Commonwealth v. Kriegler , 2015 Pa. Super. 251 ( 2015 )

J. A26008/15
2015 PA Super 251COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
NATHAN ALLEN KRIEGLER, : No. 62 MDA 2015
:
Appellant :
Appeal from the Judgment of Sentence, December 11, 2014,
in the Court of Common Pleas of Centre County
Criminal Division at No. CP-14-SA-0000046-2014
BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.
OPINION BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 01, 2015
Nathan Allen Kriegler appeals from the judgment of sentence entered
on December 11, 2014, following his conviction of driving while operating
privilege is suspended or revoked, driving under the influence
(“DUI”)-related, 75 Pa.C.S.A. § 1543(b)(1).1
* Retired Senior Judge assigned to the Superior Court.
1
The offense of driving under DUI-related suspension is set forth in
75 Pa.C.S.A. § 1543(b)(1), as follows:
(b) Certain offenses.--
(1) A person who drives a motor vehicle
on a highway or trafficway of this
Commonwealth at a time when the
person’s operating privilege is
suspended or revoked as a condition of
acceptance of Accelerated Rehabilitative
Disposition for a violation of section 3802
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The trial court has provided the following relevant facts:
In the instant matter, Appellant was pulled
over by Officer Shawn Slater on March 16, 2014,
while he was operating a black Chevrolet four door
sedan. Upon pulling Appellant over, Officer Slater
discovered he held an occupational limited license[ 2]
(relating to driving under influence of
alcohol or controlled substance) or the
former section 3731, because of a
violation of section 1547(b)(1) (relating
to suspension for refusal) or 3802 or
former section 3731 or is suspended
under section 1581 (relating to Driver’s
License Compact) for an offense
substantially similar to a violation of
section 3802 or former section 3731
shall, upon conviction, be guilty of a
summary offense and shall be
sentenced to pay a fine of $500 and
to undergo imprisonment for a
period of not less than 60 days nor
more than 90 days. (Emphasis
added.)
2
An occupational limited license (“OLL”) is defined in the Vehicle Code as “a
license, issued under this title to a driver whose operating privileges have
been suspended, to permit the operation of a motor vehicle under certain
conditions, when necessary for the driver’s occupation, work, trade or
study.” 75 P.S. § 102. The Department of Transportation is authorized, in
certain circumstances, to grant restricted or limited driving privileges to
alleviate the hardships of a DUI-related suspension. 75 Pa.C.S.A. § 1553.
The issuance of an OLL is not automatic. There are strict eligibility
requirements. The holder of an OLL must comply with conditions and
restrictions of issuance. 75 Pa.C.S.A. § 1553(f) provides:
(f) Restrictions.--A driver who has been issued an
occupational limited license shall observe the
following:
(1) The driver shall operate a designated
vehicle only:
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as the result of a DUI-related suspension. When
Officer Slater spoke to Appellant about his license,
Appellant acknowledged he was not on his way to or
from work but alleged he had recently taken over
driving duties from his daughter, who was suffering
from a migraine.
Appellant’s license [had previously been]
suspended effective May 7, 2013 as a result of a
conviction of 75 Pa.C.S.A. §3802(d) on July 18,
2013. He was issued an occupational limited license
on September 11, 2013 pursuant to 75 Pa.C.S.A.
§1553. Under the terms of 75 Pa.C.S.A. §1553(f),
the holder of an occupational limited license shall
(i) Between the driver’s place of
residence and place of
employment or study and as
necessary in the course of
employment or conducting a
business or pursuing a
course of study where the
operation of a motor vehicle
is a requirement of
employment or of conducting
a business or of pursuing a
course of study.
(ii) To and from a place for
scheduled or emergency
medical examination or
treatment. This
subparagraph includes
treatment required under
Chapter 38 (relating to
driving after imbibing alcohol
or utilizing drugs).
(Emphasis added.)
Driving in violation of one of the restrictions or conditions of an OLL
constitutes a summary offense punishable by a $200 fine and the revocation
of the OLL. 75 Pa.C.S.A. § 1553(f)(3).
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operate a vehicle only to and from a place of
employment or school; as necessary “in the course
of employment or conducting a business or
purs[u]ing a course of study where the operation of
a motor vehicle” is necessary or required and; to or
from a place for “scheduled or emergency medical
examination or treatment.”
