J-S73001-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                         :          PENNSYLVANIA
                                         :
              v.                         :
                                         :
                                         :
 SHAKELL ADIMU BELL                      :
                                         :
                    Appellant            :     No. 1054 MDA 2019

       Appeal from the Judgment of Sentence Entered March 1, 2019
    In the Court of Common Pleas of Snyder County Criminal Division at
                      No(s): CP-55-CR-0000514-2017



BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.:                           FILED MARCH 10, 2020

      Appellant, Shakell Adimu Bell, appeals from the March 1, 2019 judgment

of sentence imposed by the Court of Common Pleas of Snyder County following

a jury trial. We affirm.

      On July 19, 2017, Appellant was operating a white Subaru Forester

owned by his girlfriend, Natalie Walter, on South Old Trail, Snyder County, a

roadway temporarily closed to through traffic due to the installation of gas

lines. N.T., 6/18/18, at 12–13. As Appellant approached the construction

area where a flag person was controlling traffic, the flagger stopped him and

instructed he could proceed only as far as National Beef, a company located

just before the construction zone.           Id.   Appellant proceeded past

National Beef, drove into a construction trench across the roadway, and

crashed his vehicle.   Id.   When Pennsylvania State Trooper Philip Dohner
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arrived at the scene, Appellant was not present, but Natalie Walter was sitting

near the vehicle. Id. at 4. Ms. Walter explained that Appellant left to go to a

doctor’s appointment. Trooper Dohner spoke to the flagger, then left in search

of Appellant. Id. at 4–5. Trooper Dohner subsequently stopped Appellant

walking further along South Old Trail, where he administered field-sobriety

tests. Id. at 5–6. Appellant was arrested, and “chemical testing [was] done

on a blood sample and sent to a lab.” Id. at 6.

       A ten-count information was filed on December 27, 2017, charging

Appellant with Driving While Operating Privilege is Suspended or Revoked;

Driving under the Influence (“DUI”) of Controlled Substance-Schedule I; DUI

of Controlled Substances-Metabolite; DUI of Controlled Substances-Impaired

Ability; Driving without a License; Driving while Operating Privilege is

Suspended or Revoked-DUI Related; Use of Hearing Impairment Devices;

Driving at Safe Speed; Careless Driving; and Reckless Driving.1

       Appellant filed an omnibus pretrial motion on February 22, 2018, that

included, inter alia, a motion to suppress the chemical test of his blood. Motion

to Suppress, 2/22/18, at ¶ 21. Following a June 18, 2018 hearing, the trial

court denied Appellant’s omnibus pretrial motion. Order, 6/19/18.

       Appellant selected a jury on October 15, 2018, and trial ensued on

November 20, 2018.         The jury found Appellant guilty of DUI of controlled


____________________________________________


1 75 Pa.C.S. §§ 1543(b)(1.1)(i), 3802(d)(1)(i), 3802(d)(1)(iii), 3802(d)(2),
1501(a), 1543 (b)(1), 3314(a), 3361, 3714(a), and 3736(a), respectively.

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substances-metabolite, 75 Pa.C.S. § 3802(d)(1)(iii), and acquitted him of DUI

with   a   Schedule     1   controlled    substance   in   his   blood,   75   Pa.C.S.

§ 3802(d)(1)(i), and DUI-impaired ability, 75 Pa.C.S. § 3802(d)(2). After the

jury rendered its verdict, the trial court found Appellant guilty of the following

summary offenses: DUI while operating privilege is suspended or revoked, 75

Pa.C.S. § 1543(b)(1.1)(i), driving without a license, 75 Pa.C.S. § 1501(a),

driving while operating privilege is suspended-DUI related, 75 Pa.C.S.

§ 1543(b)(1), and careless driving, 75 Pa.C.S. § 3714(a), and not guilty of

three other summary offenses. N.T., 11/20/18, at 217.2

       The trial court ordered a Presentence Investigation (“PSI”) Report,

which revealed that Appellant had been convicted of DUI ten years earlier on

November 24, 2009. Trial Court Opinion, 9/16/19, at 3. On February 25,

2019, Appellant filed a motion to treat the instant conviction as a first offense.

Prior to sentencing on March 1, 2019, the trial court denied the motion and

sentenced Appellant. “The standard range of the Sentencing Guidelines was

12-18 months and the aggravated range was 21 months. . . . The [c]ourt then



____________________________________________


2   Dr. Edward Barbieri, a forensic toxicologist at NMS Laboratories, “an
approved laboratory to determine analyses of blood for controlled substances
under the [Motor] Vehicle Code pursuant to 47 Pa. Bulletin 518,” testified at
trial as an expert in the field of pharmacology and toxicology. N.T., 11/20/18,
at 138–139. Dr Barbieri testified that Appellant had 1.6 nanograms per
milliliter of 11-Hydroxy Delta-9 THC, the active metabolite in marijuana; 9.9
nanograms per milliliter of Delta-9 THC, the active ingredient in marijuana,
and 29 nanograms per milliliter of Delta-9 Carboxy THC, which in the inactive
metabolite in marijuana. Id. at 150–151.

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sentenced [Appellant] to a State Prison sentence of 21 months to 5 years” on

count     two,   DUI     of   Controlled    Substances-Metabolite,    75   Pa.C.S.

§ 3802(d)(1)(iii).     Id. at 3–4. The trial court also sentenced Appellant on

count six, Driving While Operating Privilege is Suspended or Revoked-DUI

Related, 75 Pa.C.S. § 1543(b)(1), to ninety days incarceration, imposed

consecutively to count two. Id. at 4. The trial court either found the other

convictions merged for sentencing purposes or imposed fines on those counts.

Appellant filed a post-sentence motion on March 7, 2019, which the trial court

denied on June 11, 2019, following a hearing. Appellant filed a timely notice

of appeal; both Appellant and the trial court complied with Pa.R.A.P. 1925.

