J-S17001-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA                :   IN THE SUPERIOR COURT OF
                                                :        PENNSYLVANIA
                                                :
                v.                              :
                                                :
                                                :
    MICHAEL ANOTHONY GERACE, JR.                :
                                                :
                       Appellant                :   No. 1579 MDA 2019

       Appeal from the Judgment of Sentence Entered September 3, 2019
    In the Court of Common Pleas of Cumberland County Criminal Division at
                        No(s): CP-21-CR-0000865-2019


BEFORE: PANELLA, P.J., STABILE, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY PANELLA, P.J.:                   FILED: APRIL 27, 2020

        Michael Anthony Gerace, Jr. appeals from the judgment of sentence, to

an aggregate term of 8 to 18 months’ imprisonment, in the Court of Common

Pleas of Cumberland County, following his conviction of one count each of

driving under the influence — general impairment (DUI)1 and driving under

suspension — DUI-related (DUS).2 On appeal, Appellant claims the evidence

was insufficient to sustain his conviction for DUS and his sentence for DUS

was illegal. Appellant does not raise any challenge to his DUI conviction or

sentence. After review, we affirm in part, vacate in part, and remand for a

new sentencing hearing.

____________________________________________

1
    75 Pa.C.S.A. § 3802(a)(1).

2
    75 Pa.C.S.A. § 1543(b)(1.1)(ii).
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      On December 31, 2018, at approximately 4:00 p.m., Police Officer Chad

McClure of the Upper Allen Township Police Department was on routine patrol

when he observed a car, driven by Appellant, pull into the parking lot of a

local park and stop in front of a concession stand. Officer McClure watched as

Appellant exit the car, urinated against the side of the concession stand, and

reenter the car.

      Officer McClure approached the car and directed Appellant to put down

his window. When Appellant did so, Officer McClure smelled a moderate odor

of alcohol.   Officer McClure was unable to obtain a driver’s license from

Appellant but did obtain biographical data, which he ran through the

Department of Transportation’s database. This search revealed Appellant’s

license had been suspended and the suspension was DUI-related.          Officer

McClure also observed Appellant’s speech was slurred. Appellant admitted to

drinking one beer.

      Officer McClure conducted field sobriety tests, which Appellant failed. A

preliminary breath test indicated the presence of alcohol. Following the breath

test, Appellant admitted he had two shots of brandy, then amended his

statement to say the shots were larger than normal. Appellant refused to

submit to a blood test and refused to sign the chemical testing form. Appellant

stated to Officer McClure he knew his license was suspended because of a

prior DUI.




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        On May 7, 2019, the Commonwealth filed a criminal information

charging Appellant with DUI and DUS, as well as a count of open lewdness.3

A jury trial took place on July 30, 2019. At the close of the Commonwealth’s

case, the trial court granted defense counsel’s motion to dismiss the charge

of open lewdness. Subsequently, the trial court convicted Appellant of DUI

and the jury convicted him of DUS.             Following receipt of a pre-sentence

investigation report, on September 3, 2019, the trial court sentenced

Appellant to two to six months of imprisonment for the DUI conviction, and a

consecutive sentence of six to 12 months for the DUS conviction. Appellant

did not file any post-sentence motions.

        Appellant filed a timely notice of appeal on October 1, 2019. On October

2, 2019, the trial court ordered him to file a concise statement of errors

complained of on appeal pursuant to Pennsylvania Rule of Appellate Procedure

1925(b).     Appellant filed a timely Rule 1925(b) statement on October 23,

2019. On March 6, 2020, the trial court filed an opinion.

        In his first issue on appeal, Appellant challenges the sufficiency of the

evidence underlying his conviction for DUS. Appellant’s Amended Brief, at 4.

Specifically Appellant complains the Commonwealth failed to prove his blood

alcohol content (BAC) was .02% or greater and it did not prove Appellant




____________________________________________

3
    18 Pa.C.S.A. § 5901.

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knew he had a DUI-related suspension. See Appellant’s Amended Brief, at

10, 12-22. We disagree.

