J. A26008/15


                              2015 PA Super 251

COMMONWEALTH OF PENNSYLVANIA               :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                   v.                      :
                                           :
NATHAN ALLEN KRIEGLER,                     :          No. 62 MDA 2015
                                           :
                         Appellant         :


        Appeal from the Judgment of Sentence, December 11, 2014,
              in the Court of Common Pleas of Centre County
             Criminal Division at No. CP-14-SA-0000046-2014


BEFORE: FORD ELLIOTT, P.J.E., WECHT AND PLATT,* JJ.


OPINION BY FORD ELLIOTT, P.J.E.:                  FILED DECEMBER 01, 2015

      Nathan Allen Kriegler appeals from the judgment of sentence entered

on December 11, 2014, following his conviction of driving while operating

privilege   is   suspended    or     revoked,   driving   under   the   influence

(“DUI”)-related, 75 Pa.C.S.A. § 1543(b)(1).1



* Retired Senior Judge assigned to the Superior Court.
1
  The offense of driving under DUI-related suspension is set forth in
75 Pa.C.S.A. § 1543(b)(1), as follows:

            (b)    Certain offenses.--

                   (1)   A person who drives a motor vehicle
                         on a 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
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      The trial court has provided the following relevant facts:

                  In the instant matter, Appellant was pulled
            over by Officer Shawn Slater on March 16, 2014,
            while he was operating a black Chevrolet four door
            sedan. Upon pulling Appellant over, Officer Slater
            discovered he held an occupational limited license[ 2]



                        (relating to driving under influence of
                        alcohol or controlled substance) or the
                        former section 3731, because of a
                        violation of section 1547(b)(1) (relating
                        to suspension for refusal) or 3802 or
                        former section 3731 or is suspended
                        under section 1581 (relating to Driver’s
                        License    Compact)    for  an   offense
                        substantially similar to a violation of
                        section 3802 or former section 3731
                        shall, upon conviction, be guilty of a
                        summary offense and shall be
                        sentenced to pay a fine of $500 and
                        to undergo imprisonment for a
                        period of not less than 60 days nor
                        more than 90 days.            (Emphasis
                        added.)
2
   An occupational limited license (“OLL”) is defined in the Vehicle Code as “a
license, issued under this title to a driver whose operating privileges have
been suspended, to permit the operation of a motor vehicle under certain
conditions, when necessary for the driver’s occupation, work, trade or
study.” 75 P.S. § 102. The Department of Transportation is authorized, in
certain circumstances, to grant restricted or limited driving privileges to
alleviate the hardships of a DUI-related suspension. 75 Pa.C.S.A. § 1553.
The issuance of an OLL is not automatic.            There are strict eligibility
requirements. The holder of an OLL must comply with conditions and
restrictions of issuance. 75 Pa.C.S.A. § 1553(f) provides:

            (f)   Restrictions.--A driver who has been issued an
                  occupational limited license shall observe the
                  following:

                  (1) The driver shall operate a designated
                      vehicle only:


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           as the result of a DUI-related suspension. When
           Officer Slater spoke to Appellant about his license,
           Appellant acknowledged he was not on his way to or
           from work but alleged he had recently taken over
           driving duties from his daughter, who was suffering
           from a migraine.

                 Appellant’s license [had previously been]
           suspended effective May 7, 2013 as a result of a
           conviction of 75 Pa.C.S.A. §3802(d) on July 18,
           2013. He was issued an occupational limited license
           on September 11, 2013 pursuant to 75 Pa.C.S.A.
           §1553. Under the terms of 75 Pa.C.S.A. §1553(f),
           the holder of an occupational limited license shall




                      (i)   Between the driver’s place of
                            residence    and    place  of
                            employment or study and as
                            necessary in the course of
                            employment or conducting a
                            business    or   pursuing   a
                            course of study where the
                            operation of a motor vehicle
                            is    a     requirement    of
                            employment or of conducting
                            a business or of pursuing a
                            course of study.

                      (ii) To and from a place for
                           scheduled or emergency
                           medical examination or
                           treatment.                 This
                           subparagraph          includes
                           treatment required under
                           Chapter 38 (relating to
                           driving after imbibing alcohol
                           or       utilizing     drugs).
                           (Emphasis added.)

      Driving in violation of one of the restrictions or conditions of an OLL
constitutes a summary offense punishable by a $200 fine and the revocation
of the OLL. 75 Pa.C.S.A. § 1553(f)(3).


