J-A04024-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

STANLEY W. PAWLOWSKI, JR. 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 596 MDA 2022

Appeal from the Judgment of Sentence Entered February 3, 2022

In the Court of Common Pleas of Luzerne County Criminal Division at 

No(s): CP-40-CR-0003377-2021

BEFORE: STABILE, J., DUBOW, J., and McCAFFERY, J.

MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 10, 2023

Appellant Stanley W. Pawlowski, Jr. appeals from the judgment of 

sentence entered on February 3, 2022, by the Court of Common Pleas of 

Luzerne County. Appellant asserts that his sentence for Driving under the 

Influence of Alcohol or Controlled Substances (“DUI”) is an illegal sentence, 

arguing that the trial court should have merged it with his sentence for 

Aggravated Assault by Vehicle while Driving Under the Influence (“Aggravated 

Assault-DUI”). On appeal, the trial court and the Commonwealth concede that 

the lack of merger resulted in an illegal sentence. After careful review, we 

agree. Accordingly, we vacate the sentence for DUI and affirm the judgment 

of sentence in all other respects.
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This case arises from a December 24, 2020 vehicle accident in Fairview 

Township, Lucerne County.1 The accident occurred when Appellant, while 

driving his Chevy Silverado pickup truck southbound on State Route 309,

crossed the center line and collided with a Ford Escape traveling northbound. 

The driver and passenger of the Ford Escape suffered significant injuries, 

which required extended hospital stays of multiple months. A blood test 

revealed that Appellant’s blood alcohol content “was between 0.11% and 

0.12%[,] which is over the legal limit of 0.08%.”

2

 

The Commonwealth charged Appellant with two counts of Aggravated 

Assault-DUI and one count each of DUI and Driving While Operating Privilege 

is Suspended or Revoked-DUI related.

3

 Appellant entered a negotiated guilty

plea on all charges on December 10, 2021. Following a hearing, the trial court 

sentenced Appellant to 30 to 60 months of incarceration on each charge of 

Aggravated Assault-DUI, to be served consecutively. The court additionally 

sentenced him to 90 days to 12 months incarceration for DUI, to be served 

concurrently with the Aggravated Assault-DUI sentences. The court 

emphasized that this was Appellant’s third DUI conviction. Finally, he received 

a sentence of 60 days of incarceration for driving with a suspended license to 

be served concurrently with the other sentences.

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1 We glean the uncontested facts of this case from the trial court’s Pa.R.A.P. 

1925(a) Opinion.

2 Tr. Ct. Op., 7/19/22, at 2.

3 75 Pa.C.S. §§ 3735.1(a); 3802(b); 1543(b)(1)(i). 
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After the trial court denied his post-sentence motion seeking a sentence 

reduction, Appellant filed his Notice of Appeal with this Court. Both Appellant 

and the trial court complied with Pa.R.A.P. 1925. In his Rule 1925(b) 

statement, Appellant asserted that the trial court erred in imposing an illegal 

sentence by failing to merge the DUI sentence with the Aggravated AssaultDUI sentence.4

 He renews this claim on appeal and asks that this Court 

“vacate his judgment of sentence on the DUI and remand for resentencing.” 

Appellant’s Br. at 10.

In its Rule 1925(a) opinion, the trial court agreed with Appellant, 

concluding that the sentence for DUI should have merged with the sentence 

for Aggravated Assault-DUI. Tr. Ct. Op., 7/19/22, at 4-5. Likewise, the 

Commonwealth conceded that the sentences should merge in its brief to this 

Court. Appellee’s Br. at 9. We agree with the parties and the trial court that 

this case is controlled by Commonwealth v. Tanner, 61 A.3d 1043 (Pa. 

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4 While Appellant raised this issue for the first time in his Pa.R.A.P. 1925(b) 

statement, we observe that challenges to the legality of sentence, such as 

those involving merger, “can never be waived[.]” Commonwealth v. 

Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013). 

In his Rule 1925(b) statement, Appellant also challenged the trial court’s 

imposition of consecutive rather than concurrent terms for the two Aggravated 

Assault-DUI counts, claiming that the sentences were excessive. The trial 

court rejected this argument in its Rule 1925(a) Opinion. Tr. Ct. Op. at 5-8. 

Appellant has not pursued that claim in his briefing before this Court. 

Accordingly, we find it waived for failure to develop. See In re J.B., 39 A.3d 

421, 437 (Pa. Super. 2012) (citing, inter alia, Pa.R.A.P. 2119 and observing 

that “arguments which are not appropriately developed are waived” (citation 

omitted)).
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Super. 2013), in which this Court vacated a judgment of sentence after 

concluding that the sentence for DUI, 75 Pa.C.S. § 3802, should merge with 

the sentence for Aggravated Assault-DUI, 75 Pa.C.S. § 3735.1(a).

5 Tanner, 

61 A.3d at 1047-48 (holding that all the elements of DUI are included in the 

elements of Aggravated Assault-DUI as required for merger under 42 Pa.C.S. 

§ 9765). Accordingly, we vacate Appellant’s judgment of sentence for DUI.

We decline to remand for resentencing because vacating Appellant’s DUI

sentence will not disturb the trial court’s overall sentencing scheme. This 

court has repeatedly held that “[i]f our disposition upsets the overall 

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5

In Tanner, the defendant violated subsection (c) of Section 3802, DUIHighest Rate of Alcohol, whereas Appellant violated subsection (b), DUI-High 

Rate of Alcohol: 

(b) High rate of alcohol.—An individual may not drive, operate or 

be in actual physical control of the movement of a vehicle after 

imbibing a sufficient amount of alcohol such that the alcohol 

concentration in the individual's blood or breath is at least 0.10% 

but less than 0.16% within two hours after the individual has 

driven, operated or been in actual physical control of the 

movement of the vehicle.

75 Pa.C.S. § 3802(b) (emphasis added). Subsections (b) and (c) are identical 

but for a difference in the required alcohol concentration, with subsection (c) 

mandating a concentration of “0.16% or higher.” Id. § 3802(c). This 

distinction is immaterial for purposes of merger with Aggravated Assault-DUI, 

which references Section 3802 generally rather than specific subsections:

Any person who negligently causes serious bodily injury to 

another person as the result of a violation of section 3802

(relating to driving under influence of alcohol or controlled 

substance) and who is convicted of violating section 3802

commits a felony of the second degree when the violation is the 

cause of the injury.

75 Pa.C.S. § 3735.1(a) (emphasis added).
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sentencing scheme of the trial court, we must remand so that the court can 

restructure its sentence plan. By contrast, if our decision does not alter the 

overall scheme, there is no need for a remand.” See Commonwealth v. 

Thur, 906 A.2d 552, 569-70 (Pa. Super. 2006) (citation omitted). 

As applied in the instant case, the trial court imposed Appellant’s DUI 

sentence of 90 days to 12 months incarceration to be served concurrently with 

the significantly longer sentences of 30 to 60 months of incarceration for each 

count of Aggravated Assault-DUI, which the court imposed as consecutive 

sentences. Thus, vacating the shorter DUI sentence does not impact the 

overall sentence. Accordingly, we vacate Appellant’s judgment of sentence 

for DUI, 75 Pa.C.S. § 3802(b), and affirm the judgment of sentence in all other 

respects.

Judgment of sentence at 75 Pa.C.S. § 3802 vacated. Judgment of 

sentence affirmed in all other respects. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/10/2023