Trial court opinion, 3/20/15 at 1-2.
Appellant was charged with driving under DUI-related suspension. A
non-jury trial was held on November 3, 2014. At trial,
Appellant agree[d] he was not on his way to or
from his employment or operating the vehicle as
required in the course of said employment.
Appellant is also not currently enrolled in any form of
educational program. Although Appellant and his
daughter both testified he had taken over driving
after she developed a migraine, neither party alleged
they were on their way to a doctor’s office, an
emergency room, an urgent care center, or any
other such place to obtain emergency medical
examination or treatment. In fact, all witnesses
agreed Appellant’s daughter was able to and in fact
did drive the vehicle from the scene after Appellant
was issued a citation.
Id.
At the close of the Commonwealth’s evidence, appellant’s counsel
moved to dismiss the driving under DUI-related suspension charge, which
was denied. (Trial transcript, 11/3/14 at 14; R.R. at R21.) Appellant was
found guilty of driving under DUI-related suspension and sentenced to a
term of imprisonment of 60 days in the Centre County Correctional Facility
and a $500 fine, plus costs. Appellant filed a timely notice of appeal on
January 7, 2015. The trial court ordered appellant to submit a concise
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statement of matters complained of on appeal pursuant to
Pa.R.A.P. 1925(b); and appellant complied with this order on March 11,
2015. The trial court has filed an opinion.
Appellant raises the following issues for review:
1. Did the trial court err in finding that the
evidence was sufficient for a conviction of
Driving While Operating Privilege is Suspended
or Revoked in violation of 75 Pa.C.S.A. § 1543?
2. Did the trial court err in convicting Appellant of
the more general Vehicle Code violation of
75 Pa.C.S.A. § 1543 when the Appellant should
have been convicted of the more specific crime
of Misuse of an Occupational Limited License
under 75 Pa.C.S.A. § 1553?
Appellant’s brief at 4.
I.
We first address appellant’s second issue in which he raises the
“general/specific rule.” This principle is outlined in 1 Pa.C.S.A. § 1933:
Whenever a general provision in a statute shall be in
conflict with a special provision in the same or
another statute, the two shall be construed, if
possible, so that effect may be given to both. If the
conflict between the two provisions is
irreconcilable, the special provisions shall
prevail and shall be construed as an exception
to the general provision, unless the general
provision shall be enacted later and it shall be the
manifest intention of the General Assembly that such
general provision shall prevail.
1 Pa.C.S.A. § 1933 (emphasis added).
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Appellant argues that under this rule he should have been charged
with and convicted of the “more specific” and “lesser” offense of violating the
conditions/restrictions of an OLL under 75 Pa.C.S.A. § 1553(f)(3) (which
carries a $200 fine and loss of the OLL), not the “more general” offense of
driving under DUI-related suspension, 75 Pa.C.S.A. § 1543(b)(1) (which
carries with it a fine of $500 and sentence of imprisonment for a period of
not less than 60 days nor more than 90 days). Appellant contends that
§ 1553(f)(3) addresses a distinct subset of circumstances while § 1543(b)(1)
addresses a general category of criminal activity. Therefore, the trial court
was obligated to find him guilty of the more specific crime of misuse of an
OLL.
First, we note that the “general/specific rule” of statutory construction
in the context of criminal prosecutions has been abrogated. In 2002, the
legislature enacted 42 Pa.C.S.A. § 9303, which provides:
Notwithstanding the provisions of 1 Pa.C.S. § 1933
(relating to particular controls general) or any other
statute to the contrary, where the same conduct
of a defendant violates more than one criminal
statute, the defendant may be prosecuted
under all available statutory criminal provisions
without regard to the generality or specificity
of the statutes.
42 Pa.C.S.A. § 9303 (emphasis added). Commonwealth v. Karetny, 880
A.2d 505 (Pa. 2005). See also, In re N.W., 6 A.3d 1020 (Pa.Super. 2010)
(noting abrogation of the “general/specific rule” and holding that where
juvenile’s conduct violated criminal provisions related to graffiti,
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18 Pa.C.S.A. § 3304(a)(4), and general criminal mischief, 18 Pa.C.S.A.
§ 3304(a)(5), which requires only the intentional damage of real or personal
property of another, the Commonwealth was permitted to charge him under
both of these provisions). Therefore, appellant’s reliance on this rule is
erroneous.
