J-S14024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

ANDREW MARK SABOL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 793 MDA 2023

Appeal from the Judgment of Sentence Entered May 3, 2023

In the Court of Common Pleas of Luzerne County 

Criminal Division at No(s): CP-40-CR-0000686-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: JULY 2, 2024

Andrew Mark Sabol appeals from the judgment of sentence entered in 

the Luzerne County Court of Common Pleas on May 3, 2023, following his 

convictions for two counts of driving under the influence (“DUI”) and a 

summary offense. We affirm. 

On January 14, 2022, Sabol was charged by criminal information with 

DUI–general impairment, DUI–highest rate, and the summary offense of 

accidents involving damage to attended vehicle/property for an incident that 

occurred on December 15, 2021. 

Sabol filed omnibus pretrial motions, including a petition for habeas 

corpus based on insufficient evidence, and motions to suppress evidence. The 

trial court subsequently granted the Commonwealth’s motion to amend the 

information to change the charge for accidents involving damage to attended 
J-S14024-24

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vehicle/property to accidents involving damage to unattended 

vehicle/property. 

On July 11, 2022, the trial court held a hearing on Sabol’s omnibus 

pretrial motions. After taking the matter under advisement, and considering 

briefs submitted by both parties, the court denied suppression. On March 16, 

2023, the matter proceeded to trial.

The trial court summarized the factual and procedural history as follows: 

Pertinent to the current appeal, the Commonwealth introduced 

evidence that during the early morning hours of December 15, 

2021, while in his home near the intersection of Huntsville Road 

and Main Street in Dallas Borough, Joseph Hand heard a crash and 

then a scraping noise that sounded like a vehicle trying to move. 

When he went outside to investigate, Hand observed a damaged 

utility pole, debris and fluid on the road, and the taillights of a 

vehicle, which was making a scraping sound as it drove west on 

Huntsville Road. Shortly thereafter, Officer Jason Woodard, who 

was on duty monitoring traffic at a nearby five-way intersection, 

saw a red pickup truck with a low-hanging headlight travel 

through the intersection and continue west along Huntsville 

[R]oad. When [] Hand reported the crash, Officer William Norris 

responded and observed the debris (including pieces suggesting 

that the vehicle involved was red) and a trail of fluids leading away 

from the scene along Huntsville Road. When Officer Norris learned 

that Officer Woodard had observed a red pickup with front end 

damage traveling west along Huntsville Road, he went to area of 

the five-way intersection and observed a trail of fluid. As Officer 

Norris proceeded along Huntsville Road he observed fluid and 

more debris. The trail of fluid eventually led into the driveway of 

1356 Huntsville Road, at the top of which Officer Norris observed 

a red pickup truck parked facing a garage. 

A dusk-to-dawn light was on, but no other lights were lit in 

the garage or the adjacent house. When Officer Norris walked 

through the yard to the top of the driveway to investigate, he was 

startled to see [Sabol] sitting near the front passenger side of the 

truck with his back to the garage. Officer Norris asked [Sabol] if 

he was okay, and [Sabol] responded that he had hit his head on 
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the windshield, but he declined medical attention. Officer Norris 

did not see anyone else near the truck. When conversing with 

[Sabol], Officer Norris observed that he smelled of alcohol, had

slurred speech, was unsteady, and had glassy eyes. Officer Norris 

also observed that the truck had fresh front[-]end damage and 

was leaking fluid, and it was determined that only the driver’s side 

airbag had deployed. Based on these observations, Officer Norris 

arrested [Sabol] on suspicion of driving under the influence. A 

breath test was administered at 3:12 a.m., showing a BAC of .241. 

At the close of the Commonwealth’s case, [Sabol] moved 

for judgment of acquittal, arguing with regard to all three Counts 

that the Commonwealth had failed to show that [Sabol] was 

driving. Following brief discussion, the [c]ourt denied the motion. 

Before the parties gave their closing arguments, they were 

provided with a written copy of the proposed jury instruction that 

would be read to the jury by the [c]ourt, regarding Count 2, and 

a copy of the proposed verdict slip for that charge. The parties 

agreed that both the instruction and the verdict slip were 

satisfactory to them.

Following closing arguments, the [c]ourt instructed the jury. 

When the instructions concluded, the parties indicated to the 

[c]ourt that they had nothing additional to offer, and the jury

began its deliberations. The jury subsequently found [Sabol] guilty 

of Count 2, and the [c]ourt determined that [Sabol] was guilty of 

Counts 1 and 3.

On March 23, 2023, the Commonwealth filed a motion to 

amend the information in order to comply with docketing 

procedures used by the Luzerne County Clerk of Court, whereby

asterisks are used to differentiate between 1st, 2nd, 3rd, and 4

th or 

subsequent offenses. Although [Sabol] had not objected to the 

March 15, 2023 amendment of the information to reflect that both 

Counts 1 and 2 represented 2nd offenses in light of [Sabol]’s prior 

DUI, he filed an answer to the Commonwealth’s March 23rd 

motion, denying that he had a prior DUI conviction and denying 

that “this [c]ourt found [Sabol] guilty of second offense DUI 

because the Commonwealth failed to establish a record to support 

that finding.” Additionally, despite agreeing to the proposed 

verdict slip and jury instruction, which placed the BAC information 

in the instruction but not on the verdict slip, [Sabol] denied that 

the jury found him guilty of DUI, highest rate because “the verdict 

slip did not reference BAC, a DUI tier, or a count on the 
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information.” [Sabol] further averred that “due to the form of the 

verdict slip the jury’s verdict can only result in a conviction of DUI, 

Incapable of Safe Driving, 75 Pa.C.S. § 3802(a)(1). Specifically, 

the jury did not find beyond a reasonable doubt that [Sabol]’s BAC 

was .16% or higher or even above .10%.”

The Commonwealth’s March 23rd motion and [Sabol]’s

answer thereto were addressed on May 3, 2023, when the parties 

convened for [Sabol]’s sentencing hearing. The Commonwealth 

reiterated its request to change the single asterisks to double 

asterisks. [Sabol] indicated that he was “not fighting over 

asterisks.” Thus, the [c]ourt ordered the information to be 

amended to change the single asterisks at Counts 1 and 2 to 

double asterisks. 

Turning to [Sabol]’s sentencing, the [c]ourt entertained 

argument from the parties, including [Sabol]’s assertion that his 

prior DUI, which resulted in the ARD, should not be considered a 

conviction for sentencing purposes under Commonwealth v. 

Chichkin, 232 A.3d 959 (Pa. Super. 2020). Thereafter, with the 

benefit of a Pre-Sentence Investigation [Report] (PSI) that 

confirmed the prior DUI/ARD, the [c]ourt sentenced [Sabol] at 

Count 2 to 18 months in the Restrictive Probation Program, with 

the first 6 months under house arrest with electronic monitoring, 

plus a $ 1,500.00 fine; and a $ 300.00 fine plus costs at Count 3.

[Count 1 merged with Count 2 for sentencing purposes.]

Trial Court Opinion, 9/1/23, at 2-5 (some citations omitted). This timely 

appeal followed. 

Sabol raises the following issues on appeal: 

A. Did the trial court err in denying the motion to suppress the 

fruit of the warrantless search of a residential property? 

B. Did the trial court err in denying the motion for judgment of 

acquittal? 

C. Did the trial court err in denying the motion to suppress the 

fruit of the illegal arrest? 

D. Should Sabol be sentenced as a first time DUI offender? 
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Appellant’s Brief, at 5. 

In his first and third issues, Sabol challenges the trial court’s denial of 

his motions to suppress.

Our standard of review in addressing a challenge to a trial 

court’s denial of a suppression motion is limited to determining 

whether the factual findings are supported by the record and 

whether the legal conclusion drawn from those facts are correct. 

Since the prosecution prevailed in the suppression court, 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 factual findings of the trial court, we are bound by those facts 

and may reverse only if the legal conclusions drawn therefrom are 

in error.

Commonwealth v. Russell, 938 A.2d 1082, 1090 (Pa. Super. 2007) (citation 

omitted).

In denying suppression, the trial court concluded as follows: 

13. Officer Norris had probable cause to believe that crimes had 

been committed including Accidents Involving Damage to 

Unattended Vehicle or Property, 75 Pa.C.S.A. § 3745(a)[,] which 

he was investigating.

14. Officer Norris, upon observing the fluid trail leading to 1356 

Huntsville Road, was at a lawful vantage point when he observed 

the red pick-up truck.

15. Officer Norris did not engage in any unlawful search or seizure 

by simply walking onto the property at 1356 Huntsville Road, as 

such area was an area where visitors or members of the public 

could be expected to go and there is no reasonable expectation of 

privacy in said driveway/walkway area.

16. The observations of the vehicle and [Sabol] at said time were 

observed in plain view by Officer Norris where he was at a lawful 

vantage point and their incriminating character was immediately 

apparent.
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17. The arrest of [Sabol] was lawful as was the BAC testing of 

[Sabol].

18. All evidence and observations made by Officer Norris at said 

time are admissible at trial.

“Findings of Fact and Conclusions of Law,” 12/29/22, at 2.

Preliminarily, we note the focus of Sabol’s argument is that the trial 

court erred in its curtilage determination. See Appellant’s Brief, at 16-17 

(arguing the court failed to analyze the factors outlined in United States v. 

Dunn, 480 U.S. 294, 301 (1987), for determining if an area is curtilage, and 

that application of those factors in this case supports the conclusion that the 

officer entered protected curtilage). In so arguing, it appears Sabol has 

misinterpreted the Commonwealth’s argument and the trial court’s findings. 

