Com. v. May, R.

J-A26004-21
2022 PA Super 25COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAHSAAN O. MAY :
:
Appellant : No. 139 EDA 2021
Appeal from the Judgment of Sentence Entered November 23, 2020
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0004281-2018
BEFORE: BOWES, J., STABILE, J., and McCAFFERY, J.
OPINION BY BOWES, J.: FILED FEBRUARY 15, 2022
Rahsaan O. May appeals from his November 23, 2020 judgment of
sentence imposed after the trial court found him guilty of driving under the
influence (“DUI”) of a controlled substance. After careful review, we affirm.
The trial court summarized the facts as follows:
On February 28, 2018[,] at 8:33 a.m., police officers from
the Radnor Township Police Department were dispatched to the
200 block of King of Prussia Road, Radnor Township, Delaware
County, Pennsylvania to respond to a report of an overturned box
truck. King of Prussia Road is a state highway near a railroad
overpass utilized by both AMTRAK and SEPTA’s regional rail
system. King of Prussia Road and the secondary roadways leading
to the overpass have multiple, clearly posted bridge height signs
referencing a 10’ 10” clearance. Upon arriving on scene,
Officer Janoski observed a white box truck bearing Pennsylvania
registration ZJM-4627 partially overturned and resting on its
driver side positioned under the bridge. The truck displayed the
name “Two Men and A Truck” and appeared to Officer Janoski to
be a 19-foot box truck with a height of [twelve] feet. During the
crash investigation it was determined the truck was operated by
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[Appellant] who was positively identified by his Pennsylvania
Drivers’ License number.
Appellant May stated he was traveling southbound on King
of Prussia Road when the box of the truck struck the I-beam of
the bridge causing the vehicle to overturn. [Appellant] was aware
the truck was [twelve] feet high but he did not see the signs
warning of the bridge height. When the truck collided with the
bridge it overturned striking an occupied vehicle traveling under
the overpass in a northbound direction.
While speaking with [Appellant] at the scene, Officer Janoski
detected an odor of burnt marijuana emanating from his person.
When asked if he smoked anything that day, [Appellant]
responded: “I smoked a little weed this morning.” While speaking
with [Appellant], he persistently placed his hands inside his
sweatshirt pockets despite Officer Janoski’s repeated instructions
to [Appellant to] keep his hands visible. [Appellant] voluntarily
agreed to an officer safety pat down and a green, leafy vegetable
matter was located on his person.
[Appellant] submitted to [s]tandardized [f]ield [s]obriety
[t]esting and was ultimately placed in police custody. Appellant
was transported to Bryn Mawr Hospital where he was advised of
[c]hemical [t]esting [w]arnings DL-26 and voluntarily submitted
to a chemical test of his blood.
Trial Court Opinion, 2/26/21, at 1-3 (citations omitted).
Appellant was arrested and charged with DUI of a controlled substance.
The Commonwealth filed a motion in limine to exclude the testimony of
Appellant’s proposed expert, Dr. Lawrence Guzzardi. On October 14, 2020,
the trial court granted oral argument on the motion before excluding the
testimony and report. Appellant immediately proceeded to a non-jury trial.
The Commonwealth put forth the testimony of the operator of the vehicle that
Appellant hit, the officer who responded to the accident, and a toxicologist
who opined that Appellant’s blood contained marijuana metabolites. Appellant
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elected not to testify but argued that the marijuana detected in his blood was
too low to impair his ability to operate a motor vehicle. The trial court found
Appellant guilty of DUI of a controlled substance, an ungraded misdemeanor.
On November 23, 2020, the court sentenced Appellant to six months of
restrictive probation and ordered him to pay a mandatory $1,000 fine and
$168 lab fee. As conditions of his restrictive probation, Appellant was ordered
to complete twenty days of electronic home monitoring, eighty hours of
community service, undergo a Court Reporting Network evaluation, and
complete safe driving classes. Appellant filed a post-sentence motion which
was denied. The instant appeal followed. Both Appellant and the trial court
complied with the mandates of Pa.R.A.P. 1925.