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            operate a vehicle only to and from a place of
            employment or school; as necessary “in the course
            of employment or conducting a business or
            purs[u]ing a course of study where the operation of
            a motor vehicle” is necessary or required and; to or
            from a place for “scheduled or emergency medical
            examination or treatment.”

Trial court opinion, 3/20/15 at 1-2.

      Appellant was charged with driving under DUI-related suspension. A

non-jury trial was held on November 3, 2014. At trial,

                   Appellant agree[d] he was not on his way to or
            from his employment or operating the vehicle as
            required in the course of said employment.
            Appellant is also not currently enrolled in any form of
            educational program. Although Appellant and his
            daughter both testified he had taken over driving
            after she developed a migraine, neither party alleged
            they were on their way to a doctor’s office, an
            emergency room, an urgent care center, or any
            other such place to obtain emergency medical
            examination or treatment. In fact, all witnesses
            agreed Appellant’s daughter was able to and in fact
            did drive the vehicle from the scene after Appellant
            was issued a citation.

Id.

      At the close of the Commonwealth’s evidence, appellant’s counsel

moved to dismiss the driving under DUI-related suspension charge, which

was denied. (Trial transcript, 11/3/14 at 14; R.R. at R21.) Appellant was

found guilty of driving under DUI-related suspension and sentenced to a

term of imprisonment of 60 days in the Centre County Correctional Facility

and a $500 fine, plus costs.    Appellant filed a timely notice of appeal on

January 7, 2015.     The trial court ordered appellant to submit a concise


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statement     of   matters    complained      of   on     appeal   pursuant   to

Pa.R.A.P. 1925(b); and appellant complied with this order on March 11,

2015. The trial court has filed an opinion.

      Appellant raises the following issues for review:

            1.     Did the trial court err in finding that the
                   evidence was sufficient for a conviction of
                   Driving While Operating Privilege is Suspended
                   or Revoked in violation of 75 Pa.C.S.A. § 1543?

            2.     Did the trial court err in convicting Appellant of
                   the more general Vehicle Code violation of
                   75 Pa.C.S.A. § 1543 when the Appellant should
                   have been convicted of the more specific crime
                   of Misuse of an Occupational Limited License
                   under 75 Pa.C.S.A. § 1553?

Appellant’s brief at 4.

                                       I.

      We first address appellant’s second issue in which he raises the

“general/specific rule.” This principle is outlined in 1 Pa.C.S.A. § 1933:

            Whenever a general provision in a statute shall be in
            conflict with a special provision in the same or
            another statute, the two shall be construed, if
            possible, so that effect may be given to both. If the
            conflict between the two provisions is
            irreconcilable, the special provisions shall
            prevail and shall be construed as an exception
            to the general provision, unless the general
            provision shall be enacted later and it shall be the
            manifest intention of the General Assembly that such
            general provision shall prevail.

1 Pa.C.S.A. § 1933 (emphasis added).




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       Appellant argues that under this rule he should have been charged

with and convicted of the “more specific” and “lesser” offense of violating the

conditions/restrictions of an OLL under 75 Pa.C.S.A. § 1553(f)(3) (which

carries a $200 fine and loss of the OLL), not the “more general” offense of

driving under DUI-related suspension, 75 Pa.C.S.A. § 1543(b)(1) (which

carries with it a fine of $500 and sentence of imprisonment for a period of

not less than 60 days nor more than 90 days).         Appellant contends that

§ 1553(f)(3) addresses a distinct subset of circumstances while § 1543(b)(1)

addresses a general category of criminal activity. Therefore, the trial court

was obligated to find him guilty of the more specific crime of misuse of an

OLL.

       First, we note that the “general/specific rule” of statutory construction

in the context of criminal prosecutions has been abrogated.         In 2002, the

legislature enacted 42 Pa.C.S.A. § 9303, which provides:

             Notwithstanding the provisions of 1 Pa.C.S. § 1933
             (relating to particular controls general) or any other
             statute to the contrary, where the same conduct
             of a defendant violates more than one criminal
             statute, the defendant may be prosecuted
             under all available statutory criminal provisions
             without regard to the generality or specificity
             of the statutes.

42 Pa.C.S.A. § 9303 (emphasis added). Commonwealth v. Karetny, 880

A.2d 505 (Pa. 2005). See also, In re N.W., 6 A.3d 1020 (Pa.Super. 2010)

(noting abrogation of the “general/specific rule” and holding that where

juvenile’s   conduct   violated   criminal   provisions   related     to   graffiti,


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18 Pa.C.S.A. § 3304(a)(4), and general criminal mischief, 18 Pa.C.S.A.