        Appellant raises the following issues on appeal, which we have

reordered:

        1. Did the suppression court err in denying [Appellant’s] motion
           to suppress the blood evidence in this matter, and/or motion
           to reconsider the denial of suppression of the blood evidence
           as the Commonwealth failed to establish probable cause at the
           suppression hearing where the affiant did not establish his
           training and experience with marijuana or field sobriety tests
           and the lay witness never informed the affiant of the basis for
           her ability to identify the smell of marijuana prior to the arrest
           of [Appellant]?

        2. Did the trial court err in finding that 75 Pa.C.S.
           § 3802(d)(1)(iii) and 75 Pa.C.S. § 1543(b)(1.1)(i) are not
           unconstitutionally vague insofar as they criminalize an
           individual’s operation of a motor vehicle with any amount of an
           inactive metabolite in their blood?

        3. Did the trial court err in refusing to apply the rule of lenity
           pursuant to the canon of constitutional avoidance to find that
           the term “metabolite” as used in 75 Pa.C.S. § 3802(d)(1)(iii)
           and 75 Pa.C.S. § 1543(b)(1.1)(i) requires proof that an active

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         metabolite be in an individual’s blood and not an inactive
         metabolite?

      4. Did the sentencing court err in denying [Appellant’s] motion to
         treat his DUI offense as a first offense for sentencing purposes
         as 75 Pa.C.S. § 3806 is unconstitutional pursuant to Apprendi
         v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United
         States, 133 S.Ct. 2151 (2013), and is not severable from 75
         Pa.C.S. § 3804 and75 Pa.C.S. § 3803?

      5. Is [Appellant’s] sentence of not less than 21 months to not
         more than 5 years illegal insofar as it is in excess of 6 months
         and where no mens rea was alleged by the Commonwealth or
         proven to the jury beyond a reasonable a doubt?

Appellant’s Brief at 4–5.

      We first address Appellant’s suppression issue.      Appellant argues the

trial court erred in failing to suppress the blood-test results.

            Our 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.

            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
            findings of the suppression court, we are bound by
            those facts and may reverse only if the court erred in
            reaching its legal conclusions based upon the facts.

      Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d 14,
      26–27 (Pa. Super. 2008) (en banc) (citations, quotations, and
      quotation marks omitted). Moreover, it is within the lower court’s
      province to pass on the credibility of witnesses and determine the
      weight to be given to their testimony. See Commonwealth v.
      Clemens, 2013 PA Super 85, 66 A.3d 373, 378 (Pa. Super. 2013).




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Commonwealth v. McCoy, 154 A.3d 813, 815–816 (Pa. Super. 2017)

(quoting Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super. 2016)).

“Furthermore, our Supreme Court in In the Interest of L.J., 622 Pa. 126,

79 A.3d 1073, 1085 (2013), clarified that the scope of review of orders

granting or denying motions to suppress is limited to the evidence presented

at the suppression hearing.” McCoy, 154 A.3d at 816.

       The Commonwealth’s evidence at the suppression hearing is as follows.

Chelsea Bendele, the flagger with the road crew that was installing gas lines

on the roadway on South Old Trail in Snyder County on July 19, 2017, testified

at the suppression hearing.          N.T., 6/18/18, at 12–16.   When Appellant

proceeded by Ms. Bendele, she stopped Appellant, as she did all vehicles, and

advised Appellant that the road was closed to through traffic and open only

for ingress and egress to National Beef, a company located near where the

road crew was working. Id. at 12–13. Despite the warning, Appellant failed

to turn into National Beef and crashed his vehicle into a trench across the

road, an area clearly marked with traffic cones. Id. Ms. Bendele testified that

Appellant held a “blunt” in his hand and that she smelled “weed.”3 Id. at 14.

       Trooper Dohner, who was dispatched to the one-vehicle crash at 11:30

a.m., also testified. N.T., 6/18/18, at 3. When the officer arrived, Appellant


____________________________________________


3  In response to subsequent inquiry by the trial court, Ms. Bendele testified
that a blunt is rolled marijuana inside of paper. She further testified she can
identify marijuana by its odor because “I have hung out with people who have
[smoked it].” N.T., 6/18/18, at 16.

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was not present and Natalie Walter, who owned the car, was sitting near the

vehicle. Id. at 4. Ms. Walter told Trooper Dohner that Appellant had been

driving. Trooper Dohner testified that Ms. Walter explained that Appellant had

telephoned her and asked her to come to the scene because he had to get to

a doctor’s appointment “further north on the Old Trail.” Id. at 4–5. Ms. Walter

told the trooper she advised Appellant, “[Y]ou can go to the doctor’s

appointment [and] I’ll sit with the car.” Id. at 4.

       Trooper Dohner proceeded on South Old Trail at noon or 12:15 p.m. and

located Appellant walking along the roadway. N.T., 6/18/18, at 5–6. The

trooper testified that when he asked Appellant what happened, Appellant told

him he was “on his phone”4 when he crashed into the trench. Id. at 6. The

trooper then asked Appellant if he smoked marijuana.          Trooper Dohner

testified Appellant stated that he smoked marijuana at “approximately two in

the morning.” Id. at 5, 6. Noting that Appellant had bloodshot eyes and

dilated pupils, and in light of Appellant’s admission that he had smoked

marijuana along with Ms. Bendele’s observation of a blunt in Appellant’s hand

accompanied by the odor of marijuana, Trooper Dohner conducted field

sobriety tests.

       Appellant’s suppression motion asserted that:

       the arresting officer, Trooper Dohner, lacked probable cause to
       believe [Appellant] was operating his motor vehicle under the
____________________________________________


4  Trooper Dohner testified that Appellant stated he utilized an “ear piece” to
talk on the telephone. N.T., 6/18/18, at 11.

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      influence of alcohol or a controlled substance. In denying relief,
      the suppression court indicated that it was finding probable cause
      existed based upon the credible testimony of the flagger that she
      saw [Appellant] smoking marijuana after he crashed his vehicle
      (R.R., p.41) and based upon Trooper Dohner’s testimony as to the
      appearance of [Appellant] and his performance on the
      Standardized Field Sobriety Tests.