Appellant presents the following issues for our review:
1. Whether the lower court erred in precluding the testimony
of defense expert, Lawrence Guzzardi, MD, to refute the
laboratory report (Exhibit C8) and testimony of two
prosecution witnesses, since the expert’s proffered
testimony was relevant, including on the issue of credibility,
and therefore could have caused the factfinder to disregard
some or all of the prosecution’s evidence, thereby resulting
in acquittal?
2. Whether the court below erred and imposed an illegal
sentence when it ordered Appellant to pay a fine without
first assessing his ability to pay?
Appellant’s brief at 4-5.
First, Appellant challenges the trial court’s decision to exclude expert
testimony and a report. See Appellant’s brief at 12-18. We review a trial
court’s decision to admit or exclude expert opinion testimony under an abuse
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of discretion standard. See Commonwealth v. Pi Delta Psi, Inc., 211 A.3d
875, 881 (Pa.Super. 2019). An abuse of discretion “occurs if the trial court
renders a judgment that is manifestly unreasonable, arbitrary or capricious;
that fails to apply the law; or that is motivated by partiality, prejudice, bias or
ill-will.” Id. (quoting Hutchinson v. Penske Truck Leasing Co., 876 A.2d
978, 984 (Pa.Super. 2005)).
Herein, the trial court prohibited Lawrence Guzzardi, M.D., a
toxicologist, from submitting a report or offering testimony after Appellant
conceded that Dr. Guzzardi would not dispute the test results indicating the
presence of marijuana in Appellant’s blood. N.T. Non-Jury Trial, 10/14/20, at
15. Instead, he planned to offer testimony questioning Appellant’s level of
impairment. Id. The trial court reasoned that since the controlled substance
subsection at issue prohibited any amount of the controlled substance to be
within an accused’s system, testimony regarding the level of Appellant’s
impairment was not relevant. Id.; see also Pa.R.E. 402 (explaining that
relevant evidence is evidence that tends to establish a material fact in the
case or make a fact at issue more or less probable). We agree.
Appellant proceeded to trial on a charge of 75 Pa.C.S. § 3802(d)(1)(i),
DUI of a controlled substance, which provides:
(d) Controlled substances. An individual may not drive, operate
or be in actual physical control of the movement of a vehicle under
any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
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(i) Schedule I 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;
75 Pa.C.S. § 3802(d)(1)(i) (emphasis added).
Therefore, for the Commonwealth to meet its burden of proof, it needed
to prove: (1) that Appellant was in actual physical control or operated the
motor vehicle and (2) that he had a schedule I controlled substance in his
blood. Id. The Commonwealth was not required to establish that Appellant
was impaired in order to convict him pursuant to § 3802(d)(1)(i). See
Commonwealth v. Hutchins, 42 A.3d 302, 310 (Pa.Super. 2012) (finding
that a conviction under § 3802(d)(1) does not require that a driver be
impaired, only that a driver has any amount of a specifically enumerated
controlled substance in his blood). Since the DUI subsection at issue
criminalizes any amount of schedule I controlled substance in the blood, it was
within the court’s discretion to conclude that testimony regarding Appellant’s
level of impairment was irrelevant.
Appellant counters that Commonwealth v. Taylor, 209 A.3d 444(Pa.Super. 2019), supports his position. See Appellant’s brief at 14-16.
However, his reliance on Taylor is misplaced. In Taylor, the appellant was
arrested for DUI after she crashed her vehicle into a utility pole, failed field
sobriety testing, and admitted to taking Xanax and Adderall. No blood testing
was completed, and the appellant was unable to provide the amounts she took
or how long before the accident they were ingested.
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The appellant was charged with endangering the welfare of a child and
DUI of a Schedule IV controlled substance, a different subsection than the one
at issue in the case at bar. See 75 Pa.C.S. § 3802(d)(2). At trial, “a central
point of dispute” was whether the appellant was impaired by controlled
substances at the time she crashed the vehicle. Id. at 447. To establish
impairment, the Commonwealth relied on the arresting officer’s testimony
about the field sobriety testing and his opinion that the appellant’s
performance was impaired due to drug use. The defense countered that the
appellant’s poor performance was due to a head injury and sought to admit
the testimony of Dr. Guzzardi. Dr. Guzzardi confirmed that appellant had been
prescribed Xanax and Adderral, but explained that, when taken as proscribed,
the appellant should have experienced little to no side effects from the drugs.
