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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

  COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA

               v.


  KHALID EID

                    Appellant             :   No. 1670 EDA 2017
           Appeal from the Judgment of Sentence April 26, 2017
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0003605-2016

BEFORE:    OTT, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.:                              FILED JULY 11, 2019
      Appellant, Khalid Eid, appeals from the Judgment of Sentence entered

by the Philadelphia County Court of Common Pleas following his convictions

after a bench trial of three counts of Driving Under the Influence ("DUI") and

one count of Driving While Operating Privilege Suspended ("DUS").1 Appellant

challenges the sufficiency of evidence and the legality of his sentence. After

careful review, we affirm the convictions, vacate the sentence, and remand
for resentencing.

      We glean the following factual and procedural history from the certified

record. On February 25, 2015, around 11:30 PM, Police Officer Stephen Nagy

observed a black Nissan with its engine running and facing the wrong direction

on a one-way street on the 1400 block of Levick Street, in Philadelphia. The



1 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S. § 1543(b)(1.1), respectively.

   Former Justice specially assigned to the Superior Court.
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Nissan had hit a parked car, which forced the parked car into the front of
another car.

      Officer Nagy approached the Nissan, and asked the driver, Appellant,
for his license, registration, and insurance. Appellant was disheveled, his eyes

were glassy and red, and there was a moderate odor of alcohol omitting from

his person and inside the vehicle. Appellant had a difficult time retrieving the

items from his back pocket; therefore, Officer Nagy asked him to step out of
his vehicle.

      Once Appellant was outside the vehicle, Officer Nagy noticed that he
was unsteady on his feet, and called for a wagon to transport Appellant to the

Accident Investigation Division ("AID") for testing. As they were waiting for
the wagon, Appellant urinated on himself.

      Appellant arrived at the AID around 1:40 AM and was met by Police
Officer Harrison.   Officer Harrison administered O'Connell2 warnings to
Appellant and instructed him about the ramifications of a chemical test refusal.

Appellant refused to take a breath or blood test.       Later, Officer Harrison

noticed that Appellant had marijuana debris in his mouth, and requested that

Appellant take a blood test. Appellant refused.
      The Commonwealth charged Appellant with DUI -General Impairment,

DUI -Accident Resulting in Damage to a Vehicle ("DUI -Accident"), DUI -Refusal



2 Commonwealth v. O'Connell, 555 A.2d 873 (Pa. 1989).



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to Testing of Blood or Breath ("DUI -Refusal"), citing 75 Pa.C.S. § 3802(a)(1)

as the applicable statute for each DUI. The Information charged DUS with
reference to 75 Pa.C.S. § 1543(a).3

      On March 2, 2016, a hearing was held in municipal court. Officers Nagy

and Harrison testified; the municipal court found Appellant guilty of all the
charges and sentenced him to, inter alia, an aggregate term of one to two
years' imprisonment and a $2,500 fine. Appellant appealed to the Court of
Common Pleas.

      A de novo bench trial was held on December 5, 2016. At the beginning

of trial, the Commonwealth stated, in relevant part, that with respect to the
DUS offense, it would be proceeding under "1543B, driving while under a
suspended or revoked license." N.T. Trial, 12/5/16, at 6.        The court then
heard testimony from Officer Nagy, and admitted Officer Harrison's testimony

from the municipal court hearing.4 The trial court found Appellant guilty of all

charges.

      At sentencing, the court merged the DUI convictions and imposed a term

of 90 days to six months' imprisonment, plus two years of probation and a
fine of $2,500. For the DUS conviction, the court imposed the same term of




3 The trial court docket indicates, and Appellant does not challenge, that the
Commonwealth later amended the Information. Docket, at 14 (unpaginated).
See Appellant's Reply Br. at 5.

4 Officer Harrison had passed away prior to the trial de novo.
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incarceration and probation to run concurrent to the DUI sentence, and a fine

of $1,000.

     Appellant filed a timely Notice of Appeal.         Appellant complied with
Pa.R.A.P. 1925, and the trial court issued a Rule 1925(a) Opinion.

     Appellant presents the following Statement of Questions Involved

     1.      Was not the evidence insufficient to sustain Appellant's
             conviction for driving under the influence, general
             impairment, under 75 Pa.C.S. §§ 3802(a)(1), 3802(a)(1) -
             with accident, and 3802(a)(1) -with refusal, because the
             evidence failed to prove that Appellant was rendered
             incapable of safely driving        due    exclusively     to   the
             consumption of alcohol?