Appellant’s Brief at 11. Appellant avers that because Trooper Dohner “never

inquired into the flagger’s ability to detect and identify marijuana” nor

described his own “training and experience with marijuana or even with field

sobriety tests,” the Commonwealth lacked probable cause to arrest Appellant,

and the trial court should have suppressed the ensuing blood tests. Id. at

11–12; N.T., 6/18/18, at 12.

      There are three categories of interactions between private citizens and

the police.   Interest of A.A., 195 A.3d 896, 904 (Pa. 2018).        “A ‘mere

encounter’ does not require any level of suspicion or carry any official

compulsion to stop or respond ... an ‘investigative detention’ permits the

temporary detention of an individual if supported by reasonable suspicion ...

and an arrest or custodial detention ... must be supported by probable cause.”

Id.

      Here, we are initially concerned with an investigative detention.

      To maintain constitutional validity, an investigative detention
      must be supported by a reasonable and articulable suspicion that
      the person seized is engaged in criminal activity and may continue
      only so long as is necessary to confirm or dispel such suspicion.
      Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 889
      (2000). The asserted grounds for an investigative detention must
      be evaluated under the totality of the circumstances. See United
      States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66

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       L.Ed.2d 621 (1981). So long as the initial detention is lawful,
       nothing precludes a police officer from acting upon the fortuitous
       discovery of evidence suggesting a different crime than that
       initially suspected—such as the odor of alcohol on the breath of a
       driver . . . . However, an unjustified seizure immediately violates
       the Fourth Amendment rights of the suspect, taints the evidence
       recovered thereby and subjects that evidence to the exclusionary
       rule. See, e.g., [Commonwealth v.] Melendez, 676 A.2d
       [226,] 229–230 [(Pa. 1996)].

Commonwealth v. Hicks, 208 A.3d 916, 927–928 (Pa. 2019), cert. denied

sub nom., Pennsylvania v. Hicks, 19-426, 2019 WL 6689877 (U.S. Dec. 9,

2019).

       The trial court denied suppression. At the conclusion of the suppression

hearing, the trial court stated it found Ms. Bendele’s testimony persuasive and

concluded that Trooper Dohner had probable cause to arrest Appellant. In

pertinent part, the trial court noted:

       [Ms. Bendele] testified that she saw [Appellant] smoking
       marijuana[5] while holding it in his hand and she smelled it. That
       would be enough probable cause to believe he was consuming it
       while he was there.

             The fact that he drove into a ditch that was marked with
       cones and had a flagger there would give the impression of
       whether he was impaired that he couldn’t drive safely. He
       admitted to smoking marijuana albeit hours before this. It’s not
       uncommon that people get confused on exactly what time they
       did certain things. Trooper testified [Appellant’s] eyes were
       bloodshot and his pupils were dilated . . . .

N.T., 6/18/18, at 19–20.


____________________________________________


5   Ms. Bendele’s testimony was that she did not see Appellant smoking
marijuana, but she observed him holding it and she smelled it. N.T., 6/18/18,
at 14.

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      In its Pa.R.A.P. 1925(a) opinion, the trial court supported its denial of

suppression as follows:

      [T]he smell of marijuana is relatively common. The flagger
      seemed well versed in terminology surrounding marijuana
      consumption, hence the term blunt. In addition, the [c]ourt’s
      observation of flagger’s testimony was that she was extremely
      confident that she was aware what marijuana smelled like.
      [Appellant’s] argument seems to go more to the weight of the
      flagger’s testimony th[a]n to its admissibility.

Trial Court Opinion, 9/16/19, 4–5.         The trial court also opined that it was

familiar “with the training that Pennsylvania Police State Troopers complete at

the Pennsylvania State Police Academy prior to becoming State Police

Troopers.” Id. at 5.

      Our   review     of   the   record    compels   our   conclusion   that   the

Commonwealth carried its burden of proof at the suppression hearing to

support the admissibility of the blood test results. See Commonwealth v.

Salter, 121 A.3d 987, 996 (Pa. Super. 2015) (At a suppression hearing, “the

burden is on the Commonwealth to establish by a preponderance of the

evidence that the challenged evidence is admissible.”); Pa.R.Crim.P. 581(H)

(“The Commonwealth shall have the burden of going forward with the

evidence and of establishing that the challenged evidence was not obtained in

violation of the defendant’s rights.”). Herein, Trooper Dohner suspected that

Appellant operated his vehicle under the influence of a controlled substance

based on his observation that: 1) Appellant drove through a clearly marked

construction zone and crashed into a ditch despite being stopped by the posted


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flagger and warned about the hazard; 2) the flagger observed Appellant with

marijuana and smelled it; 3) Appellant had fled the scene; 4) Appellant had

bloodshot eyes and dilated pupils; and 5) Appellant admitted that he smoked

marijuana earlier.

       The odor of marijuana alone can be sufficient to support at least

reasonable suspicion.       Interest of A.A., 195 A.3d 896, 904 (Pa. 2018).

Moreover, at the suppression hearing, in response to Commonwealth

questioning, Trooper Dohner revealed that as a result of field-sobriety testing,

Appellant “show[ed] signs of intoxication.”             N.T., 6/18/18, at 6.    Defense

counsel,    himself,     inquired    into      the   specific   tests   administered   by

Trooper Dohner.

       Q.     [By Defense Counsel:] Okay. All right. Moving on to the
       field sobriety test, how many tests did you perform?

       A.     [By Trooper Dohner:]          I performed three.

       Q.     Okay. The first was the HGN,[6] correct?

       A.     Correct.

       Q.     And were there any markers on the HGN?

       A.     There were not.

       Q.     The second was the walk-and-turn, correct?

       A.     Correct.

                                            * * *



____________________________________________


6 HGN is the Horizontal Gaze Nystagmus test. Commonwealth v. Gause,
164 A.3d 532, 535 n.5 (Pa. Super. 2017).

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      Q.    During the walk-and-turn test, was there a physical line –-
      was there an actual line on which he was walking?