Dr. Guzzardi also attempted to opine that field sobriety testing had never been
validated as indicators of impairment due to drug use. However, the
Commonwealth objected and the trial court sustained the objection.
Accordingly, the jury never heard Dr. Guzzardi’s opinion regarding the
effectiveness of field sobriety testing for detecting drug impairment. The
appellant was convicted.
On appeal, we reversed, holding that Dr. Guzzardi’s opinion was derived
from “years of rigorous scholarship” and would have rebutted the officer’s
conclusion that the appellant was impaired by drugs. Id. at 449, 451 (“the
excluded testimony went to the heart of a central jury question.”). Since it
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was for the jury to weigh the evidence, and it was never afforded the
opportunity, the trial court committed prejudicial error by excluding the
testimony. Id.
Unlike in Taylor, herein, expert testimony concerning the impairing
effects of the medication was irrelevant to whether Appellant would be
convicted or acquitted. The prosecution in this case involved a different
subsection of the DUI statute that did not require proof of impairment.
Moreover, the Commonwealth proved its case through admission of a blood
test result that showed the presence of marijuana in Appellant’s blood, not
field sobriety testing. Dr. Guzzardi’s planned testimony would not have
challenged the methodology behind the chemical testing of Appellant’s blood,
nor the findings that Appellant had a Schedule I controlled substance in his
blood while driving. See N.T., 10/14/20, at 11-12, 15, 18-19, 23. Thus, it
would not have controverted the Commonwealth’s evidence and the trial court
was well within its discretion to deny the testimony. Accordingly, we find that
Taylor is inapplicable, and no relief is due on Appellant’s first issue.
In his second claim, Appellant alleges that the court erroneously
imposed a mandatory fine without first assessing his ability to pay, which was
in violation of 42 Pa.C.S. § 9726(c), Pa.R.Crim.P. 706(C), and the excessive
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fines clause of the Pennsylvania and United States Constitutions.1 See
Appellant’s brief at 18. Since this argument challenges the legality of
Appellant’s sentence, “[o]ur standard review over such questions is de novo
and our scope of review is plenary.” Commonwealth v. Wolfe, 106 A.3d
800, 802 (Pa.Super. 2014). For the reasons that follow, we find that § 9726(c)
does not apply to mandatory fines, Rule 706(C) does not require an ability to
pay hearing until incarceration for failure to pay is at issue, and 75 Pa.C.S.
§ 3804(c)(1)(ii) does not violate the excessive fines clause of the Pennsylvania
and United States Constitutions.
I. 42 Pa.C.S. § 9726(c)
First, Appellant argues that the trial court erred by imposing a $1,000
fine without conducting a hearing to determine his ability to pay pursuant to
42 Pa.C.S. § 9726(c). See Appellant’s brief at 18. Section 9726(c) provides,
in relevant part, as follows:
The court shall not sentence a defendant to pay a fine unless it
appears of record that:
(1) the defendant is or will be able to pay the fine[.]
42 Pa.C.S. § 9726(c). Appellant contends that § 9726(c) required the trial
court to hold such a hearing before imposing any fine. Id. at 19. Appellant
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1 Appellant raises this claim for the first time on appeal. However, this claim
is non-waivable since Appellant argues that it implicates the legality of his
criminal sentence. See Commonwealth v. Boyd, 73 A.3d 1269, 1270
(Pa.Super. 2013) (en banc). Accordingly, we decline to find waiver.
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concedes that the fine imposed here was required by 75 Pa.C.S.
§ 3804(c)(1)(ii), but nevertheless asserts that § 3804 and § 9726 can be
harmonized by reading the provisions so as to conclude that the mandatory
fine must be imposed unless the defendant cannot afford it. Id. at 28-31.
Specifically, 75 Pa.C.S. § 3804(c)(1)(ii) provides as follows:
An individual who violates section 3802 . . . (d) shall be sentenced
as follows:
(1) for a first offense, to:
...