     2.      Was not the evidence insufficient to sustain Appellant's
             conviction for driving under a suspended license under 75
             Pa.C.S. § 1543(b)(1.1)(i) because Appellant was not given
             a chemical test, and thus, there was no evidence that he
             had an "amount of alcohol by weight in his blood that is
             equal to or greater than .02%" or that he had any amount
             of schedule I, II, or III controlled substances in his blood "at
             the time of testing"; and the Commonwealth did not move
             on the portion of the statute relating to refusals, and even
             if it had, the statute is unconstitutional and sentence is
             illegal under Birchfield v. North Dakota,               U.S.     ,
             136 S.Ct. 2160 (2016) and Article 1, Section 8, because it
             penalizes the refusal to submit to a warrantless blood test?

     3.      Was not the sentence imposed for a conviction upon 75
             Pa.C.S. § 3802(a)(1) -with accident and with refusal, illegal
             because it exceeded the maximum sentence allowed by law
             and, because Appellant cannot be sentenced to an enhanced
             penalty for refusing to submit to a warrantless blood test
             upon threat of punishment under Birchfield and
             Commonwealth v. Giron, 155 A.3d 635 (Pa.                   Super.
             2017)?

     4.      If Appellant was properly convicted under 75 Pa.C.S. §
             1543(b)(1.1)(i) for the refusal to take a chemical test, did

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             not the lower court impose an illegal sentence because it
             imposed a sentence beyond the 90 day statutory maximum?
Appellant's Br. at 3-4.

Sufficiency of the Evidence - DUI Convictions
      In the first issue, Appellant challenges the sufficiency of evidence
regarding his three DUI convictions. He asserts that 75 Pa.C.S. § 3802(a)(1)

requires that the Commonwealth prove that alcohol alone rendered him
incapable of safely driving. Appellant's Br. at 13-16. Appellant notes that

because the Commonwealth presented evidence of his marijuana use, the
cause of his driving impairment is unclear and his DUI convictions should be

reversed. Id. Appellant's argument is without merit.

      "A claim challenging the sufficiency of the evidence is a question of law."

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). "[O]ur standard

of review is de novo and our scope of review is plenary." Commonwealth v.

Hutchinson, 164 A.3d 494, 497 (Pa. Super. 2017) (citation omitted).            In

reviewing a sufficiency challenge, we determine "whether the evidence at trial,

and all reasonable inferences derived therefrom, when viewed in the light

most favorable to the Commonwealth as verdict winner, are sufficient to
establish   all   elements   of   the offense   beyond   a   reasonable   doubt."

Commonwealth v. May, 887 A.2d 750, 753 (Pa. 2005) (citation omitted).

      "Further, a conviction may be sustained wholly on circumstantial

evidence, and the trier of fact-while passing on the credibility of the witnesses

and the weight of the evidence-is free to believe all, part, or none of the


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evidence." Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017).

"In conducting this review, the appellate court may not weigh the evidence

and substitute its judgment for the fact -finder." Id.

      Section 3802(a)(1) provides that "[a]n individual may not drive, operate

or be in actual physical control of the movement of a vehicle after imbibing a

sufficient amount of alcohol such that the individual is rendered incapable of

safely driving, operating or being in actual physical control of the movement

of the vehicle." 75 Pa.C.S. § 3802(a)(1). The types of evidence that the

Commonwealth may proffer in a subsection 3802(a)(1) prosecution include

the offender's actions and      behavior;   demeanor;    physical appearance,

particularly bloodshot eyes and other physical signs of intoxication; odor of

alcohol; and slurred speech."5 Commonwealth v. Segida, 985 A.2d 871,
879 (Pa. 2009).

      Following our review of the record, in the light most favorable to the

Commonwealth as the verdict winner, we conclude that the evidence was

sufficient to support the trial court's determination that Appellant was
incapable of safely operating his vehicle after imbibing a sufficient amount of




5 While Appellant cites to cases that reiterate that Section 3802 prohibits
driving when the vehicle operator is incapable of safely operating an
automobile because of drinking alcohol, he does not cite to any case that holds
that evidence that a defendant may have been under the influence of
marijuana precludes a finding that a defendant was incapable of safely
operating a vehicle because of alcohol consumption under Section 3802(a).
See Appellant's Br. at 13-16.
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alcohol. Officer Nagy testified that on the evening of the incident, he observed

Appellant in a vehicle pointing the wrong direction on a one-way street. N.T.

