J-A32029-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MARC SUTHERLAND GOOD 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 357 MDA 2017

Appeal from the Judgment of Sentence February 17, 2017

In the Court of Common Pleas of Centre County 

Criminal Division at No(s): CP-14-CR-0001279-2016

BEFORE: OTT, J., DUBOW, J., and STRASSBURGER, J. *

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 12, 2018

Appellant, Marc Sutherland Good, appeals from the Judgment of 

Sentence entered after a stipulated non-jury trial. The trial court convicted 

Appellant of DUI—General Impairment (2nd Offense), DUI—High Rate of 

Alcohol (2nd Offense), Failure to Keep Right, Disregard Traffic Lane, and 

Failure to Use Safety Belt.

1

 After careful review, we affirm.

On June 7, 2016, the Commonwealth filed a Criminal Complaint, 

charging Appellant with seven DUI-related offenses arising from an incident 

alleged to have occurred on May 6, 2016. The charges included the two 

second-degree misdemeanor DUI offenses at issue herein.

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1 75 Pa.C.S. § 3802(a)(1); 75 Pa.C.S. § 3802(b); 75 Pa.C.S. § 3301(a); 75 

Pa.C.S. § 3309(1); and 75 Pa.C.S. § 4581(a)(2)(ii), respectively.
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On October 13, 2016, Appellant filed a Motion to Dismiss/Motion to 

Quash for Improper Grading. Appellant alleged in his Motion that the 

Commonwealth improperly graded his DUI charges as second-degree 

misdemeanors based on an alleged prior DUI conviction in Virginia. See 

Mot. to Dismiss, 10/13/16, at ¶¶ 6, 7. In particular, Appellant argued that 

his “alleged convictions in Virginia do not qualify as ‘substantially similar’ 

offenses under Pennsylvania’s Driving Under the Influence statute.” Id. at ¶ 

7. On November 1, 2016, the court held a hearing, after which it denied 

Appellant’s Motion.

2, 3

On January 12, 2017, the court held a stipulated non-jury trial. At 

trial, Appellant renewed his Motion to Dismiss based upon improper grading, 

arguing that the “pretrial motion court made an error in determining that 

Virginia’s statute was substantially similar to Pennsylvania’s statute.” N.T., 

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2 At the hearing, the Commonwealth represented to the court that it had 

provided to Appellant’s counsel “a printout of the transcript of [Appellant’s] 

driver history from Virginia,” which indicated that a court convicted him on 

August 15, 2014 of driving while intoxicated in violation of Virginia “Section 

18.2-266.” N.T., 11/1/16, at 3, 9. The Commonwealth offered to remit a 

copy of this record to the court for its review. Id. at 9. During this 

colloquy, Appellant’s counsel claimed that he did not receive this record from 

the Commonwealth during discovery, but proceeded to argue the merits of 

his claim that the Virginia statute pursuant to which Appellant had been 

convicted is not substantially similar to the Pennsylvania DUI statute. Id. 

The Commonwealth did not move for the admission of Appellant’s Virginia 

driving record into evidence. 

3 The trial court issued an Order and Opinion explaining its rationale for 

denying Appellant’s Motion on November 22, 2016.
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1/12/17, at 3. At the conclusion of trial, the court convicted Appellant of 

DUI—General Impairment (2nd Offense), DUI—High Rate of Alcohol (2nd

Offense), Failure to Keep Right, Disregard Traffic Lane, and Failure to Use 

Safety Belt. 

On February 17, 2017, the court sentenced Appellant on the DUI—

General Impairment (2nd Offense) conviction to, inter alia, five days’ to six 

months’ imprisonment, the mandatory minimum sentence for a second DUI 

conviction, and suspension of his driver’s license.4

This timely appeal followed. Both Appellant and the trial court 

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

Appellant raises the following two issues on appeal:

1. Did the [t]rial [c]ourt commit an error of law when it 

sentenced Appellant to the mandatory sentence for a second 

offense DUI where the Commonwealth failed to present any 

evidence of a prior Virginia DUI conviction?