      A.    There was not.

                                    * * *

                  THE COURT: There’s—how many indicators are there
            for you to check on in the walk-and-turn?

      A.    For our purposes of the standardized field sobriety, there's
      eight clues.

                  THE COURT: Eight?

      A.    Eight, correct.

                 THE COURT: So three out of eight indicators on the
            walk-and-turn and one out of eight on the one-leg stand?

      A.    One out of four on the one-leg stand.

                  THE COURT: Okay. And what was the third field
            sobriety test?

      A.    The one-leg stand.

                  THE COURT: One-leg stand, walk-and-turn.

      A.    The HGN.

N.T., 9/18/18, at 9–10.

      In consideration of the totality of the circumstances, in the light most

favorable to the Commonwealth, the evidence presented at the suppression

hearing supports the existence of probable cause. Accordingly, the trial court

did not err in denying Appellant’s motion to suppress.

      In his next two issues, Appellant challenges 75 Pa.C.S. § 3802(d)(1)(iii)

and 75 Pa.C.S. § 1543(b)(1.1)(i). First, he asserts the statutes are void for

vagueness insofar as “they criminalize an individual’s operation of a motor

vehicle with any amount of an inactive metabolite in their blood.” Appellant’s

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Brief at 28. Second, he suggests the trial court erred in refusing to apply the

rule of lenity to find that the term “metabolite” as used in the statutes

“requires proof that an active metabolite be in an individual’s blood and not

an inactive metabolite.” Id. at 36. We address the issues together.

      The statutes in question provide, in pertinent part, as follows:

      § 3802. Driving under influence of alcohol or controlled
      substance

                                     * * *

      (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:

            (i) Schedule I controlled substance, as defined in the
            act of April 14, 1972 (P.L. 233, No. 64),1 known as
            The Controlled Substance, Drug, Device and Cosmetic
            Act;

            (ii) Schedule II or Schedule III controlled substance,
            as defined in The Controlled Substance, Drug, Device
            and Cosmetic Act, which has not been medically
            prescribed for the individual; or

            (iii) metabolite of a substance under subparagraph (i)
            or (ii).

               1   35 P.S. § 780-101 et seq.

75 Pa.C.S. § 3802(d)(1)(iii) (emphasis added).

      § 1543. Driving while operating privilege is suspended or
      revoked

                                     * * *
      (b) Certain offenses.—


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                                     * * *

         (1.1)(i) A person . . . who at the time of testing has in his
         blood any amount of a Schedule I or nonprescribed
         Schedule II or III controlled substance, . . . or its metabolite
         . . . and who drives a motor vehicle on any highway or
         trafficway of this Commonwealth at a time when the
         person’s operating privilege is suspended or revoked as a
         condition of acceptance of Accelerated Rehabilitative
         Disposition for a violation of section 3802 or former section
         3731 or because of a violation of section 1547(b)(1) or 3802
         or former section 3731 or is suspended under section 1581
         for an offense substantially similar to a violation of section
         3802 or former section 3731 shall, upon a first conviction,
         be guilty of a summary offense and shall be sentenced to
         pay a fine of $1,000 and to undergo imprisonment for a
         period of not less than 90 days.

75 Pa.C.S. § 1543(b)(1.1)(i) (emphasis added).

      The trial court has offered no explanation for its disposition of the issues.

Regarding the statutes’ constitutionality, the trial court stated, in whole,

“Statu[t]es are presumptively constitutional. This [c]ourt finds no violations

of the Pennsylvania or United States Constitutions.”        Trial Court Opinion,

9/16/19, at 5. Similarly, regarding the claim that the trial court refused to

apply the Rule of Lenity, the trial court stated in conclusory fashion, “The

[c]ourt does not find any ambiguity in the wording of the Statute.” Id. at 6.

      Our standard of review is clear:

      Because this is a matter of statutory interpretation, our scope of
      review is plenary and the standard of review is de novo. As
      always, when interpreting statutory provisions, we aim to
      ascertain and effectuate the intent of the General Assembly. 1
      Pa.C.S. § 1921(a). The best indication of the General Assembly’s
      intent may be found in the plain language of the statute. “When
      the words of a statute are clear and free from all ambiguity, the


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      letter of it is not to be disregarded under the pretext of pursuing
      its spirit.” 1 Pa.C.S. § 1921(b).

Commonwealth v. Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018)

(internal citations omitted). “The party seeking to overcome the presumption

of validity must meet a formidable burden.” Commonwealth v. Costa, 861

A.2d 358, 361 (Pa. Super. 2004). Moreover, “[w]e presume that the General

Assembly intends the entire statute to be effective and certain, and thus

construe a statute to give effect to all of its provisions. 1 Pa.C.S.A. § 1922(2).”

In Interest of R.A.F., 149 A.3d 63, 67 (Pa. Super. 2016). “A statute will not

be declared unconstitutional unless it clearly, palpably, and plainly violates the

Constitution; all doubts are to be resolved in favor of a finding of

constitutionality.”   Costa, 861 A.2d at 361 (quoting Commonwealth v.

Mayfield, 832 A.2d 418, 421 (Pa. 2003)).

      In the case sub judice, Appellant argues that Sections 3802(d) and

1543(b) are unconstitutionally vague as applied to Appellant because they

inflict criminal penalties for operating a motor vehicle with any trace amounts

of an inactive metabolite in the bloodstream, but fail “to give warning of the

conduct” that is criminalized. Appellant’s Brief at 31. Appellant argues as

follows:

      [T]he Commonwealth only proved beyond a reasonable doubt that
      [Appellant] operated a motor vehicle with the inactive metabolites
      of marijuana in his blood. Inactive metabolites may stay in the
      blood for many days following ingestion of marijuana and have no
      intoxicating effects on a driver which would put them on notice as
      to whether they were violating the law at the time. Therefore,
      [Appellant], being a man of ordinary intelligence, had no way of

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      knowing that he had inactive metabolites in his blood and that he
      was in violation of75 Pa.C.S. § 3802(d)(1)(iii) and 75 Pa.C.S.
      § 1543(b)(1.1)(i) when he drove after smoking marijuana . . . .

