Com. v. Gerace, M., Jr. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MICHAEL ANOTHONY GERACE, JR. :
:
Appellant : No. 1579 MDA 2019
Appeal from the Judgment of Sentence Entered September 3, 2019
In the Court of Common Pleas of Cumberland County Criminal Division at
No(s): CP-21-CR-0000865-2019
BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, P.J.: FILED: APRIL 27, 2020
Michael Anthony Gerace, Jr. appeals from the judgment of sentence, to
an aggregate term of 8 to 18 months’ imprisonment, in the Court of Common
Pleas of Cumberland County, following his conviction of one count each of
driving under the influence — general impairment (DUI)1 and driving under
suspension — DUI-related (DUS).2 On appeal, Appellant claims the evidence
was insufficient to sustain his conviction for DUS and his sentence for DUS
was illegal. Appellant does not raise any challenge to his DUI conviction or
sentence. After review, we affirm in part, vacate in part, and remand for a
new sentencing hearing.
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1
75 Pa.C.S.A. § 3802(a)(1).
2
75 Pa.C.S.A. § 1543(b)(1.1)(ii).
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On December 31, 2018, at approximately 4:00 p.m., Police Officer Chad
McClure of the Upper Allen Township Police Department was on routine patrol
when he observed a car, driven by Appellant, pull into the parking lot of a
local park and stop in front of a concession stand. Officer McClure watched as
Appellant exit the car, urinated against the side of the concession stand, and
reenter the car.
Officer McClure approached the car and directed Appellant to put down
his window. When Appellant did so, Officer McClure smelled a moderate odor
of alcohol. Officer McClure was unable to obtain a driver’s license from
Appellant but did obtain biographical data, which he ran through the
Department of Transportation’s database. This search revealed Appellant’s
license had been suspended and the suspension was DUI-related. Officer
McClure also observed Appellant’s speech was slurred. Appellant admitted to
drinking one beer.
Officer McClure conducted field sobriety tests, which Appellant failed. A
preliminary breath test indicated the presence of alcohol. Following the breath
test, Appellant admitted he had two shots of brandy, then amended his
statement to say the shots were larger than normal. Appellant refused to
submit to a blood test and refused to sign the chemical testing form. Appellant
stated to Officer McClure he knew his license was suspended because of a
prior DUI.
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On May 7, 2019, the Commonwealth filed a criminal information
charging Appellant with DUI and DUS, as well as a count of open lewdness.3
A jury trial took place on July 30, 2019. At the close of the Commonwealth’s
case, the trial court granted defense counsel’s motion to dismiss the charge
of open lewdness. Subsequently, the trial court convicted Appellant of DUI
and the jury convicted him of DUS. Following receipt of a pre-sentence
investigation report, on September 3, 2019, the trial court sentenced
Appellant to two to six months of imprisonment for the DUI conviction, and a
consecutive sentence of six to 12 months for the DUS conviction. Appellant
did not file any post-sentence motions.
Appellant filed a timely notice of appeal on October 1, 2019. On October
2, 2019, the trial court ordered him to file a concise statement of errors
complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure
1925(b). Appellant filed a timely Rule 1925(b) statement on October 23,
2019. On March 6, 2020, the trial court filed an opinion.
In his first issue on appeal, Appellant challenges the sufficiency of the
evidence underlying his conviction for DUS. Appellant’s Amended Brief, at 4.
Specifically Appellant complains the Commonwealth failed to prove his blood
alcohol content (BAC) was .02% or greater and it did not prove Appellant
____________________________________________
3
18 Pa.C.S.A. § 5901.
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knew he had a DUI-related suspension. See Appellant’s Amended Brief, at
10, 12-22. We disagree.
Our standard of review for a challenge to the sufficiency of the evidence
is as follows:
The determination of whether sufficient evidence exists to support
the verdict is a question of law; accordingly, our standard of
review is de novo and our scope of review is plenary. In assessing
[a] sufficiency challenge, we must determine whether viewing all
the evidence admitted at trial in the light most favorable to the
[Commonwealth], there is sufficient evidence to enable the
factfinder to find every element of the crime beyond a reasonable
doubt. [T]he facts and circumstances established by the
Commonwealth need not preclude every possibility of
innocence. . . . [T]he finder of fact while passing upon the
credibility of witnesses and the weight of the evidence produced,
is free to believe all, part[,] or none of the evidence.
Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)
(quotation marks and citations omitted). Moreover, “[t]he Commonwealth
may sustain its burden of proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial evidence.”
Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation
omitted).
Prior to assessing the merits of Appellant’s sufficiency claim, we must
determine if it is properly before us. We are constrained to conclude Appellant
waived his sufficiency claim, because his Rule 1925(b) statement did not
sufficiently identify the claims he intended to raise on appeal.
It is well-established any issue not raised in a Rule 1925(b) statement
will be deemed waived for appellate review. See Commonwealth v. Lord,
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719 A.2d 306, 309 (Pa. 1998). Further, an appellant’s concise statement must
identify the errors with sufficient specificity for the trial court to identify and
address the issues the appellant wishes to raise on appeal. See Pa.R.A.P.