Notably, the Commonwealth has never argued that the area at issue 

was not curtilage. Rather, the Commonwealth’s position was that Officer 

Norris had sufficient probable cause to enter the curtilage. As such, the 

determination of curtilage was uncontested, and there was no need for an 

assessment of whether or not the area constituted curtilage. 

“Absent probable cause and exigent circumstances, warrantless 

searches and seizures in a private home violate both the Fourth Amendment 

and Article 1 § 8 of the Pennsylvania Constitution.” Commonwealth v. 

Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009) (citation and footnote omitted). 

“These constitutional protections have been extended to the curtilage of a 

person’s home.” Id. (citation omitted). “Curtilage has been defined in [the]
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constitutional context ... by reference to the factors that determine whether 

an individual reasonably may expect that an area immediately adjacent to the 

home will remain private.” Id.(citation omitted).

Pennsylvania courts have recognized, however, the following exception:

First, police officers have the authority to enter the curtilage for 

the purpose of conducting an investigation. Second, entry onto 

the curtilage generally is not a Fourth Amendment violation when 

the curtilage is used by the public. 

Commonwealth v. Eichler, 133 A.3d 775, 784 (Pa. Super. 2016) (citations 

omitted). 

After a careful review of the certified record, including Sabol’s pre-trial 

motion to suppress, the transcript of the suppression hearing, as well as the 

trial court’s findings of fact and conclusions of law, the briefs, and relevant 

case law, we are confident that the suppression court did not err in denying 

Sabol’s motion to suppress. In a comprehensive opinion, the suppression court 

ably and methodically reviewed all the evidence presented in justifying its

denial of suppression. See Trial Court Opinion, 9/1/23, at 6-10.

We find the trial court did not err in denying Sabol’s motion to suppress 

based on the officer’s entrance onto his property. The court’s findings are 

supported by the record and the court clearly credited the officers’ testimony. 

Accordingly, we affirm based on the trial court’s opinion. See id. 

In his second issue, Sabol contends the trial court erred in denying his 

motion for judgment of acquittal. Specifically, Sabol contends there was 

insufficient evidence to prove that he drove a vehicle. 
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Our standard of review for a challenge to the sufficiency of the evidence 

is to determine whether, when viewed in a light most favorable to the verdict 

winner, the evidence at trial and all reasonable inferences therefrom are 

sufficient for the trier of fact to find that each element of the crimes charged 

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836 

A.2d 150, 152 (Pa. Super. 2003). The Commonwealth may meet this burden 

of proving every element of the crime by utilizing only circumstantial evidence. 

See Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007).

“[T]he facts and circumstances established by the Commonwealth need 

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt 

raised as to the accused’s guilt is to be resolved by the fact-finder, so long as 

the evidence presented is utterly incapable of supporting the necessary 

inferences. See id. This Court does not independently assess credibility or 

otherwise assign weight to evidence on appeal. See Commonwealth v. 

Kinney, 863 A.2d 581, 584 (Pa. Super. 2004).

Sabol challenges the sufficiency of all his convictions, all of which contain 

driving as an element of the crime. See 75 Pa.C.S.A. § 3745 (pertaining to 

the “driver of any vehicle”); 75 Pa.C.S.A. § 3802 (a), (c) (“An individual may 

not drive, operate or be in actual physical control of the movement of a 

vehicle.”). 

Sabol concedes the record establishes he was under the influence of 

alcohol. However, he contends the evidence was insufficient to establish he 
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was driving, operating, or in actual physical control of the movement of a 

vehicle.

We recognize the only evidence Sabol had driven a vehicle is found in 

the police officers’ testimony. It is clear from the record that Officer Woodard

and Officer Norris did not witness Sabol driving a vehicle. 

However, Sabol has failed to establish the officers’ testimony was 

inherently contradictory. The trial court and jury, sitting as fact-finders, were 

entitled to find the officers credibly testified that Sabol’s vehicle hit a parked 

vehicle; Officer Woodard observed a red pickup truck with a low-hanging 

headlight traveling nearby; Officer Norris followed a fluid trail from the scene 

of the accident to Sabol’s residence where his vehicle was parked; Sabol’s 

vehicle, a red pickup truck, showed damage consistent with the accident that 

had just occurred; and Sabol was under the influence when the officers 

encountered him at his residence leaning on his vehicle; no one else was 

present or near the vehicle. Based on the record before us, we cannot conclude 

the officers’ testimony was so unreliable or as a matter of law that it could not 

support circumstantial evidence of the driving element of Sabol’s convictions. 

Viewed in the light most favorable to the Commonwealth, we are 

satisfied that this evidence was sufficient to support Sabol’s convictions for 

DUI beyond a reasonable doubt. See Bruce, 916 A.2d at 661. Accordingly, 

Sabol’s second issue is without merit.
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In his final issue, Sabol contends he should have been sentenced as a 

first time DUI offender pursuant to Chichkin. 

“Section 3804 [of the Motor Vehicle Code] sets forth mandatory 

minimum sentence terms for first, second, and subsequent DUI offenses.” 

Chichkin, 232 A.3d at 963. Section 3806 of the Motor Vehicle Code, in turn, 

defines “prior offenses” as follows:

(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.A. § 3806(a)(1).

As Sabol highlights, Chichkin held that “the particular provision of 75 

Pa. C.S.A. § 3806(a), which defines a prior acceptance of ARD in a DUI case 

as a ‘prior offense’ for DUI sentencing enhancement purposes ... [is] 

unconstitutional.” Chichkin, 232 A.3d at 971. However, this Court expressly 

overruled Chichkin in a pair of decisions, i.e., Commonwealth v. Moroz, 

284 A.3d 227 (Pa. Super. 2022) (en banc) and Commonwealth v. Richards, 

284 A.3d 214 (Pa. Super. 2022) (en banc). Richards stated in no uncertain 

terms:

We now hold that the portion of Section 3806(a), which equates 

prior acceptance of ARD to a prior conviction for purposes of 
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imposing a Section 3804 mandatory minimum sentence, passes 

constitutional muster.

Richards, 284 A.3d at 220.

Sabol concedes that Chichkin was overruled. However, he points out 

that the Pennsylvania Supreme Court has since affirmed Chichkin in 

Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023) (per curiam). While 

Sabol correctly acknowledges that, as a per curiam decision, Verbeck does 

not have precedential value, he indicates that Verbeck offers him “hope that 

his earlier ARD admission should not count as a prior DUI conviction for 

sentencing purposes.” Appellant’s Brief, at 30. 

Nevertheless, this Court’s decision in Richards remains the precedent 

we must follow, and, under that controlling precedent, the sentencing court 

did not err by considering Sabol’s ARD as a prior offense for sentencing 

purposes on his DUI conviction. 1

As we find none of Sabol’s issues merit relief, we affirm the judgment 

of sentence.

Judgment of sentence affirmed.

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1 We acknowledge the Pennsylvania Supreme Court has granted reargument 

on this issue. See Commonwealth v. Richards, 294 A.3d 300 (Pa. 2023). 

However, this does not affect our disposition because this Court’s decision 

remains binding precedent unless and until the Pennsylvania Supreme Court 

rules otherwise. There is no question that Sabol has preserved this issue for 

future review by the Supreme Court. 
J-S14024-24

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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 07/02/2024
COMMONWEALTH OF PENNSYLVANIA 

11 TH JUDICIAL DISTRICT 

COMMONWEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

V. 

CRIMINAL DIVISION 

ANDREW MARK SABOL, 

Defendant NO. 686 OF 2022 

OPINION

BY: THE HONORABLE DAVID W. LUPAS 

I. FACTS AND PROCEDURAL HISTORY: 

On December 15, 2021, the Defendant, Andrew Sabol, was arrested on suspicion of driving 

under the influence, and he was subsequently charged with violations of the Motor Vehicle Code. 

On April 22, 2022, the Defendant sought to suppress fruit of a "warrantless search" and an 

"unlawful arrest." Omnibus Pre-Trial Motion filed 4/22/2022 at 7, 9. The Defendant's pre-trial 

motion was taken under advisement following a July 11, 2022 hearing, and was subsequently 

denied on December 29, 2022. 

On March 14, 2023, the Commonwealth filed a motion to amend Counts 1 and 2 from " 1St 

offense" to "2nd offense," based on a prior DUI that occurred on or about March 20, 2016, for 

which the Defendant received Accelerated Rehabilitative Disposition (ARD). Motion filed 

3/14/2023 at ¶ 3, citing Commonwealth v. Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en Banc). 

1 The Defendant was initially charged as follows: Count 1 DUI general impairment/incapable of 

safe driving, 75 Pa. C.S.A. 3802(a)(1), 1Stoffense (misdemeanor); Count 2 DUI highest rate of 

alcohol (BAC . 16+), 75 Pa. C.S.A. 3802(c), 1St offense (misdemeanor); Count 3 accident involving 

damage to attended vehicle/property, 75 Pa. C.S.A. 3743(a), (misdemeanor 3). Information filed 

3/29/2022. Count 3 of the Information was subsequently amended to reflect a violation of 75 

P.C.S.A. 3745(a), damage to unattended vehicle/property, a summary offense. Order of Court 

dated 7/11/2022. 

1 

Circulated 06/18/2024 02:30 PM

COMMONWEALTH OF PENNSYLVANIA 

1 JUDICIAL DISTRICT 

COMMON WEALTH OF PENNSYLVANIA 

ANDREW MARK SABOL, 

Defendant 

OPINION 

BY: THE HONORABLE DAVID W. LUPAS 

I. FACTS AND PROCEDURAL HISTORY 

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

CRIMINAL DIVISION 

NO. 686 OF 2022 

On December 15, 2021, the Defendant, Andrew Sabol, was arrested on suspicion of driving 

under the influence, and he was subsequently charged with violations of the Motor Vehicle Code.' 