In any event, we do not agree with appellant that § 1543(b)(1) and
§ 1553(f)(3) irreconcilably conflict. Section 1543(a) provides that any
person who drives while his license is suspended is guilty of a summary
offense and subject to a $200 fine. Under § 1543(b)(1), a person who
drives while his license is DUI-suspended, is guilty of a summary offense
and subject to imprisonment for 60 days and a $500 fine. Obviously, the
legislature’s intent was to stiffen the penalty for driving while under
DUI-suspension.
When a driver with a DUI-suspension violates a condition or restriction
of his OLL under § 1553(f)(3), he is, in effect, driving under DUI-suspension
(since he is driving outside the permissible confines). His conduct in that
instance violates both § 1543(b)(1) and § 1553(f)(3). It is well settled that
a single course of conduct may constitute a violation of more than one
statutory provision. In re N.W., 6 A.3d at 1026 n.4. It is entirely
appropriate to charge and convict under the stiffer penalty provisions of
§ 1543, which pertain to driving under DUI-suspension. There is nothing to
suggest that persons who have a DUI-suspended license who have also been
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granted the privilege of an OLL should be treated more leniently than they
otherwise would have, when found to have violated the conditions of their
OLL. To turn around and reduce the penalty for driving under DUI-related
suspension to a $200 fine under § 1553(f)(3) is not what the legislature
intended and would be inconsistent with the purpose of § 1543 which is to
protect the public from people who have proven themselves to be a threat to
others on our public highways by driving under the influence.
Appellant argues that the legislature imposed a specific offense of
misuse of an OLL under § 1553 to impose a “graduated system of penalties
so as not to incarcerate slight offenders and overburden prison facilities.”
(Appellant’s brief at 21-22.)
He relies on Commonwealth v. Gordon, 897 A.2d 504 (Pa.Super.
2006), and Commonwealth v. Tisdale, 100 A.3d 216 (Pa.Super. 2014).
In Gordon, the defendant was found to be in possession of 8.75 grams of
marijuana. Out of this one incident, he was charged with: (1) violation of
35 P.S. § 780-113(31), proscribing the possession of a small amount of
marijuana,3 and (2) violation of the general proscription against possession
of a controlled substance as defined in 35 P.S. § 780-113(16). The trial
court found him guilty of the more serious of these charged offenses which
3
Thirty grams is the benchmark that the legislature defines as “a small
amount of marijuana.”
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carried with it a harsher penalty.4 This court held that the legislature, by
including Subsection (31) in Section 780-113 of the proscribed conduct
section of the Drug Act, clearly separated out the specific crime of
possession of a small amount of marijuana, and created a “graduated
system of penalties” that imposes far heavier punishment for traffickers and
lesser sanctions for casual users of marijuana.
In our view, the General Assembly, by
including subsection (31) in section 780-113 of the
proscribed conduct of the Act, wisely set out the
specific crime of possession of a small amount of
marijuana, and created a graduated system of
penalties that imposes far heavier punishment for
traffickers and lesser sanctions for casual users of
marijuana.
Gordon, 897 A.2d at 509.
We remanded the matter for the trial court to sentence the defendant
under the lesser amount statute, as the legislature clearly intended that a
small amount of marijuana be separately and less severely punishable than
possession of a controlled substance.
Similarly, in Tisdale, the defendant was arrested with 8.64 grams of
marijuana. He was convicted of possession under Subsection (16). He
argued on appeal he should have been convicted for possession of a small
4
Anyone who violates § 780-113(16) is guilty of a misdemeanor and will be
sentenced to imprisonment not exceeding one year or to pay a fine not
exceeding $5,000. Anyone who violates Clause (31) of Subsection (a) is
guilty of a misdemeanor and will be sentenced to imprisonment not
exceeding 30 days, or to pay a fine not exceeding $500, or both.
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amount of marijuana under the more specific Subsection (31). We agreed
that the legislature intended to provide a graduated system of penalties and
that when both Subsections (16) and (31) apply, conviction properly rests
on the specific charge found at Subsection (31), small amount of marijuana.
