J.S26037/14

                                2015 PA Super 34

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                           Appellee         :
                                            :
                    v.                      :
                                            :
                                            :
FREDRICK POSTIE,                            :
                                            :
                           Appellant        :     No. 626 EDA 2013


            Appeal from the Judgment of Sentence January 15, 2013
                In the Court of Common Pleas of Lehigh County
               Criminal Division No(s).: CP-39-CR-0004173-2011

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                           Filed: February 17, 2015

        Appellant, Fredrick Postie, appeals pro se from the judgment of

sentence of a “flat” term of four months’ imprisonment, entered in the

Lehigh County Court of Common Pleas, following his bench conviction of

driving while operating privilege is suspended or revoked1 (“DWOPS”), a

summary offense.2        Appellant alleges the court erred in: (1) denying his

motion for recusal; (2) denying his suppression motion; (3) conducting



*
    Former Justice specially assigned to the Superior Court.
1
  75 Pa.C.S. § 1543(a). “This was [Appellant’s] 20th conviction for driving
while operating privilege is suspended,” and thus the increased penalties of
Section 6503(a.1) applied. See 75 Pa.C.S. § 6503(a.1); Trial Ct. Op.,
4/12/13, at 2 n.5; N.T., Trial & Sentencing, 1/15/13, at 4.
2
    The court also found Appellant guilty of false reports, 75 Pa.C.S. § 3748.
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partial and biased proceedings; (4) allowing the Commonwealth to reinstate

the charge of DWOPS that was previously withdrawn pursuant to a plea

agreement; (5) imposing a flat sentence of four months, without minimum

and maximum terms; and (6) ordering his sentence to be served in state

prison.3 We hold: (1) Appellant’s flat sentence for the summary offense of

DWOPS is not compliant with 42 Pa.C.S. § 9756; and (2) after review of the

certified record, it is not clear whether Appellant may serve the instant

sentence in state prison pursuant to 42 Pa.C.S. § 9762(a). We find no relief

is due on his remaining issues.      Accordingly, we vacate the judgment of

sentence and remand for resentencing.

        The underlying vehicle stop giving rise to these charges will be

discussed infra, in our disposition of Appellant’s suppression claim. On April

9, 2012, Appellant pleaded guilty to false identification to law enforcement

authorities and habitual offenders4 in exchange for the Commonwealth’s

withdrawing the DWOPS charge. Appellant subsequently withdrew the plea;

the circumstances of the withdrawal will likewise be discussed infra.

        On August 14 and 15, 2012, the trial court conducted hearings on

Appellant’s suppression motion. Appellant later also filed a motion for the

trial judge’s recusal, arguing the judge had presided over the suppression


3
    For ease of disposition, we have reordered Appellant’s issues.
4
    18 Pa.C.S. § 4914; 75 Pa.C.S. § 6503.1.




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hearing, at which Appellant made admissions against his own interest. The

court denied both the suppression and recusal motions.

      The case proceeded to a bench trial on January 15, 2013, on charges

of DWOPS and false reports.5     The officer who conducted the vehicle stop

was the sole witness, and Appellant did not present any evidence or testify.

The court found Appellant guilty of both counts and immediately sentenced

him to four months in state prison, to be served consecutive to the unrelated

state sentence he was currently serving.

      Appellant did not file a post-sentence motion, but took this timely pro

se appeal.6 He complied with the court’s order to file a Pa.R.A.P. 1925(b)


5
  On the eve of trial, January 14, 2013, the court entered an order granting,
after a hearing, Appellant’s “oral motion to discharge” his assistant public
defender, John F. Baurkot, Esq. and appointing Attorney Baurkot to act as
stand-by counsel. Order, 1/14/13. However, at the commencement of trial,
Appellant agreed to be represented by Attorney Baurkot. N.T., 1/15/13, at
4-5.
6
   Two days after sentencing, Attorney Baurkot filed a motion to withdraw as
counsel, stating Appellant had “indicated a desire to represent himself in an
Appeal.” Atty. Baurkot’s Mot. to Withdraw as Counsel, 1/17/13, at ¶ 3. The
court then issued orders scheduling a hearing on this motion on,
respectively, February 21, March 22, and May 1, 2013. On May 1st, it
entered an order stating it had held the hearing and granting counsel leave
to withdraw. Although the court technically lacked jurisdiction to conduct
this hearing and allow counsel to withdraw, see Pa.R.A.P. 1701(a), in the
interest of judicial economy we decline to disturb Appellant’s pro se status in
the instant appeal. This panel could remand for a “proper” hearing for
Appellant’s knowing waiver of counsel. However, because Appellant had just
filed his own motion to discharge counsel three days before counsel filed his
motion, and the court stated it held hearings on both motions, we decline to
do so.