On April 22, 2022, the Defendant sought to suppress fruit of a "warrantless search" and an 

"unlawful arrest." Omnibus Pre-Trial Motion filed 4/22/2022 at 7,9. The Defendant's pre-trial 

motion was taken under advisement following a July 11, 2022 hearing, and was subsequently 

denied on December 29, 2022. 

On March 14, 2023, the Commonwealth filed a motion to amend Counts l and 2 from 1 

offense" to 2' offense," based on a prior DUI that occurred on or about March 20, 2016, for 

which the Defendant received Accelerated Rehabilitative Disposition (ARD). Motion filed 

3/14/2023 at $ 3, citing Commonwealth , Moroz, 284 A.3d 227, 233 (Pa. Super. 2022) (en bane) 

The Defendant was initially charged as follows: Count I DUI general impairment/incapable of 

safe driving, 75 Pa. C.S.A. 3802(a)(), 1 offense (misdemeanor); Count 2 DUI highest rate of 

alcohol (BAC .16+), 75 Pa. C.S.A. 3802(0), 1 offense (misdemeanor); Count 3 accident involving 

damage to attended vehicle/property, 75 Pa. C.S.A. 3743(a), (misdemeanor 3). Information filed 

3/2902022. Count 3 of the Information was subsequently amended to reflect a violation of 75 

P.C.SA. 3745(a), damage to unattended vehicle/property, a summary offense. Order of Court 

dated 7/11/2022. 
The Defendant did not file an answer to the Commonwealth's motion, or otherwise object to 

amending Counts 1 and 2 to reflect "2nd offense." An amended information was thus filed on 

March 15, 2023, with the language "2"dOff' added to Counts 1 and 2. 2

A jury was selected and sworn on March 15, 2023, and the Defendant's trial commenced 

on March 16, 2023. Pertinent to the current appeal, the Commonwealth introduced evidence that 

during the early morning hours of December 15, 2021, while in his home near the intersection of 

Huntsville Road and Main Street in Dallas Borough, Joseph Hand heard a crash and then a scraping 

noise that sounded like a vehicle trying to move. N.T. 3/16/2023 at 13. When he went outside to 

investigate, Hand observed a damaged utility pole, debris and fluid on the road, and the taillights 

of a vehicle, which was making a scraping sound as it drove west on Huntsville Road. Id. at 14-

16. Shortly thereafter, Officer Jason Woodard, who was on duty monitoring traffic at a nearby 

five-way intersection, saw a red pickup truck with a low-hanging headlight travel through the 

intersection and continue west along Huntsville road. Id. at 20-21. When Joseph Hand reported 

the crash, Officer William Norris responded and observed the debris (including pieces suggesting 

that the vehicle involved was red) and a trail of fluids leading away from the scene along Huntsville 

Road. Id. at 37-38. When Officer Norris learned that Officer Woodard had observed a red pickup 

with front end damage traveling west along Huntsville Road, he went to area of the five-way 

intersection and observed a trail of fluid. Id. at 38-39. As Officer Norris proceeded along 

Huntsville Road he observed fluid and more debris. Id. at 39. The trail of fluid eventually led into 

the driveway of 1356 Huntsville Road, at the top of which Officer Norris observed a red pickup 

truck parked facing a garage. Id. at 39-40. A dusk-to- dawn light was on, but no other lights were 

zThe amendment did not alter the grading of Count 1. See 75 Pa.C.S.A. § 3803(a)(1). Count 2, 

however, became a misdemeanor 1. See 75 Pa.C.S.A. § 3803(b)(4). 

2 

The Defendant did not file an answer to the Commonwealth's motion, or otherwise object to 

amending Counts I and 2 to reflect 2 offense." An amended information was thus filed on 

March 15, 2023, with the language 2" Of added to Counts I and 2. 

A jury was selected and sworn on March 15, 2023, and the Defendant's trial commenced 

on March 16, 2023. Pertinent to the current appeal, the Commonwealth introduced evidence that 

during the early morning hours of December I5, 2021, while in his home near the intersection of 

Huntsville Road and Main Street in Dallas Borough, Joseph Hand heard a crash and then a scraping 

noise that sounded like a vehicle trying to move. N.T. 3/16/2023 at 13. When he went outside to 

investigate, Hand observed a damaged utility pole, debris and fluid on the road, and the taillights 

of a vehicle, which was making a scraping sound as it drove west on Huntsville Road. Id. at 14- 

16. Shortly thereafter, Officer Jason Woodard, who was on duty monitoring traffic at a nearby 

five-way intersection, saw a red pickup truck with a low-hanging headlight travel through the 

intersection and continue west along Huntsville road. Id, at 20-21. When Joseph Hand reported 

the crash, Officer William Norris responded and observed the debris (including pieces suggesting 

that the vehicle involved was red) and a trail of fluids leading away from the scene along Huntsville 

Road. ld. at 37-38. When Officer Norris learned that Officer Woodard had observed a red pickup 

with front end damage traveling west along Huntsville Road, he went to area of the five-way 

intersection and observed a trail of fluid. ld. at 38-39. As Officer Norris proceeded along 

Huntsville Road he observed fluid and more debris. Id. at 39. The trail of fluid eventually led into 

the driveway of 1356 Huntsville Road, at the top of which Officer Norris observed a red pickup 

truck parked facing a garage. Id. at 39-40. A dusk-to-dawn light was on, but no other lights were 

The amendment did not alter the grading of Count I. See 75 Pa.CS.A. $ 3803(a)(1). Count2, 

however, became a misdemeanor 1 See 75 Pa.CS.A. $ 3803(b(4) 

2 
lit in the garage or the adjacent house. Id. When Officer Norris walked through the yard to the 

top of the driveway to investigate, he was startled to see the Defendant sitting near the front 

passenger side of the truck with his back to the garage. Id. at 41. Officer Norris asked the 

Defendant if he was okay, and the Defendant responded that he had hit his head on the windshield, 

but he declined medical attention. Id. at 42. Officer Norris did not see anyone else near the truck. 

Id. When conversing with the Defendant, Officer Norris observed that he smelled of alcohol, had 

slurred speech, was unsteady, and had glassy eyes. Id. at 43. Officer Norris also observed that the 

truck had fresh front end damage and was leaking fluid, and it was determined that only the driver's 

side airbag had deployed. Id. at 42, 56. Based on these observations, Officer Norris arrested the 

Defendant on suspicion of driving under the influence. Id. at 45. A breath test was administered 

at 3:12 a.m., showing a BAC of . 241. N.T. at 51. 

At the close of the Commonwealth's case, the Defendant moved for judgment of acquittal, 

arguing with regard to all three Counts that the Commonwealth had failed to show that the 

Defendant was driving. Id. at 63. Following brief discussion, the Court denied the motion. Id. at 

63-65. Before the parties gave their closing arguments, they were provided with a written copy of 

the proposed jury instruction that would be read to the jury by the Court, regarding Count 2, and a 

copy of the proposed verdict slip for that charge. Id. at 69-70. 3 The parties agreed that both the 

instruction and the verdict slip were satisfactory to them. Id. at 70. 

Following closing arguments, the Court instructed the jury. 4 When the instructions 

concluded, the parties indicated to the Court that they had nothing additional to offer, and the jury 

3 The Court was tasked with addressing Counts 1 and 3. 

4The instruction given to the jury regarding Count 2, the charge they were tasked with considering, 

was identical to the proposed instruction provided to, and agreed upon, by the parties. N.T. 

3/16/2023 at 89-91. 

3 

lit in the garage or the adjacent house. Id. When Officer Norris walked through the yard to the 

top of the driveway to investigate, he was startled to see the Defendant sitting near the front 

passenger side of the truck with his back to the garage. Id. at 41. Officer Norris asked the 

Defendant if he was okay, and the Defendant responded that he had hit his head on the windshield, 

but he declined medical attention. Id. at 42. Offieer Norris did not see anyone else near the truck 

ld. When conversing with the Defendant, Officer Norris observed that he smelled of alcohol, had 

slurred speech, was unsteady, and had glassy eyes. d. at 43. Officer Norris also observed that the 

truck had fresh front end damage and was leaking fluid, and it was determined that only the driver's 

side airbag had deployed. Id. at 42, 56. Based on these observations, Officer Norris arrested the 

Defendant on suspicion of driving under the influence. Id. at 45. A breath test was administered 

at 3:12 a.m., showing a BAC of .241. N.T. at 5I 

At the close of the Commonwealth's case, the Defendant moved for judgment of acquittal, 

arguing with regard to all three Counts that the Commonwealth had failed to show that the 

Defendant was driving. Id. at 63. Following brief discussion, the Court denied the motion. Id. at 

63-65. Before the parties gave their closing arguments, they were provided with a written copy of 

the proposed jury instruction that would be read to the jury by the Court, regarding Count 2, and a 

copy of the proposed verdict slip for that charge. Id. at 69.70. The parties agreed that both the 

instruction and the verdict slip were satisfactory to them. Id. at 70. 

Following closing arguments, the Court instructed the jury. When the instructions 

concluded, the parties indicated to the Court that they had nothing additional to offer, and the jury 

Te Court was tasked with addressing Counts l and 3 

The instruction given to the jury regarding Count 2, the charge they were tasked with considering, 

was identical to the proposed instruction provided to, and agreed upon, by the parties. N.T, 

3/16/2023 at 89-91 

3 
began its deliberations. Id. at 94, 96. The jury subsequently found the Defendant guilty of Count 

2, and the Court determined that the Defendant was guilty of Counts 1 and 3. Id. at 98, 104. 

