J-S25035-20


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                       Appellee                :
                                               :
                v.                             :
                                               :
    DACK ANTHONY LITTLE                        :
                                               :
                       Appellant               :      No. 1856 MDA 2019

         Appeal from the Judgment of Sentence Entered June 14, 2019
               In the Court of Common Pleas of Juniata County
             Criminal Division at No(s): CP-34-CR-0000224-2017


BEFORE: LAZARUS, J., DUBOW, J., and KING, J.

MEMORANDUM BY KING, J.:                                   FILED JULY 27, 2020

        Appellant, Dack Anthony Little, appeals from the judgment of sentence

entered in the Juniata County Court of Common Pleas, following his bench trial

convictions for driving under the influence of alcohol (“DUI”)—general

impairment1 and summary traffic offenses. We affirm the convictions, vacate

the judgment of sentence, and remand for resentencing.

        The relevant facts and procedural history of this appeal are as follows.

At approximately 9:49 p.m. on August 31, 2017, Pennsylvania State Police

Trooper Christopher Wilson was on patrol when he observed a Ford Explorer

ignore a stop sign. Trooper Wilson followed the vehicle, activated the lights

on his patrol car, and conducted a traffic stop.


____________________________________________


1   75 Pa.C.S.A. § 3802(a)(1).
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      Trooper Wilson approached the driver’s side of the vehicle. Appellant

occupied the driver’s seat, and there were no passengers. Trooper Wilson

informed Appellant of the reason for the stop, and he asked Appellant for his

driver’s license, registration, and proof of insurance. Appellant apologized for

not stopping at the stop sign, and Trooper Wilson noticed a strong odor of

alcohol coming from inside the vehicle. Further, Appellant’s eyes appeared

bloodshot and his speech was slurred.

      Trooper Wilson asked Appellant to exit the vehicle, and Appellant

complied.   Upon exiting, Appellant lost his footing and stumbled.     Trooper

Wilson asked Appellant if he would perform a standard field sobriety test.

Trooper Wilson proceeded to conduct the horizontal gaze nystagmus test.

Trooper Wilson then asked Appellant to perform the “walk and turn” test.

Appellant took a step, stumbled to the right, and requested a breath test

instead. At that point, Trooper Wilson took Appellant into custody for DUI and

transported him to a local hospital.

      On December 4, 2017, the Commonwealth filed a criminal information

charging Appellant with DUI—general impairment and related traffic offenses.

Appellant proceeded to a bench trial, and the court found Appellant guilty of

all charges. On June 14, 2019, the court conducted Appellant’s sentencing

hearing and determined the current DUI conviction was Appellant’s “second




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offense for sentencing and a refusal situation.”2 (Order, entered 6/14/19, at

1). Consequently, the court sentenced Appellant to a mandatory term of five

(5) days to six (6) months’ imprisonment, pursuant to 75 Pa.C.S.A. §

3804(a)(2). Appellant timely filed post-sentence motions on June 21, 2019,

which the court denied by order dated October 21, 2019.

       Appellant timely filed a notice of appeal on November 14, 2019. On

November 18, 2019, the court ordered Appellant to file a Pa.R.A.P. 1925(b)

concise statement of errors complained of on appeal. Appellant timely filed

his Rule 1925(b) statement on November 25, 2019.

       Appellant now raises two issues for our review:

          Was the evidence presented at trial legally insufficient to
          support the guilty verdict with respect to the charge under
          75 Pa.C.S.A. § 3802(a)(1) as the Commonwealth’s evidence
          failed to establish beyond a reasonable doubt that
          [Appellant] had imbibed a sufficient amount of alcohol to
          render him incapable of safely operating the movement of
          his vehicle?

          Did the sentencing court err in denying [Appellant’s] post-
          sentence motion which sought to treat his DUI offense as a
          first offense for sentencing purposes as 75 Pa.C.S.A. § 3806
          is unconstitutional pursuant to Apprendi v. New Jersey,
          [530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435] (2000),
          and Alleyne v. United States, [570 U.S. 99, 133 S.Ct.
          2151, 186 L.Ed.2d 314] (2013), and is not severable from
          75 Pa.C.S.A. § 3804 and 75 Pa.C.S.A. § 3803?

(Appellant’s Brief at 4).


____________________________________________


2  “[Appellant’s] first DUI offense was in 2010 and he received Accelerated
Rehabilitation Disposition [(“ARD”)] for that offense.” (Trial Court Opinion,
filed January 7, 2020, at 1).

