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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                      Appellant                :
                                               :
                                               :
               v.                              :
                                               :
                                               :
    DONNA DRISCOLL                             :   No. 1215 MDA 2017

                  Appeal from the Order Entered July 17, 2017
     In the Court of Common Pleas of Schuylkill County Criminal Division at
                       No(s): CP-54-CR-0001788-2016


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

MEMORANDUM BY SHOGAN, J.:                                FILED APRIL 13, 2018

        The Commonwealth appeals from the trial court’s pretrial order

granting Appellee Donna Driscoll’s pretrial motion and directing that the

offense of driving under the influence (“DUI”),1 which allegedly occurred on

June 15, 2016, be treated as a first offense. We reverse.

        We summarize the pertinent history of this matter as follows.         On

June 15, 2016, Officer Pete Sandor of the Tamaqua Police Department

responded to a report of a motor vehicle accident at 301 Willing Street in

Tamaqua Borough.          Officer Sandor encountered Appellee at the scene and

subsequently arrested her.            Appellee was charged with DUI.     Upon

discovery, it was revealed that Appellee had previously been convicted of

____________________________________________


1    75 Pa.C.S. § 3802.
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DUI, as evidenced in her driving record.            Specifically, Appellee’s previous

conviction arose out of an offense that occurred in Schuylkill County on

April 2, 2006. Subsequently, on February 21, 2007, Appellee pled guilty to

the previous DUI offense and was sentenced to serve a term of incarceration

of three to six months.

       After being charged in the instant matter, Appellee filed omnibus

pretrial motions on March 21, 2017. The trial court held a hearing on May 1,

2017. At the conclusion of the hearing, the trial court directed the parties to

file briefs addressing the issue of whether Appellee’s instant DUI offense

should be considered a first offense or a second offense pursuant to 75

Pa.C.S. § 3806.         Appellee filed her brief on May 31, 2017, and the

Commonwealth filed its brief on June 5, 2017. On July 17, 2017, the trial

court entered its order determining that Appellee’s instant DUI offense

should be treated as a first offense.            The Commonwealth then filed this

timely appeal.2     The trial court did not direct the Commonwealth to file a

____________________________________________


2  Pursuant to Pa.R.A.P. 311(d), in criminal cases the Commonwealth has a
right to appeal interlocutory orders if the Commonwealth certifies that the
orders will terminate or substantially handicap the prosecution.
Commonwealth v. Flamer, 53 A.3d 82, 86 n.2 (Pa. Super. 2012).
Specifically, Rule 311(d) provides as follows:

       In a criminal case, under the circumstances provided by law, the
       Commonwealth may take an appeal as of right from an order
       that does not end the entire case where the Commonwealth
       certifies in the notice of appeal that the order will terminate or
       substantially handicap the prosecution.
(Footnote Continued Next Page)


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statement pursuant to Pa.R.A.P. 1925(b).        On August 10, 2017, the trial

court directed that the certified record be forwarded to this Court and that

the record include the trial court’s order of July 17, 2017, in lieu of a trial

court opinion, thereby satisfying Pa.R.A.P. 1925(a).

      The Commonwealth now presents the following issue for our review:

      1. Did the lower court err in determining that 75 Pa.C.S.A.
      § 3806 is vague and must be subject to the rule of lenity,[3]
      without addressing the rules of statutory construction, and thus
      leniently interpreting § 3806 to define the 10–year lookback
      period from offense date to offense date instead of conviction to
      offense date?
(Footnote Continued) _______________________

Pa.R.A.P. 311(d).

   Here, the record reflects that the Commonwealth stated in its notice of
appeal that “Attached hereto is the Commonwealth’s certification pursuant
to [Pa.R.A.P.] 311(d)”. Notice of Appeal, 8/3/17, at 1. However, review of
the certified record reflects that the Commonwealth failed to attach the
certification to the notice of appeal. Consequently, on August 22, 2017, this
Court filed an order directing the Commonwealth to show cause why the
appeal should not be quashed as taken from an unappealable order. Order,
8/22/17, at 1. On August 30, 2017, the Commonwealth filed its response to
the rule to show cause. Therein, the Commonwealth indicated that the trial
court’s order, which held the instant crime should be considered to be
Appellee’s first DUI, affected the grading of the instant offense because it
quashed the Commonwealth’s first-degree misdemeanor charge and limited
prosecution to the charge of DUI as an ungraded misdemeanor.
Commonwealth’s Response, 8/30/17, at 1-2. The Commonwealth certified
that the determination will substantially handicap the prosecution of the
case. Commonwealth’s Response, 8/30/17, at 2. Therefore, pursuant to
Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal from the trial
court’s interlocutory order, even though the trial court’s order did not
terminate the prosecution.