On March 23, 2023, the Commonwealth filed a motion to amend the information in order 

to comply with docketing procedures used by the Luzerne County Clerk of Court, whereby 

asterisks are used to differentiate between 1St, 2nd, 3 d, and 0' or subsequent offenses. See Motion 

filed 3/23/2023, Attachment C. 5 Although the Defendant had not objected to the March 15, 2023 

amendment of the information to reflect that both Counts 1 and 2 represented 2"doffenses in light 

of the Defendant's prior DUI, he filed an answer to the Commonwealth's March 23rd motion, 

denying that he had a prior DUI conviction and denying that "this Court found Defendant guilty 

of second offense DUI because the Commonwealth failed to establish a record to support that 

finding." Defendant's Answer filed 3/29/2023 at ¶ 2. Additionally, despite agreeing to the 

proposed verdict slip and jury instruction, which placed the BAC information in the instruction 

but not on the verdict slip, the Defendant denied that the jury found him guilty of DUI, highest rate 

because "the verdict slip did not reference BAC, a DUI tier, or a count on the information." Id. 

(citing Alleyne v. United States, 570 U.S. 99 (2013); Commonwealth v. Hopkins, 117 A.3d 247, 

258 (Pa. 2015)). The Defendant further averred that "due to the form of the verdict slip the jury's 

verdict can only result in a conviction of DUI, Incapable of Safe Driving, 75 Pa.C.S. § 3802(a)(1). 

Specifically, the jury did not find beyond a reasonable doubt that Defendant's BAC was . 16% or 

higher or even above . 10%." Id. 6

5 A review of the record reflects that when the information was amended on March 15, 2023 to 

change the DUI charges from 1Stoffense to 2"d offense, the single asterisk used to designate 1St 

offense was not changed to the double asterisk needed to designate 2"doffense. 

6 Although the Defendant does not raise the verdict slip allegation on appeal, we emphasize that 

he specifically agreed that the information regarding his BAC would be made part of the jury 

instruction, not the verdict slip. As agreed to by the parties, the jury was instructed that in order 

4 

began its deliberations. ld. at 94, 96. The jury subsequently found the Defendant guilty of Count 

2, and the Court determined that the Defendant was guilty of Counts I and 3. Id. at 98, 104. 

On March 23, 2023, the Commonwealth filed a motion to amend the information in order 

to comply with docketing procedures used by the Luzerne County Clerk of Court, whereby 

asterisks are used to differentiate between 1,2", 3", and 4" or subsequent offenses. See Motion 

filed 3/23/2023, Attachment C.' Although the Defendant had not objected to the March 15, 2023 

amendment of the information to reflect that both Counts I and 2 represented 2 offenses in light 

of the Defendant's prior DUI, he filed an answer to the Commonwealth's March 23rd motion, 

denying that he had a prior DUI conviction and denying that this Court found Defendant guilty 

of second offense DUI because the Commonwealth failed to establish a record to support that 

finding." Defendant's Answer filed 3/29/2023 at 2. Additionally, despite agreeing to the 

proposed verdict slip and jury instruction, which placed the BAC information in the instruction 

but not on the verdict slip, the Defendant denied that the jury found him guilty of DUI, highest rate 

because "the verdict slip did not reference BAC, a DUI tier, or a count on the information." ld. 

(citing Alleyne , United States, 570 U.S. 99 (2013); Commonwealth , Hopkins, 117 A.3d 247, 

258 (Pa. 2015)). The Defendant further averred that "due to the form of the verdict slip the jury's 

verdict can only result in a conviction of DUI, Incapable of Safe Driving, 75 Pa.C.S. $ 3802(a(1) 

Specifically, the jury did not find beyond a reasonable doubt that Defendant's BAC was .16% or 

higher or even above .10%." Id.° 

' A review of the record reflects that when the information was amended on March 15, 2023 t0 

change the DUI charges from 1 offense to 2 offense, the single asterisk used to designate 1 

offense was not changed to the double asterisk needed to designate 2 offense. 

Although the Defendant does not raise the verdict slip allegation on appeal, we emphasize that 

he specifically agreed that the information regarding his BAC would be made part of the jury 

instruction, not the verdict slip. As agreed to by the parties, the jury was instructed that in order 

d 
The Commonwealth's March 23 d motion and the Defendant's answer thereto were 

addressed on May 3, 2023, when the parties convened for the Defendant's sentencing hearing. 

The Commonwealth reiterated its request to change the single asterisks to double asterisks. N.T. 

5/3/2023 at 2, 4. The Defendant indicated that he was "not fighting over asterisks." Id. at 3. Thus, 

the Court ordered the information to be amended to change the single asterisks at Counts 1 and 2 

to double asterisks. Id. at 5. 

Turning to the Defendant's sentencing, the Court entertained argument from the parties, 

including the Defendant's assertion that his prior DUI, which resulted in the ARD, should not be 

considered a conviction for sentencing purposes under Commonwealth v. Chichkin, 232 A.3d 959 

(Pa. Super. 2020). N.T. 5/3/2023 at 6. Thereafter, with the benefit of a Pre- Sentence Investigation 

(PSI) that confirmed the prior DUI/ARD, the Court sentenced the Defendant at Count 2 to 18 

months in the Restrictive Probation Program, with the first 6 months under house arrest with 

electronic monitoring, plus a $ 1,500.00 fine; and a $ 300.00 fine plus costs at Count 3.' 

On June 2, 2023, the Defendant filed a notice of appeal from his judgment of sentence and 

from the denial of his suppression requests. Notice of Appeal filed 6/2/2023. The Defendant was 

to find the Defendant guilty of DUI highest rate of alcohol (BAC . 16+), it would have to find the 

following beyond a reasonable doubt: 

First, that the defendant imbibed alcohol; second, that the defendant then drove, 

operated, or was in actual physical control of the movement of a vehicle upon a 

highway or a traffic way[;] ... [a]nd third, that within two hours after driving, 

operating, or in actual physical control, the alcohol concentration in the defendant's 

blood or breath was . 16 percent or above. 

N.T. 3/16/2023 at 89-90. Juries are presumed to follow the instructions given to them, so we may 

presume that in finding the Defendant guilty, the jury determined that within two hours after 

driving, operating, or being in actual physical control, the alcohol concentration in the Defendant's 

blood or breath was . 16 percent or above. Commonwealth v. Purnell, 259 A.3d 974, 986 (Pa. 

2021). 

7 Count 1 merged with Count 2 for sentencing purposes. Order of Court dated 5/3/2023. 

5 

The Commonwealth's March 23" motion and the Defendant's answer thereto were 

addressed on May 3, 2023, when the parties convened for the Defendant's sentencing hearing. 

The Commonwealth reiterated its request to change the single asterisks to double asterisks. N.T 

5/3/2023 at2, 4. The Defendant indicated that he was "not fighting over asterisks." ld. at 3. Thus, 

the Court ordered the information to be amended to change the single asterisks at Counts I and 2 

to double asterisks. Id. at 5. 

Turning to the Defendant's sentencing, the Court entertained argument from the parties, 

including the Defendant's assertion that his prior DUI, which resulted in the ARD, should not be 

considered a conviction for sentencing purposes under Commonwealth v, Chichkin, 232 A.3d 959 

(Pa. Super. 2020). N.T. 5/3/2023 at 6. Thereafter, with the benefit of a Pre-Sentence Investigation 

(PSI that confirmed the prior DU/ARD, the Court sentenced the Defendant at Count 2 to 18 

months in the Restrictive Probation Program, with the first 6 months under house arrest with 

electronic monitoring, plus a $1,500.00 fine; and a $300.00 fine plus costs at Count 3.' 

On June 2, 2023, the Defendant filed a notice of appeal from his judgment of sentence and 

from the denial of his suppression requests. Notice of Appeal filed 6/2/2023. The Defendant was 

to find the Defendant guilty of DUI highest rate of alcohol (BAC. 16+), it would have to find the 

following beyond a reasonable doubt: 

First, that the defendant imbibed alcohol; second, that the defendant then drove, 

operated, or was in actual physical control of the movement of a vehicle upon a 

highway or a traffic way[l ... [a]nd third, that within two hours after driving, 

operating, or in actual physical control, the alcohol concentration in the defendant's 

blood or breath was .I6 percent or above. 

N.T. 3/16/2023 at 89-90. Juries are presumed to follow the instructions given to them, so we may 

presume that in finding the Defendant guilty, the jury determined that within two hours after 

driving, operating, or being in actual physical control, the alcohol concentration in the Defendant's 

blood or breath was I6 percent or above. Commonwealth y, Purnell, 259 A.3d 974, 986 (Pa 

2021) 

Count I merged with Count 2 for sentencing purposes. Order of Court dated 5/3/2023. 

5 
directed to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and did so on in a timely manner, raising the following allegations of error: 

1. The Court erred by denying Sabol's motion to suppress the fruit of a warrantless 

search. 

2. The Court erred by denying Sabol's motion to suppress the fruit of an illegal 

arrest. 

3. The Court erred by denying Sabol's motion for judgment of acquittal. 

4. The verdict is not supported by sufficient evidence concerning the element of 

driving/actual physical control over the movement of a vehicle and/or driving on a 

highway or trafficway that is necessary to support convictions pursuant to Sections 

3745 and 3802 of the Vehicle Code. 

5. Sabol's sentence is illegal because a jury did not decide whether the enhanced 

sentencing penalties pursuant to Section 3804 of the Vehicle Code applied to this 

case. 

6. The Court erred by sentencing Sabol as a second offense DUI because he did 

not have a prior DUI conviction. 