§ 3304(a)(5), which requires only the intentional damage of real or personal

property of another, the Commonwealth was permitted to charge him under

both of these provisions).   Therefore, appellant’s reliance on this rule is

erroneous.

      In any event, we do not agree with appellant that § 1543(b)(1) and

§ 1553(f)(3) irreconcilably conflict.   Section 1543(a) provides that any

person who drives while his license is suspended is guilty of a summary

offense and subject to a $200 fine.     Under § 1543(b)(1), a person who

drives while his license is DUI-suspended, is guilty of a summary offense

and subject to imprisonment for 60 days and a $500 fine. Obviously, the

legislature’s intent was to stiffen the penalty for driving while under

DUI-suspension.

      When a driver with a DUI-suspension violates a condition or restriction

of his OLL under § 1553(f)(3), he is, in effect, driving under DUI-suspension

(since he is driving outside the permissible confines).   His conduct in that

instance violates both § 1543(b)(1) and § 1553(f)(3). It is well settled that

a single course of conduct may constitute a violation of more than one

statutory provision.   In re N.W., 6 A.3d at 1026 n.4.         It is entirely

appropriate to charge and convict under the stiffer penalty provisions of

§ 1543, which pertain to driving under DUI-suspension. There is nothing to

suggest that persons who have a DUI-suspended license who have also been



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granted the privilege of an OLL should be treated more leniently than they

otherwise would have, when found to have violated the conditions of their

OLL. To turn around and reduce the penalty for driving under DUI-related

suspension to a $200 fine under § 1553(f)(3) is not what the legislature

intended and would be inconsistent with the purpose of § 1543 which is to

protect the public from people who have proven themselves to be a threat to

others on our public highways by driving under the influence.

      Appellant argues that the legislature imposed a specific offense of

misuse of an OLL under § 1553 to impose a “graduated system of penalties

so as not to incarcerate slight offenders and overburden prison facilities.”

(Appellant’s brief at 21-22.)

      He relies on Commonwealth v. Gordon, 897 A.2d 504 (Pa.Super.

2006), and Commonwealth v. Tisdale, 100 A.3d 216 (Pa.Super. 2014).

In Gordon, the defendant was found to be in possession of 8.75 grams of

marijuana. Out of this one incident, he was charged with: (1) violation of

35 P.S. § 780-113(31), proscribing the possession of a small amount of

marijuana,3 and (2) violation of the general proscription against possession

of a controlled substance as defined in 35 P.S. § 780-113(16).     The trial

court found him guilty of the more serious of these charged offenses which




3
 Thirty grams is the benchmark that the legislature defines as “a small
amount of marijuana.”


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carried with it a harsher penalty.4     This court held that the legislature, by

including Subsection (31) in Section 780-113 of the proscribed conduct

section of the Drug Act, clearly separated out the specific crime of

possession of a small amount of marijuana, and created a “graduated

system of penalties” that imposes far heavier punishment for traffickers and

lesser sanctions for casual users of marijuana.

                    In our view, the General Assembly, by
             including subsection (31) in section 780-113 of the
             proscribed conduct of the Act, wisely set out the
             specific crime of possession of a small amount of
             marijuana, and created a graduated system of
             penalties that imposes far heavier punishment for
             traffickers and lesser sanctions for casual users of
             marijuana.

Gordon, 897 A.2d at 509.

      We remanded the matter for the trial court to sentence the defendant

under the lesser amount statute, as the legislature clearly intended that a

small amount of marijuana be separately and less severely punishable than

possession of a controlled substance.

      Similarly, in Tisdale, the defendant was arrested with 8.64 grams of

marijuana.    He was convicted of possession under Subsection (16).          He

argued on appeal he should have been convicted for possession of a small



4
  Anyone who violates § 780-113(16) is guilty of a misdemeanor and will be
sentenced to imprisonment not exceeding one year or to pay a fine not
exceeding $5,000. Anyone who violates Clause (31) of Subsection (a) is
guilty of a misdemeanor and will be sentenced to imprisonment not
exceeding 30 days, or to pay a fine not exceeding $500, or both.


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amount of marijuana under the more specific Subsection (31). We agreed

that the legislature intended to provide a graduated system of penalties and

that when both Subsections (16) and (31) apply, conviction properly rests

on the specific charge found at Subsection (31), small amount of marijuana.