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statement of errors complained of on appeal.        As summarized above, he

raises six allegations of trial court error.

      Appellant’s first claim is that the trial court erred in denying his motion

for recusal.    In support, he avers the court previously accepted his guilty

plea, allowed withdrawal of the plea, and presided over the suppression

hearing, at which he “made certain admissions of guilt.” Appellant’s Brief at

8. Appellant asserts he was prejudiced “with bias that could not have been

cured by any other means aside from recusal.” Id. We find no relief is due.

      This Court has stated:

         Our standard of review of a trial court’s determination not
         to recuse from hearing a case is exceptionally deferential.
         We recognize that our trial judges are “honorable, fair and
         competent,” and although we employ an abuse of
         discretion standard, we do so recognizing that the judge
         himself is best qualified to gauge his ability to preside
         impartially.

               The party who asserts that a trial judge should
               recuse bears the burden of setting forth specific
               evidence   of   bias,  prejudice,    or   unfairness.
               “Furthermore, a decision by the trial court against
               whom the plea of prejudice is made will not be
               disturbed absent an abuse of discretion.”

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009)

(citations omitted).

      In support of his argument, Appellant cites Commonwealth v.

Simmons, 483 A.2d 953 (Pa. Super. 1984). In that case, this Court stated,

“In a case where the judge hears highly prejudicial testimony, such as a

withdrawn guilty plea, he should recuse himself from sitting as factfinder . . .


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.” Id. at 956 (citation omitted). However, we further note:

        [T]he mere participation by the trial judge in an earlier
        stage of the proceedings does not provide a per se basis
        for requiring recusal of the trial judge.

           The determination of whether a trial judge should
           recuse himself depends upon the following: the type
           of evidence that the judge hears; if the evidence is
           inadmissible and is of a highly prejudicial nature, the
           judge should recuse himself or declare a mistrial if it
           is too late for recusal. The judge should also recuse
           himself whenever there is substantial doubt as to his
           ability to preside impartially. The burden to show
           prejudice, however, is on the party seeking recusal.
           If the evidence is admissible, or not of a highly
           prejudicial nature, recusal is not required, and while
           it may be the better practice to have a different
           judge preside over trial than preside over pre-trial
           proceedings, such a practice is not constitutionally
           required and has not been made the basis for setting
           aside a verdict reached in an otherwise proper trial.
           This principle appears to be based on the prevailing
           view that judicial fact-finders are capable of
           disregarding prejudicial evidence.

Commonwealth v. Lott, 581 A.2d 612, 615 (Pa. Super. 1990).

     With respect to the trial judge’s presiding over the suppression

hearing, Appellant does not explain what “certain admissions of guilt” he

made.   See Appellant’s Brief at 8.    We note that DWOPS is defined as

“driv[ing] a motor vehicle on any highway or trafficway” while one’s

operating privilege is suspended, revoked, or cancelled, and false reports is

defined as “giv[ing] information in oral or written reports . . . knowing or

having reason to believe that the information is false.”      75 Pa.C.S. §§

1543(a), 3748.



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       The Commonwealth points to the following testimony by Appellant on

cross-examination:

             [Commonwealth: This was the vehicle [t]hat you were
          driving while you were suspended[?]

            [Appellant:] Correct.

                                    *    *     *

             Q. Did you lie to [Pennsylvania State Police Trooper
          Larry James McDaniel, the officer who stopped you]?

            A. I gave him false identification, yes.

See N.T. Suppression H’rg, 8/15/12, at 18, 19; Commonwealth’s Brief at 8.

       The trial court found recusal was not necessary, stating: “I was

capable of rendering a fair decision regardless of what I heard at

[Appellant’s] guilty plea and pretrial hearing.”       Trial Ct. Op. at 3-4.    The

charges   against   Appellant—DWOPS          and   false   reports—were   relatively

simple; the issues before the trial court were whether Appellant drove while

his driving privilege was suspended or revoked and whether he gave

information he knew to be false to Trooper McDaniel. On appeal, Appellant

makes no argument that his admissions at the suppression hearing were

inadmissible or that trial proceedings were flawed. See Lott, 581 A.2d at

615.   We reject, on this same ground, Appellant’s argument pertaining to

the trial court’s presiding over his initial guilty plea.         In light of the

foregoing, as well as the “prevailing view” that a trial judge is “capable of

disregarding prejudicial evidence,” we hold the trial court did not abuse its



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discretion in denying Appellant’s recusal motion. See Harris, 979 A.2d at

391-92; Lott, 581 A.2d at 615.