Trial, 12/5/16, at 14.   He described Appellant as disheveled, with glassy and

red eyes, and having a moderate odor of alcohol emitting from his person and

inside the vehicle. Id. at 12. Officer Nagy also noted that Appellant had a

difficult time retrieving his license and registration, was wobbly on his feet,

and urinated on himself while waiting for a vehicle to transport him to AID.

Id. at 12-13. Appellant's challenge to the sufficiency of evidence supporting

his DUI convictions lacks merit, and he is, thus, not entitled to relief.

Sufficiency of the Evidence - DUS Conviction
      In his second issue, Appellant avers that the evidence was insufficient

to sustain the conviction for DUS under Section 1543(b)(1.1). Appellant first

challenges the sufficiency of the evidence on the grounds that the Criminal
Information only quotes a portion of Section 1543(b)(1.1) and not the portion

on which the Commonwealth based its case. Appellant's Br. at 16-17, 21.

       In particular, Appellant argues that the Criminal Information only
quotes from the provision that addresses a defendant who has a blood alcohol

level above .02% and not a defendant who refuses blood testing. Appellant

concludes that since the Commonwealth only              presented    evidence of

Appellant's refusal and not his blood alcohol level, the evidence does not
support the conviction for driving with a suspended license. Id.

      Section 1543(b)(1.1) provides for three situations in which a defendant,

who is driving with a suspended or revoked license, can be convicted: driving

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with blood alcohol level above .02%, driving with certain controlled substances

in his blood, or refusing blood or breath testing:

      A person who has an amount of alcohol by weight in his blood that
      is equal to or greater than .02% at the time of testing or who at
      the time of testing has in his blood any amount of a Schedule I or
      nonprescribed Schedule II or III controlled substance,. . or who
                                                                .


      refuses testing of blood or breath and who drives a motor vehicle
      on any highway or trafficway of this Commonwealth at a time
      when the person's operating privilege is suspended or revoked     .   .


      . shall, upon a first conviction, be guilty of a summary offense[.]


75 Pa.C.S. § 1543(b)(1.1). In this case, the original Criminal Information

only quoted the portion of this section that addresses a defendant who drives

with a suspended license and has alcohol or drugs in his blood. The original

Criminal Information did not quote from the portion of this section that
addresses a defendant who drives with a suspended license and refuses

blood or breath testing.

      The Commonwealth, however, amended the Criminal Information at the

start of the trial to include the entire section of 1543(b)(1.1). In particular,

the Assistant District Attorney informed the court at the beginning of the trial

that the Commonwealth would be proceeding under "1543[b], driving while

under a suspended or revoked license." N.T. Trial, 12/5/16 at 6. Appellant's

counsel did not object to the amendment to the Criminal Information. /d.6



6 Moreover, to the extent that Appellant challenges the amended Criminal
Information, that challenge is waived. "A party may not remain silent and


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The trial      court permitted the Commonwealth to amend the Criminal

Information. See Trial Ct. Docket, at 14 (unpaginated). Thus, the amended

Criminal Information encompassed all possibilities under 1543(b), including

refusal to take a blood test. Since the Commonwealth's evidence included

evidence of the Appellant's refusal to take a blood test, the evidence was

consistent with the amended Criminal Information.

          Appellant also argues that his DUS conviction cannot be sustained based

on Birchfield v. North Dakota,               U.S.     ,   136 S.Ct. 2160 (2016).

Appellant's Br. at 24-27. Appellant's sufficiency argument does not implicate

Birchfield because Birchfield addresses suppression issues and sentencing

issues, but not challenges to the sufficiency of the evidence. In Birchfield,

"the Supreme Court of the United States held that a state cannot impose
criminal penalties upon an individual who refuses to submit to a warrantless

blood test because such penalties violate an individual's Fourth Amendment          .




.   .   right to be free from unreasonable searches[.]" Giron, 155 A.3d at 639




afterwards complain of matters which, if erroneous, the court would have
corrected." Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.
2008) (citations omitted). See United States v. Olano, 507 U.S. 725, 731
(1993) (acknowledging that "a constitutional right or a right of any other sort
may be forfeited in criminal . . cases by the failure to make timely assertion
                                  .


of the right before a tribunal having jurisdiction to determine it"); Pa.R.A.P.
302 ("Issues not raised in the lower court are waived and cannot be raised for
the first time on appeal."). Accordingly, because Appellant did not object to
the amendment nor requested clarification of the amendment at trial, he
waived this issue for purposes of appeal.