      Our standard of review for a challenge to the sufficiency of the evidence

is as follows:

      The determination of whether sufficient evidence exists to support
      the verdict is a question of law; accordingly, our standard of
      review is de novo and our scope of review is plenary. In assessing
      [a] sufficiency challenge, we must determine whether viewing all
      the evidence admitted at trial in the light most favorable to the
      [Commonwealth], there is sufficient evidence to enable the
      factfinder to find every element of the crime beyond a reasonable
      doubt.     [T]he facts and circumstances established by the
      Commonwealth need not preclude every possibility of
      innocence. . . . [T]he finder of fact while passing upon the
      credibility of witnesses and the weight of the evidence produced,
      is free to believe all, part[,] or none of the evidence.

Commonwealth v. Edwards, 177 A.3d 963, 969-970 (Pa. Super. 2018)

(quotation marks and citations omitted).      Moreover, “[t]he Commonwealth

may sustain its burden of proving every element of the crime beyond a

reasonable       doubt   by   means   of    wholly   circumstantial   evidence.”

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa. Super. 2011) (citation

omitted).

      Prior to assessing the merits of Appellant’s sufficiency claim, we must

determine if it is properly before us. We are constrained to conclude Appellant

waived his sufficiency claim, because his Rule 1925(b) statement did not

sufficiently identify the claims he intended to raise on appeal.

      It is well-established any issue not raised in a Rule 1925(b) statement

will be deemed waived for appellate review. See Commonwealth v. Lord,



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719 A.2d 306, 309 (Pa. 1998). Further, an appellant’s concise statement must

identify the errors with sufficient specificity for the trial court to identify and

address the issues the appellant wishes to raise on appeal. See Pa.R.A.P.

1925(b)(4)(ii) (requiring a Rule 1925(b) statement to “concisely identify each

ruling or error that the appellant intends to challenge with sufficient detail to

identify all pertinent issues for the judge”). A Rule 1925(b) concise statement

that is too vague can result in waiver of issues on appeal.                   See

Commonwealth v. Dowling, 778 A.2d 683, 686-687 (Pa. Super. 2001) (“a

concise statement which is too vague to allow the court to identify the issues

raised on appeal is the functional equivalent of no concise statement at all”).


      If Appellant wants to preserve a claim that the evidence was
      insufficient, then the 1925(b) statement needs to specify the
      element or elements upon which the evidence was insufficient.
      This Court can then analyze the element or elements on appeal.
      [Where a] 1925(b) statement [ ] does not specify the allegedly
      unproven elements[,] ... the sufficiency issue is waived [on
      appeal].

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa. Super. 2015) (citation

omitted).

      In this case, Appellant’s Rule 1925(b) statement simply declared the

evidence was insufficient to demonstrate that he had a BAC of .02% or greater

and/or he had notice of a prior DUI suspension.         See Appellant’s Concise

Statement of Errors Complained of on Appeal, 10/23/19, at unnumbered page

1. There was simply no way for the trial court to discern from this vague

statement Appellant was advancing the novel claims that unless he refused

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both a breath and a blood test it did not constitute a refusal, there could not

be a refusal where the Commonwealth had probable cause to seek a warrant

for a blood test, and his prior suspension was not DUI-related because it was

for a refusal of chemical testing.      Appellant’s Amended Brief, at 14-22.

Because of this, the trial court did not address these contentions in its opinion.

See Trial Court Opinion, 3/06/20, at 1-5.        Therefore, we must conclude

Appellant waived his sufficiency of the evidence claim on appeal.            See

Commonwealth v. Williams, 959 A.2d 1252, 1257-1258 (Pa. Super. 2008).

      In any event, Appellant’s sufficiency of the evidence claim lacks merit.

As noted above, under Section 1543(b)(1.1) the Commonwealth was required

to prove either Appellant had a BAC of .02% or greater or he refused chemical

testing. See 75 Pa.C.S.A. § 1543(b)(1.1).


      The jury convicted Appellant of violating 75 Pa.C.S.A. § 1543, which

provides in pertinent part:


      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, as defined
      in the act of April 14, 1972 (P.L. 233, No. 64), known as The
      Controlled Substance, Drug, Device and Cosmetic Act, or its
      metabolite 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 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 . . .

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

      Here, defense counsel acknowledged at trial, the Commonwealth only

sought to prove a refusal. See N.T. Trial, 7/30/19, at 40. As a result, the

Commonwealth was not required to prove Appellant’s BAC.