      Appellant’s second claim on appeal is that the trial court erred in

finding Trooper McDaniel articulated the requisite reasonable suspicion to

stop him, and consequently, erred in denying his suppression motion.

Appellant contends Trooper McDaniel’s purported reasons for stopping him—

tinted windows and a prior encounter with the same vehicle several months

earlier—were deficient because: (1) the trooper did not “bother to test the

light transmittance levels of the window in question” and did not have the

equipment with him to do so; (2) the “alleged violation . . . could not

possibly have been corroborated through investigation or independent

evidence;” (3) no citation for tinted windows was ever issued; and (4)

although “Trooper McDaniel stated he could not see through the window on

the day of the stop, in full sunlight, he, while in court [at the suppression

hearing] under artificial lighting, said of Defense exhibit-1, a window tinted

to the same degree as the windows on the vehicle in question, that he was

able to see through it.”       Appellant’s Brief at 9, 10, 12 (citation to

suppression transcript omitted).     Appellant concludes Trooper McDaniel’s

“simple statement . . . that he knew the tint was in violation of the

Inspection Code amounted to nothin[g] more than a conclusory statement to

the trooper’s belief” and was “simply [a recitation of] the elements of the

alleged vehicle infraction.” Id. at 12. We find no relief is due.



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      This Court has stated:

          An appellate court’s standard of review in addressing a
          challenge to a trial court’s denial of a suppression motion
          is limited to determining whether the factual findings are
          supported by the record and whether the legal conclusions
          drawn from those facts are correct.          [Because] the
          prosecution prevailed in the suppression court, we may
          consider only the evidence of the prosecution and so much
          of the evidence for the defense as remains uncontradicted
          when read in the context of the record as a whole. Where
          the record supports the factual findings of the trial court,
          we are bound by those facts and may reverse only if the
          legal conclusions drawn therefrom are in error.

Commonwealth v. Muhammed, 992 A.2d 897, 899-900 (Pa. Super. 2010)

(citation omitted).

      Section 6308 of the Motor Vehicle Code provides that when a police

officer

          has reasonable suspicion that a violation of this title is
          occurring or has occurred, he may stop a vehicle . . . for
          the purpose of checking the vehicle’s registration, proof of
          financial responsibility, vehicle identification number or
          engine number or the driver’s license, or to secure such
          other information as the officer may reasonably believe to
          be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b).

            [T]o establish grounds for reasonable suspicion, the
            officer must articulate specific observations which, in
            conjunction with reasonable inferences derived from
            those observations, led him reasonably to conclude,
            in light of his experience, that criminal activity was
            afoot and that the person he stopped was involved in
            that activity. The question of whether reasonable
            suspicion existed at the time [the officer conducted
            the stop] must be answered by examining the
            totality of the circumstances to determine whether
            the officer who initiated the stop had a particularized


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              and objective basis for suspecting the individual
              stopped. Therefore, the fundamental inquiry of a
              reviewing court must be an objective one, namely,
              whether the facts available to the officer at the
              moment of the [stop] warrant a [person] of
              reasonable caution in the belief that the action taken
              was appropriate.

           . . .     [“]While an actual violation need not be
           established, a reasonable basis for the officer’s
           belief is required to validate the stop.”

Muhammed, 992 A.2d at 900-01 (citations omitted) (emphasis added).

        At the suppression hearing, Trooper McDaniel testified to the following.

“Several months” before the instant vehicle stop, Trooper McDaniel had

stopped a car for window tint on the side and rear windows.                N.T.

Suppression H’rg, 8/14/12, at 7-8. He issued a citation to the driver, Kerry

Hoffman, who was also the owner of the vehicle, as well as a written

warning for the window tint violation and instruction to remove the window

tint.