(ii) pay a fine of not less than $1,000 nor more than
$5,000[.]
75 Pa.C.S. § 3804(c)(1)(ii) (emphasis added). Appellant also urges us to
overrule or distinguish Commonwealth v. Cherpes, 520 A.2d 439(Pa.Super. 1987), which held that the general provisions of § 9726(c) could
not prevail over a specific penalty provision. Id. at 28.
In contrast, the Commonwealth responds that Appellant’s sentence was
legal. See Commonwealth’s brief at 18-19. It maintains that the ability-to-
pay inquiry of § 9726(c) is required only for non-mandatory fines. Id. at 19
(citing Commonwealth v. Ford, 217 A.3d 824, 829 (Pa. 2018)). Thus,
consistent with Cherpes and its progeny, the Commonwealth maintains that
the specific penalty provision at issue herein must govern. Id. at 19-20; see
also 75 Pa.C.S. § 3804(c)(1)(ii). We agree.
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It is well-established that § 9726(c) does not apply to mandatory fines.
See Commonwealth v. Gipple, 613 A.2d 600, 601 n. 1 (Pa.Super. 1992)
(finding that § 9726(c) did not apply to mandatory fines). This position was
recently reinforced by our Supreme Court in Ford, wherein the Court observed
that “a presentence hearing on the ability to pay a mandatory fine is not
required.” Ford, supra at 827-28 (citing Gipple, supra at 601 n.1).
In this case, the trial court concluded that the fine imposed was
statutorily required by § 3804(c)(1)(ii). See Trial Court Opinion, 2/26/21 at
23-26. Specifically, 75 Pa.C.S. § 3804(c)(1)(ii) provides that “an individual
who violates section 3802 . . . shall be sentenced,” on a first offense, to “pay
a fine of not less than $1,000 nor more than $5,000.” 75 Pa.C.S.
§ 3804(c)(1)(ii) (emphasis added). We agree that the sentencing court was
statutorily required to impose a fine of at least $1,000. See Oberneder v.
Link Computer Corp., 696 A.2d 148, 150 (Pa. 1997) (“By definition, ‘shall’
is mandatory.”). Thus, § 9726(c) was inapplicable and Appellant’s claim of an
illegal sentence is meritless. See Ford, supra at 827-28. Furthermore, for
the reasons explained, infra, we reject Appellant’s argument urging us to
overturn or distinguish Cherpes. This panel is bound by existing precedent
and, therefore, lacks the authority to overturn another panel decision. See
Commonwealth v. Beck, 78 A.3d 656 (Pa.Super. 2008) (holding that a
three-judge panel of this Court is “not empowered to overrule another panel
of the Superior Court”).
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In Cherpes, a township commissioner was convicted of violations of the
State Ethics Act and unsworn falsification to authorities. As part of his
sentence, the commissioner was ordered to pay a mandatory fine of $197,061
pursuant to a specific penalty provision. On appeal, he argued that the specific
penalty provision, which required a penalty equal to three times the amount
gained through violation of the State Ethics Act, should have been construed
in light of § 9726(c) so that the fine was tempered by his ability to pay. See
Cherpes, supra at 449. In affirming the commissioner’s sentence, the
Cherpes court concluded that a statute setting forth a mandatory penalty was
“specific,” and thus “prevail[ed] over the more general provision in § 9726(c).”
Id. at 449 (citing Commonwealth v. Bidner, 422 A.2d 847 (Pa.Super.
1980); 1 P.S. § 1933). Accordingly, our review confirms that Cherpes
controls in these circumstances. Thus, Appellant’s argument is without merit.
II. Pa.R.Crim.P. 706(C)
In his second sub-claim, Appellant alleges that the $1,000 fine
constituted an illegal sentence under Pa.R.Crim.P. 706(C). See Appellant’s
brief at 24. Pennsylvania Rule of Criminal Procedure 706(C) provides:
The court, in determining the amount and method of payment of
a fine or costs shall, insofar as is just and practicable, consider the
burden upon the defendant by reason of the defendant’s financial
means, including the defendant's ability to make restitution or
reparations.