1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge”). A Rule 1925(b) concise statement
that is too vague can result in waiver of issues on appeal. See
Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001) (“a
concise statement which is too vague to allow the court to identify the issues
raised on appeal is the functional equivalent of no concise statement at all”).
If Appellant wants to preserve a claim that the evidence was
insufficient, then the 1925(b) statement needs to specify the
element or elements upon which the evidence was insufficient.
This Court can then analyze the element or elements on appeal.
[Where a] 1925(b) statement [ ] does not specify the allegedly
unproven elements[,] ... the sufficiency issue is waived [on
appeal].
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation
omitted).
In this case, Appellant’s Rule 1925(b) statement simply declared the
evidence was insufficient to demonstrate that he had a BAC of .02% or greater
and/or he had notice of a prior DUI suspension. See Appellant’s Concise
Statement of Errors Complained of on Appeal, 10/23/19, at unnumbered page
1. There was simply no way for the trial court to discern from this vague
statement Appellant was advancing the novel claims that unless he refused
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both a breath and a blood test it did not constitute a refusal, there could not
be a refusal where the Commonwealth had probable cause to seek a warrant
for a blood test, and his prior suspension was not DUI-related because it was
for a refusal of chemical testing. Appellant’s Amended Brief, at 14-22.
Because of this, the trial court did not address these contentions in its opinion.
See Trial Court Opinion, 3/06/20, at 1-5. Therefore, we must conclude
Appellant waived his sufficiency of the evidence claim on appeal. See
Commonwealth v. Williams, 959 A.2d 1252, 1257-1258 (Pa. Super. 2008).
In any event, Appellant’s sufficiency of the evidence claim lacks merit.
As noted above, under Section 1543(b)(1.1) the Commonwealth was required
to prove either Appellant had a BAC of .02% or greater or he refused chemical
testing. See 75 Pa.C.S.A. § 1543(b)(1.1).
The jury convicted Appellant of violating 75 Pa.C.S.A. § 1543, which
provides in pertinent part:
A person who has an amount of alcohol by weight in his blood that
is equal to or greater than .02% at the time of testing or who at
the time of testing has in his blood any amount of a Schedule I or
nonprescribed Schedule II or III controlled substance, as defined
in the act of April 14, 1972 (P.L. 233, No. 64), known as The
Controlled Substance, Drug, Device and Cosmetic Act, or its
metabolite or who refuses testing of blood or breath and who
drives a motor vehicle on any 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 or former
section 3731 or because of a violation of section 1547(b)(1) or
3802 or former section 3731 or is suspended under section 1581
for an offense substantially similar to a violation of section 3802
or former section 3731 . . .
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75 Pa.C.S.A. § 1543(b)(1.1)(i) (emphasis added).
Here, defense counsel acknowledged at trial, the Commonwealth only
sought to prove a refusal. See N.T. Trial, 7/30/19, at 40. As a result, the
Commonwealth was not required to prove Appellant’s BAC.
Moreover, Appellant’s contention the Commonwealth had to prove he
refused both a blood and a breath test is belied by the plain text of the statute,
which states a person violates it if he or she “refuses testing of blood or
breath.” 75 Pa.C.S.A. § 1543(b)(1.1)(i) (emphasis added). The
Commonwealth presented evidence that Appellant refused a blood test, which
is all the law requires. N.T. Trial, 7/30/19, at 29-31. Further, Appellant
provides no legal support for the claim that, in the face of a refusal, the
Commonwealth is required to obtain a warrant for a blood test in order to
prove his BAC. To graft such a requirement onto the statute would render the
refusal clause meaningless and we decline to accept Appellant’s invitation to
do so.
Appellant’s notice argument is equally unavailing. Appellant concedes
he was driving with a suspended license. Appellant’s Amended Brief, at 21.
Officer McClure testified at trial, without contradiction, Appellant told him he
knew the suspension was DUI-related. N.T. Trial, 7/30/19, at 31. Appellant
maintains, however, under the United States Supreme Court’s decision in
Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), a suspension for refusal
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of chemical testing cannot be considered DUI-related because it is not proof
of criminality. Appellant’s Amended Brief, at 21-22. We disagree.
In Birchfield, “the Supreme Court of the United States held that a state
cannot impose criminal penalties upon an individual who refuses to submit to
a warrantless blood test because such penalties violate an individual’s Fourth
Amendment ... right to be free from unreasonable searches[.]”
Commonwealth v. Giron, 155 A.3d 635, 639 (Pa. Super. 2017) (citation
omitted). However, the DUS statute does not require that Appellant have
been convicted of and criminally punished for a previous DUI, merely that he
be aware that his license was suspended due to a DUI violation. Even before
Birchfield, the suspension of driving privileges for violating 75 P.S. § 1547
was a civil consequence, not a criminal penalty. See Commonwealth v.