        On July 3, 2011, at approximately 7:56 PM, Trooper McDaniel saw the

same car. His “initial observation of the vehicle was that it had dark window

tint on the rear sides and rear window, which did not permit [him] to see

inside of the vehicle.” Id. at 7. The trooper testified that window tinting is

governed by Sections 4524(e)(1) and 4107(b)(2) of the Motor Vehicle

Code.7 Id. at 8. The trooper followed the vehicle, at which point he could


7
 Section 4524(e)(1) provides: “No person shall drive any motor vehicle with
any sun screening device or other material which does not permit a person



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not “see the driver who was sitting in the driver’s seat through the rear

window.” Id.

      In denying Appellant’s suppression motion, the trial court held:

         I find credible [Trooper McDaniel’s] testimony that he
         could not see through the rear window and that he
         believed the tint to be so dark that it was in violation of
         the inspection code. Furthermore, McDaniel had seen this
         same vehicle before and issued the driver a warning to
         have the tint removed. Upon seeing it a second time in
         the same condition, McDaniel likely had probable cause
         to pull the vehicle over.

Order, 10/15/12, at 2 n.1 (emphasis added).

      In light of the trial court’s specific finding that Trooper McDaniel’s

testimony was credible, we find no abuse of discretion in its holding that the

trooper stated specific observations and properly concluded that criminal

activity was afoot.   See Muhammed, 992 A.2d at 900-01.           The trooper

clearly testified several months earlier, he issued a warning to the driver of

the vehicle to remove the tint on the windows, and on the day in question,

observed the same vehicle with windows dark enough that he could not see

through them. Furthermore, we find no merit to Appellant’s argument that

he was not issued a citation for tinted windows, as the law does not require

to see or view the inside of the vehicle through the windshield, side wing or
side window of the vehicle.” 75 Pa.C.S. § 4524(e)(1).

Section 4107(b)(2) sets forth the summary offense of “unlawful activities.”
See 75 Pa.C.S. § 4107(b)(2). Trooper McDaniel acknowledged this, stating:
“4107(b)(2), which is unlawful activities, would reference the inspection
manual.” N.T., 8/14/12, at 9. However, there was no further discussion or
explanation about an inspection manual.



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a violation to be established.     See id.     Accordingly, we do not disturb the

trial court’s suppression order.

      Appellant’s third claim on appeal is that the court improperly made

biased and inflammatory remarks during the suppression hearing.           Before

citing Appellant’s specific challenge, we quote the paragraph surrounding it,

in order to give context to his argument:

            To protect our children from the harmful effects of over-
         exposure to the Sun, we add sun-screening to the rear
         windows of our sedans[.] For those who[ ] cannot afford
         to purchase or maintain the fuel bills and payments of a
         massive    SUV,     the   Pennsylvania    Department      of
         Transportation finds a way to discriminate against them by
         creating rules that could suggest that the children of the
         less fortunate are of less value than their counterparts
         whom are more fortunate. Or as the suppression court
         suggested, their cargo is more important or more
         valuable than the little lives we entrust and confine
         to these same locations.

Appellant’s Brief at 14-15 (citing N.T., 8/14/12, at 35) (emphasis added).

Appellant maintains, “When [J]udge Anthony uttered in court that people

who have tinted windows on their cars ‘are up to no good[,]’ he clearly held

a negative opinion of me which directly led to the deleterious outcome of

this case.” Id. at 15 (citing N.T., 8/14/12, at 31). We agree with the trial

court that this issue is waived.

      The trial court suggested waiver for lack of specificity in Appellant’s

pro se 1925(b) statement.          Pennsylvania Rule of Appellate Procedure

1925(b)(4) provides in pertinent part:           “The Statement shall concisely

identify each ruling or error that the appellant intends to challenge with


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sufficient detail to identify all pertinent issues for the judge.”     Pa.R.A.P.

1925(b)(4)(ii).      The comment to this subsection acknowledges that

vagueness is a “very case specific inquir[y].”         However, the comment

explains,

            The more carefully the appellant frames the Statement,
            the more likely it will be that the judge will be able to
            articulate the rationale underlying the decision and provide
            a basis for counsel to determine the advisability of
            appealing that issue. Thus, counsel[8] should begin the
            winnowing process when preparing the Statement and
            should articulate specific rulings with which the appellant
            takes issue and why.

Pa.R.A.P. 1925, cmt.

      Appellant’s 1925(b) statement raises the issue as follows: “3) Whether

trial court erred in allowing trial Judge, during suppression hearing, to make

inflammatory and bias remarks indicating Defendant was guilty.” Appellant’s

Concise Statement of Errors Complained of on Appeal, 3/22/13, at 1

(verbatim).     The trial court stated, “Without a more specific indication of

what remarks [Appellant] is referring to, I cannot properly address [his]

claim.” Trial Ct. Op. at 4.