            To avoid the constitutional vagueness concerns that this
      case presents the court with regard to 75 Pa.C.S. § 3802(d)(1)(iii)
      and 75 Pa.C.S. § 1543(b)(1.1)(i), this Honorable Court should
      interpret the term “metabolite” as used in these two statutes to
      mean only active metabolites. Under this interpretation, the
      evidence was insufficient to find [Appellant] guilty as the
      Commonwealth could not establish and the jury did not find that
      the active chemicals of marijuana found in [Appellant’s] blood
      were not caused by ingestion after driving.

Appellant’s Brief at 9–10. We disagree.

      Appellant significantly ignores that Section 3802(d)(1)(iii) proscribes

operation of a vehicle if there is any amount of metabolite of a Schedule I or

II substance, that has not been medically prescribed for the individual, in the

individual’s blood. 75 Pa.C.S. § 3802(d)(1)(iii). It does not require proof that

“the individual is rendered incapable of safely driving,” as in subsection

3802(a)(1). Thus, Appellant’s claim that because “[i]nactive metabolites may

stay in the blood for many days following ingestion of marijuana and [they]

have no intoxicating effects” that would put him “on notice” that he was

“violating the law at the time,” is irrelevant. Section 3802(d)(1)(iii) requires

only that metabolite of the Schedule I or II drug, which includes marijuana, is

present. Drivers are on notice that they may not ingest the drug and drive.

      In undertaking a challenge to a statute based on vagueness, “we bear

in mind that every Pennsylvania statute is presumed valid and will not be

declared unconstitutional unless the party challenging it carries a ‘heavy


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burden of persuasion’ to demonstrate that the statute ‘clearly, palpably, and

plainly violates the Constitution.’” Commonwealth v. Morrison, 934 A.2d

709, 713 (Pa. Super. 2007). Moreover, the “due process void-for-vagueness

doctrine ‘requires that a penal statute define the criminal offense with

sufficient definiteness that ordinary people can understand what conduct is

prohibited and in a manner that does not encourage arbitrary and

discriminatory enforcement.’” Id. (citing Commonwealth v. Duda, 923 A.2d

1138, 1147 (Pa. 2007)).

     In a case rejecting a mandatory requirement for expert testimony in all

situations involving 75 Pa.C.S. § 3802(d), our Supreme Court compared

§ 3802(d)(1) to subsection 3802(a)(2), (b), and (c) and explained as follows:

     Most of the alcohol-related provisions, i.e., subsections
     3802(a)(2), (b), and (c), prohibit driving after an individual has
     imbibed sufficient alcohol such that the alcohol concentration in
     that individual’s blood or breath reaches certain, specific levels
     within two hours after driving. To prove the specific level of
     alcohol in the defendant’s blood or breath at the relevant time, a
     blood or breath test is obviously required. . . .

            The General Assembly chose to construct a similar statutory
     framework with regard to prohibitions against driving after drug
     usage. First, subsection 3802(d)(1) [as in the instant case,]
     prohibits one from driving if there is any amount of a Schedule I
     controlled substance, any amount of a Schedule II or Schedule
     III controlled substance that has not been medically prescribed for
     the individual, or any amount of a metabolite of a controlled
     substance in one’s blood. Analogously to subsections 3802(a)(2),
     (b), and (c) for alcohol intoxication, subsection 3802(d)(1)
     requires a measurement to determine if any amount of a
     Schedule I, II, or III controlled substance is detectable in the
     defendant’s blood.




                                   - 17 -
J-S73001-19


Commonwealth v. Griffith, 32 A.3d 1231, 1238–1239 (Pa. 2011)

(emphases added). The General Assembly’s use of “any amount” forecloses

Appellant’s vagueness challenge. An individual need not be concerned with

how much of the drug he consumed; he is on notice that he cannot ingest any

amount of the drug and operate a vehicle.

      In Commonwealth v. Etchison, 916 A.2d 1169, 1172–1173 (Pa.

Super. 2007), this Court previously addressed, inter alia, an overbreadth

challenge to 75 Pa.C.S. § 3802(d)(1), where the defendant argued the statute

violated due process, and his conviction under Section 3802(d)(1) for the

presence of prohibited metabolites should be reversed.         In rejecting this

constitutional challenge, we stated:

             As our Supreme Court has explained, “a statute is
      ‘overbroad’ if by its reach it punishes constitutionally protected
      activity as well as illegal activity.” If it does not reach both
      categories of activity, “then the overbrea[d]th challenge must
      fail.” There is no constitutional right to the use of marijuana
      prior to driving; indeed, under Pennsylvania’s Controlled
      Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780–101 et.
      seq., which has not been deemed unconstitutional, an individual
      is prohibited from any use of marijuana.

Id. at 1173 (internal citations omitted) (emphases added).            See also

Morrison,   934   A.2d   at   713–714      (rejecting   void-for-vagueness   and

overbreadth challenge to 75 Pa.C.S. 3802(a)).           Based upon the above




                                       - 18 -
J-S73001-19


reasoning, we conclude that the challenged subsections of the statutes 7 are

not void for vagueness.

       Appellant also posits that the trial court erred in refusing to apply the

rule of lenity “to find that the term ‘metabolite’ as used in 75 Pa.C.S.

§ 3802(d)(1)(iii) and 75 Pa.C.S. § 1543(b)(1.1)(i) requires proof that an

active metabolite be in an individual’s blood and not an inactive metabolite.”

Appellant’s Brief at 36.

       The rule of lenity:

       provides that where a statute is penal and the language of the
       statute is ambiguous, the statute must be construed in favor of
       the defendant and against the government. Underpinning the rule
       of lenity is the fundamental principle of fairness that gives validity
       to our laws and requires a “clear and unequivocal warning in
       language that people generally would understand as to what
       actions would expose them to liability for penalties and what the
       penalties would be.”

Sondergaard v. Com., Dep’t of Transp., 65 A.3d 994, 997–998 (Pa.

Cmwlth. 2013) (citing Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa.