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Pa.R.Crim.P. 706(C). In Appellant’s view, Rule 706(C) also instructs courts to
consider the burden upon a defendant before imposing a fine, such that a
failure to do so constitutes an illegal sentence. Id. at 24-25. We disagree.
When viewed in its proper context, it is clear that Rule 706(C) only
requires the court to hold an ability-to-pay hearing when a defendant faces
incarceration for failure to pay court costs previously imposed on him:
(A) A court shall not commit the defendant to prison for
failure to pay a fine or costs unless it appears after hearing that
the defendant is financially able to pay the fine or costs.
(B) When the court determines, after hearing, that the defendant
is without the financial means to pay the fine or costs immediately
or in a single remittance, the court may provide for payment of
the fines or costs in such installments and over such period of time
as it deems to be just and practicable, taking into account the
financial resources of the defendant and the nature of the burden
its payments will impose, as set forth in paragraph (D) below.
(C) The court, in determining the amount and method of payment
of a fine or costs shall, insofar as is just and practicable, consider
the burden upon the defendant by reason of the defendant's
financial means, including the defendant's ability to make
restitution or reparations.
(D) In cases in which the court has ordered payment of a fine or
costs in installments, the defendant may request a rehearing on
the payment schedule when the defendant is in default of a
payment or when the defendant advises the court that such
default is imminent. At such hearing, the burden shall be on the
defendant to prove that his or her financial condition has
deteriorated to the extent that the defendant is without the means
to meet the payment schedule. Thereupon the court may extend
or accelerate the payment schedule or leave it unaltered, as the
court finds to be just and practicable under the circumstances of
record. When there has been default and the court finds the
defendant is not indigent, the court may impose imprisonment as
provided by law for nonpayment.
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Pa.R.Crim.P. 706 (emphasis added).
Our review of the relevant authority confirms our interpretation of Rule
706. As we have previously explained:
[A] defendant is not entitled to a pre-sentencing hearing on his or
her ability to pay costs. While Rule 706 permits a defendant to
demonstrate financial inability either after a default hearing or
when costs are initially ordered to be paid in installments, the Rule
only requires such a hearing prior to any order directing
incarceration for failure to pay the ordered costs.... [I]t is not
constitutionally necessary to have a determination of the
defendant’s ability to pay prior to or at the judgment of sentence.
We [therefore] conclude that [a] ... trial court only [must] make
a determination of an indigent defendant’s ability to render
payment before he/she is committed.
Commonwealth v. Childs, 63 A.3d 323, 326 (Pa.Super. 2013) (citation
omitted).
Here, Appellant was convicted of § 3802(d)(1)(i), and the trial court was
required to impose the $1,000 fine as a result. See 75 Pa.C.S.
§ 3804(c)(1)(ii). Consistent with the foregoing, the trial court properly
concluded that because it was not committing Appellant to serve incarceration
for failing to pay the mandatory fine, no ability to pay hearing was required.
See Trial Court Opinion, 2/26/21, at 24-26. Appellant counters that
Commonwealth v. Martin, 335 A.2d 424 (Pa.Super. 1975) (en banc), and
Commonwealth v. Lopez, 248 A.3d 589 (Pa.Super. 2021) (en banc),
support his position that an ability to pay hearing was required by Rule 706(C).
We disagree.
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In Martin, the defendant was convicted of involuntary manslaughter
and sentenced to pay a $5,000 fine pursuant to a discretionary sentencing
statute. The relevant statute instructed the sentencing court that it “may”
sentence a person convicted of a first-degree misdemeanor to pay a fine not
exceeding $10,000. On appeal, we vacated and remanded for resentencing
because we found that the sentencing court’s reasoning for imposing a $5,000
fine was improper. Id. at 426. Accordingly, we vacated the non-mandatory
fine on grounds not related to Rule 706. Thus, this case is inapposite to
Appellant’s argument.