Tisdale, 100 A.3d at 219.5

      Here, we are not faced with the same “graduated system of penalties”

that were present in Gordon and Tisdale.         In a graduated system of

penalties scenario, there is a palpable decrease in punishment consonant

with lesser degrees of culpability. Here, there is nothing in the Vehicle Code

which suggests that the legislature intended to punish less severely those

who, while on a DUI-related suspension, violate the conditions of an OLL,

than those who directly violate the provisions of § 1543 by driving at a time

when operating privileges are DUI-suspended. Again, a person who, while

under DUI-suspension, drives in violation of § 1553(f), indirectly (through a

violation of a condition/restriction) violates the § 1543 (driving under

suspension). In both situations, the driver is deemed to be driving while his

operating privilege is DUI-suspended. We conclude that the Commonwealth




5
  The Tisdale court also noted it was of no moment that the defendant was
not charged with a small amount of marijuana. He could still be convicted of
that offense because he was charged with possession with intent to deliver
(“PWID”).     Because both possession of a controlled substance and
possession of a small amount of marijuana were lesser included offenses of
PWID the defendant was on notice that he could be convicted of the lesser
included offense.


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was, and is, empowered to prosecute appellant under both provisions of the

Vehicle Code.

       Appellant contends that the trial court committed an error of law in

finding that evidence was sufficient to support a finding of guilty of driving

under DUI-suspension because he was holding a valid license (i.e., a valid

OLL) at the time relevant to the incident in question. We disagree with his

rationale.

       We rejected a similar argument in Commonwealth v. Javit, 734 A.2d

922, 925 (Pa.Super. 1999). There, the appellant was issued a probationary

license at a time that his operating privilege was suspended.        Id. at 923.

Javit filed a pretrial motion to dismiss the three charges of driving under a

DUI-related suspension pursuant to Section 1543(b), “on the basis of his

having the probationary license at the time of the three arrests” for DUI.

Id. at 924. The motion was subsequently denied and he appealed. Id. at

925.    Javit also argued that since he had been issued the probationary

license, his license was no longer under suspension and the only sanction

available was the recall of his probationary license pursuant to § 1554(h)(2)

of the Vehicle Code. Id. We rejected the argument that “mere issuance of

the probationary license serves to negate the existence of the suspension.”

Id. at 925.

                    The possession of a probationary license
              is not the equivalent of restoration of
              appellant’s full operating privileges. Just as the
              penalty of suspension of operating privileges cannot


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            be circumvented by possession of a valid out-of-
            state license, suspension is not terminated by the
            possession of the in-state probationary license.
            Since appellant’s operating privileges had not been
            fully restored at the time of his three infractions, he
            was properly convicted of violation of §1543.

Id. at 925 (internal citations omitted) (emphasis added).

      We believe the rationale of Javit applies equally to this situation even

though appellant held an OLL, not a “probationary” license.      The OLL Law

clearly states that a holder of an OLL remains under suspension and is

strictly limited to driving within narrow confines. 75 Pa.C.S.A. § 1553(f)(4)

provides:

            (4)   The operating privilege of a driver who has
                  been issued an occupational limited license
                  remains under suspension or revocation
                  except when operating a motor vehicle in
                  accordance     with    the    conditions  of
                  issuance     or     restrictions    of   the
                  occupational limited license.       (Emphasis
                  added.)

      Without the OLL, appellant would have had no authority to operate any

vehicle at any time.    The OLL sets forth the only time a driver with a

DUI-suspension may operate a vehicle. Thus, it follows that when a holder

of an OLL operates a vehicle outside the conditions and restrictions of an

OLL, he is, in effect, driving under DUI-suspension.

      Again, an OLL is a driving privilege granted by the Department to

alleviate the hardships a total suspension may have on one’s ability to work,

attend school, and obtain medical care.      An OLL does not wipe away the



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DUI-suspension. It is not intended to diminish the gravity of the underlying

driving under DUI-suspension violation. The legislature clearly intended that

the operating privileges of OLL-license holders remain under DUI-suspension

except when they are operating a vehicle in accordance with the conditions

or restrictions of the OLL. Because violations of the limited grace given by

the OLL constituted driving under DUI-suspension, there was nothing

improper in charging and convicting appellant under § 1543(f)(3).

                                      II.

