J-A35024-14


                                   2015 PA Super 36

COMMONWEALTH OF PENNSYLVANIA,                      IN THE SUPERIOR COURT OF
                                                         PENNSYLVANIA
                            Appellee

                       v.

STEVE EDWARD WILSON,

                            Appellant                   No. 1976 WDA 2013


      Appeal from the Judgment of Sentence entered November 14, 2013,
               in the Court of Common Pleas of Allegheny County,
              Criminal Division at No(s): CP-02-CR-0009856-2013


BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ.

OPINION BY ALLEN, J.:                              FILED FEBRUARY 18, 2015

        Steve Edward Wilson (“Appellant”) appeals from the judgment of

sentence imposed after the trial court convicted him of four counts of driving

under the influence (“DUI”), one count of careless driving, and one count of

obscured plates.1

        The trial court detailed the pertinent facts as follows:

              At approximately 1:00 a.m. on May 7, 2013, Springdale
        Township police officer Joseph Martino was on patrol on Freeport
        Road in a marked police vehicle with external lights. Officer
        Martino approached a black Expedition, driven by [Appellant],
        which was completely stopped in the middle of the roadway. As
        Officer Martino drove toward the Expedition, it began to travel in
        the direction of Riddle Run Road. As it traveled, Officer Martino
        observed the vehicle cross the yellow line approximately four
        times. At this time, Officer Martino activated his lights and
        effectuated a traffic stop on the Expedition.
____________________________________________


1
    75 Pa.C.S.A. §§ 3802(a)(1) and (b), 3714(a), and 1132(b)(3).
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            When Officer Martino activated his lights, his vehicle’s dash
     camera turned on and recorded the traffic stop for approximately
     37 minutes, including the periods immediately before and after
     the lights are activated. The camera records for approximately
     two minutes before the lights are turned on and 45 seconds after
     the lights are shut off. At 27 seconds, [Appellant’s] brake lights
     are not on and the vehicle was able to move. At 44 seconds, the
     vehicle crossed the double yellow line. At 50 seconds, the
     vehicle crossed the double yellow line. At 51-52 seconds, the
     vehicle crossed the white “fog” line. At 1:08, the vehicle crossed
     the double-yellow line. At this point, the lights were activated.

            Officer Martino noticed that there was a partially tinted
     license plate cover affecting his view of the registration. Though
     his police report did not reference the license plate, the criminal
     complaint did. Officer Martino then went to the driver’s window
     where he identified the driver as [Appellant] and detected a
     strong odor of alcohol coming from the vehicle. He obtained
     [Appellant’s] information and observed four children, all
     estimated to be under the age of twelve in the back of the
     vehicle, none of whom were wearing a seat belt. Officer Martino
     also observed a glass filled with wine in the middle console of
     the front seat. The substance was determined to be wine based
     on its smell and the passenger’s statement that it was “just a
     little bit of wine.” The passenger did not say that it was her
     wine.

           Based on the odor of alcohol, [Appellant’s] bloodshot and
     glassy eyes, and his slurred speech, Officer Martino asked
     [Appellant] to exit the vehicle so that he could perform field
     sobriety tests.     Officer Martino intended to conduct the
     [horizontal gaze nystagmus], the walk-and-turn, and one-legged
     stand tests. Appellant failed to complete the one-legged stand
     and during the performance of the walk-and-turn test,
     [Appellant] said, “Just take me to jail.” At this time, Officer
     Martino placed [Appellant] under arrest and placed him in the
     back of the patrol vehicle based on the results of the HGN, one-
     legged stand, and walk-and-turn tests, his observations of
     [Appellant’s] red glassy eyes, slurred speech, and odor of
     alcohol. [Appellant] was taken into custody around the 18-
     minute mark of the recording.




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Trial Court Opinion, 5/16/14, at 4-6 (citations to notes of testimony

omitted).

       Appellant was charged with four counts of DUI, one count of violating

the restriction on open alcoholic beverages in a motor vehicle, one count of

driving at less than normal speed, one count of careless driving, three

counts of improper child restraints, and one count of obscured plates.