Lopez involved the imposition of mandatory court costs following a
probation revocation. Prior to the resentencing hearing, appellant filed a
motion for an ability-to-pay hearing to waive costs, which he argued was
required by Rule 706(C). The court heard argument on the legal issues raised
by the motion before denying it. On appeal, this Court conducted a statutory
analysis of Rule 706(C) and found that Rule 706(C) did not require a trial
court to hold an ability-to-pay hearing until a defendant risked incarceration
for failing to pay court costs. See Lopez, supra at 592. While the trial court
retained discretion to hold an ability-to-pay hearing at sentencing, it was not
mandated to do so by Rule 706(C). Instantly, Appellant was subjected to a
mandatory fine and was not facing incarceration due to a failure to pay the
fine. Thus, Appellant’s reliance on Lopez is unavailing. Accordingly, his
second sub-claim also fails.
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III. Excessive Fines Clause
In his final sub-claim, Appellant contends that the imposition of a $1,000
fine violated the prohibition against excessive fines contained in the Eighth
Amendment of the United States Constitution and Article I, Section 13 of the
Pennsylvania Constitution. See Appellant’s brief at 32-42. Specifically,
Appellant contends that § 3804 is unconstitutional because it requires a
sentencing judge to impose a mandatory fine without ever permitting the
judge to consider whether the fine would “effectively pauperize a defendant
for a single act.” Id. at 36. We disagree.
Whether a fine is excessive under our Constitution is a question of law,
therefore our standard of review is de novo and our scope of review is plenary.
See Commonwealth v. Eisenberg, 98 A.3d 1268, 1279 (Pa. 2014). The
Eighth Amendment to the U.S. Constitution provides that “[e]xcessive bail
shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted.” U.S. CONST., Amend. VIII. The protections provided
by Article I, Section 13 of the Pennsylvania Constitution are coextensive with
those provided by the Eighth Amendment.2 See Commonwealth v. 5444
Spruce Street, Philadelphia, 832 A.2d 396, 399 (Pa. 2003).
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2 Article I, Section 13 of the Pennsylvania Constitution states that “[e]xcessive
bail shall not be required, nor excessive fines imposed, nor cruel punishments
inflicted.” PA. CONST., Art. I, § 13.
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In addressing Appellant’s argument, we are guided by Eisenberg,
which instructs us to consider whether the fine imposed was reasonably
proportionate to the crime it criminalizes. In Eisenberg, our Supreme Court
determined that a mandatory minimum fine of $75,000 for a conviction of a
first-degree misdemeanor theft from a casino of $200 was an excessive fine
in violation of Article I, Section 13 of the Pennsylvania Constitution. In
conducting its proportionality analysis, the Court was persuaded by the fact
that: (1) the amount owed was 375 times the amount of the theft; (2) the
Crimes Code equivalent of the appellant’s offense – a first degree
misdemeanor – would have been $10,000; (3) the maximum fine imposable
under the Crimes Code was $50,000, which would be for a murder or
attempted murder conviction, and (4) the fine would exhaust five years of
pre-tax income for a minimum wage worker, “effectively pauperiz[ing] a
defendant for a single act.” Id. at 1286. The Eisenberg court also
distinguished its holding from cases where the fine is “tailored, scaled, and in
the strictest sense calculated to their offenses”, as follows:
In [Commonwealth v.] Church, [522 A.2d 30 (Pa.1987),]
overweight vehicles were fined on a sliding scale per pound over
the weight limit. In Eckhart [v. Department of Agriculture, 8
A.3d 401 (Pa.Cmwlth. 2010) ], the appellant kennel operator had
committed numerous infractions incurring a fine amount in excess
of $150,000 based on a $100–$500 per dog/per day penalty
scheme, $15,000 of which appellant claimed was excessive in light
of perceived triviality of the offense. In [Commonwealth v.]
CSX [Transportation, Inc., 653 A.2d 1327 (Pa.Cmwlth. 1995),]
the appellant’s train car leaked enough corn syrup into the
Youghiogheny River to kill approximately 10,000 fish, and thus
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appellant incurred a roughly $100,000 fine, based on a $10 per
fish calculation.
Id. at 1287 n.24 (emphasis in original).