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(citing Birchfield, 136 S.Ct. at 2185-86). Thus, Birchfield is not relevant in

evaluating the sufficiency of the evidence in this case.

      Appellant's final argument is that the trial court erred in finding sufficient

evidence to convict Appellant of Section 1543(b)(1.1). In order to convict

Appellant, the trial court had to find that Appellant "refused testing of blood

or breath; and (2) drove a motor vehicle on any highway or trafficway of this

Commonwealth at a time when his operating privilege was suspended or

revoked." 75 Pa.C.S. § 1543(b)(1.1).

      Following our review of the record in the light most favorable to the
Commonwealth as the verdict winner, we conclude that the record supports

the trial court's determination that Appellant refused testing of blood and

drove a motor vehicle at a time when his license was suspended. Appellant's

Certified Driving Record demonstrates that on the date of the police arrested

Appellant, February 25, 2015, Appellant's license had been suspended. N.T.

Trial, 12/5/16, at 25-26. Additionally, Officer Harrison testified that when
Appellant arrived at the AID around 1:40 AM on February 26, 2015, he
requested that Appellant take a breath or blood test, but Appellant refused.

N.T. Trial, 3/2/16 at 17-19. Thus, we conclude that Appellant's challenge to

the sufficiency of evidence supporting his DUS conviction lacks merit, and he

is, therefore, not entitled to relief.




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Illegal Sentencing - DUI Convictions
      In his third issue, Appellant asserts that his DUI sentence of 90 days to

six months of incarceration followed by two years of probation is illegal.      He

contends that the maximum sentence that could be imposed is six months;

therefore, the probation period of his sentence is illega1.7 Appellant's Br. at

27-30; Appellant's Reply Br. at 8-9.

      Our standard of review over challenges to the legality of sentence is de

novo and our scope of review is plenary. Commonwealth v. Aikens, 139
A.3d 244, 245 (Pa. Super. 2014). "If no statutory authorization exists for a

particular sentence,   that sentence is illegal   and   subject   to   correction."

Commonwealth v. Rivera, 95 A.3d 913, 915 (Pa. Super. 2014) (citations
omitted).

      The trial court merged Appellant's DUI -General and DUI -Refusal
convictions with the DUI -Accident conviction for purposes of sentencing.8

Sentencing Order, dated 4/26/17.         Thus, the court elected to sentence



 Appellant does not contest the merging of his DUI convictions for sentencing
purposes.

8 In its 1925(a) Opinion, the trial court asserts that it sentenced Appellant to
90 days to 6 months of imprisonment, followed by two years of probation "on
[all] three DUI offenses, with the sentences running concurr[e]nt[ly]." Trial
Ct. Op., filed 12/28/17, at 2. However, the Sentencing Order indicates that
the DUI convictions were merged for purposes of sentencing. Sentencing
Order, dated 4/26/17.
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Appellant on the DUI -Accident conviction.9 See Commonwealth v. Everett,

705 A.2d 837, 839 (Pa. 1998) (concluding that when imposing one sentence

on merged convictions, the trial court has discretion to sentence defendant on

either offense); see also 42 Pa.C.S. § 9765 ("Where crimes merge for
sentencing purposes, [a] court may sentence the defendant    .   .   . on the higher

graded offense.").

      Pursuant to Section 3803(b)(1), an individual convicted of DUI -Accident

and who has one prior offensel° commits a misdemeanor for which "the



9 In two footnotes, Appellee acknowledges that the trial court found that
Appellant violated three separate subsections of the DUI statute. However, it
asserts that they were not separate crimes, but factual findings necessary to
establish different gradings of the same offense under 75 Pa.C.S. § 3802.
Appellee's Br. at 5 n.2, 16 n.6.

We have noted that to avoid possible double jeopardy implications, "where a
single DUI offense is subject to [sentencing] enhancements, the
Commonwealth should file a criminal information that sets forth a single count
under § 3802[, and e]nhancements under § 3804 may be added as subparts
or subparagraphs, as appropriate." Commonwealth v. Farrow, 168 A.3d
207, 218 (Pa. Super. 2017). Nevertheless, "the Commonwealth           routinely
                                                                      .   .   .


files criminal informations that include [multiple] general impairment counts"
with one count alleging DUI -general and the other counts alleging
enhancements. Commonwealth v. Mobley, 14 A.3d 887, 894 (Pa. Super.
2011).

