Com. v. Westlake, C. ( 2023 )

J-A06016-23
2023 PA Super 94COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHRISTOPHER SEAN WESTLAKE :
:
Appellant : No. 361 WDA 2022
Appeal from the Judgment of Sentence Entered March 24, 2022
In the Court of Common Pleas of Armstrong County Criminal Division at
No(s): CP-03-CR-0000332-2019
BEFORE: OLSON, J., NICHOLS, J., and PELLEGRINI, J.*
OPINION BY NICHOLS, J.: FILED: MAY 31, 2023
Appellant Christopher Sean Westlake appeals pro se from the judgment
of sentence entered after a jury convicted him of two counts of driving under
the influence of a controlled substance (DUI).1 On appeal, Appellant contends
that the trial court erred in denying his second omnibus motion as untimely.
After review, we affirm Appellant’s convictions, vacate the judgment of
sentence, and remand for resentencing.
The trial court summarized the relevant facts and procedural history of
this matter as follows:
[The] charges stem from an incident that occurred on April 3,
2018. On that date, [Appellant] was stopped by the Pennsylvania
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* Retired Senior Judge assigned to the Superior Court.
1See 75 Pa.C.S. § 3802(d)(1)(ii) and (iii). In a separate bench trial at this
docket, Appellant was also convicted of the summary offense of driving an
unregistered vehicle in violation of 75 Pa.C.S. § 1301(a).
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State Police (“PSP”) while driving his vehicle in North Buffalo
Township, Armstrong County. The traffic stop was recorded by
the mobile video recording (“MVR”) system used by the PSP.
Based on the PSP’s observations and investigation during and
after the traffic stop, [Appellant] was charged by criminal
complaint filed November 12, 2018, with DUI and driving related
charges. All charges were held over to [the trial c]ourt, and a
criminal information was filed on May 2, 2019.
[Appellant], by counsel, filed an omnibus pretrial motion to
dismiss on November 12, 2019, in which he argued that all
charges should be dismissed due to the PSP’s alleged destruction
of, or failure to produce to him, a working copy of the downloaded
MVR video recorded at the scene of the traffic stop. After multiple
continuances, the [trial c]ourt held a hearing on the motion on
August 17, 2020. The [trial c]ourt thereafter denied [Appellant’s]
motion by order entered on October 19, 2020. In the
accompanying memorandum, [the trial c]ourt concluded that the
MVR video was not exculpatory and was only potentially useful
given that [Appellant] had not challenged any aspects of the
underlying traffic stop. See [Trial Ct. Mem.], 10/19/20, at 5-6 &
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n.6.[2] The [trial c]ourt further concluded that the Commonwealth
had not acted in bad faith.[3]
[Appellant’s] counsel withdrew his appearance, at [Appellant’s]
request and with [the trial c]ourt’s approval,[4] on November 20,
2020. On February 22, 2021, [Appellant] submitted to the
Commonwealth a pro se request for additional discovery, in which
he again requested access to the MVR video and other materials.
On March 25, 2021, [Appellant] filed a pro se motion to compel
outstanding discovery seeking the same items. On May 21, 2021,
after hearing, the [trial c]ourt granted [Appellant’s] motion, in
part, but only to the extent that the requested materials had not
already been provided to [Appellant] or his prior counsel.
On July 26, 2021, [Appellant] filed pro se a motion to dismiss for
prosecutorial misconduct, in which he argued once again that the
Commonwealth had not produced to him certain outstanding
discovery. After hearing on August 5, 2021, the [trial c]ourt
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2The footnote to the trial court’s October 19, 2020 memorandum addressing
Appellant’s first omnibus motion states as follows:
Although the [trial c]ourt has addressed the issue of whether the
MVR video would be exculpatory, [Appellant] nowhere in his
omnibus motion argues that it is exculpatory. He makes this
argument only in his brief. Moreover, the MVR video would be
relevant and potentially useful if the issues of the validity of the
traffic stop of [Appellant’s] vehicle, [Appellant’s] continued
detention after the initial stop, or his subsequent arrest were
raised in an omnibus pre-trial motion. At no time has [Appellant]
raised any of these issues despite the fact that this case has been
pending in this [c]ourt for approximately 18 months.
Trial Ct. Mem., 10/19/20, at 6, n.6 (emphases in original).