7. The Court erred by sentencing Sabol as a second offense DUI because the 

Commonwealth failed to establish at trial or during the sentencing hearing that 

Sabol had a prior DUI conviction. 

Rule 1925(b) Statement filed 6/7/2023. 

II. LAW AND DISCUSSION: 

Turning to the Defendant's assertions that this Court erred in its suppression ruling, the 

record reflects that the Defendant sought suppression of the evidence obtained from the warrantless 

entry onto 1356 Huntsville Road, arguing that since Officer Norris "had to stand on private 

property to observe/obtain evidence he alleges was in plain view ... Norris was a trespasser and 

did not view the damage nor Sabol from a lawful vantage point as required by the plain view 

doctrine." Defendant's Pre-Trial Motion filed 4/22/2022 at 8. 

6 

directed to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 

1925(b), and did so on in a timely manner, raising the following allegations of error: 

I. The Court erred by denying Sabol's motion to suppress the fruit of a warrantless 

search. 

2. The Court erred by denying Sabol's motion to suppress the fruit of an illegal 

arrest. 

3. The Court erred by denying Sabol's motion for judgment of acquittal. 

4. The verdict is not supported by sufficient evidence concerning the element of 

driving/actual physical control over the movement of a vehicle and/or driving on a 

highway or trafficway that is necessary to support convictions pursuant to Sections 

3745 and 3802 of the Vehicle Code 

5. Sabol's sentence is illegal because a jury did not decide whether the enhanced 

sentencing penalties pursuant to Section 3804 of the Vehicle Code applied to this 

case 

6. The Court erred by sentencing Sabol as a second offense DUI because he did 

not have a prior DUI conviction 

7. The Court erred by sentencing Sabol as a second offense DUI because the 

Commonwealth failed to establish at trial or during the sentencing hearing that 

Sabol had a prior DUI conviction. 

Rule 1925(b) Statement filed 6/7/2023. 

II. LAW AND DISCUSSION: 

Turning to the Defendant's assertions that this Court erred in its suppression ruling, the 

record reflects that the Defendant sought suppression of the evidence obtained from the warrantless 

entry onto 1356 Huntsville Road, arguing that since Officer Norris "had to stand on private 

property to observe/obtain evidence he alleges was in plain view • Norris was a trespasser and 

did not view the damage nor Sabol from a lawful vantage point as required by the plain view 

doctrine." Defendant's Pre-Trial Motion filed 4/22/2022 at 8. 

' 
The Commonwealth countered that Officer Norris had the authority to enter onto the 

Defendant's property during his investigation of the crash, that he restricted his movements to 

areas where visitors could be expected to go, and that his observations were all made from a lawful 

vantage point, therefore, the plain view exception did apply, and the evidence should not be 

suppressed. Commonwealth's Brief in Opposition to Defendant's Omnibus Pre-Trial Motion filed 

7/21/2022, Discussion ¶ 2 (citing Commonwealth v. Eichler, 133 A3d 777 (Pa. Super. 2016), 

appeal denied, 161 A.3d 791 (Pa. 2016). 

The Defendant responded that Eichler had been overruled by Loughnane, supra, and he 

continued to dispute the nature of Officer Norris's vantage point when he discovered the Defendant 

and the damage to the truck. Defendant's Reply Brief in Support of Granting the Omnibus PreTrial Motion filed 7/27/2022. 

At the suppression hearing conducted on July 11, 2022, the Court heard testimony from 

Joseph Hand, and Officers Woodard and Norris, which, in pertinent part, mirrored what was 

presented at trial, as set forth above. See N.T. 7/11/2022 at 4-8, 10-12, 14-20, 27-28, 31. 

Following the presentation of testimony and argument by the parties, this Court assessed the 

credibility of the witnesses and the weight to be given their testimony, and determined that the 

Commonwealth had met its burden to prove, by a preponderance of the evidence, that the 

challenged evidence was not obtained in violation of the Defendant's rights. g This determination 

was not in error. 

8 "Pa.R.Crim.P. 581 provides that `[t]he Commonwealth shall have the burden ... of establishing 

that the challenged evidence was not obtained in violation of the defendant's rights.' Pa.R.Crim.P. 

581(H). Specifically, the Commonwealth has the burden of "establish[ing] by a preponderance of 

the evidence that the evidence was properly obtained." Commonwealth v. Smith, 285 A.3d 328, 

332 (Pa. Super. 2022) (citing Commonwealth v. Galendez, 27 A.3d 1042, 1046 (Pa. Super. 2011) 

(citation omitted). 

7 

The Commonwealth countered that Officer Norris had the authority to enter onto the 

Defendant's property during his investigation of the crash, that he restricted his movements to 

areas where visitors could be expected to go, and that his observations were all made from a lawful 

vantage point, therefore, the plain view exception did apply, and the evidence should not be 

suppressed. Commonwealth's Brief in Opposition to Defendant's Omnibus Pre-Trial Motion filed 

7/21/2022, Discussion 2 (citing Commonwealth y. Eichler, 133 A3d 777 (Pa. Super. 2016), 

appeal denied, 161 A.3d 791 (Pa. 2016) 

The Defendant responded that Eichler had been overruled by Loughnane, supra, and he 

continued to dispute the nature of Officer Norris's vantage point when he discovered the Defendant 

and the damage to the truck. Defendant's Reply Brief in Support of Granting the Omnibus PreTHal Motion filed 7/27/2022. 

At the suppression hearing conducted on July 11, 2022, the Court heard testimony from 

Joseph Hand, and Officers Woodard and Norris, which, in pertinent part, mirrored what was 

presented at trial, as set forth above. See N.T. 7/11/2022 at 4-8, 10-12, 14-20, 27-28, 31 

Following the presentation of testimony and argument by the parties, this Court assessed the 

credibility of the witnesses and the weight to be given their testimony, and determined that the 

Commonwealth had met its burden to prove, by a preponderance of the evidence, that the 

challenged evidence was not obtained in violation of the Defendant's rights." This determination 

was not in error. 

"pg.R.Crim.P. 58I provides that '[t]he Commonwealth shall have the burden ... of establishing 

that the challenged evidence was not obtained in violation of the defendant's rights.' Pa.R.Crim.P. 

581(H). Specifically, the Commonwealth has the burden of "establish[ing] by a preponderance of 

the evidence that the evidence was properly obtained." Commonwealth y Smith, 285 A.3d 328, 

332 (Pa. Super 2022) (citing Commonwealth v, Galendez, 27 A.34 1042, 1046 (Pa. Super. 2011) 

(citation omitted) 

7 
As the Pennsylvania Supreme Court has explained: 

Both the Fourth Amendment to the United States Constitution and Article 

I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable 

searches and seizures by police in areas where individuals have a reasonable 

expectation of privacy. An expectation of privacy exists if a person has a subjective 

expectation of privacy that society is willing to recognize as legitimate and 

reasonable. Where there exists a reasonable expectation of privacy, Article I, 

Section 8 and the Fourth Amendment generally require police to obtain a warrant, 

issued by a neutral and detached magistrate and founded upon probable cause, prior 

to conducting a search or seizure of a person and/or a person's property, unless one 

of the few well delineated exceptions apply. 

Commonwealth v. Loughnane, 643 Pa. 408, 420, 173 A.3d 733, 741 (2017). See also 

Commonwealth v. Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021) (en Banc) (citation omitted), 

appeal denied, 279 A.3d 38 (Pa. May 25, 2022) ("As a general rule, ` a warrant stating probable 

cause is required before a police officer may search for or seize evidence. "'). The "well delineated 

exceptions" to the warrant requirement include ` the consent exception, the plain view exception, 

the inventory search exception, the exigent circumstances exception, the automobile exception ... 

the stop and frisk exception, and the search incident to arrest exception."' Commonwealth v. 

McMahon, 280 A.3d 1069, 1072 (citing Commonwealth v. Simonson, 148 A.3d 792, 797 (Pa. 

Super. 2016)). 

The plain view exception permits a warrantless search and seizure when: ( 1) an officer 

views the evidence from a lawful vantage point; (2) it is immediately apparent to him that the 

evidence is incriminating; and (3) the officer has a lawful right of access to the evidence. 

Commonwealth v. Davis, 287 A.3d 467, 471 (Pa. Super. 2022). As noted above, in disputing the 

applicability of the plain view exception in this case, the Defendant limited his argument to the 

9 The constitutional protections guaranteeing individuals freedom from unreasonable searches and 

seizures apply to the inside of a home, as well as the curtilage surrounding it. Commonwealth v. 

Simmen, 58 A.3d 811, 815 (Pa. Super. 2012); Commonwealth v. Gibbs, 981 A.2d 274, 279-280 

(Pa. Super. 2009). 

8 

As the Pennsylvania Supreme Court has explained: 

Both the Fourth Amendment to the United States Constitution and Article 

I, Section 8 of the Pennsylvania Constitution protect individuals from unreasonable 

searches and seizures by police in areas where individuals have a reasonable 

expectation of privacy. An expectation of privacy exists if a person has a subjective 

expectation of privacy that society is willing to recognize as legitimate and 

reasonable. Where there exists a reasonable expectation of privacy, Article I, 

Section 8 and the Fourth Amendment generally require police to obtain a warrant, 

issued by a neutral and detached magistrate and founded upon probable cause, prior 

to conducting a search or seizure of a person and/or a person's property, unless one 

of the few well delineated exceptions apply. 