Super. 2004)) (quoting Commonwealth v. Cluck, 381 A.2d 472, 477 (Pa.

Super. 1977)); see also Commonwealth v. Rivera, 10 A.3d 1276, 1284

(Pa. Super. 2010) (“[U]nder the rule of lenity, penal statutes must be strictly

construed, with ambiguities being resolved in favor of the accused.”).




____________________________________________


7  The similar use of “any amount of a Schedule I or nonprescribed Schedule
II or III controlled substance or its metabolite” in 75 Pa.C.S. § 1543(b)(1.1)(i)
compels the same reasoning, explanation, and disposition. (Emphasis added).

                                          - 19 -
J-S73001-19


      As noted supra, Section 3802(d)(1)(iii) does not require that a driver be

impaired; rather, “it prohibits the operation of a motor vehicle by any driver

who has any amount of a metabolite of specifically enumerated controlled

substances in his blood, regardless of impairment.” Etchison, 916 A.2d at

1174. This subsection of the statute does not distinguish between active and

inactive metabolites. In Pennsylvania, a reasonable person understands that

ingestion of marijuana prior to operating a motor vehicle could subject him to

criminal liability. We agree with the Commonwealth that “Section 3802(d)(1)

is clear, unambiguous and its message is straightforward: do not ingest

marijuana and thereafter drive a motor vehicle.” Commonwealth Brief at 10.

      Indeed, we are unconvinced by Appellant’s claim that the rule of lenity

should be applied.    “[T]he touchstone of the rule of lenity is statutory

ambiguity.” Bifulco v. United States, 447 U.S. 381, 387 (1980). Appellant

begins with the erroneous assumption that the statutes in question are

ambiguous. The United States Supreme Court has stated countless times that

the rule of lenity comes into play only “after consulting traditional canons of

statutory construction.” United States v. Hayes, 555 U.S. 415, 429 (2009).

Instantly, Appellant has not offered any analysis pursuant to the rules of

statutory construction. Appellant’s Brief at 36–40; See Commonwealth v.

Cousins, 212 A.3d 34, 39 (Pa. 2019) (rejecting ambiguity claim, inter alia,

where the appellant offered no support for his non-textual interpretation of

the statute).   As we noted supra, Section 3802(d)(1)(iii) prohibits the


                                    - 20 -
J-S73001-19


operation of a motor vehicle by any driver who has any amount of a metabolite

of specifically enumerated controlled substances in his blood.       The rule of

lenity applies only if, after considering text and structure, there is a “grievous

ambiguity or uncertainty in the statute,” such that the Court must “simply

guess” what the Legislature intended.      Barber v. Thomas, 560 U.S. 474,

(2010).   The trial court found no ambiguity present.       Trial Court Opinion,

9/16/19, at 6. These statutes do not contain a grievous ambiguity nor do we

need now simply guess what the statute means. This issue lacks merit.

      Appellant’s final two issues concern the sentence imposed. Because the

procedural history relates to both claims, we will address them in tandem.

Appellant contends the trial court erred in denying his motion to treat his DUI

offense as a first offense for sentencing purposes because 75 Pa.C.S. § 3806

is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466

(2000), and Alleyne v. United States, 570 U.S. 99 (2013). Appellant’s Brief

at 17. He also maintains that his sentence of twenty-one months to five years

is an illegal sentence. Id. at 40.

      Regarding the sentence imposed, the trial court stated as follows:

             On February 25, 2019 [Appellant] filed a Motion to treat the
      instant conviction as a first offense. Prior to sentencing on
      March 1, 2019, the Court denied the Motion to treat the conviction
      as a first offense and sentenced [Appellant].

            At the sentencing, the [c]ourt had the benefit of a
      January 25, 2019 Pre-Sentence Investigation Report prepared by
      the Snyder County Probation Department. The Pre-Sentence
      Report revealed that [Appellant] had been convicted of a [DUI]
      offense on November 24, 2009. In addition, the Pre-Sentence

                                     - 21 -
J-S73001-19


     Report revealed that [Appellant] had a substantial criminal
     history. The standard range of the Sentencing Guidelines was 12-
     18 months and the aggravated range was 21 months. It is
     significant that [Appellant] did not dispute the prior conviction.

           The [c]ourt then sentenced [Appellant] to a State Prison
     sentence of 21 months to 5 years. The [c]ourt stated the reasons
     for the aggravated sentence on the record. Specifically it was due
     to [Appellant’s] driving through a construction zone and causing
     an accident while it was an active construction site.

           The [c]ourt also sentenced [Appellant] on Count 6 of the
     Information to 90 days incarceration. The [c]ourt amended this
     sentence on June 19, 2019 to clarify that it was the [c]ourt’s intent
     that Count 6 was to be served consecutively to the sentence
     imposed to Count 2.

          On March 7, 2019[,] [Appellant] filed a Post-Sentence
     Motion. In [Appellant’s] Post-Sentence Motion . . . he filed a
     Motion to Modify his sentence alleging it was illegal and should
     have been considered a first offense.

           The Court held a hearing on June 10, 2019[,] and denied
     the Post-Sentence Motion.

Trial Court Opinion, 9/16/19, at 3–4.

     At the sentencing hearing, the following exchange and argument by

Appellant’s counsel occurred:

            [Defense Counsel]: Your Honor, the prior is not at issue,
     it’s the timeline for the prior within the past ten years and that’s
     a fact that a jury would have to decide if this prior happened within
     the past 10 years to trigger an enhancement of the sentence.
     We’re not disputing that the prior did not have to be proved.
     Alleyne and Apprendi says a prior does not have to be submitted
     to a jury but it’s the fact that shows when the prior happened and
     when the current offense happened to establish that it was within
     the 10-year period of time. Our vision is that the section in
     Pennsylvania law is unconstitutional because it allows the judge
     to make the preponderance of the evidence determination that
     these facts that should be presented to the jury to enhance
     someone’s sentence are not presented to a jury.