      The suppression hearing was conducted over two days.             The first


8
    As stated above, Appellant’s 1925(b) statement was prepared pro se.
“Although this Court is willing to construe liberally materials filed by a pro se
litigant, pro se status generally confers no special benefit upon an appellant.
Accordingly, a pro se litigant must comply with the procedural rules set forth
in the Pennsylvania Rules of the Court.” Commonwealth v. Lewis, 63
A.3d 1274, 1278 (Pa. Super. 2013) (citation omitted).




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volume of testimony is forty-three pages long and the second is thirty-nine.

Appellant’s 1925(b) statement does not cite any specific remark or transcript

page, but qualifies only that the court’s remarks “indicat[ed he] was guilty.”

Id.   Without any further explanation by Appellant, we agree with the trial

court that the 1925(b) statement was overly vague.

      Furthermore, the Commonwealth argues this issue is waived for

Appellant’s failure to challenge the trial court’s remarks in the proceedings

below. Commonwealth’s Brief at 14-15. We agree. While Appellant’s brief

identifies the remarks which he now challenges, our review of the record

reveals he raised no objection, either contemporaneously or in a post-verdict

motion, to them.    See Pa.R.A.P. 302(a) (“Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.”).

      Appellant’s fourth claim on appeal is that the “trial court err[ed] in

allowing the Commonwealth to withdraw a summary offense and later

reinstate the same offense.”        Appellant’s Brief at 17 (capitalization

removed). In support, he avers: (1) under his initial plea agreement, the

Commonwealth agreed to withdraw the DWOPS charge and recommend a

sentence of one to six months9 in exchange for his pleading to habitual

offenders and false identification; (2) Appellant pleaded accordingly; (3) the

Commonwealth then “abrogated this initial agreement when Assistant

9
  The claim that the Commonwealth would recommend a sentence of one to
six months appears in the statement of the case section of Appellant’s brief.
Appellant’s Brief at 5.



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District Attorney who [sic] was present informed the court something on the

order of ‘that wasn’t my deal, I would recommend the court sentence him to

the max’, whereupon the court handed down a sentence of 1-24 months for

the [habitual offenders] charge, a misdemeanor 2 offense;” (4) the court

immediately     allowed   Appellant   to   withdraw   his   plea;   and    (5)   the

Commonwealth reinstated the charge of DWOPS. Appellant’s Brief at 5, 18.

Appellant then concludes that because the Commonwealth failed to honor its

“agreement, the court should not have allowed the reinstating of this

charge.” Id. We find no relief is due.

      We note:

           Where a plea agreement has been entered of record and
           accepted by the trial court, the state is required to abide
           by the terms of the plea agreement. However, prior to the
           entry of a guilty plea, the defendant has no right to
           specific performance of an “executory” agreement.

Commonwealth v. Mebane, 58 A.3d 1243, 1246 (Pa. Super. 2012)

(quoting Mabry v. Johnson, 467 U.S. 504 (1984), disapproved on other

grounds, Puckett v. U.S., 556 U.S. 129 (2009); Santobello v. New York,

404 U.S. 257 (1971)).

      The trial court recounted the procedural history more simply, as

follows:

              As part of [Appellant’s] guilty plea of April 9, 2012, the
           Commonwealth agreed not to pursue the charge of
           [DWOPS. Appellant] subsequently made the decision to
           withdraw that guilty plea and, as a result, the
           Commonwealth determined it would again pursue that
           charge.


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Trial Ct. Op. at 4.

      The April 9, 2012 transcript is not included in the certified record, and

we therefore cannot ascertain the terms of the agreement as presented to

the trial court. Nevertheless, we may find no relief is due. Appellant initially

pleaded guilty to habitual offenders, a misdemeanor of the second degree

(“M-2”), and false identification, a misdemeanor of the third degree (“M-3”),

purportedly in exchange, in part, for the Commonwealth’s recommendation

of a one to six-month sentence.           After he withdrew the plea, the

Commonwealth withdrew the M-3 false identification charge, reinstated the

charge of DWOPS, and added a charge of false reports.           The latter two

offenses are both summary offenses.10



10
  Although this was Appellant’s twentieth conviction of DWOPS, the charge
remained a summary offense. In Commonwealth v. Soboleski, 617 A.2d
1309 (Pa. Super. 1992), this Court explained:

         A violation of section 1543(a)[, DWOPS,] is a summary
         offense punishable by a fine of $200.         75 Pa.C.S. §
         1543(a).    If sentenced under the recidivist provision,
         section 6503, the sentencing possibilities are enlarged—“a
         fine of not less than $ 200 nor more than $ 1,000 or to
         imprisonment for not more than six months, or both.” 75
         Pa.C.S. § 6503. Pursuant to section 106(c) of the Crimes
         Code, a fine of up to $1000 and/or imprisonment of up to
         six months alters the grade of the offense, from a
         summary offense to a misdemeanor of the third degree.
         See 18 Pa.C.S. § 106(c) and (e). However, . . . section
         6502(c) specifically states that this classification “as it
         relates to fines and imprisonment for convictions of
         summary offenses, is not applicable to [Title 75].” 75



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       The trial court aptly noted the M-3 false identification charge carried a

maximum sentence of twelve months, whereas false reports exposed him

only to a $200 fine and no incarceration.       See 18 Pa.C.S. § 1104(3); 75

Pa.C.S. § 3748;11 Trial Ct. Op. at 5. The DWOPS charge carried a maximum

sentence of six months. 75 Pa.C.S. § 6503(a.1).

       In sum, after Appellant withdrew his plea, he was charged with lesser-

graded offenses that exposed him to lesser sentences; indeed, false reports

did not allow any sentence of incarceration.        Furthermore, the DWOPS

charge exposed Appellant to a sentence of thirty days to six months, the

very   same    sentence   that   the   Commonwealth    allegedly   promised   to

recommend. Appellant’s brief ignores these circumstances, which are in his

favor, and instead only advances a bald insistence that the Commonwealth

should not have been allowed to pursue the so-called “reinstated” charges.

Appellant also ignores that the “new” charges carried the very same

sentence which the Commonwealth allegedly promised to recommend under

the plea agreement. In light of the foregoing, we deny relief on Appellant’s

          Pa.C.S. § 6502(c).     Consequently, the offense remains a
          summary offense.

Id. at 1311 n.1.
11
  The false report statute states: “Any person who gives information in oral
or written reports required by this subchapter knowing or having reason to
believe that the information is false is guilty of a summary offense and
shall, upon conviction, be sentenced to pay a fine of $200.” 75
Pa.C.S. § 3748.




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claim.

     Appellant’s fifth claim on appeal is that the trial court erred in

imposing a “flat” sentence on the DWOPS conviction of four months’

imprisonment in a state correctional institution.          Appellant avers the

Sentencing Code, as well as case authority, require a sentence of total

confinement to include minimum and maximum terms.12             We agree and

remand for resentencing.

     We note Appellant did not raise this claim before the trial court or in

his 1925(b) statement. See Pa.R.A.P. 302(a), 1925(b)(4). Nevertheless, a

claim that a flat sentence should have instead had minimum and maximum

terms goes to the legality of the sentence, and such issues are non-

waivable.   See Commonwealth v. Milhomme, 35 A.3d 1219, 1221 (Pa.

Super. 2011).

     “Our scope of review of challenges to the legality of a sentence is

plenary, and the standard of review is de novo.”     Id.    Appellant’s DWOPS

conviction, although being his twentieth, is graded a summary offense. See

Soboleski, 617 A.2d at 1311 n.1; Sentencing Order, 1/15/13. Section 6503

of the Vehicle Code, which governs subsequent convictions of certain


12
  Appellant cites Section 9721(a)(4) for the requirement of minimum and
mandatory terms. Appellant’s Brief at 16. However, Section 9721(a)
merely provides that in determining a sentence, the trial court shall consider
sentencing alternatives, and the alternative at (a)(4) is total confinement.
42 Pa.C.S. § 9721(a)(4).




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offenses, including DWOPS, provides in pertinent part that a person

convicted of a sixth or subsequent offense of DWOPS “shall be sentenced to

pay a fine of not less than $1,000 and to imprisonment for not less than 30

days but not more than six months.” 75 Pa.C.S. § 6503(a.1). Section 9756

of the Sentencing Code provides that in imposing total confinement, the trial

court shall specify a maximum period, as well as a minimum sentence that

does not exceed one-half of the maximum. 42 Pa.C.S. § 9756(a), (b)(1).