Here, the Commonwealth filed a Criminal Information that included three
general impairment counts with one count alleging DUI -general and the other
counts alleging sentencing enhancements, accident and refusal. Information,
printed 4/22/16. Appellant was convicted of all three separate DUI counts,
and the trial court merged the counts for sentencing purposes. To the extent
the Commonwealth contests the Information or convictions, it cannot raise
this issue for the first time on appeal. Pa.R.A.P. 302.

10 There is no dispute that Appellant had a prior offense.
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individual may be sentenced to a term of imprisonment of not more than six

months[.]" 75 Pa.C.S. § 3803(b)(1) (emphasis added). A court may impose

a split sentence, a sentence that includes a period of incarceration as well as

a period of probation. Commonwealth v. Johnson, 967 A.2d 1001, 1004
n.3 (Pa. Super. 2009). However, the total amount of time imposed in a split

sentence cannot exceed the statutory maximum.                Commonwealth v.
Crump, 995 A.2d 1280, 1283-84. For example, "where the maximum is ten

years, a defendant cannot received a term of incarceration of three to six

years follow by five years [of] probation." Id. at 1284.

      Here, the court imposed a sentence of, inter alia, 90 days to 6 months

of imprisonment, followed by two years of probation. Consequently, Appellant

faces the potential of serving up to 2 years and six months' punishment for

his DUI offenses, thereby exceeding the statutory maximum punishment of

six months for DUI -Accident. Therefore, we agree with Appellant that his

sentence for DUI is illegal. Accordingly, we vacate the sentence and remand

for resentencing.

Illegal Sentence - DUS Conviction
      In his fourth issue, Appellant asserts that his DUS sentence was illegal

because the statutory maximum for             a   first time violation of Section

1543(b)(1.1), a summary offense, is 90 days. Appellant's Br. at 31-32.

      Sections 1543 and 6503 provide the penalties for summary offense DUS

violations.   Subsection 1543(b) provides, in relevant part, that a court shall


                                     - 13 -
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impose a term of "imprisonment for a period of not less than 90 days." 75

Pa.C.S. § 1543(b)(1.1) (emphasis added).          Thus, contrary to Appellant's

contention, 90 days' incarceration       is   the statutory minimum, not the
statutory maximum." 12 Accordingly, Appellant's issue as stated warrants no

relief.

          However, our analysis of the legality of Appellant's DUS sentence does

not end there. This Court may review issues regarding the legality of sentence

sua sponte, including whether a term of punishment exceeds the statutory

maximum. Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013).

          Section 6503 provides that the maximum punishment for a summary

offense DUS is no more than six months' imprisonment.            75 Pa.C.S. §§

6503(a), (a.1). As noted above, the total amount of time imposed in a split




ii No part of Subsection 1543(b) provides a maximum penalty for a violation
of Subsection 1543(b)(1.1).

12 Appellant's reliance on 18 Pa.C.S. § 106(c) and Commonwealth v.
Klingensmith, 650 A.2d 444 (Pa. Super. 1994) is misplaced. We note that
18 Pa.C.S. § 106(c) provides that the maximum penalty for a summary
offense is 90 days. However, Section 6502 of the Vehicle Code specifically
states that the provisions of the Crimes Code relating     to fines and
imprisonment for convictions of summary offenses are not applicable to
violations of the Vehicle Code. 75 Pa.C.S. § 6502(c); Commonwealth v.
Lyons, 576 A.2d 1105, 1106 (Pa. Super. 1990). Further, this Court in
Klingensmith determined that Section 1543(b) permitted a court to impose
a flat sentence of 90 days for driving with a suspended license in violation of
Section 1543(b). 650 A.2d at 447. We noted that the mandatory minimum
was 90 days, but did not address whether there was a statutory maximum.
Id.
                                       - 14 -
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sentence cannot exceed the statutory maximum. Crump, 995 A.2d at 1283-

84.

      Here, the court imposed       a     sentence of 90 days to 6 months'
imprisonment plus two years' probation for Appellant's DUS conviction. Since

the addition of two years' probation exceeds the six-month statutory
maximum, Appellant's DUS sentence is illegal. Accordingly, we vacate the

DUS sentence and remand for resentencing.

Conclusion

      In sum, we affirm Appellant's DUI and DUS convictions. We vacate the

judgments of sentence for the DUI and DUS, and remand for resentencing.

      Convictions affirmed; Judgments of Sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.

Judgment Entered.




J seph D. Seletyn,
Prothonotary


Date: 7/11/19




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