3 The record reflects that Trooper Randy Orlic, a PSP MVR custodian, testified
that the reason the MVR video was unavailable was it was no longer on the
police server, and the PSP could not make a copy of the MVR video because
there was an error with the disk upon which the video was copied. See N.T.,
8/17/20, at 44-45. Trooper Orlic testified that neither he nor anyone from
the District Attorney’s office could get the MVR video to play. See id. at 46.
4 The trial court granted counsel’s motion to withdraw. See Order, 11/20/20.
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granted the motion in part and ordered the Commonwealth to
provide [Appellant] with certain requested items, including access
to the MVR video. [Appellant] then filed the subject omnibus
pretrial motion, his second, on October 28, 2021. In the motion,
[Appellant] challenged the duration of the traffic stop, the PSP
troopers’ justification for continuing the stop after the purpose for
the initial stop had concluded, the probable cause supporting
[Appellant’s] arrest, and the validity of the drug recognition expert
(“DRE”) evaluation conducted after the stop at the PSP barracks.
On November 4, 2021, after argument on the record, the [trial
c]ourt denied the motion based on 1) its untimeliness, 2) the
Commonwealth’s prior provision of discovery, and 3) [Appellant’s]
ability to raise the same issues either in previous motions or at
trial. See Order, 11/4/21; N.T., 11/4/21, 3:13 -21:13.
Trial Ct. Op., 4/25/22, at 2-4.
Prior to jury selection, and almost one year after the trial court granted
Appellant’s counsel’s motion to withdraw in 2020, the trial court held a
Grazier hearing.5 At that time, the trial court conducted an on-the-record
colloquy and determined that Appellant was knowingly, voluntarily, and
intelligently waiving his right to counsel. See N.T., 11/8/21, at 6. The case
proceeded to a jury trial on November 12, 2021, and Appellant was ultimately
found guilty of two counts of DUI. Following a separate bench trial, Appellant
was convicted of the summary offense of driving an unregistered vehicle. On
March 24, 2022, the trial court sentenced Appellant on the first DUI count, 75
Pa.C.S. § 3802(d)(1)(ii) (DUI-schedule II or III controlled substance), to a
term of ninety days to thirty-six months of incarceration, with fifty-three days
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5 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998) (explaining the
procedure necessary to determine, on the record, that a defendant is
knowingly, intelligently, and voluntarily, waiving the right to counsel).
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to be spent in total confinement and thirty-seven days served on house arrest.
Sentencing Order, 3/24/22. On the second count of DUI, 75 Pa.C.S. §
3802(d)(1)(iii) (DUI-metabolite of schedule I, II, or III), the trial court
imposed a sentence of no further penalty. Id.6 Appellant filed a timely notice
of appeal, and both the trial court and Appellant complied with Pa.R.A.P.
1925.7
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6 On the summary offense of driving an unregistered vehicle the trial court
imposed a penalty of fines and costs. See Trial Ct. Op., 4/25/22, at 1.
7 As stated, on November 8, 2021, the trial court held a hearing and addressed
the requirements for waiving counsel pursuant to Grazier and Pa.R.Crim.P.
121(A)(2). Specifically, the trial court informed Appellant of his right to
counsel, the nature of the charges, the possible penalties, that Appellant
would be bound by court rules and rules of procedure, and that certain rights
and defenses available to Appellant could be waived if not properly raised.
See N.T., 11/8/21, at 3-6. Appellant responded that he understood his rights
and what he was waiving by representing himself, and Appellant affirmatively
stated that he wanted to waive his right to counsel and proceed pro se. See
id. at 5-6. Appellant also executed a written waiver-of-counsel colloquy that
same day. See Written Waiver Colloquy, 11/8/21, at 1-3. Although there
was a delay between Appellant’s trial counsel withdrawing in November of
2020 and the Grazier hearing in 2021, Appellant confirmed that he
understood his rights and what he was waiving by proceeding pro se. See
N.T., 11/8/21, at 5-6. Further, after Appellant filed his notice of appeal, this
Court directed the trial court to conduct a second Grazier hearing to
determine whether Appellant was knowingly, willingly, and voluntarily waiving
his right to counsel on appeal. See Order, 361 WDA 2022, 6/10/22. On July
7, 2022, this Court received the trial court’s response to our June 10, 2022
order. In the response, the trial court stated that it conducted a second
Grazier hearing, and on July 5, 2022, it entered an order finding that
Appellant knowingly, voluntarily, and intelligently waived his right to counsel
and opted to represent himself on appeal. See Trial Ct. Resp. to Order,
7/7/22; Trial Ct. Order, 7/5/22. Although the reason for the delay in the initial
Grazier hearing is not clear, the record clearly reflects that Appellant, on two
occasions, knowingly, voluntarily, and intelligently waived his right to counsel
and exercised his right to represent himself. See N.T., 11/8/21, at 5-6; Trial
Ct. Order, 7/5/22.