       On November 6, 2013, Appellant filed a suppression motion. Following

a hearing on November 14, 2013, the trial court denied Appellant’s

suppression motion.        That same day, following a non-jury trial, the trial

court found Appellant guilty of four counts of DUI, careless driving, and

obscured license plates, and not guilty of the remaining charges.2

       Following a sentencing hearing, the trial court, on November 14, 2013,

sentenced Appellant at Count 1 to a sentence of 12 months of probation,

and a concurrent sentence requiring him to attend 4 days of a DUI



____________________________________________


2
     Appellant      was      convicted         of   the   following   offenses:

       Count 1:    DUI (high rate of alcohol, with a minor), 75 Pa.C.S.A. §
                   3802(b)
       Count   2:  DUI (general impairment), 75 Pa.C.S.A. § 3802(a)(1)
       Count   3:  DUI (general impairment),75 PA.C.S.A. 3802(B)
       Count   4:  DUI (general impairment) 75 Pa.C.S.A. § 3802(A)(1)
       Count   7:  Careless Driving, 75 PA.C.S.A. § 3714(A)
       Count   11: Obscured Plates, 75 Pa.C.S.A. § 1332(B)(3)




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alternative to jail program, to commence 120 days from the date of

sentencing, with no further penalty on the remaining charges.

      Appellant filed a timely notice of appeal. Both Appellant and the trial

court have complied with Pa.R.A.P. 1925.

      Appellant presents two issues for our review:

         I. IS A SENTENCE ILLEGAL WHEN A PERSON RECEIVES A
            SENTENCE EXCEEDING THE STATUTORY MAXIMUM OF SIX
            MONTHS ON A FIRST-TIME DUI CONVICTION UNDER 75
            PA.C.S.A. § 3803(B), EVEN THOUGH THE OFFENSE IS
            GRADED AS A FIRST DEGREE MISDEMEANOR?

         II. DID LAW ENFORCEMENT HAVE REASONABLE SUSPICION
             TO BELIEVE THAT [APPELLANT] COMMITTED A VIOLATION
             OF THE MOTOR VEHICLE CODE IN ORDER TO LEGALLY
             PERFORM A TRAFFIC STOP?

Appellant’s Brief at 6.

      In his first issue, Appellant argues that the trial court imposed a

sentence that exceeded the permissible statutory maximum for a first-time

DUI offense, and that the sentence was therefore illegal. Appellant’s Brief at

13-30.   Appellant argues that the trial court’s sentence of 12 months of

probation plus 4 days at a DUI alternative program for his conviction for

violating 75 Pa.C.S.A. § 3802(b) (DUI-high rate of alcohol with a minor in

the vehicle) exceeded the statutory maximum.

      Appellant asserts that 75 Pa.C.S.A. § 3803(b)(1), which pertains to

the grading of DUI offenses, provides that a first-time DUI (high rate of

alcohol) offender can only receive a maximum sentence of 6 months, and




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that the trial court’s sentence of 12 months of probation exceeds the

statutory maximum.

      Appellant acknowledges that pursuant to 78 Pa.C.S.A. § 3803(b)(5),

DUI offenses where a minor under 18 years of age is an occupant of the

vehicle, are graded as first degree misdemeanors which carry a statutory

maximum sentence of five years. See 18 Pa.C.S.A § 106(b)(6). However,

Appellant argues that the plain language of 75 Pa.C.S.A § 3803(b) limits the

sentence in such circumstances to six months.

      The trial court disagreed with Appellant.      Noting that there was an

apparent conflict in the statute, the trial court concluded that under the plain

meaning of 75 Pa.C.S.A. § 3803(b)(5), Appellant’s conviction of DUI (high

rate of alcohol) with a minor as an occupant of the vehicle, was a first

degree   misdemeanor     with   a   statutory   maximum     of   five   years   of

imprisonment.