Shinn, 534 A.2d 515, 517 (Pa. Super. 1987). Therefore, even if it was not
waived, Appellant’s sufficiency of the evidence claim would not merit relief.
In his second issue, Appellant claims his sentence is illegal because: (1)
while he had a prior conviction under 75 Pa.C.S.A. § 1543(b), it was not under
75 Pa.C.S.A. § 1543(b)(1.1)(i); and (2) his sentence runs afoul of the decision
in Birchfield. Appellant’s Amended Brief at, 23-26. The trial court agrees
with Appellant and requests we remand the matter for resentencing. Trial Ct.
Op., at 5.
“Issues relating to the legality of a sentence are questions of law, as are
claims raising a court’s interpretation of a statute. Our standard of review
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over such questions is de novo and our scope of review is plenary.”
Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012), appeal
denied, 53 A.3d 756 (Pa. 2012) (citation omitted). Even though Appellant did
not raise this issue at his sentencing hearing, he has not waived this argument
on appeal. See Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011).
We acknowledge:
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.[A.] § 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.[A].
§ 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.[A.§] 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.[A.] §
1921(c). Moreover, while statutes generally should be construed
liberally, penal statutes are always to be construed strictly, 1
Pa.C.S.[A] § 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
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and certain. 1 Pa.C.S.[A.] § 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.[A.] § 1901.
Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015) (case
citation omitted).
At issue here is the construction of section 1543(b)(1.1)(ii). The trial
court sentenced Appellant pursuant to section 1543(b)(1.1)(ii), which
provides in pertinent part:
A second violation of this paragraph shall constitute a
misdemeanor of the third degree, and upon conviction thereof the
person shall be sentenced to pay a fine of $2,500 and to undergo
imprisonment for not less than six months.
75 Pa.C.S.A. § 1543(b)(1.1)(ii) (emphasis added). The dispute centers upon
the meaning of the phrase “this paragraph.”
Appellant contends the phrase only refers to 75 Pa.C.S.A. §
1543(b)(1.1)(i) and, therefore, in order for a court to sentence Appellant
under Section 1543(b)(1.1)(ii), Appellant must have a prior conviction under
Section 1543(b)(1.1)(i).
The Commonwealth disagrees, asserting the phase “this paragraph”
includes all of Section 1543(b) and, therefore, so long as Appellant has a prior
conviction under either Section 1543(b)(1)(i) or 1543(b)(1.1)(i), the trial
court can sentence him as a second offender pursuant to Section
1543(b)(1.1)(ii). Neither party cites any legal authority in support of their
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respective positions. However, our review of the relevant statue constrains
us to agree with Appellant.
Sections 1543(b)(1) and 1543(b)(1.1) set out separate crimes with
separate sentencing schemes. Section 1543(b)(1)(i) concerns individuals who
drive while a license is suspended. A first offense is “a summary offense and
[is punishable by] a fine of $500 and . . . imprisonment for a period of not less
than 60 days nor more than 90 days. 75 Pa.C.S.A. § 1543(b)(1)(i). A second
violation is also a summary offense and is punishable by “a fine of $1,000
and . . . imprisonment for not less than 90 days.” Id. at § (1)(ii).
Conversely, Section 1543(b)(1.1) concerns an individual who drives
under the influence of drugs or alcohol and/or refuses chemical testing while
his or her license is suspended. A first violation is a summary offense
punishable by “a fine of $1,000 and . . . imprisonment for a period of not less
than 90 days.” 75 Pa.C.S.A. § 1543(b)(1.1)(i). A second violation is a
misdemeanor punishable by “a fine of $2,500 and . . . imprisonment for not
less than six months.” 75 Pa.C.S.A. § 1543(b)(1.1)(ii).
Clearly, the legislature considered driving with a suspended license a
less serious offense than driving under the influence with a suspended license.
Accordingly, it enacted entirely separate and distinct sentencing provisions for
each offense. To interpret the phrase “this paragraph” in the manner
requested by the Commonwealth would be to render the distinct sentencing
schemes set forth in Section 1543(b) meaningless.
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We note our concern that, in cases such as this one, Appellant is, in
essence, getting a reduction in sentencing because he violated different
sections of the same statute on two separate occasions. However, it is for the
legislature not this Court to resolve the problem of this discrepancy which is
not addressed in Section 1543. We are reluctantly constrained to vacate
Appellant’s judgment of sentence.4 Though we affirm Appellant’s conviction
for driving under suspension, we vacate the determination Appellant is a
second offender under Section 1543(b)(1.1)(ii), and remand for resentencing.
Since Appellant’s sentences were imposed consecutively, our disposition
disturbs the court’s aggregate sentencing scheme, and we therefore remand
for resentencing on both counts.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for proceedings consistent with this memorandum. Jurisdiction
relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/27/2020
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4
Because we vacate Appellant’s sentence based upon his argument he was
wrongly sentenced as a second offender under Section 1543(b)(1.1)(ii), we
need not address his claim the sentence runs afoul of the decision in
Birchfield.
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