Tisdale, 100 A.3d at 219.5
Here, we are not faced with the same “graduated system of penalties”
that were present in Gordon and Tisdale. In a graduated system of
penalties scenario, there is a palpable decrease in punishment consonant
with lesser degrees of culpability. Here, there is nothing in the Vehicle Code
which suggests that the legislature intended to punish less severely those
who, while on a DUI-related suspension, violate the conditions of an OLL,
than those who directly violate the provisions of § 1543 by driving at a time
when operating privileges are DUI-suspended. Again, a person who, while
under DUI-suspension, drives in violation of § 1553(f), indirectly (through a
violation of a condition/restriction) violates the § 1543 (driving under
suspension). In both situations, the driver is deemed to be driving while his
operating privilege is DUI-suspended. We conclude that the Commonwealth
5
The Tisdale court also noted it was of no moment that the defendant was
not charged with a small amount of marijuana. He could still be convicted of
that offense because he was charged with possession with intent to deliver
(“PWID”). Because both possession of a controlled substance and
possession of a small amount of marijuana were lesser included offenses of
PWID the defendant was on notice that he could be convicted of the lesser
included offense.
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was, and is, empowered to prosecute appellant under both provisions of the
Vehicle Code.
Appellant contends that the trial court committed an error of law in
finding that evidence was sufficient to support a finding of guilty of driving
under DUI-suspension because he was holding a valid license (i.e., a valid
OLL) at the time relevant to the incident in question. We disagree with his
rationale.
We rejected a similar argument in Commonwealth v. Javit, 734 A.2d
922, 925 (Pa.Super. 1999). There, the appellant was issued a probationary
license at a time that his operating privilege was suspended. Id. at 923.
Javit filed a pretrial motion to dismiss the three charges of driving under a
DUI-related suspension pursuant to Section 1543(b), “on the basis of his
having the probationary license at the time of the three arrests” for DUI.
Id. at 924. The motion was subsequently denied and he appealed. Id. at
925. Javit also argued that since he had been issued the probationary
license, his license was no longer under suspension and the only sanction
available was the recall of his probationary license pursuant to § 1554(h)(2)
of the Vehicle Code. Id. We rejected the argument that “mere issuance of
the probationary license serves to negate the existence of the suspension.”
Id. at 925.
The possession of a probationary license
is not the equivalent of restoration of
appellant’s full operating privileges. Just as the
penalty of suspension of operating privileges cannot
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be circumvented by possession of a valid out-of-
state license, suspension is not terminated by the
possession of the in-state probationary license.
Since appellant’s operating privileges had not been
fully restored at the time of his three infractions, he
was properly convicted of violation of §1543.
Id. at 925 (internal citations omitted) (emphasis added).
We believe the rationale of Javit applies equally to this situation even
though appellant held an OLL, not a “probationary” license. The OLL Law
clearly states that a holder of an OLL remains under suspension and is
strictly limited to driving within narrow confines. 75 Pa.C.S.A. § 1553(f)(4)
provides:
(4) The operating privilege of a driver who has
been issued an occupational limited license
remains under suspension or revocation
except when operating a motor vehicle in
accordance with the conditions of
issuance or restrictions of the
occupational limited license. (Emphasis
added.)
Without the OLL, appellant would have had no authority to operate any
vehicle at any time. The OLL sets forth the only time a driver with a
DUI-suspension may operate a vehicle. Thus, it follows that when a holder
of an OLL operates a vehicle outside the conditions and restrictions of an
OLL, he is, in effect, driving under DUI-suspension.
Again, an OLL is a driving privilege granted by the Department to
alleviate the hardships a total suspension may have on one’s ability to work,
attend school, and obtain medical care. An OLL does not wipe away the
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DUI-suspension. It is not intended to diminish the gravity of the underlying
driving under DUI-suspension violation. The legislature clearly intended that
the operating privileges of OLL-license holders remain under DUI-suspension
except when they are operating a vehicle in accordance with the conditions
or restrictions of the OLL. Because violations of the limited grace given by
the OLL constituted driving under DUI-suspension, there was nothing
improper in charging and convicting appellant under § 1543(f)(3).
II.
In his remaining issue, appellant argues that there was insufficient
evidence to sustain his conviction. When reviewing a claim for the
sufficiency of the evidence, we are held to the following standard:
In reviewing the sufficiency of the evidence, we view
all the evidence admitted at trial in the light most
favorable to the Commonwealth, as verdict winner,
to determine whether there is sufficient evidence to
enable the factfinder to find every element of the
crime established beyond a reasonable doubt.