      Where reviewing a claim that raises an issue of statutory construction,

our standard of review is plenary. We recongize:

            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. § 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. § 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

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J-A35024-14


      have acquired a “peculiar and appropriate meaning” must be
      construed according to that meaning.          1 Pa.C.S.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. § 1921(c).
      Moreover, while statutes generally should be construed liberally,
      penal statutes are always to be construed strictly, 1 Pa.C.S. §
      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
      and certain. 1 Pa.C.S. § 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. § 1901.

Commonwealth v. Shiffler, 879 A.2d 185, 189-190 (Pa. 2005) (citations

omitted).

      The applicable statutory provisions at issue here, set forth in Title 75

(relating to vehicles), provide in pertinent part:

            § 3802.      Driving under influence       of   alcohol   or
                         controlled substance

            (b)   High rate of alcohol.--An 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   alcohol
                  concentration in the individual's blood or breath is at
                  least 0.10% but less than 0.16% within two hours

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J-A35024-14


                 after the individual has driven, operated or been in
                 actual physical control of the movement of the
                 vehicle.


           § 3803.     Grading


           (b) Other offenses.--


           (1)   An individual ... who violates section 3802(b), (e) or
                 (f) and who has no more than one prior offense
                 commits a misdemeanor for which the individual
                 may be sentenced to a term of imprisonment of not
                 more than six months and to pay a fine under
                 section 3804.

                                          ***

           (5)   An individual who violates section 3802 where a
                 minor under 18 years of age was an occupant in the
                 vehicle when the violation occurred commits a
                 misdemeanor of the first degree.

(emphasis added).      See 18 Pa.C.S.A. § 106(b)(6) (“A crime is a

misdemeanor of the first degree if it is so designated in this title or if a

person convicted thereof may be sentenced to a term of imprisonment, the

maximum of which is not more than five years.”).

     Appellant argues that the aforementioned statutes should be construed

in his favor. Appellant asserts that § 3803(b)(1) clearly and unambiguously

provides that his statutory maximum sentence is 6 months.          Appellant

contends that even though the offense of DUI with a minor occupant is

graded as a first degree misdemeanor, the legislature can classify an offense

at a certain grade while imposing a lesser statutory maximum sentence than

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J-A35024-14


is typically imposed upon a certain grade. Thus, although offenses graded

as first degree misdemeanors ordinarily carry a maximum penalty of 5

years, Appellant maintains that § 3803(b)(1) makes an exception for DUI

offenders with no more than one prior offense, limiting their maximum

sentence to 6 months.

       In   support    of   his   claim,   Appellant   relies   on   our   decision   in

Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 2013).                         We find

Musau inapposite, however, because Musau pertains to § 3803(a)(1), the

language of which is distinguishable from and inapplicable to the statutory

provision at issue in the present case (i.e., 3803(b)(1)).

       In Musau, the defendant, a DUI offender with one prior DUI

conviction, was convicted of DUI (general impairment), 75 Pa.C.S.A. §

3802(a). Because the defendant refused to submit to chemical testing and

had a prior DUI conviction, pursuant to § 3803(b)(4), the offense was

graded as a first degree misdemeanor.            The defendant in Musau argued

that § 3803(a)(1) limited his statutory maximum sentence to 6 months,

regardless of his refusal to submit to chemical testing.

       Based on a reading of Section 3803(a)(1), a panel of this Court agreed

with the defendant that his sentence could not exceed 6 months.3

____________________________________________


3
   It is noteworthy that Musau has been called into doubt by
Commonwealth v. Concordia, 97 A.3d 366 (Pa. Super. 2014) (observing
that the Commonwealth’s interpretation of § 3803 was logical).



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J-A35024-14


Specifically, this Court examined the language of § 3803(a)(1) which

provides:

      (a)     Basic offenses.--Notwithstanding      the   provisions   of
              subsection (b):

              (1)   An individual who violates section 3802(a) (relating
                    to driving under influence of alcohol or controlled
                    substance) and has no more than one prior offense
                    commits a misdemeanor for which the individual
                    may be sentenced to a term of imprisonment of not
                    more than six months and to pay a fine under
                    section 3804 (relating to penalties).