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On appeal, Appellant presents the following issues:
1. Whether the trial court erred in it’s [sic] finding of fact, not
supported by the court record, that the Commonwealth had not
withheld any of the newly discovered evidence, causing it’s
[sic] delayed discovery?
2. Whether the trial court erred in denying [Appellant] a hearing
on his motion to suppress for the reason that the issues in his
motion were previously raised in his pretrial spoliation motion
on November 12th, 2019?
3. Did the trial court abuse it’s [sic] discretion in denying an
evidentiary hearing on the suppression motion by disregarding
the potential significance of the previously unknown and
unavailable MVR contents and/or the recently provided Drug
Recognition Expert (DRE) report?
4. Did the trial court violate [Appellant’s] due process rights
pursuant to the Pa.R.Cr[im.P.] 579(A) “exception”[] when it
denied [Appellant] a hearing on his omnibus pretrial motion to
suppress evidence as untimely?
Appellant’s Brief at 5-6 (some formatting altered).
Suppression
Appellant’s issues are interrelated and challenge the trial court’s order
denying Appellant’s second omnibus motion as untimely; therefore, we
address them concurrently.8
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8 The argument section of Appellant’s brief is comprised of multiple assertions
of error and unreasonableness by the trial court without citation to relevant
legal authority. See Appellant’s Brief at 22-33. We are cognizant that
Appellant is pro se, however, “[t]his Court will not act as counsel and will not
develop arguments on behalf of an appellant.” Commonwealth v. Hardy,
918 A.2d 766, 771 (Pa. Super. 2007) (citation omitted). “[I]t is an appellant’s
duty to present arguments that are sufficiently developed for our review. The
brief must support the claims with pertinent discussion, with references to the
record and with citations to legal authorities.” Id. (citations omitted); see
(Footnote Continued Next Page)
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We review the trial court’s determination that a suppression motion was
untimely for an abuse of discretion. Commonwealth v. Micklos, 672 A.2d
796, 802 (Pa. Super. 1996) (en banc).
A mere error of judgment does not constitute an abuse of
discretion. Rather, a trial court abuses its discretion if in reaching
a conclusion[,] the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable or the result of
partiality, prejudice, bias, or ill-will as shown by the evidence or
the record[.]
Id. at 803 (citations omitted and formatting altered).
As a general rule, a motion to suppress evidence must be included in an
omnibus pretrial motion. Pa.R.Crim.P. 578, cmt. (3).
Except as otherwise provided in these rules, the omnibus pretrial
motion for relief shall be filed and served within 30 days after
arraignment, unless opportunity therefor did not exist, or the
defendant or defense attorney, or the attorney for the
Commonwealth, was not aware of the grounds for the motion, or
unless the time for filing has been extended by the court for cause
shown.
Pa.R.Crim.P. 579(A).
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also Pa.R.A.P. 2119(a)-(c). As such, “[w]hen issues are not properly raised
and developed in briefs, when the briefs are wholly inadequate to present
specific issues for review, a court will not consider the merits thereof.”
Commonwealth v. Sanford, 445 A.2d 149, 150 (Pa. Super. 1982) (citations
omitted). “Although this Court is willing to construe liberally materials filed
by a pro se litigant, a pro se appellant enjoys no special benefit.”
Commonwealth v. Tchirkow, 160 A.3d 798, 804 (Pa. Super. 2017). “[A]ny
layperson choosing to represent [himself] in a legal proceeding must, to some
reasonable extent, assume the risk that [his] lack of expertise and legal
training will prove [his] undoing.” Commonwealth v. Rivera, 685 A.2d
1011, 1013 (Pa. Super. 1996) (citation omitted and some formatting altered).