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      In his first issue, Appellant argues the Commonwealth did not

demonstrate that he “struggled with his ambulatory or other motor skills

beyond an initial struggle to get out of the vehicle.” (Appellant’s Brief at 10).

Appellant claims he had no trouble interacting with the trooper, he was not

belligerent, and he easily retrieved his vehicle’s paperwork. Appellant asserts

he requested a breath test to demonstrate that he was not intoxicated, but

the trooper did not perform the test. Other than a single instance of failing to

obey a stop sign, Appellant insists the trooper did not observe circumstances

demonstrating that Appellant was incapable of safe driving. Based upon the

foregoing, Appellant concludes the Commonwealth presented insufficient

evidence to support his DUI conviction. We disagree.

      With respect to Appellant’s sufficiency claim:

         The standard we apply in reviewing the sufficiency of the
         evidence is whether viewing all the evidence admitted at
         trial in the light most favorable to the verdict winner, there
         is sufficient evidence to enable the fact-finder to find every
         element of the crime beyond a reasonable doubt. In
         applying [the above] test, we may not weigh the evidence
         and substitute our judgment for the fact-finder. In addition,
         we note that the facts and circumstances established by the
         Commonwealth need not preclude every possibility of
         innocence. Any doubts regarding a defendant’s guilt may
         be resolved by the fact-finder unless the evidence is so weak
         and inconclusive that as a matter of law no probability of
         fact may be drawn from the combined circumstances. The
         Commonwealth may sustain its burden of proving every
         element of the crime beyond a reasonable doubt by means
         of wholly circumstantial evidence. Moreover, in applying the
         above test, the entire record must be evaluated and all
         evidence actually received must be considered. Finally, the
         [finder] of fact while passing upon the credibility of


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        witnesses and the weight of the evidence produced, is free
        to believe all, part or none of the evidence.

Commonwealth v. Jones, 874 A.2d 108, 120-21 (Pa.Super. 2005) (quoting

Commonwealth v. Bullick, 830 A.2d 998, 1000 (Pa.Super. 2003)).

     The Motor Vehicle Code defines the offense of DUI as follows:

        § 3802.   Driving under influence of alcohol or
            controlled substance

              (a) General impairment.—

                 (1) 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 individual is rendered incapable of safely driving,
              operating or being in actual physical control of the
              movement of the vehicle.

75 Pa.C.S.A. § 3802(a)(1).

     “Subsection (a)(1) is a general provision and provides no specific

restraint upon the Commonwealth in the manner in which it may prove that

an accused operated a vehicle under the influence of alcohol to a degree which

rendered him incapable of safe driving.” Commonwealth v. Loeper, 541

Pa. 393, 402-03, 663 A.2d 669, 673-74 (1995).

        The types of evidence that the Commonwealth may proffer
        in a subsection 3802(a)(1) prosecution include but are not
        limited to, the following: the offender’s actions and
        behavior, including manner of driving and ability to pass
        field sobriety tests; demeanor, including toward the
        investigating officer; physical appearance, particularly
        bloodshot eyes and other physical signs of intoxication; odor
        of alcohol, and slurred speech. Blood alcohol level may be
        added to this list, although it is not necessary….

                                 *    *    *

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         Regardless of the type of evidence that the Commonwealth
         proffers to support its case, the focus of subsection
         3802(a)(1) remains on the inability of the individual to drive
         safely due to consumption of alcohol—not on a particular
         blood alcohol level.

Commonwealth v. Segida, 604 Pa. 103, 115-16, 985 A.2d 871, 879 (2009).

      Instantly, Trooper Wilson conducted a traffic stop after watching

Appellant ignore a stop sign. Upon speaking with Appellant, Trooper Wilson

immediately detected a strong odor of alcohol. Trooper Wilson also observed

Appellant’s bloodshot eyes and slurred speech. When Trooper Wilson asked

Appellant to exit the vehicle, Appellant was unsteady on his feet. Ultimately,

Appellant admitted to drinking “two beers, three beers, give or take” earlier

that day. (N.T. Trial, 2/5/19, at 46).

      Here, the trial testimony established the indicia of intoxication necessary

for the factfinder to conclude that Appellant was unable to drive safely. See

Segida, supra; 75 Pa.C.S.A. § 3802(a)(1). Viewing this evidence in the light

most favorable to the Commonwealth as the verdict winner, sufficient

evidence supported Appellant’s DUI conviction.              See Jones, supra.

Accordingly, Appellant is not entitled to relief on his first claim.