                                    - 22 -
J-S73001-19


            THE COURT: But that’s a fact of record in a Court where the
      conviction is entered, that’s not a fact for a jury to determine.
      You’re saying that the jury gets to determine the date of the
      offense?

            [Defense Counsel]: No, Your Honor, what we’re saying is
      that we’re arguing the jury should be the one to find beyond a
      reasonable doubt the date of a prior conviction and the date of the
      current conviction to determine if it’s within the 10-year lookback
      of the statute to establish that it is a second offense.

                                    * * *

            THE COURT: [Appellant’s] motion to treat the instant
      conviction as a first offense is denied. By the Court.

N.T. (Sentencing), 3/1/19, at 2–3. The trial court apparently misunderstood

Appellant’s argument, and viewed the claim merely as one challenging the

date of the prior conviction, as evidenced by the above exchange and the trial

court’s disposition in it Pa.R.A.P. 1925(a) opinion, as follows:   “Courts are

permitted to take judicial notice of their own records.       [Appellant] was

convicted in this [c]ourt in November of 2009. This offense occurred in 2018.

It is clear this was a second offense within the 10 year period based on the

review of the [c]ourt’s own records.” Trial Court Opinion, 9/16/19, at 5.

      In pertinent part, 75 Pa.C.S. § 3806 provides as follows:

      § 3806. Prior offenses

      (a) General rule.--Except as set forth in subsection (b), the term
      “prior offense” as used in this chapter shall mean any conviction
      for which judgment of sentence has been imposed, adjudication
      of delinquency, juvenile consent decree, acceptance of
      Accelerated Rehabilitative Disposition or other form of preliminary
      disposition before the sentencing on the present violation for any
      of the following:



                                    - 23 -
J-S73001-19


           (1) an offense under section 3802 (relating to driving under
           influence of alcohol or controlled substance);

           (2) an offense under former section 3731;

           (3) an offense substantially similar to an offense under
           paragraph (1) or (2) in another jurisdiction; or

           (4) any combination of the offenses set forth in paragraph
           (1), (2) or (3).

        (b) Timing.--

           (1) For purposes of sections 1553(d.2) (relating to
           occupational limited license), 1556 (relating to ignition
           interlock limited license), 3803 (relating to grading), 3804
           (relating to penalties) and 3805 (relating to ignition
           interlock), the prior offense must have occurred:

              (i) within 10 years prior to the date of the offense for
              which the defendant is being sentenced; or

              (ii) on or after the date of the offense for which the
              defendant is being sentenced.

           (2) The court shall calculate the number of prior offenses, if
           any, at the time of sentencing.

75 Pa.C.S. § 3806.

        The trial court ordered and had before it a PSI Report dated January 25,

2019,8 along with the Guideline Sentencing Form. N.T. (Sentencing), 3/1/19,

at 2.    In response to questioning by the trial court, Appellant’s counsel

indicated he had no additions or corrections to the PSI Report. Id.


____________________________________________


8 While a copy of the PSI Report is not in the record certified to us on appeal,
Appellant’s certified driving history is included as Commonwealth Exhibit 4,
indicating Appellant’s prior DUI conviction on July 28, 2009. Docket Entry
24K; N.T., 11/20/18, at 171.

                                          - 24 -
J-S73001-19


     Appellant’s argument is as follows:

           Here, [Appellant] was convicted of, inter alia, 75 Pa.C.S.
     § 3802(d)(1)(iii).   This offense has a set of penalties that
     increases based upon prior convictions. For a first offense, a
     person is subject to a mandatory minimum of 72 hours in prison
     and a maximum of six months. 75 Pa.C.S. § 3804(c)(1); 75
     Pa.C.S. § 3803(b)(2). If the person has one prior conviction for
     [DUI], they are subject to a mandatory minimum of 90 days in
     prison and a maximum penalty of 5 years.             75 Pa.C.S.
     § 3804(c)(2); 75 Pa.C.S. § 3803(b)(4). A third or subsequent
     offense increases that mandatory minimum to one year in prison.
     75 Pa.C.S. § 3804(c)(3).

            By itself, this scheme would be governed by Almendarez-
     Torres[v. United States, 523 U.S. 224 (1998),] and pose no
     constitutional problem as the only facts that trigger the increases
     in mandatory minimum sentences and maximum sentences is a
     prior conviction. However, this scheme of penalties is complicated
     by 75 Pa.C.S. § 3806 which alters the definition of prior offenses
     for the purposes of 75 Pa.C.S. § 3804 and 75 Pa.C.S.§ 3803.
     Section 3806 expands the definition of “prior offenses” from mere
     prior convictions of Driving Under the Influence to include juvenile
     consent decrees and placement into Accelerated Rehabilitation
     Disposition (ARD) for [DUI] allegation. 75 Pa.C.S. § 3806(a).
     Section 3806 then limits the definition of “prior offenses” to
     offenses which occurred:

        (i) within 10 years prior to the date of the offense for which
        the defendant is being sentenced; or

        (ii) on or after the date of the offense for which the
        defendant is being sentenced.

     75 Pa.C.S. § 3806(b)(1). Section 3806 then dictates that it is the
     court, at sentencing, which shall determine the number of prior
     offenses, 75 Pa.C.S. § 3806(b)(2).

Appellant’s Brief at 18–19. While acknowledging this Court has no authority

to do so, Appellant goes on to suggest that Almendarez-Torres “was wrongly

decided and should be overruled.” Id. at 25. This we cannot do. Bosse v.


                                    - 25 -
J-S73001-19


Oklahoma, ___ U.S. ___, 137 S.Ct. 1, 2 (2016) (“It is this Court’s prerogative

alone to overrule one of its precedents.”).9

       We reject Appellant’s claim that Apprendi and Alleyne mandate that

because Appellant had a prior DUI conviction, which has the effect of

increasing the penalty for the instant offense, the prior conviction had to be

submitted to a jury for determination before imposition of sentence.        This

claim ignores the essence of Apprendi that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for crime beyond the

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi, 530 U.S. at 49 (emphasis added).

We reject Appellant’s claim.