        Although our review of Pennsylvania authority has not revealed a

decision discussing the applicability of Section 9756 to the particular

subsection of DWOPS of which Appellant was convicted, this Court has

applied Section 9756 applies to summary offenses and Vehicle Code

offenses.13

        The plain language of Section 9756 of the Sentencing Code directs the

trial   court   to    specify   minimum   and   maximum      periods   imposing

imprisonment.        See id.; Commonwealth v. Destephano, 87 A.3d 361,

365 (Pa. Super. 2014) (stating: (1) object of all interpretation and

construction of statutes is to ascertain and effectuate intention of General

Assembly; (2) every statute shall be construed, if possible, to give effect to

all its provisions; and (3) plain language of statute is generally best indicator

13
   Commonwealth v. Basinger, 982 A.2d 121, 123, 127 (Pa. Super. 2009)
(holding sentence of ninety days’ imprisonment for DUI was illegal under 42
Pa.C.S. § 9756); Commonwealth v. Barzyk, 692 A.2d 211, 215-16 (Pa.
Super. 1997) (finding flat sentence of thirty days’ incarceration for summary
offense of harassment violated 42 Pa.C.S. § 9756).



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of General Assembly's intent).   Although Pennsylvania courts have found

some exceptions provided by statute, none applies in the case before us.14

Accordingly, we agree with Appellant that his flat sentence of four months is

illegal under Section 9756, and we remand for the trial court to impose a

sentence that complies with that statute.      See 42 Pa.C.S. § 9756(a),

(b)(1).15

      In so holding, we reject the Commonwealth’s arguments in favor of

affirming the flat sentence. First, the Commonwealth reasons that Sections

1543(a) and 6503(a.1) of the Vehicle Code, when read together, “create an

exception to 42 Pa.C.S. § 9756(b) by permitting a sentencing court to

impose a mandatory sentence of 30 days and a discretionary sentence not to

exceed six months[ ] for subsequent violations of driving with a suspended

14
   See Commonwealth v. Bell, 645 A.2d 211, 217 (Pa. 1994) (reasoning
flat five year sentence for possession with intent to deliver at least fifty
pounds of marijuana, 35 P.S. § 780-113(a)(30), would stand despite 42
Pa.C.S. § 9756, where 18 Pa.C.S. § 7508(a)(1)(iii) provides mandatory
minimum of five years’ imprisonment and 35 P.S. § 780-113(f)(2) provides
maximum of five years), cited with approval, Commonwealth v. Ramos,
83 A.3d 86, 91 (Pa. 2013).
15
   See Commonwealth v. Milhomme, 35 A.3d 1219, 1221-22 (Pa. Super.
2011) (holding flat sentence of four months for delivery of a controlled
substance was illegal under 42 Pa.C.S. § 9756); Commonwealth v.
Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009) (holding flat sentence of
six months for violation of protection from abuse order was valid but flat
sentence of ninety days for harassment was illegal); Basinger, 982 A.2d at
123, 127; Barzyk, 692 A.2d at 215-16; Commonwealth v. Cain, 637 A.2d
656, 658-59 (Pa. Super. 1994) (finding flat sentence of one year
imprisonment for criminal contempt of court illegal because court did not
specify any minimum sentence).




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license.[ ]”   Commonwealth’s Brief at 19.      We reject this interpretation.

Section 1543(a) merely defines the offense of DWOPS and states that

DWOPS is a summary offense and that an offender shall “be sentenced to

pay a fine of $200.”   75 Pa.C.S. § 1543(a).      Section 6503(a.1) states, in

sum, “Certain repeat offenses.—A person convicted of a sixth or

subsequent offense under section 1543(a) shall be sentenced to pay a fine

of not less than $1,000 and to imprisonment for not less than 30 days but

not more than six months.”     75 Pa.C.S. § 6503(a.1).     These subsections,

independently and read together, do not provide for a flat sentence.

      The      Commonwealth     further      contends   Commonwealth        v.

Klingensmith, 650 A.2d 444 (Pa. Super. 1994), “recognized that 75 Pa.C.S.

§ 1543(b) implicitly creates an exception to § 9756(b) by specifically

authorizing a trial court to impose a flat minimum mandatory sentence of

ninety days for driving with a suspended license when the suspension was

the result of a DUI conviction.”    Commonwealth’s Brief at 20 (emphasis

added). “The Commonwealth submits that a 1543(a) violation is similarly

situated and thus receives the same treatment.” Id. (emphasis added).