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(A) The defendant’s attorney, or the defendant if unrepresented,
may make a motion to the court to suppress any evidence alleged
to have been obtained in violation of the defendant’s rights.
(B) Unless the opportunity did not previously exist, or the interests
of justice otherwise require, such motion shall be made only after
a case has been returned to court and shall be contained in the
omnibus pretrial motion set forth in Rule 578. If timely motion is
not made hereunder, the issue of suppression of such evidence
shall be deemed to be waived.
* * *
(D) The motion shall state specifically and with particularity the
evidence sought to be suppressed, the grounds for suppression,
and the facts and events in support thereof.
Pa.R.Crim.P. 581(A)-(B), (D).
If a defendant files an untimely omnibus pretrial motion, the defendant’s
suppression issue(s) “shall” be deemed waived “[u]nless the opportunity [to
raise the issue(s)] did not previously exist” or the court excuses the
defendant’s tardiness in the “interests of justice[.]” Pa.R.Crim.P. 581(B); see
also Pa.R.Crim.P. 581, cmt. (explaining that “[i]t should be noted that failure
to file the motion within the appropriate time limit constitutes a waiver of the
right to suppress”). In determining whether an exception to time bar from
Rule 579(A) is in the “interests of justice” pursuant to Rule 581(B), the trial
court considers “the length and cause of the delay, the merits of the
suppression claim, and the court’s ability, considering the complexity of the
issues and the availability of the witnesses, to hold the hearing promptly.”
Commonwealth v. Brown, 378 A.2d 1262, 1266 (Pa. Super. 1977) (citation
omitted). However, we note that “[c]ourts are reluctant to excuse untimely
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motions arguing issues that the defendant could have timely raised by the
original due date.” Commonwealth v. Ealy, 1614 MDA 2021, 2022 WL
15596055, at *5 (Pa. Super. filed Oct. 28, 2022) (unpublished mem.)9 (citing
Commonwealth v. Johonoson, 844 A.2d 556, 561 (Pa. Super. 2004)
(finding that the trial court properly denied a defendant’s supplemental
suppression motion as untimely where the defendant knew the facts and
circumstances surrounding the traffic stop at the time of his original
suppression motion but limited the original motion to a different issue),
disapproved on other grounds by Commonwealth v. Livingstone, 174 A.3d
609 (Pa. 2017)).
Here, the record reflects that on November 4, 2021, the trial court held
a hearing on Appellant’s second omnibus motion. The trial court noted that
Appellant filed his first omnibus motion on November 12, 2019, and Appellant
argued that the charges against him should be dismissed because the MVR
video was destroyed by the PSP to hinder Appellant’s defense. Trial Ct. Op.,
4/25/22, at 5; see also First Omnibus Mot., 11/12/19, at ¶¶10-18. However,
the trial court notes:
No other grounds for dismissal or suppression were included in
the motion, despite the fact that the nature of the stop, the
investigation by the troopers on scene, the search of [Appellant’s]
vehicle, the standard field sobriety tests, and the Drug Recognition
Expert (DRE) examination at the PSP barracks all were issues
known to [Appellant] at the time.
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9We may cite to unpublished memorandum decisions of this Court filed after
May 1, 2019, for their persuasive value. See Pa.R.A.P. 126(b).
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Trial Ct. Op., 4/25/22, at 5. The trial court concluded that Appellant had
access to this information and had actual knowledge of the duration and
circumstances surrounding the traffic stop therefore, Appellant could have
presented these issues in his first motion. See id. The trial court continued:
Second, the fact that [Appellant] later went to the PSP barracks
and was able to get the original MVR video to play does not make
the video newly discovered evidence that would provide new
grounds to challenge the sufficiency or admissibility of the
evidence obtained from the traffic stop. Further, the relevant
portions of the MVR video were played at trial, and [Appellant]
could and did utilize its contents to attempt to impeach the
credibility of the testifying officers.[FN3] He further utilized the DRE
report, which had been provided to [Appellant’s] prior counsel, to
thoroughly cross-examine the officer who performed the
evaluation. Thus, to the extent that [Appellant] did not himself
have access to either of these pieces of evidence in advance, that
fact did not result in any prejudice to him in preparing and
presenting a defense at his trial.