Commonwealth y. Loughnane, 643 Pa. 408, 420, 173 A.3d 733, 741 (2017) See also 

Commonwealth v, Heidelberg, 267 A.3d 492, 502 (Pa. Super. 2021) (en bane) (citation omitted), 

appeal denied, 279 A.3d 38 (Pa. May 25, 2022) (As a general rule, 'a warrant stating probable 

cause is required before a police officer may search for or seize evidence.""). The well delineated 

exceptions" to the warrant requirement include the consent exception, the plain view exception, 

the inventory search exception, the exigent circumstances exception, the automobile exception ... 

the stop and frisk exception, and the search incident to arrest exception."" Commonwealth y 

McMahon, 280 A.3d 1069, 1072 (citing Commonwealth y, Simonson, 148 A.3d 792, 797 (Pa. 

Super. 2016)). 

The plain view exception permits a warrantless search and seizure when: (I) an officer 

views the evidence from a lawful vantage point; (2) it is immediately apparent to him that the 

evidence is incriminating; and (3) the officer has a lawful right of access to the evidence 

Commomwealth • Davis, 287 A.3d 467, 471 (Pa. Super 2022). As noted above, in disputing the 

applicability of the plain view exception in this case, the Defendant limited his argument to the 

The constitutional protections guaranteeing individuals freedom from unreasonable searches and 

seizures apply to the inside of a home, as well as the curtilage surrounding it. Commonwealth_ 

Simmen, 58 A.3d 811, 815 (Pa. Super. 2012); Commonwealth_. Gibbs, 981 A.2d 274, 279-280 

(Pa. Super. 2009). 

8 
assertion that the first prong was not met, contending that Officer Norris did not observe the 

evidence from a lawful vantage point. Defendant's Pre-Trial Motion filed 4/22/2022 at 8. A 

review of the record clearly shows, however, that the evidence presented to the Court demonstrated 

that Officer Norris made his observations from a lawful vantage point. 

The credible testimony of Officers Woodard and Norris explained their response to the 911 

call placed by Joseph Hand, their observations at and near the scene of the accident, and Officer 

Norris's discovery of the trail of fluids leading from Huntsville Road into the driveway at 1356 

Huntsville Road, where a red pickup truck was parked. Officer Norris observed the trail of fluid 

and the pickup truck from the vantage point of the public road, therefore no privacy issues arose. 

Based on these observations, coupled with Officer Norris's recent observations of red vehicle parts 

and a trail of fluid leading away from the accident scene on Huntsville Road, he continued his 

investigation by entering onto the property at 1356 Huntsville Road. Officer Norris was permitted 

to make such entry onto the property in the course of his investigation. See Eichler 133 A.3d at 

784 (police officers had the authority to enter the curtilage of a property for purposes of conducting 

an investigation). 10

10 With regard to the Defendant's assertion that Eichler was overruled by Loughnane, we disagree. 

In Loughnane, police were investigating a hit-and-run homicide involving a truck. Days after the 

incident, a witness identified a truck in Loughnane's driveway. Police seized the truck without a 

warrant, discovering evidence that connected the truck to the scene of the crime and, therefore, 

pointing to Loughnane's involvement. See Loughnane, 643 Pa. at 410-412, 173 A.3d at 735-36. 

The trial court suppressed the evidence obtained from the search of the truck, and the matter 

eventually reached the Pennsylvania Supreme Court, which held that the automobile exception to 

the warrant requirement recognized by Commonwealth v. Gary, 625 Pa. 183, 91 A.3d 102 (2014) 

does not apply to vehicles parked in private driveways. Id., 643 Pa. at 411, 733 A.3d at 735. 

Loughnane cited Eichler, and other cases, as examples of established legal precedent requiring 

that curtilage determinations be made on a "case-by- case multi-factoral basis." Id. 643 Pa. at 418 

fn. 7, 173 A.3d at 740 fn. 7. Loughnane did not address the investigative intentions of the police 

as a reason to access property in the first instance, nor did it address whether the investigation 

permitted the police to have access to the driveway involved. As the Superior Court has noted, 

9 

assertion that the first prong was not met, contending that Officer Norris did not observe the 

evidence from a lawful vantage point. Defendant's Pre-Trial Motion filed 4/22/2022 at 8. A 

review of the record clearly shows, however, that the evidence presented to the Court demonstrated 

that Officer Norris made his observations from a lawful vantage point. 

The credible testimony of Officers Woodard and Norris explained their response to the 91l 

call placed by Joseph Hand, their observations at and near the scene of the accident, and Office 

Norris's discovery of the trail of fluids leading from Huntsville Road into the driveway at 1356 

Huntsville Road, where a red pickup truck was parked. Officer Norris observed the trail of fluid 

and the pickup truck from the vantage point of the public road, therefore no privacy issues arose. 

Based on these observations, coupled with Officer Norris's recent observations of red vehicle parts 

and a trail of fluid leading away from the accident scene on Huntsville Road, he continued his 

investigation by entering onto the property at 1356 Huntsville Road. Officer Norris was permitted 

to make such entry onto the property in the course of his investigation. See Eichler 133 A.3d at 

784 (police officers had the authority to enter the curtilage of a property for purposes of conducting 

an investigation)." 

" With regard to the Defendant's assertion that Eichler was overruled by Loughnane, we disagree 

In Loughnane, police were investigating a hit-and-run homicide involving a truck. Days after the 

incident, a witness identified a truck in Loughnane's driveway. Police seized the truck without a 

warrant, discovering evidence that connected the truck to the scene of the crime and, therefore, 

pointing to Loughnane's involvement. See Loughnane, 643 Pa. at 410-412, 173 A.3d at 735-36. 

The trial court suppressed the evidence obtained from the search of the truck, and the matter 

eventually reached the Pennsylvania Supreme Court, which held that the automobile exception to 

the warrant requirement recognized by Commonwealth v Gary, 625 Pa. 183, 91 A.3d 102 (2014) 

does not apply to vehicles parked in private driveways. Id., 643 Pa. at 411, 733 A.3d at 735. 

Loughnane cited Eichler, and other cases, as examples of established legal precedent requiring 

that curtilage determinations be made on a "case-by-case multi-factoral basis." ld. 643 Pa. at 418 

fn. 7,173 A.3d at 740 fn. 7. Loughnane did not address the investigative intentions of the police 

as a reason to access property in the first instance, nor did it address whether the investigation 

permitted the police to have access to the driveway involved. As the Superior Court has noted, 

9 
Thus it was from a lawful vantage point that Officer Norris encountered the Defendant and 

observed the damage to the exterior of the truck. Accordingly, the Defendant's allegation of error 

in this regard does not entitle him to appellate relief.' 1 For these reasons, the Defendant's judgment 

of sentence should not be disturbed on the grounds asserted in his first or second allegations of 

error. 

The Defendant's third allegation on appeal asserts that the Court erred by denying his 

motion for judgment of acquittal. Rule 1925(b) Statement filed 6/7/2023. "A motion for judgment 

of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, 

and is granted only in cases in which the Commonwealth has failed to carry its burden regarding 

that charge." Commonwealth v. Richard, 150 A.3d 504, 514 (Pa. Super. 2016) (citing 

Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)). As such, we will discuss the 

Defendant's third allegation of error in conjunction with his fourth allegation of error, which 

asserts that the verdicts were not supported by sufficient evidence "concerning the element of 

driving/actual physical control over the movement of a vehicle and/or driving on a highway or 

trafficway that is necessary to support convictions pursuant to Sections 3745 and 3802 of the 

Vehicle Code." Rule 1925(b) Statement filed 6/7/2023 at ¶ 4. 

Evidence will be deemed to support the verdict when it establishes each element of 

the crime charged and the commission thereof by the accused, beyond a reasonable 

doubt. The Commonwealth need not preclude every possibility of innocence or 

establish the defendant's guilt to a mathematical certainty. Finally, the trier of fact 

however, "those circumstances were addressed in detail by Eichler, supra. See Commonwealth v. 

Chesney, 196 A.3d 253, 258-259 (Pa. Super. 2018). 

11 We note that the Defendant's suppression request additionally asserted that the automobile 

exception to the warrant requirement did not apply to this matter because the Defendant's truck 

was parked in a residential driveway. Defendant's Omnibus Pre-Trial Motion filed 4/22/2022 at 

9 (citing Loughnane, supra). This Court's suppression ruling is supported by the plain view 

exception, however, thus we need not discuss the automobile exception. McMahon, 280 A.3d at 

1073-1074 (A search involving a vehicle may be justified under the plain view exception, without 

regard to the applicability of the automobile exception). 

10 

Thus it was from a lawful vantage point that Officer Norris encountered the Defendant and 

observed the damage to the exterior of the truck. Accordingly, the Defendant's allegation of error 

in this regard does not entitle him to appellate relief.'' For these reasons, the Defendant's judgment 

of sentence should not be disturbed on the grounds asserted in his first or second allegations of 

The Defendant's third allegation on appeal asserts that the Court erred by denying his 

motion for judgment of acquittal. Rule 1925(b) Statement filed 6/7/2023."A motion for judgment 

of acquittal challenges the sufficiency of the evidence to sustain a conviction on a particular charge, 

and is granted only in cases in which the Commonwealth has failed to carry its burden regarding 

that charge." Commonwealth y, Richard, 150 A.3d 504, 514 (Pa. Super. 2016) (citing 

Commonwealth v. Abed, 989 A.2d 23, 26 (Pa. Super. 2010)). As such, we will discuss the 

Defendant's third allegation of error in conjunction with his fourth allegation of error, which 

asserts that the verdicts were not supported by sufficient evidence "concerning the element of 

driving/actual physical control over the movement of a vehicle and/or driving on a highway or 

trafficway that is necessary to support convictions pursuant to Sections 3745 and 3802 of the 

Vehicle Code." Rule 1925(b) Statement filed 6/7/2023 at 4. 