      Because section 3803(a) began with the phrase “notwithstanding the

provisions of subsection (b)”, we held:

      Our Supreme Court has defined “notwithstanding” as “regardless
      of.” ... Therefore, we hold that the plain language of the statute,
      giving the words their ordinary meanings, indicates as follows:
      regardless of the fact that refusal to submit to blood alcohol
      testing results in the grading of the offense as a first degree
      misdemeanor, the maximum sentence for a first or second DUI
      conviction is six months' imprisonment.

Musau 69 A.3d at 757-758.         Thus, the defendant’s statutory maximum

sentence was limited to 6 months “notwithstanding” or “regardless of” the

contrary provision of the law which provided that refusal to submit to testing

is graded as a first degree misdemeanor which carries a maximum penalty

of 5 years.

      In contrast, in cases such as the one at issue here, an individual who

commits a DUI with a minor in the vehicle, commits a first degree

misdemeanor pursuant to § 3803(b)(5).           There is no language in §

3803(b)(1) to indicate that “notwithstanding” the presence of a minor in the

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J-A35024-14


vehicle, the statutory maximum is limited to 6 months. (Compare with §

3803(a) at issue in Musau).

       Appellant nevertheless argues that because §§ 3803(b)(1) and (b)(5)

are in conflict, 75 Pa.C.S.A. § 3803(b)(1) is the more specific provision and

therefore prevails. Appellant’s Brief at 24-30.

       “Our rules of statutory construction globally instruct that a special

provision in a statute ‘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. § 1933.” Commonwealth v. Ramos, 83

A.3d 86, 92 (Pa. 2013). As applied to this case, § 3803(b)(1) is the general

provision because it applies to all DUI (high rate of alcohol) offenders who

have no more than one prior offense. In contrast, § 3803(b)(5) applies only

to the subset of DUI (high rate of alcohol) offenders who had a minor under

18 years of age in the vehicle when the violation occurred.4

       The more general provision, § 3803(b)(1), was enacted on September

30, 2003, and became effective February 1, 2004.           The more specific

provision, § 3803(b)(5), which eliminates the lenient six-month maximum
____________________________________________


4
  We recognize that § 3803(b)(1) applies also to individuals who violate
section 3802(a)(1) (general impairment) where there was an accident
resulting in bodily injury, serious bodily injury or death of any person or in
damage to a vehicle or other property, as well as individuals who violate
section 3802(e) (minors) or (f) (commercial or school vehicles). However,
those subsections are not at issue here and do not affect our decision.



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J-A35024-14


sentence for an individual convicted of DUI where a minor was an occupant

of the vehicle, was enacted May 8, 2012, and became effective July 9, 2012.

Accordingly, unlike the provisions in Musau, § 3803(b)(5) was enacted

more recently than section 3803(b)(1), indicating the legislature’s intent to

modify the more general terms of § 3803(b)(1), which had been in effect for

more than eight years.     It is apparent that in enacting § 3803(b)(5), the

legislature made a policy decision to impose more severe sanctions on those

who endanger children by operating a vehicle while impaired.

      Accordingly, the trial court did not err in sentencing Appellant to 12

months of probation plus 4 days at a DUI alternative program. The sentence

did not exceed the statutory maximum of 5 years for a first degree

misdemeanor pursuant to section 3803(b)(5).

      In his second issue, Appellant argues that the trial court erred in

denying his suppression motion because the police officers lacked reasonable

suspicion to believe that a violation of the Vehicle Code had occurred to

justify the traffic stop. Appellant’s Brief at 31-40.

      In reviewing Appellant’s challenge to the denial of his suppression

motion, we are mindful:

      Our standard of review of a denial of suppression is whether the
      record supports the trial court's factual findings and whether the
      legal conclusions drawn therefrom are free from error. Our
      scope of review is limited; 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

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J-A35024-14


      only if the court erred in reaching its legal conclusions based
      upon the facts.