3 See Commonwealth v. Jarowecki, 985 A.2d 955, 963 (Pa. 2009) (“‘rule
of lenity’- the mandate that ambiguous penal statutes be interpreted in
favor of the criminal defendant”) (emphasis added).



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Commonwealth’s Brief at 4.

      The Commonwealth argues that the trial court erred in deciding that

Appellee’s instant DUI charge should be considered a first offense.

Commonwealth’s Brief at 7-15.       Specifically, the Commonwealth contends

that 75 Pa.C.S. § 3806 is not vague with regard to calculating the ten-year

look-back period and that the trial court erred in applying the rule of lenity.

      Our review of this case focuses upon the trial court’s interpretation of

a statute and its application of proper legal principles. These are questions

of law for which our standard of review is de novo and our scope of review is

plenary. Commonwealth v. Lynn, 114 A.3d 796, 817-818 (Pa. 2015). In

addition, we are mindful of the following:

             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
      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.

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      § 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. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015).

      In addition, we observe that “[t]he title and preamble of a statute may

be considered in the construction thereof.” 1 Pa.C.S. § 1924. “The headings

prefixed to titles, parts, articles, chapters, sections and other divisions of a

statute shall not be considered to control but may be used to aid in the

construction thereof.” Id. The title of a statute “is in no sense conclusive,

particularly when there is no ambiguity in the body of the statute or

ordinance itself.”   Commonwealth v. Reefer, 816 A.2d 1136, 1143 n.10

(Pa. Super. 2003) (quoting Commonwealth v. Campbell, 758 A.2d 1231,

1237 (Pa. Super. 2000)). “[T]he title cannot control the plain words of the

statute and…even in the case of ambiguity it may be considered only to

resolve the uncertainty.”   Commonwealth v. Magwood, 469 A.2d 115,

119 (Pa. 1983) (internal quotation marks omitted).




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     Furthermore, the rule of lenity states, “[it] is axiomatic that . . . penal

statutes must be strictly construed, with ambiguities being resolved in favor

of the accused.”   Commonwealth v. Rivera, 10 A.3d 1276, 1284 (Pa.

Super. 2010). However, as we noted earlier, the rule of lenity is applicable

only when the penal statute has been determined to be ambiguous.

Jarowecki, 985 A.2d at 963.

     The statutory provision at issue here provides as follows:

     § 3806. Prior offenses.

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

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

           (2) an offense under former section 3731;

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

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

     (b) Timing.—

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


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

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

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

      (3) If the defendant is sentenced for two or more offenses in
      the same day, the offenses shall be considered prior offenses
      within the meaning of this subsection.

75 Pa.C.S. § 3806.

      In reviewing the application of the statute, the trial court offered the

following analysis:

            On May 25, 2016, the Pennsylvania Legislature amended
      75 Pa.C.S. § 3806. . . . The amendment completely changed
      subsection (b) and removed the former subsection (b)’s
      reference to a conviction, replacing it with reference to the date
      of the offense.     Furthermore, the amendment completely
      removed reference to section 3802, the offense of driving under
      the influence, from subsection (b), as well as former section
      3731, which had been repealed some time ago. The references
      to sections 3803 and 3805, relating to grading and penalties of
      section 3802 offenses respectively, remained intact.

            We have researched the legislative history of this
      amendment and have found not one whiff of the legislature’s
      intent in making the revisions to subsection (b). This change
      appears to have been made sometime between 2015 and when
      the bill was finally passed in 2016. None of the legislative
      remarks refers to this change. The primary purpose of the 2016
      amendments was to overhaul the occupational limited license
      and created the new ignition interlock license.