Evidence will be deemed to support the verdict when it establishes each element of 

the crime charged and the commission thereof by the accused, beyond a reasonable 

doubt. The Commonwealth need not preclude every possibility of innocence or 

establish the defendant's guilt to a mathematical certainty. Finally, the trier of fact 

however, "those circumstances were addressed in detail by Eichler, supra. See Commonwealth 

Chesney, 196 A.3d 253, 258-259 (Pa. Super. 2018) 

' We note that the Defendant's suppression request additionally asserted that the automobile 

exception to the warrant requirement did not apply to this matter because the Defendant's truck 

was parked in a residential driveway. Defendant's Omnibus Pre-Trial Motion filed 4/22/2022 at 

9 (citing Loughnane, supra). This Court's suppression ruling is supported by the plain view 

exception, however, thus we need not discuss the automobile exception. McMahon, 280 A.3d at 

1073.1074 (A search involving a vehicle may be justified under the plain view exception, without 

regard to the applicability of the automobile exception). 

10 
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. Teems, 74 A.3d 142, 144-145 ( Pa. Super. 2013) (citation omitted). 

Here, the Defendant's judgment of acquittal and his sufficiency of the evidence claim 

challenged all three crimes charged, each of which contain driving as an element. 12 The 

Defendant's motion specifically challenged the driving element of the crimes only, and his 

sufficiency claim challenges whether the Defendant was driving, and if so, if he did so on a 

trafficway or highway. N.T. 3/16/2023 at 63; Rule 1925(b) Statement filed 6/7/2023. 13 The 

12 Section 3802(a)(1) of the Vehicle Code directs that "[a]n 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). Section 3802(c) 

directs that: 

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 0.16% or higher within 

two hours after the individual has driven, operated or been in actual physical control 

of the movement of the vehicle. 

75 Pa.C.S.A. § 3802(c). Section 3745 directs that: 

The driver of any vehicle which collides with or is involved in an accident with any 

vehicle or other property which is unattended resulting in any damage to the other 

vehicle or property shall immediately stop the vehicle at the scene of the accident 

or as close thereto as possible and shall then and there either locate and notify the 

operator or owner of the damaged vehicle or other property of his name, address, 

information relating to financial responsibility and the registration number of the 

vehicle being driven or shall attach securely in a conspicuous place in or on the 

damaged vehicle or other property a written notice giving his name, address, 

information relating to financial responsibility and the registration number of the 

vehicle being driven and shall without unnecessary delay notify the nearest office 

of a duly authorized police department. Every stop shall be made without 

obstructing traffic more than is necessary. 

75 Pa.C.S.A. § 3745(a). 

13 Although Section 3802 has no specific "highway" or "trafficway" element in its statutory 

language, Section 3101(b) of the Motor Vehicle Code states that Chapter 38, as a whole, relating 

to driving after imbibing alcohol or using drugs, applies to the highways and trafficways. 75 

Pa.C.S.A. § 3101(b). A "highway" is defined as: 

The entire width between the boundary lines of every way publicly maintained 

when any part thereof is open to the use of the public for purposes of vehicular 

11 

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 y Teems, 74 A.3d 142, 144-145 (Pa. Super. 2013) (citation omitted). 

Here, the Defendant's judgment of acquittal and his sufficiency of the evidence claim 

challenged all three crimes charged, each of which contain driving as an element. The 

Defendant's motion specifically challenged the driving element of the crimes only, and his 

sufficiency claim challenges whether the Defendant was driving, and if so, if he did so on a 

trafficway or highway. N.T. 3/16/2023 at 63; Rule 1925(b) Statement filed 6/7/2023. Te 

section 3802(a(1) of the Vehicle Code directs that "[a]n 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). Section 3802(¢) 

directs that 

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 0.16% or higher within 

two hours after the individual has driven, operated or been in actual physical control 

of the movement of the vehicle 

75 PA.C.S.A. $ 3802(¢). Section 3745 directs that 

The driver of any vehicle which collides with or is involved in an accident with any 

vehicle or other property which is unattended resulting in any damage to the other 

vehicle or property shall immediately stop the vehicle at the scene of the accident 

or as close thereto as possible and shall then and there either locate and notify the 

operator or owner of the damaged vehicle or other property of his name, address, 

information relating to financial responsibility and the registration number of the 

vehicle being driven or shall attach securely in a conspicuous place in or on the 

damaged vehicle or other property a written notice giving his name, address, 

information relating to financial responsibility and the registration number of the 

vehicle being driven and shall without unnecessary delay notify the nearest office 

of a duly authorized police department. Every stop shall be made without 

obstructing traffic more than is necessary. 

75 Pa.CS.A. $ 3745(a). 

Although Section 3802 has no specific "highway" or "traffic way" element in its statutory 

language, Section 3101(b) of the Motor Vehicle Code states that Chapter 38, as a whole, relating 

to driving after imbibing alcohol or using drugs, applies to the highways and trafficways. 75 

Pa.CS.A. $3101(b). A "highway" is defined as: 

The entire width between the boundary lines of every way publicly maintained 

when any part thereof is open to the use of the public for purposes of vehicular 

11 
Defendant does not contest the sufficiency of the evidence that he was under the influence of 

alcohol. As such, we limit our discussion on appeal to whether the Commonwealth presented 

sufficient evidence that the Defendant drove on a trafficway or highway. 

"An eyewitness is not required to establish that a defendant was driving, operating, or was 

in actual physical control of a motor vehicle. The Commonwealth can establish through wholly 

circumstantial evidence that a defendant was driving, operating or in actual physical control of a 

motor vehicle." Commonwealth v. Johnson, 833 A.2d 260, 263 (Pa. Super. 2003). See also 

Commonwealth v. Whitmire, 2023 PA Super 137, 2023 WL 4834616 (Pa. Super. July 28, 2023) 

(citing Commonwealth v. Young, 904 A.2d 947 (Pa. Super. 2006)); Commonwealth v. GoosebvByrd, 188 A.3d 1186, 1188 (Pa. Super. 2018). 

Here, as set forth above, the Commonwealth introduced credible circumstantial evidence 

sufficient for the jury and this Court, as fact- finders, to conclude that the Defendant was the driver 

of the truck that struck the pole, and that he drove the truck on Huntsville Road, a highway or 

trafficway. As such, the Defendant's judgement of sentence should not be disturbed on appeal on 

the grounds suggested by his third or fourth allegation of error. 

The Defendant's fifth allegation of error asserts that his sentence is illegal because a jury 

did not decide whether the enhanced sentencing penalties pursuant to Section 3804 of the Vehicle 

Code applied to this case. Rule 1925(b) Statement filed 6/7/2023. Section 3804 directs in pertinent 

part as follows: 

travel. The term includes a roadway open to the use of the public for vehicular travel 

on grounds of a college or university or public or private school or public or 

historical park. 

75 Pa.C.S.A. § 102. A "trafficway" is defined as "[t]he entire width between property lines or 

other boundary lines of every way or place of which any part is open to the public for purposes of 

vehicular travel as a matter of right or custom." 75 Pa.C.S.A. § 102. 

12 

Defendant does not contest the sufficiency of the evidence that he was under the influence of 

alcohol. As such, we limit our discussion on appeal to whether the Commonwealth presented 

sufficient evidence that the Defendant drove on a trafficway or highway. 

An eyewitness is not required to establish that a defendant was driving, operating, or was 

in actual physical control of a motor vehicle. The Commonwealth can establish through wholly 

circumstantial evidence that a defendant was driving, operating or in actual physical control of a 

motor vehicle." Cormomwealth • Johnson, 833 A.2d 260, 263 (Pa. Super. 2003). See also 

Commonwealth v, Whitmire, 2023 PA Super 137, 2023 WL 4834616 (Pa. Super. July 28, 2023) 

(citing Commonwealth v, Young, 904 A.24 947 (Pa. Super. 2006)); Commonwealth • Goose byByrd, 188 A.34 1186, 1188 (Pa. Super. 2018). 

Here, as set forth above, the Commonwealth introduced credible circumstantial evidence 

sufficient for the jury and this Court, as fact-finders, to conclude that the Defendant was the driver 

of the truck that struck the pole, and that he drove the truck on Huntsville Road, a highway or 

trafficway. As such, the Defendant's judgement of sentence should not be disturbed on appeal on 

the grounds suggested by his third or fourth allegation of error. 

The Defendant's fifth allegation of error asserts that his sentence is illegal because a jury 

did not decide whether the enhanced sentencing penalties pursuant to Section 3804 of the Vehicle 

Code applied to this case. Rule 1925(b) Statement filed 6/7/2023. Section 3804 directs in pertinent 

part as follows: 

travel. The term includes a roadway open to the use of the public for vehicular travel 

on grounds of a college or university or public or private school or public or 

historical park 

75 Pa.CS.A. $102. A "trafficway" is defined as "[t]he entire width between property lines or 

other boundary lines of every way or place of which any part is open to the public for purposes of 

vehicular travel as a matter of right or custom." 75 PA.C.S.A. $ 102. 
(c) Incapacity; highest blood alcohol; controlled substances. -- ... [A]n individual 

who violates section 3802(c) ... shall be sentenced as follows: 

(1) For a first offense, to: 

(i) undergo imprisonment of not less than 72 consecutive hours; 

(ii) pay a fine of not less than $ 1,000 nor more than $ 5,000; 

(iii) attend an alcohol highway safety school approved by the 

department; and 

(iv) comply with all drug and alcohol treatment requirements 

imposed under sections 3814 and 3815. 