      In his remaining issue, appellant argues that there was insufficient

evidence to sustain his conviction.         When reviewing a claim for the

sufficiency of the evidence, we are held to the following standard:

            In reviewing the sufficiency of the evidence, we view
            all the evidence admitted at trial in the light most
            favorable to the Commonwealth, as verdict winner,
            to determine whether there is sufficient evidence to
            enable the factfinder to find every element of the
            crime established beyond a reasonable doubt.
            Commonwealth v. Thomas, 867 A.2d 594
            (Pa.Super. 2005).        “This standard is equally
            applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to the
            crime beyond a reasonable doubt.” Id. at 597. And
            while a conviction must be based on more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.       Id.
            quoting Commonwealth v. Coon, 695 A.2d 794,
            797 (Pa.Super.1997).      This Court is not free to
            substitute its judgment for that of the fact-finder; if
            the record contains support for the convictions they
            may not be disturbed. Id. citing Commonwealth v.
            Marks, 704 A.2d 1095, 1098 (Pa.Super.1997) and
            Commonwealth v. Mudrick, 510 Pa. 305, 308, 507


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            A.2d 1212, 1213 (1986). Lastly, the factfinder is
            free to believe some, all, or none of the evidence.
            Id.

Commonwealth v. Hartle, 894 A.2d 800, 803-804 (Pa.Super. 2006).

      Appellant asserts that the evidence established that he was driving

within one of the restrictions of his OLL.           He contends that the

Commonwealth failed to establish that he was operating a vehicle in

violation of his OLL. He asserts that he was driving lawfully pursuant to his

OLL because he was driving due to a medical emergency.         He testified at

trial that his daughter was driving the vehicle when she became ill,

whereupon he had no choice but to drive.

      The trial court concluded that appellant was not driving the vehicle in

order to obtain emergency medical examination treatment for his daughter.

Appellant admitted that he and his daughter were not on their way to obtain

medical emergency treatment; they did not ask the police officer for

assistance; they did not mention the migraine until after the officer made an

initial check of the status of appellant’s license on the officer’s traffic

computer; and appellant’s daughter was able to drive home after the traffic

stop. Clearly, the trial court did not believe that appellant’s daughter was

unable to drive due to a migraine headache.

      Appellant argues that the statute does not require that OLL holders be

in the process of going to or from a professional or certified medical facility

like a hospital or urgent care center.   He argues that the OLL Law simply



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states that the person must be going “to or from a place.”        75 Pa.C.S.A.

§ 1553(f)(1)(ii). Appellant contends that the word “place” must be given its

plain and ordinary meaning.      He argues that his daughter’s dormitory

reasonably falls within the definition of a “place” as envisioned by the

statute. He further contends that a person need not be seeking treatment

from a medical professional in order to drive with an OLL. He contends that

driving his daughter to her dormitory room to recuperate from her headache

qualified as driving “[t]o and from a place for scheduled or emergency

medical examination or treatment.”

     Appellant urges that his daughter was physically unable to drive and

that this constituted a medical emergency. However, according to the plain

reading of the statute, the holder of an OLL is permitted to drive his or her

vehicle in order to go to a scheduled appointment or to obtain emergency

medical treatment. The term “emergency medical treatment” is not defined

in the OLL Law, and we have found no case law defining the term in this

particular context. We will apply the common definition of the terms.

     “Emergency” is defined as “an unexpected and usually dangerous

situation that calls for immediate action.”     Webster’s Ninth New Collegiate

Dictionary 407 (1985). “Medical” is defined as, inter alia, (1) “of, relating

to, or concerned with physicians or the practice of medicine . . . .”; and

(2) ”requiring . . . medical treatment.”      Webster’s Third New International

Dictionary 1402 (2002). In the medical context, “treatment” is defined as



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“the care and management of a patient to combat, ameliorate, or prevent a

disease, disorder, or injury.”    Mosby’s Medical Dictionary 1880 (8th ed.

2009).

     Reading the above definitions together, we find that the plain and

ordinary term “emergency medical treatment” as used in the OLL Law

means the urgent care or management of a patient by a medical

professional for a disease or injury. Employing the above-stated definitions,

we conclude that appellant was not operating the vehicle within the lawful

restrictions provided in the statute.     Transporting his daughter to her

dormitory so she could lie down was not the equivalent of obtaining

emergency medical treatment.

     Accordingly, the Commonwealth established that appellant was not

driving within the restrictions of § 1553. That, in turn, established that on

March 16, 2014, appellant was driving a motor vehicle while on a

DUI-suspended license.    Appellant’s driver’s record was produced by the

Commonwealth and admitted as Exhibit “1.”         It proved that appellant’s

license was DUI-suspended.       Appellant also readily admitted that fact at

trial. (Trial transcript, 11/3/14 at 21; R.R. at R28.) As such, it was proven

beyond a reasonable doubt that appellant          was driving while on a

DUI-suspended license.




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        The Commonwealth’s credible evidence established all elements of the

summary offense of driving under DUI-suspension.        There was no error

here.

        Judgement of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/1/2015




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