            The Commonwealth argues that 3806(a) clearly states that
      an offense under section 3802 is to be calculated from the prior
      conviction, and the date of the conviction on that prior offense
      was [February 21, 2007], making this a second offense.
      [Appellee] takes the position that under section 3806(b), which

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      controls as an exception to 3806(a), the date of the offense,
      [April 2, 2006], was more than ten years from the date of the
      second offense on June 15, 2016. [Appellee] argues in her brief
      that the amendment was probably passed to avoid the timing
      issues that arise when a defendant seeks continuances in order
      to avoid a second offense being calculated within ten years of a
      prior conviction. No case law or legislative history is cited to
      support that proposition.

            Whatever the reason, the Pennsylvania Legislature has
      written a law that is unclear and that cannot be deciphered,
      regardless of whether the statutory language is given its plain
      meaning or is read to give effect to all of its provisions. We
      agree with [Appellee] that section 3806 must be strictly
      construed pursuant to 1 Pa.C.S. § 1928(b)(1) and that we must
      apply the rule of lenity. . . .

             We have reviewed the statute and conclude that the
      apparent inconsistency in that language of the statute appears
      impenetrable. Where the law is not clear, so that a citizen may
      know the terms of any such law, the law must be interpreted to
      favor the citizen. We, therefore, hold that [Appellee’s] position
      that the offense is a first offense is correct, when timed by the
      date of the offense and not by the date of conviction. The
      citizens of the Commonwealth should not find themselves
      oppressed by the failure of the Pennsylvania Legislature to enact
      clearly written legislation.

Trial Court Order, 7/17/17, at 1-4. We are constrained to disagree.

      Our review of the statute reflects that the current version of Section

3806 was enacted by the General Assembly on May 25, 2016. Subsection

(a) sets forth the following general rule defining the term “prior offense” as

follows: “Except as set forth in subsection (b), the term ‘prior offense’ as

used in this chapter shall mean any conviction for which judgment of

sentence has been imposed . . .”          75 Pa.C.S. § 3806(a) (emphasis

added).   Thus, the plain language of the statute instructs that a “prior


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offense” is a judgment of sentence imposed on a conviction.        Hence, the

entry of a judgment of sentence on a conviction is the triggering mechanism

for a crime to amount to a “prior offense.” Consequently, there is no “prior

offense” without the entry of a judgment of sentence on a conviction.

Subsection (a) sets forth the convictions for which the term “prior offense” is

applicable. In summary, under subsection (a), a “prior offense” pertains to

violations of the current or former DUI statutes, whether a violation of

Pennsylvania law or substantially similar laws of another state law.

Therefore, under the general rule set forth in subsection (a), any prior DUI

conviction for which a judgment of sentence has been imposed during an

offender’s entire lifetime qualifies as a “prior offense.”

      However, as stated in subsection (a), subsection (b) sets forth

exceptions to the term “prior offense” as defined in subsection (a).

Subsection (b), which is titled “Timing,” explains that for the purposes of

grading (75 Pa.C.S. § 3803) and penalties (75 Pa.C.S. § 3804) the “prior

offense,” i.e., the judgment of sentence on a conviction, must have occurred

within a delineated timeframe or look-back period. Specifically, the statute

instructs that for purposes of grading and penalties, a “prior offense” is not

“any conviction for which judgment of sentence has been imposed,” 75

Pa.C.S. § 3806(a) (emphasis added), but is limited to a conviction that

occurred within ten years prior to the date of the offense for which the

defendant is currently being sentenced.        75 Pa.C.S. 3806(b)(1)(i).   This


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language of subsection (b) does nothing more than specify the timeframe

and look-back period to be used in calculating the number of prior DUI

offenses. Subsection (b) contains no language that changes the subsection

(a) definition of “prior offense” from being the entry of the judgment of

sentence on a conviction to the actual date of the prohibited conduct.

Accordingly, we are constrained to conclude that the trial court erred in

determining that the statute is ambiguous.    Consequently, the trial court

also erred in applying the rule of lenity to this unambiguous statute.

Therefore, we reverse the order of the trial court and remand this case for

further proceedings.

      Order reversed. Case remanded for further proceedings. Jurisdiction

relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/13/2018




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