Commonwealth v. Thomas, 867 A.2d 594(Pa.Super. 2005). “This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt.” Id. at 597. And
while a conviction must be based on more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty. Id.quoting Commonwealth v. Coon, 695 A.2d 794,
797 (Pa.Super.1997). This Court is not free to
substitute its judgment for that of the fact-finder; if
the record contains support for the convictions they
may not be disturbed. Id. citing Commonwealth v.
Marks, 704 A.2d 1095, 1098 (Pa.Super.1997) and
Commonwealth v. Mudrick, 510 Pa. 305, 308, 507
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A.2d 1212, 1213 (1986). Lastly, the factfinder is
free to believe some, all, or none of the evidence.
Id.Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).
Appellant asserts that the evidence established that he was driving
within one of the restrictions of his OLL. He contends that the
Commonwealth failed to establish that he was operating a vehicle in
violation of his OLL. He asserts that he was driving lawfully pursuant to his
OLL because he was driving due to a medical emergency. He testified at
trial that his daughter was driving the vehicle when she became ill,
whereupon he had no choice but to drive.
The trial court concluded that appellant was not driving the vehicle in
order to obtain emergency medical examination treatment for his daughter.
Appellant admitted that he and his daughter were not on their way to obtain
medical emergency treatment; they did not ask the police officer for
assistance; they did not mention the migraine until after the officer made an
initial check of the status of appellant’s license on the officer’s traffic
computer; and appellant’s daughter was able to drive home after the traffic
stop. Clearly, the trial court did not believe that appellant’s daughter was
unable to drive due to a migraine headache.
Appellant argues that the statute does not require that OLL holders be
in the process of going to or from a professional or certified medical facility
like a hospital or urgent care center. He argues that the OLL Law simply
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states that the person must be going “to or from a place.” 75 Pa.C.S.A.
§ 1553(f)(1)(ii). Appellant contends that the word “place” must be given its
plain and ordinary meaning. He argues that his daughter’s dormitory
reasonably falls within the definition of a “place” as envisioned by the
statute. He further contends that a person need not be seeking treatment
from a medical professional in order to drive with an OLL. He contends that
driving his daughter to her dormitory room to recuperate from her headache
qualified as driving “[t]o and from a place for scheduled or emergency
medical examination or treatment.”
Appellant urges that his daughter was physically unable to drive and
that this constituted a medical emergency. However, according to the plain
reading of the statute, the holder of an OLL is permitted to drive his or her
vehicle in order to go to a scheduled appointment or to obtain emergency
medical treatment. The term “emergency medical treatment” is not defined
in the OLL Law, and we have found no case law defining the term in this
particular context. We will apply the common definition of the terms.
“Emergency” is defined as “an unexpected and usually dangerous
situation that calls for immediate action.” Webster’s Ninth New Collegiate
Dictionary 407 (1985). “Medical” is defined as, inter alia, (1) “of, relating
to, or concerned with physicians or the practice of medicine . . . .”; and
(2) ”requiring . . . medical treatment.” Webster’s Third New International
Dictionary 1402 (2002). In the medical context, “treatment” is defined as
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“the care and management of a patient to combat, ameliorate, or prevent a
disease, disorder, or injury.” Mosby’s Medical Dictionary 1880 (8th ed.
2009).
Reading the above definitions together, we find that the plain and
ordinary term “emergency medical treatment” as used in the OLL Law
means the urgent care or management of a patient by a medical
professional for a disease or injury. Employing the above-stated definitions,
we conclude that appellant was not operating the vehicle within the lawful
restrictions provided in the statute. Transporting his daughter to her
dormitory so she could lie down was not the equivalent of obtaining
emergency medical treatment.
Accordingly, the Commonwealth established that appellant was not
driving within the restrictions of § 1553. That, in turn, established that on
March 16, 2014, appellant was driving a motor vehicle while on a
DUI-suspended license. Appellant’s driver’s record was produced by the
Commonwealth and admitted as Exhibit “1.” It proved that appellant’s
license was DUI-suspended. Appellant also readily admitted that fact at
trial. (Trial transcript, 11/3/14 at 21; R.R. at R28.) As such, it was proven
beyond a reasonable doubt that appellant was driving while on a
DUI-suspended license.
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The Commonwealth’s credible evidence established all elements of the
summary offense of driving under DUI-suspension. There was no error
here.
Judgement of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/1/2015
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