       In his final issue, Appellant argues as follows:

       Appellant’s judgement of sentence is unlawful in that it imposes a
       sentence greater than six months where no mens rea was pleaded
       in the information or found by the jury beyond a reasonable doubt.
       While the Commonwealth may create and prosecute absolute
       liability crimes, those crimes are limited to instances of minor
       traffic offenses carrying no greater than six months. Thus,
       [Appellant’s] sentence of 21 months to 5 years is unconstitutional
       as no mens rea finding was made by the jury.

Appellant’s Brief at 10.

       This issue concerns the legality of Appellant’s sentence.        “When

reviewing the legality of a sentence, our standard of review is de novo and


____________________________________________


9 Indeed, Appellant acknowledges our inability to overrule case law from the
United States Supreme Court but asserts he “is obligated to preserve this
argument for further appeal.” Appellant’s Brief at 25 n.3.

                                          - 26 -
J-S73001-19


our scope of review is plenary.” Commonwealth v. Seskey, 170 A.3d 1105,

1107 (Pa. Super. 2017) (citation omitted).

      Appellant cites 18 Pa.C.S. § 305 and by implication, 18 Pa.C.S. § 301,

to support his position that the Commonwealth was required to establish mens

rea with regard to 75 Pa.C.S. § 3802(d)(1)(iii) in order for Appellant to be

sentenced to a period of incarceration beyond six months. Appellant’s Brief

at 40–41. Sections 301 and 305 of the Pennsylvania Crimes Code state in

pertinent part as follows:

      § 301. Requirement of voluntary act

      (a) General rule.—A person is not guilty of an offense unless his
      liability is based on conduct which includes a voluntary act or the
      omission to perform an act of which he is physically capable.

18 Pa.C.S. § 301.

      § 305. Limitation on scope of culpability requirements

      (a) When culpability requirements are inapplicable to
      summary offenses defined by other statutes.—The
      requirements of culpability prescribed in section 301 of this title
      (relating to requirement of voluntary act) . . . do not apply to:

                                    * * *

         (2) offenses defined by statutes other than this title, in so
         far as a legislative purpose to impose absolute liability for
         such offenses or with respect to any material element
         thereof plainly appears.

18 Pa.C.S. § 305(a) (emphases added).

      Review of these statutes compels the conclusion that the voluntary-act

requirement set forth in Section 301 relates only to offenses defined in Title


                                    - 27 -
J-S73001-19


18. Instead, the statutory elements of DUI offenses are set forth in Title 75.

Thus, Appellant’s conviction of 75 Pa.C.S. § 3802 is presumptively exempt

from the requirements of 18 Pa.C.S. § 301. Further, the statutory language

of 75 Pa.C.S. § 3803, grading of Title 75 offenses, omits any reference to

culpability. That section provides in pertinent part:

       § 3803. Grading

                                          * * *

       (b) Other offenses.

                                          * * *

          (4) An individual who violates . . . section 3802[](d) and
          who has one prior offense commits a misdemeanor of the
          first degree.

75 Pa.C.S. § 3803.         The statutory maximum sentence for a first-degree

misdemeanor is five years of incarceration. Commonwealth v. Grow, 122

A.3d 425, 428 (Pa. Super. 2015) (en banc) (citing 18 Pa.C.S. §§ 1104(1)).

       Appellant cites to Commonwealth v. Collins, 810 A.2d 698 (Pa. Super.

2002), where this Court interpreted the omission of any reference to

culpability in 75 Pa.C.S. § 380210 to mean that the Legislature intended DUI

to be a strict or absolute liability offense. He thus maintains that because DUI

is a strict-liability offense, it must be graded as a summary offense with a


____________________________________________


10 Collins actually was addressing the former DUI statute, 75 Pa.C.S. § 3731,
repealed effective February 1, 2004.



                                          - 28 -
J-S73001-19


maximum penalty of ninety days imprisonment. Appellant’s Brief at 41 (citing

18 Pa.C.S. § 305(b)(2) and Commonwealth v. Mikulan, 470 A.2d 1339 (Pa.

1983) (Plurality)).11

       The relevant portion of 18 Pa.C.S. § 305(b) provides:

       § 305. Limitations on scope of culpability requirements

                                          * * *

       (b) Effect of absolute liability in reducing grade of offense
       to summary offense.--Notwithstanding any other provision of
       existing law and unless a subsequent statute otherwise
       provides:

          (1) when absolute liability is imposed with respect to any
          material element of an offense defined by a statute other
          than this title and a conviction is based upon such liability,
          the offense constitutes a summary offense;

18 Pa.C.S. § 305(b)(1) (emphasis added).

       We reject Appellant’s contention and rely on the qualifying phrase of

Section 305(b), highlighted above.             A subsequent statute, 75 Pa.C.S.

§ 3803(b)(4), quoted supra, provides that a violation of Section 3802(d), as

herein, where the individual has a prior offense, “commits a misdemeanor of

the first degree.” 75 Pa.C.S. § 3803(b)(4). As noted supra, such an offense

is punishable by up to five years of imprisonment. 18 Pa.C.S. § 1104(1).

Therefore, we accept the Commonwealth’s argument that even though the



____________________________________________


11 Mikulan was called into question in Commonwealth v. Griscom, 600
A.2d 996 (Pa Super. 1991) (plurality nature of case and fact that it has never
been cited, compelled Griscom Court to decline reliance on Mikulan).

                                          - 29 -
J-S73001-19


statute under which Appellant was convicted, 75 Pa.C.S. § 3802(d), is a strict

liability offense, because the applicable statutes under both the Motor Vehicle

Code, 75 Pa.C.S. § 3803, and the Crimes Code, 18 Pa.C.S. § 1104, provide

for both the grading of the offense and the maximum penalty to be imposed,

the default provisions of 18 Pa.C.S. § 305 are not applicable. Thus, we decline

to find Appellant’s sentence illegal.

      Judgment of sentence affirmed.

      Judge Lazarus joins this Memorandum.

      Judge Musmanno concurs in the result.




Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 03/10/2020




                                        - 30 -