      Moreover, Appellant’s contention the Commonwealth had to prove he

refused both a blood and a breath test is belied by the plain text of the statute,

which states a person violates it if he or she “refuses testing of blood or

breath.”     75   Pa.C.S.A.   §   1543(b)(1.1)(i)   (emphasis    added).      The

Commonwealth presented evidence that Appellant refused a blood test, which

is all the law requires.   N.T. Trial, 7/30/19, at 29-31.     Further, Appellant

provides no legal support for the claim that, in the face of a refusal, the

Commonwealth is required to obtain a warrant for a blood test in order to

prove his BAC. To graft such a requirement onto the statute would render the

refusal clause meaningless and we decline to accept Appellant’s invitation to

do so.


      Appellant’s notice argument is equally unavailing. Appellant concedes

he was driving with a suspended license. Appellant’s Amended Brief, at 21.

Officer McClure testified at trial, without contradiction, Appellant told him he

knew the suspension was DUI-related. N.T. Trial, 7/30/19, at 31. Appellant

maintains, however, under the United States Supreme Court’s decision in

Birchfield v. North Dakota, 136 S.Ct. 2160 (2016), a suspension for refusal


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of chemical testing cannot be considered DUI-related because it is not proof

of criminality. Appellant’s Amended Brief, at 21-22. We disagree.


      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[.]”

Commonwealth v. Giron, 155 A.3d 635, 639 (Pa. Super. 2017) (citation

omitted).    However, the DUS statute does not require that Appellant have

been convicted of and criminally punished for a previous DUI, merely that he

be aware that his license was suspended due to a DUI violation. Even before

Birchfield, the suspension of driving privileges for violating 75 P.S. § 1547

was a civil consequence, not a criminal penalty. See Commonwealth v.

Shinn, 534 A.2d 515, 517 (Pa. Super. 1987). Therefore, even if it was not

waived, Appellant’s sufficiency of the evidence claim would not merit relief.


      In his second issue, Appellant claims his sentence is illegal because: (1)

while he had a prior conviction under 75 Pa.C.S.A. § 1543(b), it was not under

75 Pa.C.S.A. § 1543(b)(1.1)(i); and (2) his sentence runs afoul of the decision

in Birchfield. Appellant’s Amended Brief at, 23-26. The trial court agrees

with Appellant and requests we remand the matter for resentencing. Trial Ct.

Op., at 5.

      “Issues relating to the legality of a sentence are questions of law, as are

claims raising a court’s interpretation of a statute. Our standard of review

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over such questions is de novo and our scope of review is plenary.”

Commonwealth v. Hawkins, 45 A.3d 1123, 1130 (Pa. Super. 2012), appeal

denied, 53 A.3d 756 (Pa. 2012) (citation omitted). Even though Appellant did

not raise this issue at his sentencing hearing, he has not waived this argument

on appeal. See Commonwealth v. Foster, 17 A.3d 332, 345 (Pa. 2011).

      We acknowledge:

             Our task is guided by the sound and settled principles set
      forth in the Statutory Construction Act, including the primary
      maxim that the object of statutory construction is to ascertain and
      effectuate legislative intent. 1 Pa.C.S.[A.] § 1921(a). In pursuing
      that end, we are mindful that “[w]hen the words of a statute are
      clear and free from all ambiguity, the letter of it is not to be
      disregarded under the pretext of pursuing its spirit.” 1 Pa.C.S.[A].
      § 1921(b). Indeed, “[a]s a general rule, the best indication of
      legislative intent is the plain language of a statute.” In reading the
      plain language, “[w]ords and phrases shall be construed according
      to rules of grammar and according to their common and approved
      usage,” while any words or phrases that have acquired a “peculiar
      and appropriate meaning” must be construed according to that
      meaning. 1 Pa.C.S.[A.§] 1903(a). However, when interpreting
      non-explicit statutory text, legislative intent may be gleaned from
      a variety of factors, including, inter alia: the occasion and
      necessity for the statute; the mischief to be remedied; the object
      to be attained; the consequences of a particular interpretation;
      and the contemporaneous legislative history. 1 Pa.C.S.[A.] §
      1921(c). Moreover, while statutes generally should be construed
      liberally, penal statutes are always to be construed strictly, 1
      Pa.C.S.[A] § 1928(b)(1), and any ambiguity in a penal statute
      should be interpreted in favor of the defendant.