2. Did the [t]rial [c]ourt err in finding the Virginia DUI statute 

substantially similar to the Pennsylvania DUI statute in the 

absence of any evidence presented by the Commonwealth?

Appellant’s Brief at 10.

In both issues raised, Appellant claims his DUI sentence is illegal 

because the Commonwealth improperly graded his DUI offenses as second-

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4 Appellant’s conviction of DUI—High Rate of Alcohol (2nd Offense) merged 

with his General Impairment conviction for purposes of sentencing. His 

convictions of Failure to Keep Right, Disregard Traffic Lane, and Failure to 

Use Safety Belt carried no further penalties.
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degree misdemeanors, and sentenced him accordingly. Appellant alleges 

two alternate theories in support of his claim for relief: (1) that the 

Commonwealth failed to meet its burden of proving that Appellant had a 

prior DUI conviction because it did not provide documentary proof of his 

prior conviction, and (2) that even if the Commonwealth proved that 

Appellant had a prior conviction, the statute under which the Virginia court 

convicted Appellant is not “substantially similar” to Pennsylvania’s statute for 

purposes of grading the instant offenses. 

Appellant presents his first issue as a challenge to the sufficiency of 

the Commonwealth’s evidence of his guilt of the crimes charged. However, 

because a prior DUI conviction is not an element of the charged crimes, but 

rather, as discussed infra, a factor to consider for enhancement and 

sentencing purposes, evidentiary sufficiency is not implicated in this issue. 

Instead, Appellant is actually challenging the trial court’s reliance on his

prior DUI conviction for the purposes of enhancement and sentencing when 

the Commonwealth allegedly did not provide him with a copy of his Virginia 

driving record in discovery. Thus, Appellant, in fact, challenges the legality 

of his sentence. See Commonwealth v. Pombo, 26 A.3d 1155, 1157 (Pa. 

Super. 2011) (holding that a challenge to the grading of an offense and the 

imposition of a mandatory minimum sentence implicates the legality of an 

appellant’s sentence); see also Commonwealth v Foster, 17 A.3d 332, 

345 (Pa. 2011) (stating that a challenge to the imposition of a mandatory 
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minimum sentence constitutes a challenge to the legality of a sentence). 

“When we address the legality of a sentence, our standard of review is 

plenary and is limited to determining whether the trial court erred as a 

matter of law.” Pombo, 23 A.3d at 1157 (citation omitted).

Prior to imposing a mandatory minimum sentence, the Commonwealth 

must provide the sentencing court and the defendant a complete record of 

the defendant’s previous convictions. 42 Pa.C.S. § 9714(d).

Appellant first argues, citing Commonwealth v. Perkins, 538 A.2d 

930 (Pa. Super. 1988), that his mandatory minimum sentence is illegal 

because the Commonwealth failed to produce to Appellant in discovery a 

copy of his Virginia driver’s license history evidencing a prior DUI conviction, 

and the court did not admit such a document as evidence at Appellant’s 

sentencing hearing. Appellant’s Brief at 22. 

We are unpersuaded by Appellant’s reliance on Perkins. In that case, 

the Commonwealth’s only evidence of the defendant’s prior conviction was 

the defendant’s probation officer’s statement that the defendant had 

admitted to having been convicted of DUI in New York. Perkins, 538 A.2d 

at 932-33. Importantly, in Perkins, “the Commonwealth did not introduce a 

record of the prior conviction[.]” Id. at 932. Noting that, “[o]ur Supreme 

Court has declared that the trial court is to be furnished with a complete 

record of a defendant’s prior convictions,” the Perkins court remanded for a 

hearing on this issue. Id. at 932-33 (emphasis added).
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In the instant case, in response to Appellant’s allegation of error, the 

trial court observed in its Rule 1925(a) Opinion that, “the Commonwealth did 

not enter the record into evidence.” Trial Ct. Op., 3/24/17, at 2. However, 

the Notes of Testimony reflect that, unlike in Perkins, the Commonwealth 

presented Appellant’s Virginia driving record to the court at the hearing on 

Appellant’s Motion to Dismiss, and the court noted that it had “reviewed the 

[driving] record, found it credible and sufficient to support grading the DUI 

as a second offense.”5 Id. 