      We disagree, and find Klingensmith, when considered in historical

context, supports the opposite result. The Klingensmith Court first noted

that “[w]here two statutory sections arguably cover the same matter and

appear to be inconsistent, the specific provision will prevail over the general

provision.” Klingensmith, 650 A.2d at 447. The Court considered Section



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9756 to be the general provision.    Id.     The Court then applied the then-

applicable version of Section 1543(b), which stated that an offender “shall

be sentenced . . . to undergo imprisonment for a period of not less than 90

days.”   Id. at 447 n.7.   The current version of Section 1543(b) provides

that an offender shall “undergo imprisonment for a period of not less than

60 days nor more than 90 days.” 75 Pa.C.S. § 1543(b). Section 6503(a.1),

which applies to Appellant in this case, provides a similar range of sentence:

“not less than 30 days but not more than six months.”           75 Pa.C.S. §

6503(a.1).   Accordingly, in the present case, there is no specific statutory

provision that would prevail over Section 9756’s requirement of minimum

and mandatory terms.

      Appellant’s final issue on appeal is that the court abused its discretion

in ordering him to serve his sentence for a summary offense in state prison.

Although we vacate the judgment of sentence for the reasons set forth

above, we address this issue as it may arise at resentencing.

      We first consider Section 9762, which governs where a sentence of

imprisonment will be served.    Subsection 9762(a) applies in the case sub

judice and states:

           (a) Sentences or terms of incarceration imposed
         before a certain date.–For the three-year period
         beginning on the effective date of this subsection,[16] all

16
   The effective date of Section 9756 is Monday, August 6, 2012. See 1
Pa.C.S. § 1908; 42 Pa.C.S. § 9762(a). Appellant was sentenced on January
15, 2013, which falls within the three-year period immediately following.



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        persons sentenced to total or partial confinement for the
        following terms shall be committed as follows:

              (1) Maximum terms of five or more years shall be
           committed to the Department of Corrections for
           confinement.

              (2) Maximum terms of two years or more but less
           than five years may be committed to the Department
           of Corrections for confinement or may be committed to
           a county prison within the jurisdiction of the court.

              (3) Maximum terms of less than two years shall be
           committed to a county prison within the jurisdiction of
           the court.

See 42 Pa.C.S. § 9762(a)(1)-(3) (emphases added).

     We also consider Subsection 9762(f):

           (f) Aggregation.–For purposes of this section, the
        sentences or terms of incarceration shall mean the entire
        continuous term of incarceration to which a person is
        subject, notwithstanding whether the sentence is the result
        of any of the following:

               (1) One or more sentences.

                                 *     *      *

               (4) Any other manner of sentence.

42 Pa.C.S. § 9762(f)(1), (4).

     On appeal, the Commonwealth frames Appellant’s claim as a challenge

to the consecutive nature of his sentence, and thus the discretionary aspects

of his sentence. The Commonwealth then reasons Appellant has waived this

issue by failing to raise it before the trial court and raise a substantial

question. However, Subsection 9762(a) directs that a defendant “shall” or



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“may be” confined to state or county prison, depending on the length of the

sentence. See 42 Pa.C.S. § 9762(a)(1)-(3). Because Appellant’s claim goes

to the statutory authority of the court to sentence him to state prison, we

deem the claim is a challenge to the legality of sentence, and do not find

waiver. See Eisenberg, 98 A.3d at 1275.

      Had Appellant not been serving any other sentence, Subsection

9762(a) would direct the instant sentence for DWOPS, capped by statute at

six months, to be completed in a county prison.           See 42 Pa.C.S. §

9762(a)(3); 75 Pa.C.S. § 6503(a.1).      However, the trial court specifically

imposed the instant sentence to run consecutive to an unrelated sentence he

was currently serving in state prison. N.T., 1/15/13, at 25. The record does

not indicate the length of the current state sentence. 17 In light of the fact

that the trial court will impose a new sentence upon remand, and the various

results that may arise under Section 9762(f), we direct the trial court, at

resentencing, to state where Appellant is to serve the new sentence and its

reasoning pursuant to Section 9762(f).

      Judgment of sentence vacated.          Case remanded for resentencing

consistent with this opinion.



17
   Appellant states in his brief that he “is currently serving a 14-30 month
sentence imposed by the Northampton County Court of Common Pleas
docketed at CP0002304 (OTN:T1646783) for a conspiracy-burglary charge.”
Appellant’s Brief at 17 n.4. However, without any support it the record, we
will not rely on that statement in our disposition.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 2/17/2015




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