[FN3]The Commonwealth presented evidence that Trooper
Small noticed both [Appellant’s] slow and slurred speech
and his bloodshot eyes and dilated pupils prior to removing
him from the vehicle. Although the issue is not now before
the [c]ourt, those observations presumably would be
sufficient to establish sufficient and reasonable suspicion of
DUI to justify an ongoing investigatory detention. See N.T.,
Trial, 11/12/21, at 35-46.
Id. at 5-6 (formatting altered).
After review, we discern no error of law or abuse of discretion in the trial
court’s conclusion. See Micklos, 672 A.2d at 802; see also Ealy, 2022 WL
15596055, at *5. Appellant filed a counseled first omnibus motion on
November 12, 2019, and the record reflects that the only claim in Appellant’s
first omnibus motion was that the Commonwealth acted in bad faith and that
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“the video was purposefully destroyed in an effort to hamper the defense in
this case.” First Omnibus Mot., 11/12/19, at ¶11. However, Appellant did not
raise any concern that the troopers prolonged the traffic stop nor did Appellant
even mention the duration of the stop.10 Additionally, the record shows that
prior to trial, the Commonwealth provided Appellant’s then-trial counsel with
a copy of the MVR video which was not playable, but later Appellant, while pro
se, obtained a playable copy of the MVR video, such that the video was not
withheld nor destroyed as Appellant claims. Trooper Orlic testified that the
MVR video was corrupted and unplayable, and that the MVR video was
previously unavailable due to technological issues. See N.T., 8/17/20, at 44-
46. Accordingly, Appellant’s claim that the Commonwealth withheld and or
destroyed the MVR video evidence fails. Moreover, Appellant filed a counseled
timely first omnibus motion, which could have included challenges to the
legality and duration of the traffic stop but did not do so. On this record, we
discern no error of law or abuse of discretion in the trial court’s conclusion
that Appellant’s second omnibus motion was untimely, and no relief is due.
See Johonoson, 844 A.2d at 561; Micklos, 672 A.2d at 802; see also
Pa.R.Crim.P. 579, 581.
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10 Although Appellant mentions the DRE report in his brief, see Appellant’s
Brief at 22-23, he provides no argument concerning its contents, its relevance,
nor legal authority to support any claim involving the DRE report and its
discovery or use at trial. Appellant’s undeveloped argument in this regard
results in waiver of the issue. See Commonwealth v. Romeo, 153 A.3d
1084, 1090-91 (Pa. Super. 2017) (holding that an appellant’s failure to
develop an argument or cite relevant authority in support of the argument
results in waiver); Pa.R.A.P. 2119(a), (b).
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Merger
Merger implicates the legality of the sentence, and the legality of a
sentence is an issue this Court can raise sua sponte. See Commonwealth
v. Watson, 228 A.3d 928, 941 (Pa. Super. 2020). Further, our standard of
review is de novo and our scope of review is plenary. See id. (citation
omitted). As stated previously, the jury convicted Appellant of two counts of
DUI. On March 24, 2022, the trial court sentenced Appellant on the first DUI
count, 75 Pa.C.S. § 3802(d)(1)(ii) (DUI-schedule II or III controlled
substance), to a term of ninety days to thirty-six months of incarceration, with
fifty-three days to be spent in total confinement and thirty-seven days served
on house arrest. Sentencing Order, 3/24/22. On the second count of DUI,
75 Pa.C.S. § 3802(d)(1)(iii) (DUI-metabolite of schedule I, II, or III), the trial
court imposed a sentence of “no further penalty.”
However, the record reflects that Appellant committed a single act of
driving while his blood contained both cocaine and Benzoylecgonine, the
metabolite of cocaine. See N.T., 11/12/21, at 17-18. This Court has held
that a defendant should not be subjected to separate sentences for multiple
convictions arising under Section 3802(d)(1). See Commonwealth v.
Given, 244 A.3d 508, 512 (Pa. Super. 2020) (holding that “Section
3802(d)(1) proscribes a single harm to the Commonwealth – DUI-Controlled
Substance.”). Accordingly, the trial court should have merged Appellant’s DUI
convictions for purposes of sentencing. See id.- 12 -
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Further, the trial court imposed a sentence of “no further penalty” for
75 Pa.C.S. § 3802(d)(1)(iii) (DUI-metabolite of schedule I, II, or III), and this
Court has held that a sentence of “no further penalty” constitutes a sentence.