      In his second issue, Appellant contends the court found that his

acceptance of ARD in 2010 was a “prior offense” for purposes of imposing a

mandatory minimum DUI sentence.              Appellant complains the relevant

statutory scheme is unconstitutional, because it requires a court to impose a

mandatory sentence based upon facts that are not submitted at trial and

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proven beyond a reasonable doubt. Additionally, Appellant maintains the ARD

program and its admission process lack the procedural safeguards of a

“conviction” following trial, and his prior ARD acceptance should not constitute

a “prior offense” to trigger the imposition of a sentence under Section 3804.

Appellant concludes his sentence is illegal. In light of this Court’s recent case

law, we agree.

      The relevant standard and scope of review are as follows:

         [T]he determination as to whether the trial court imposed
         an illegal sentence is a question of law; our standard of
         review in cases dealing with questions of law is plenary.
         This case will also necessarily call upon us to engage in
         statutory construction, which similarly presents a pure
         question of law and also implicates the legality of [the]
         sentence. Thus, our standard of review is de novo and our
         scope of review is plenary.

Commonwealth v. Hunt, 220 A.3d 582, 585 (Pa.Super 2019) (internal

citations and quotation marks omitted).

      Section 3804 of the Motor Vehicle Code provides the following

mandatory sentencing provisions:

         § 3804. Penalties

            (a) General impairment.—Except as set forth in
         subsection (b) or (c), an individual who violates section
         3802(a) (relating to driving under influence of alcohol or
         controlled substance) shall be sentenced as follows:

                                  *    *    *

                  (2)   For a second offense, to:

                        (i)    undergo imprisonment for not less
            than five days;

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75 Pa.C.S.A. § 3804(a)(2)(i).

      Additionally, Section 3806 defines the term “prior offense” 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)

75 Pa.C.S. § 3806(a)(1).

      Recently, this Court addressed the constitutionality of Section 3806 in

Commonwealth v. Chichkin, __ A.3d __, 2020 PA Super 121 (filed May 20,

2020). There, two appellants received Section 3804 mandatory sentences for

DUI—general impairment, because both appellants had accepted ARD in

conjunction with a prior DUI offense. On appeal, the appellants argued the

relevant statutory scheme was unconstitutional, because it did not provide the

procedural protections mandated by Alleyne for the factual determination

triggering the mandatory sentence. See Chichkin, supra at *2.

      This Court determined that the defendants’ “prior acceptances of ARD

do not constitute convictions cloaked in all the constitutional safeguards, [and]

are a ‘fact’ that, pursuant to Alleyne, Apprendi, and their progeny, must be

presented to the fact finder and determined beyond a reasonable doubt before


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a trial court may impose a mandatory minimum sentence under Section

3804.” Id. at *8 (internal quotation marks and footnote omitted). The Court

also noted:

         Due process considerations protect those accused of
         committing a crime from conviction except upon proof
         beyond a reasonable doubt. Under the statutory scheme at
         issue here, [the a]ppellants’ prior acceptances of ARD are
         treated as prior convictions of DUI, absent the constitutional
         protections of a trial or guilty plea—most significantly, a
         finding or admission of guilt beyond a reasonable doubt.
         Accordingly, if the Commonwealth seeks to enhance a
         defendant’s DUI sentence based upon that defendant’s prior
         acceptance of ARD, it must prove, beyond a reasonable
         doubt, that the defendant actually committed the prior DUI
         offense. Any lesser standard would violate due process
         concerns.

         Therefore, we conclude the particular provision of 75
         Pa.C.S. § 3806(a), which defines a prior acceptance of ARD
         in a DUI case as a “prior offense” for DUI sentencing
         enhancement purposes, offends the Due Process Clause and
         is therefore unconstitutional. We thus further conclude [the
         a]ppellants’ constitutional rights were violated when the
         trial court increased their sentences based solely upon their
         prior acceptances of ARD, absent proof beyond a reasonable
         doubt that [the a]ppellants committed the prior offenses.

Chichkin, supra at *10 (internal citation, quotation marks, and footnote

omitted).

      Instantly, the court imposed a Section 3804 mandatory sentence due to

Appellant’s acceptance of ARD for a prior DUI offense.        (See Trial Court

Opinion at 1). In light of the relevant case law, the court violated Appellant’s

constitutional rights when it increased his sentence based solely upon his prior

acceptance of ARD, absent proof beyond a reasonable doubt that Appellant


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actually committed the prior offense. See Chichkin, supra. Accordingly, we

are constrained to vacate Appellant’s DUI sentence and remand this case for

resentencing consistent with the mandates of Chichkin.

      Convictions affirmed; judgment of sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 07/27/2020




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