Our review of the record indicates that the Commonwealth adequately 

complied with the mandate that it provide the trial court with a “complete 

record of [Appellant’s] prior convictions.” See Perkins, 538 A.2d at 932. 

Moreover, we note that, to the extent that Appellant complains that the 

Commonwealth did not produce his driving record to him in discovery, the 

record reflects that Appellant failed to file a Motion to Compel its production 

or a Motion for Sanctions to penalize the Commonwealth for its oversight. 

Appellant has not claimed that he was ever unaware of the Commonwealth’s 

intent to treat the instant DUI as Appellant’s second for sentencing 

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5 The court did not address the significance, if any, of Appellant’s counsel’s 

claim that the Commonwealth did not produce this record to him in 

discovery. Our review of the transcript reveals that, after learning of the 

oversight in allegedly failing to produce the report, the Commonwealth 

offered to “certainly make sure that we get a copy of that to him.” N.T., 

11/1/16, at 9. There is no evidence in the record, and Appellant does not 

argue, that the Commonwealth did not provide him with a copy of the record 

after the hearing on his Motion.
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purposes. Moreover, his counsel’s strenuous argument at Appellant’s 

Presentence Hearing, and again at his trial, against the “substantial 

similarity” between the Virginia and Pennsylvania DUI statutes belies 

Appellant’s claim that he was unaware of the contents of his Virginia driving 

record. Accordingly, we conclude Appellant is not entitled to relief on his 

first issue. 

In his second issue, Appellant claims that the trial court erred by 

supporting the second offense grading of his charges with its conclusion that 

the VA Code 18.2-266 is substantially similar to 75 Pa.C.S. § 3802. 

Appellant’s Brief at 23. In support of this claim, Appellant baldly asserts 

that, because the Commonwealth failed to specify under which subsection of 

the Virginia statute the Virginia court convicted Appellant, “it was impossible 

for the [instant] sentencing court to engage in a comparison between the 

two statutes to determine if they are substantially similar.” Id. at 23-24. 

Notably, Appellant does not argue that the court erred in its analysis of 

whether the statutes are “substantially similar,” only that the court erred in 

engaging in the comparison of the statutes in the first instance.6

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6

In the context of 75 Pa.C.S. § 3806, when presented with statutes from 

different jurisdictions, the court must conduct an analysis to determine 

whether the statutes are “substantially similar.” See Pombo, 23 A.3d at 

1158-59 (discussing and applying the “substantial similarity” analysis to the 

DUI statutes of Pennsylvania and New York).
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Appellant’s argument is significantly underdeveloped. Appellant has 

advanced one legal theory in support of his claim, but has failed to support 

this theory with citation to any applicable case law. Furthermore, the 

citation to legal authority Appellant has included in his Brief is not binding on 

this Court and is factually and procedurally distinguishable from the instant 

matter.7 Appellant’s failure to develop his argument precludes this Court’s 

meaningful review. See Commonwealth v. Rush, 959 A.2d 945, 950-51 

(Pa. Super. 2008) (finding certain of the appellant’s legality of sentence 

claims waived where the appellant failed to develop his arguments, thus 

precluding meaningful appellate review); see also Commonwealth v. 

Gibbs, 981 A.2d 274, 284 (Pa. Super. 2009) (same). Accordingly, we find 

this argument waived.

Judgment of Sentence affirmed. Jurisdiction relinquished.

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7 Appellant cites Hunt v. Comm. Dep’t of Trans., Bureau of Driver 

Licensing, 750 A.2d 922 (Pa. Cmwlth. 2000). Appellant’s Brief at 23. 

Appellant appears to cite Hunt only for the general proposition that, when 

comparing two statutes, the duty of the trial court is to determine whether 

the effect of the statutory language is substantially similar.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/12/2018