See Commonwealth v. Farrow, 168 A.3d 207, 215 (Pa. Super. 2017)
(holding that “since a court may impose ‘guilt without further penalty’ as a
sentence under 42 Pa.C.S. § 9721(a)(2),” we shall treat such dispositions “as
sentences for purposes of our double jeopardy analysis”), disapproved on
other grounds by Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020); see also
42 Pa.C.S. § 9721(a)(2). Because Appellant’s sentences for DUI should have
merged, the sentence of no further penalty must be vacated. See Farrow,
168 A.3d at 215; see also Commonwealth v. Seif, 943 WDA 2018, 2020
WL 5423953, at *5 (Pa. Super. filed Sept. 10, 2020) (unpublished mem.).
For these reasons, we conclude that Appellant’s conviction for 75 Pa.C.S.
§ 3802(d)(1)(iii) merges with his conviction for 75 Pa.C.S. § 3802(d)(1)(ii)
for purposes of sentencing, and we vacate the sentence of no further penalty
for 75 Pa.C.S. § 3802(d)(1)(iii).
Legality of Sentence
Finally, we address the legality of the sentence imposed for 75 Pa.C.S.
§ 3802(d)(1)(ii). We reiterate that this Court can raise the legality of a
sentence sua sponte, and an illegal sentence must be vacated. See Watson,
228 A.3d at 941. Moreover, our standard of review is de novo and our scope
of review is plenary. See id.
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As stated, Appellant was convicted of 75 Pa.C.S. § 3802(d)(1)(ii), and
the trial court imposed a sentence of ninety days to thirty-six months of
incarceration. Further, 75 Pa.C.S. § 3814 mandates that any defendant
convicted of DUI shall be evaluated using the Court Reporting Network under
Section 3816. 75 Pa.C.S. §§ 3814(1), 3816(a). Additionally, any defendant
who, “within ten years prior to the offense for which sentence is being
imposed, has been sentenced for an offense under[]” Section 3802 of the
Motor Vehicle Code, shall receive a full drug and alcohol evaluation. 75
Pa.C.S. § 3814(2)(i)(A). Moreover, this Court has held that the trial court is
statutorily required to order the drug and alcohol evaluation before
sentencing. See Commonwealth v. Borovichka, 18 A.3d 1242, 1255 (Pa.
Super. 2011); 75 Pa.C.S. § 3814.
Additionally, 75 Pa.C.S. § 3804(d) provides:
(d) Extended supervision of court.—If a person is
sentenced pursuant to this chapter and, after the initial
assessment required by section 3814(1), the person is
determined to be in need of additional treatment pursuant
to section 3814(2), the judge shall impose a minimum
sentence as provided by law and a maximum sentence equal
to the statutorily available maximum. A sentence to the
statutorily available maximum imposed pursuant to this
subsection may, in the discretion of the sentencing court,
be ordered to be served in a county prison, notwithstanding
the provisions of 42 Pa.C.S. § 9762 (relating to sentencing
proceeding; place of confinement).
75 Pa.C.S. § 3804(d). Here, it is unclear from the record whether Appellant
received a drug and alcohol evaluation prior to sentencing.
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Accordingly, we vacate the judgment of sentence for 75 Pa.C.S. §
3802(d)(1)(ii) and remand for resentencing. On remand, the trial court shall
determine whether Appellant was evaluated pursuant to Sections 3814 and
3816 of the Motor Vehicle Code and make the results part of the record. If
Appellant is not in need of further treatment, the trial court shall reimpose the
judgment of sentence. However, if Appellant is in need of further treatment,
the trial court shall resentence Appellant consistent with the terms of Section
3804(d) of the Motor Vehicle Code.
Conclusion
For these reasons, we discern no error in the trial court’s order denying
Appellant’s second omnibus motion as untimely. We, therefore, affirm
Appellant’s convictions. However, because Appellant’s two DUI sentences
should have merged for sentencing purposes, we vacate the sentence of no
further penalty for 75 Pa.C.S. § 3802(d)(1)(iii) (DUI-metabolite of schedule I,
II, or III). Further, we vacate Appellant’s judgment of sentence 75 Pa.C.S. §
3802(d)(1)(ii) and remand for resentencing consistent with this opinion.
Judgment of sentence vacated. Case remanded with instructions.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2023
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