Herein, the statute at issue follows the “sliding scale” approach
expressly sanctioned by Eisenberg as it is “tailored, scaled, and in the
strictest sense calculated to [the] offenses.” Id. at 1287. Section 3804
distinguishes DUI punishments based upon the substance imbibed, the level
of impairment, the number of prior DUI’s committed, if there was an accident
that resulted in bodily injury or property damage, and if there were any minor
occupants. See Pa.C.S. § 3804. Further, the mandatory DUI fines at issue
in this case amount to far less than the substantial criminal administrative
penalties in Church and CSX. See Eisenberg, supra at 1287 n.24.
With specific regard to Appellant’s § 3802(d)(1)(i) conviction, our
legislature has encased the proportionality assessment favored by Eisenberg
within the statute, which is tailored and scaled based upon the number of DUI
offenses a defendant has committed:
(c) Incapacity; highest blood alcohol; controlled
substances.--An individual who violates section 3802(a)(1) and
refused testing of breath under section 1547 (relating to chemical
testing to determine amount of alcohol or controlled substance)
or testing of blood pursuant to a valid search warrant or an
individual who violates section 3802(c) or (d) shall be sentenced
as follows:
(1) For a first offense, to:
(i) undergo imprisonment of not less than 72 consecutive
hours;
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(ii) pay a fine of not less than $1,000 nor more than $5,000;
(iii) attend an alcohol highway safety school approved by the
department; and
(iv) comply with all drug and alcohol treatment requirements
imposed under sections 3814 and 3815.
(2) For a second offense, to:
(i) undergo imprisonment of not less than 90 days;
(ii) pay a fine of not less than $1,500;
(iii) attend an alcohol highway safety school approved by the
department; and
(iv) comply with all drug and alcohol treatment requirements
imposed under sections 3814 and 3815.
(3) For a third or subsequent offense, to:
(i) undergo imprisonment of not less than one year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment
requirements imposed under sections 3814 and 3815.
75 Pa.C.S. § 3804(c).
Additionally, the $1,000 fine does not threaten Appellant with the
functional equivalent of “pauperization.” See Eisenberg, supra at 1285-86.
The Eisenberg Court found persuasive the fact that with a minimum wage of
$7.25 per hour, a $75,000 fine would exhaust approximately five years of pre-
tax income of a minimum wage worker. However, with minimum wage still
at $7.25 per hour, § 3804(c)(1)(ii)’s $1,000 fine is seventy-five times less
impactful than the one at issue in Eisenberg.
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Simply put, Appellant has not convinced us that the fine at issue was
akin to the one our Supreme Court struck down in Eisenberg. A fine of
$1,000 is not grossly disproportionate to the crime committed and unlikely to
deprive Appellant of his livelihood. Undoubtedly, the Commonwealth has a
compelling interest in protecting its citizens from the dangers posed by
impaired driving, which are well-established. See Commonwealth v.
Tarbert, 535 A.2d 1035, 1042 (Pa. 1987) (citing a string of cases
summarizing the “terrible costs in human life, injury and potential” that drunk
driving exacts). Indeed, we do not underestimate the impact of Appellant’s
actions, and those similarly situated, which by driving after imbibing
intoxicating substances put the lives and property of other citizens of this
Commonwealth at risk. See N.T. 10/14/20, at 38 (Mr. Flaherty testifying that
if Appellant’s truck had impacted his vehicle any lower it “probably would have
just killed me”).
Herein, the legislature found that driving while impaired by a Schedule
I substance merited a minimum mandatory fine of $1,000. See 75 Pa.C.S.
§ 3804(c). As that punishment is proportional to the crime, we hold that
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§ 3804 does not violate the excessive fines clause of the Pennsylvania or
United States Constitution.3, 4
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/15/2022
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3 Public Justice and the American Civil Liberties Union have filed amicus curiae
briefs in support of Appellant’s position. However, their arguments are more
properly addressed to this Court en banc or to our Supreme Court, as we lack
the authority to overrule the precedent they challenge or to make policy
determinations.
4 Our decision does not bar Appellant from requesting an ability-to-pay
hearing in the future. A defendant has the constitutional right to an
opportunity to show that he cannot afford the fine or costs that have been
imposed on him prior to being incarcerated for failure to pay the fine or costs.
See Commonwealth v. Lopez, 248 A.3d 589, 594 (Pa.Super. 2021).
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