(2) For a second offense, to: 

(i) undergo imprisonment of not less than 90 days; 

(ii) pay a fine of not less than $ 1,500; 

(iii) attend an alcohol highway safety school approved by the 

department; and 

(iv) comply with all drug and alcohol treatment requirements 

imposed under sections 3814 and 3815. 

75 Pa.C.S.A. § 3804(c). Additionally, Section 3806 directs in pertinent part as follows: 

(a) General rule.-- Except as set forth in subsection (b), the term "prior offense" as 

used in this chapter shall mean ... acceptance of Accelerated Rehabilitative 

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); 

(b) Timing.--

(1) For purposes of ... Section 3804 (relating to penalties) ... , the prior 

offense must have occurred: 

(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. 

75 Pa.C.S.A. § 3806. Thus, a defendant who accepted ARD for a prior DUI offense is considered 

a second-time offender under the Section 3804 penalty provisions, and faces an increased 

minimum sentence. 

In Apprendi v. New Jersev, the United States Supreme Court determined that "[ o]ther than 

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed 

13 

(c) Incapacity; highest blood alcohol; controlled substances.-- ... [AJn individual 

who violates section 3802(¢) .. shall be sentenced as follows: 

() For a first offense, to: 

(i) undergo imprisonment of not less than 72 consecutive hours; 

(ii) pay a fine of not less than $1,000 nor more than $5,000; 

(iii) attend an alcohol highway safety school approved by the 

department; and 

(iv) comply with all drug and alcohol treatment requirements 

imposed under sections 3814 and 3815 

(2) For a second offense, to: 

(i) undergo imprisonment of not less than 90 days; 

(ii) pay a fine of not less than $1,500; 

(iii) attend an alcohol highway safety school approved by the 

department; and 

(iv) comply with all drug and alcohol treatment requirements 

imposed under sections 3814 and 3815. 

75 Pa.CS.A. $ 3804(¢). Additionally, Section 3806 directs in pertinent part as follows: 

(a) General rule.--Except as set forth in subsection (b), the term "prior offense" as 

used in this chapter shall mean ... acceptance of Accelerated Rehabilitative 

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); 

(b) Timing.-- 

(1) For purposes of ... Section 3804 (relating to penalties) ..., the prior 

offense must have occurred: 

(i) within I0 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. 

75 Pa.C.S.A. $ 3806. Thus, a defendant who accepted ARD for a prior DUI offense is considered 

a second-time offender under the Section 3804 penalty provisions, and faces an increased 

minimum sentence 

In Apprendi y New Jersey, the United States Supreme Court determined that "[ojther than 

the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed 
statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi 

v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 (2000). Alleyne,

reached the same conclusion for facts that increase the mandatory minimum sentence to which a 

defendant is exposed. Allevne, 570 U.S. at 116, 133 S.Ct. at 2163; Commonwealth v. Williams, 

2023 PA Super 147 (Pa. Super. Ct. Aug. 4,2023); Commonwealth v. Riggle, 119 A.3d 1058, 1064 

(Pa. Super. 2015). 

In Commonwealth v. Chichkin, the Superior Court concluded that: 

[B]ecause Appellants' prior acceptances of ARD do not constitute convictions 

"cloaked in all the constitutional safeguards," we conclude they 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 a trial court may impose a 

mandatory minimum sentence under Section 3804. 

Chichkin, 232 A.3d at 968 (footnote omitted). Chichkin, however, was expressly overruled by 

Commonwealth v. Richards, 284 A.3d 214 (Pa. Super. 2022) (en Banc), appeal granted, 294 A.3d 

300 (Pa. 2023) and Moroz, 284 A.3d at 233, which held that " the portion of Section 3806(a), which 

equates prior acceptance of ARD to a prior conviction for purposes of imposing a Section 3804 

mandatory minimum sentence, passes constitutional muster," and therefore, "a defendant's prior 

acceptance of ARD fits within the limited ` prior conviction' exception set forth in Apprendi and 

Alleyne." Richards, 284 A.3d at 220; Moroz, 284 A.3d at 233. 

Although Chichkin's holding has since been affirmed per curiam by an equally divided 

Pennsylvania Supreme Court in Commonwealth v. Verbeck, Pa. , 290 A.3d 260 (2023), 

that case has no precedential value, and Richards and Moroz are currently the controlling law such 

that ARD counts as a prior offense for purposes of sentencing for a subsequent DUI offense. 

Commonwealth v. Corson, 2023 PA Super 122, fn. 4 (Pa. Super. June 11, 2023) (citing 

Commonwealth v. Moslev, 114 A.3d 1072, 1082 (Pa. Super. 2015) ("When a judgment of sentence 

14 

statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendf 

• New Jersey, 530 U.S. 466, 490, 120 S.CL 2348, 2362-63, 147 L.Ed.2d 435 (2000). Alleyne, 

reached the same conclusion for facts that increase the mandatory minimum sentence to which a 

defendant is exposed. Alleyne, 570 U.S. at 1H6, 133 S.Ct. at 2163; Commomwealth_, Williams, 

2023 PA Super 147 (Pa. Super. Ct. Aug. 4, 2023); Commonwealth , Riggle, 119 A.3d 1058, 1064 

(Pa. Super. 2015) 

In Commonwealth v Chichkin, the Superior Court concluded that: 

[Because Appellants' prior acceptances of ARD do not constitute convictions 

cloaked in all the constitutional safeguards," we conclude they are a facet" that, 

pursuant to Alleyne, Apprendi, and their progeny, must be presented to the fact 

finder and determined beyond a reasonable doubt before a trial court may impose a 

mandatory minimum sentence under Section 3804. 

Chichkin, 232 A.3d at 968 (footnote omitted). Chichkin, however, was expressly overruled by 

Commonwealth v, Richards, 284 A.3d 214 (Pa. Super. 2022) (en bane), appeal granted, 294 A.3d 

300 (Pa. 2023) and Moroz, 284 A.3d at 233, which held that "the portion of Section 3806(a), which 

equates prior acceptance of ARD to a prior conviction for purposes of imposing a Section 3804 

mandatory minimum sentence, passes constitutional muster," and therefore, "a defendant's prior 

acceptance of ARD fits within the limited 'prior conviction' exception set forth in Apprendi and 

Alleyne." Richards, 284 A.3d at 220; Moroz, 284 A.3d at 233. 

Although Chichkin 's holding has since been affirmed per curiam by an equally divided 

Pennsylvania Supreme Court in Commonwealth y Verbeck, Pa. -, 290 A.3d 260 (2023), 

that case has no precedential value, and Richards and Moroz are currently the controlling law such 

that ARD counts as a prior offense for purposes of sentencing for a subsequent DUI offense. 

Commomwealth y, Corson, 2023 PA Super 122, fn. 4 (Pa. Super. June 11, 2023) (citing 

Commonwealth y. Mosley, 1H4 A.3d 1072, 1082 (Pa. Super. 2015)(When a judgment of sentence 
is affirmed by an equally divided court,... no precedent is established and the holding is not binding 

on other cases."); Hummel, 295 A.3d at 720, fn. 1. 

As such, the Defendant's prior acceptance of ARD fit within the limited ` prior conviction' 

exception set forth in Apprendi and Allevne, and his sentence is not rendered illegal because a jury 

did not decide whether the enhanced sentencing penalties pursuant to Section 3804 of the Vehicle 

Code applied to this case. Richards, 284 A.3d at 220; Moroz, 284 A.3d at 233. 

The sixth and seventh allegations raised by the Defendant on appeal assert that this Court 

erred by sentencing the Defendant as a second offense DUI because he did not have a prior DUI 

conviction, and because the Commonwealth failed to establish at trial or during the sentencing 

hearing that Sabol had a prior DUI conviction. Rule 1925(b) Statement filed 6/7/2023. 

As the record reflects, the Court sentenced the Defendant with the benefit of a PSI that 

confirmed that the Defendant had a DUI in 2016, for which he received ARD. As we explained 

above with regard to the Defendant's fifth allegation of error, the ARD is considered a prior 

conviction for sentencing purposes, and thus it was not necessary for the Commonwealth to submit 

that issue to the jury at trial. As such, the Defendant's judgment of sentence should not be 

disturbed on these grounds. 

For the foregoing reasons, the Defendant's judgment of sentence should be affirmed on 

appeal. 

END OF OPINION 

15 

• 

is affirmed by an equally divided count, ... no precedent is established and the holding is not binding 

on other cases. "); /Hummel, 295 A.3d at 720, fn. I 

As such, the Defendant's prior acceptance of ARD fit within the limited 'prior conviction' 

exception set forth in Apprendi and Alleyne, and his sentence is not rendered illegal because a jury 

did not decide whether the enhanced sentencing penalties pursuant to Section 3804 of the Vehicle 

Code applied to this case. Richards, 284 A.3d at 220; Mroz, 284 A.3d at 233. 

The sixth and seventh allegations raised by the Defendant on appeal assert that this Court 

erred by sentencing the Defendant as a second offense DUI because he did not have a prior DUL 

conviction, and because the Commonwealth failed to establish at trial or during the sentencing 

hearing that Sabol had a prior DUI conviction. Rule 1925(b) Statement filed 6/7/2023. 

As the record reflects, the Court sentenced the Defendant with the benefit of a PSI that 

confirmed that the Defendant had a DUI in 2016, for which he received ARD. As we explained 

above with regard to the Defendant's fifth allegation of error, the ARD is considered a prior 

conviction for sentencing purposes, and thus it was not necessary for the Commonwealth to submit 

that issue to the jury at trial. As such, the Defendant's judgment of sentence should not be 

disturbed on these grounds. 

For the foregoing reasons, the Defendant's judgment of sentence should be affirmed on 

appeal. 

END OF OPINION