            Notwithstanding the primacy of the plain meaning doctrine
      as best representative of legislative intent, the rules of
      construction offer several important qualifying precepts. For
      instance, the Statutory Construction Act also states that, in
      ascertaining legislative intent, courts may apply, inter alia, the
      following presumptions: that the legislature does not intend a
      result that is absurd, impossible of execution, or unreasonable;
      and that the legislature intends the entire statute to be effective

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      and certain. 1 Pa.C.S.[A.] § 1922(1),(2). Most importantly, the
      General Assembly has made clear that the rules of construction
      are not to be applied where they would result in a construction
      inconsistent with the manifest intent of the General Assembly. 1
      Pa.C.S.[A.] § 1901.

Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015) (case

citation omitted).

      At issue here is the construction of section 1543(b)(1.1)(ii). The trial

court sentenced Appellant pursuant to section 1543(b)(1.1)(ii), which

provides in pertinent part:

      A second violation of this paragraph shall constitute a
      misdemeanor of the third degree, and upon conviction thereof the
      person shall be sentenced to pay a fine of $2,500 and to undergo
      imprisonment for not less than six months.

75 Pa.C.S.A. § 1543(b)(1.1)(ii) (emphasis added). The dispute centers upon

the meaning of the phrase “this paragraph.”

      Appellant   contends    the   phrase     only   refers   to   75   Pa.C.S.A.   §

1543(b)(1.1)(i) and, therefore, in order for a court to sentence Appellant

under Section 1543(b)(1.1)(ii), Appellant must have a prior conviction under

Section 1543(b)(1.1)(i).

      The Commonwealth disagrees, asserting the phase “this paragraph”

includes all of Section 1543(b) and, therefore, so long as Appellant has a prior

conviction under either Section 1543(b)(1)(i) or 1543(b)(1.1)(i), the trial

court can sentence him as a second offender pursuant to Section

1543(b)(1.1)(ii). Neither party cites any legal authority in support of their




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respective positions. However, our review of the relevant statue constrains

us to agree with Appellant.

      Sections 1543(b)(1) and 1543(b)(1.1) set out separate crimes with

separate sentencing schemes. Section 1543(b)(1)(i) concerns individuals who

drive while a license is suspended. A first offense is “a summary offense and

[is punishable by] a fine of $500 and . . . imprisonment for a period of not less

than 60 days nor more than 90 days. 75 Pa.C.S.A. § 1543(b)(1)(i). A second

violation is also a summary offense and is punishable by “a fine of $1,000

and . . . imprisonment for not less than 90 days.” Id. at § (1)(ii).

      Conversely, Section 1543(b)(1.1) concerns an individual who drives

under the influence of drugs or alcohol and/or refuses chemical testing while

his or her license is suspended.      A first violation is a summary offense

punishable by “a fine of $1,000 and . . . imprisonment for a period of not less

than 90 days.”    75 Pa.C.S.A. § 1543(b)(1.1)(i).      A second violation is a

misdemeanor punishable by “a fine of $2,500 and . . . imprisonment for not

less than six months.” 75 Pa.C.S.A. § 1543(b)(1.1)(ii).

      Clearly, the legislature considered driving with a suspended license a

less serious offense than driving under the influence with a suspended license.

Accordingly, it enacted entirely separate and distinct sentencing provisions for

each offense.    To interpret the phrase “this paragraph” in the manner

requested by the Commonwealth would be to render the distinct sentencing

schemes set forth in Section 1543(b) meaningless.


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       We note our concern that, in cases such as this one, Appellant is, in

essence, getting a reduction in sentencing because he violated different

sections of the same statute on two separate occasions. However, it is for the

legislature not this Court to resolve the problem of this discrepancy which is

not addressed in Section 1543.           We are reluctantly constrained to vacate

Appellant’s judgment of sentence.4 Though we affirm Appellant’s conviction

for driving under suspension, we vacate the determination Appellant is a

second offender under Section 1543(b)(1.1)(ii), and remand for resentencing.

Since Appellant’s sentences were imposed consecutively, our disposition

disturbs the court’s aggregate sentencing scheme, and we therefore remand

for resentencing on both counts.

       Judgment of sentence affirmed in part and vacated in part.           Case

remanded for proceedings consistent with this memorandum.             Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/27/2020
____________________________________________

4
 Because we vacate Appellant’s sentence based upon his argument he was
wrongly sentenced as a second offender under Section 1543(b)(1.1)(ii), we
need not address his claim the sentence runs afoul of the decision in
Birchfield.

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