alcohol or controlled substance

(b) High rate of alcohol. —An individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the alcohol concentration in the individual's blood or breath is at least 0.10% but less than 0.16% within two hours after the individual has driven, operated or been in actual physical control of the movement of the vehicle.

§ 3803. Grading

(b) Other offenses.—

(1) An individual ... who violates section 3802(b), (e) or (f) and who has no more

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