Commonwealth v. Reppert, 814 A.2d 1196, 1200 (Pa. Super. 2002)

(citations omitted).

       With regard to a law enforcement officer’s authority to stop a vehicle

for an alleged violation, the Vehicle Code provides:

            Whenever a police officer is engaged in a systematic
            program of checking vehicles or drivers or has reasonable
            suspicion that a violation of this title is occurring or has
            occurred, he may stop a vehicle, upon request or signal, for
            the purpose of checking the vehicle's registration, proof of
            financial responsibility, vehicle identification number or
            engine number or the driver's license, or to secure such
            other information as the officer may reasonably believe to
            be necessary to enforce the provisions of this title.

75 Pa.C.S.A. § 6308(b), amended by 2003 Pa. Laws 24, § 17 (effective Feb.

1, 2004).

      Case law interpreting § 6308(b) relative to whether police officers may

stop a vehicle based upon reasonable suspicion or the higher standard of

probable cause, focuses on the “investigative nature” of the stop.          In

Commonwealth v. Feczko, 10 A.3d 1285, 1291 (Pa. Super. 2010) (en

banc), this Court noted the distinction between “the investigative potential of

a vehicle stop based on a reasonable suspicion of DUI as compared to other

suspected violations of the Motor Vehicle Code.”         Id. at 1289, citing

Commonwealth v. Sands, 887 A.2d 261, 270 (Pa. Super. 2005).           Where a

vehicle stop for suspected DUI may lead to further incriminating evidence

such as an odor of alcohol or slurred speech, a stop for suspected speeding


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J-A35024-14



is unlikely to lead to further evidence relevant to that offense.           Id.

Therefore,

      Mere reasonable suspicion will not justify a vehicle stop when the
      driver's detention cannot serve an investigatory purpose relevant
      to the suspected violation. In such an instance, “it is encumbent
      [sic] upon the officer to articulate specific facts possessed by
      him, at the time of the questioned stop, which would provide
      probable cause to believe that the vehicle or the driver was in
      violation of some provision of the Code.” Commonwealth v.
      Gleason, 785 A.2d. 983, 898 (Pa. 2001) (citation omitted). See
      also Commonwealth v. Chase, 960 A.2d 108, 116 (Pa. 2008)
      (reaffirming Gleason's probable cause standard for non-
      investigative detentions of suspected Vehicle Code violations).


Feczko, 10 A.3d at 1291.

      Here, Officer Martino stopped Appellant’s vehicle after he observed it

completely stopped in the middle of the road, and then, when the officer

approached, the vehicle began to move but swerved multiple times across

the yellow lines and fog line. The officer additionally noticed that Appellant’s

license plate cover was obscured and illegible from a reasonable distance.

Based on the foregoing observations, Officer Martino possessed the requisite

probable cause to support a non-investigative stop of Appellant’s vehicle.

Specifically, based on his observations, the officer possessed probable cause

to believe that violations of 75 Pa.C.S.A. § 3301(b) (driving at less than

normal speed), 75 Pa.C.S.A. § 3714 (careless driving) and 75 Pa.C.S.A. §

1332(b)(3) (obscured license plate) were occurring. Because these are non-

investigable offenses, the officer was required to demonstrate probable

cause to believe that the violations occurred in order to effectuate a lawful

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J-A35024-14


stop of Appellant’s vehicle. Here, Officer Martino possessed probable cause

to believe the aforementioned violations of the Vehicle Code were occurring

and the stop was therefore constitutionally valid, such that we need not

address Appellant’s claim that the officer lacked reasonable suspicion to

believe that he was driving under the influence of alcohol.

      For the foregoing reasons, we affirm the judgment of sentence.

      Judgment of sentence affirmed.

      Judge Bowes joins the Opinion.

      P.J.E. Bender files a Dissenting Opinion.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/18/2015




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