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2015 PA Super 34

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

:

FREDRICK POSTIE, :

:

Appellant : No. 626 EDA 2013

Appeal from the Judgment of Sentence January 15, 2013

In the Court of Common Pleas of Lehigh County 

Criminal Division No(s).: CP-39-CR-0004173-2011

BEFORE: BENDER, P.J.E., SHOGAN, and FITZGERALD,*JJ.

OPINION BY FITZGERALD, J.: Filed: February 17, 2015

Appellant, Fredrick Postie, appeals pro se from the judgment of 

sentence of a “flat” term of four months’ imprisonment, entered in the 

Lehigh County Court of Common Pleas, following his bench conviction of 

driving while operating privilege is suspended or revoked1(“DWOPS”), a 

summary offense.2 Appellant alleges the court erred in: (1) denying his 

motion for recusal; (2) denying his suppression motion; (3) conducting 

 

*

Former Justice specially assigned to the Superior Court.

1 75 Pa.C.S. § 1543(a). “This was [Appellant’s] 20th conviction for driving 

while operating privilege is suspended,” and thus the increased penalties of 

Section 6503(a.1) applied. See 75 Pa.C.S. § 6503(a.1); Trial Ct. Op., 

4/12/13, at 2 n.5; N.T., Trial & Sentencing, 1/15/13, at 4.

2 The court also found Appellant guilty of false reports, 75 Pa.C.S. § 3748.
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partial and biased proceedings; (4) allowing the Commonwealth to reinstate 

the charge of DWOPS that was previously withdrawn pursuant to a plea 

agreement; (5) imposing a flat sentence of four months, without minimum 

and maximum terms; and (6) ordering his sentence to be served in state 

prison.3 We hold: (1) Appellant’s flat sentence for the summary offense of 

DWOPS is not compliant with 42 Pa.C.S. § 9756; and (2) after review of the 

certified record, it is not clear whether Appellant may serve the instant 

sentence in state prison pursuant to 42 Pa.C.S. § 9762(a). We find no relief 

is due on his remaining issues. Accordingly, we vacate the judgment of 

sentence and remand for resentencing.

The underlying vehicle stop giving rise to these charges will be 

discussed infra, in our disposition of Appellant’s suppression claim. On April 

9, 2012, Appellant pleaded guilty to false identification to law enforcement 

authorities and habitual offenders4in exchange for the Commonwealth’s 

withdrawing the DWOPS charge. Appellant subsequently withdrew the plea; 

the circumstances of the withdrawal will likewise be discussed infra.

On August 14 and 15, 2012, the trial court conducted hearings on 

Appellant’s suppression motion. Appellant later also filed a motion for the 

trial judge’s recusal, arguing the judge had presided over the suppression 

 

3

For ease of disposition, we have reordered Appellant’s issues.

4 18 Pa.C.S. § 4914; 75 Pa.C.S. § 6503.1.
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hearing, at which Appellant made admissions against his own interest. The 

court denied both the suppression and recusal motions.

The case proceeded to a bench trial on January 15, 2013, on charges 

of DWOPS and false reports.5 The officer who conducted the vehicle stop 

was the sole witness, and Appellant did not present any evidence or testify. 

The court found Appellant guilty of both counts and immediately sentenced 

him to four months in state prison, to be served consecutive to the unrelated 

state sentence he was currently serving.

Appellant did not file a post-sentence motion, but took this timely pro 

se appeal.6 He complied with the court’s order to file a Pa.R.A.P. 1925(b) 

 

5 On the eve of trial, January 14, 2013, the court entered an order granting, 

after a hearing, Appellant’s “oral motion to discharge” his assistant public 

defender, John F. Baurkot, Esq. and appointing Attorney Baurkot to act as 

stand-by counsel. Order, 1/14/13. However, at the commencement of trial, 

Appellant agreed to be represented by Attorney Baurkot. N.T., 1/15/13, at 

4-5.

6 Two days after sentencing, Attorney Baurkot filed a motion to withdraw as 

counsel, stating Appellant had “indicated a desire to represent himself in an 

Appeal.” Atty. Baurkot’s Mot. to Withdraw as Counsel, 1/17/13, at ¶ 3. The 

court then issued orders scheduling a hearing on this motion on, 

respectively, February 21, March 22, and May 1, 2013. On May 1st, it 

entered an order stating it had held the hearing and granting counsel leave 

to withdraw. Although the court technically lacked jurisdiction to conduct 

this hearing and allow counsel to withdraw, see Pa.R.A.P. 1701(a), in the 

interest of judicial economy we decline to disturb Appellant’s pro se status in 

the instant appeal. This panel could remand for a “proper” hearing for 

Appellant’s knowing waiver of counsel. However, because Appellant had just 

filed his own motion to discharge counsel three days before counsel filed his 

motion, and the court stated it held hearings on both motions, we decline to 

do so.
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statement of errors complained of on appeal. As summarized above, he 

raises six allegations of trial court error.

Appellant’s first claim is that the trial court erred in denying his motion 

for recusal. In support, he avers the court previously accepted his guilty 

plea, allowed withdrawal of the plea, and presided over the suppression 

hearing, at which he “made certain admissions of guilt.” Appellant’s Brief at 

8. Appellant asserts he was prejudiced “with bias that could not have been 

cured by any other means aside from recusal.” Id. We find no relief is due.

This Court has stated:

Our standard of review of a trial court’s determination not 

to recuse from hearing a case is exceptionally deferential. 

We recognize that our trial judges are “honorable, fair and 

competent,” and although we employ an abuse of 

discretion standard, we do so recognizing that the judge 

himself is best qualified to gauge his ability to preside 

impartially.

The party who asserts that a trial judge should 

recuse bears the burden of setting forth specific 

evidence of bias, prejudice, or unfairness. 

“Furthermore, a decision by the trial court against 

whom the plea of prejudice is made will not be 

disturbed absent an abuse of discretion.”

Commonwealth v. Harris, 979 A.2d 387, 391-92 (Pa. Super. 2009) 

(citations omitted).

In support of his argument, Appellant cites Commonwealth v. 

Simmons, 483 A.2d 953 (Pa. Super. 1984). In that case, this Court stated, 

“In a case where the judge hears highly prejudicial testimony, such as a 

withdrawn guilty plea, he should recuse himself from sitting as factfinder . . . 
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.” Id. at 956 (citation omitted). However, we further note:

[T]he mere participation by the trial judge in an earlier 

stage of the proceedings does not provide a per se basis 

for requiring recusal of the trial judge.

The determination of whether a trial judge should 

recuse himself depends upon the following: the type 

of evidence that the judge hears; if the evidence is 

inadmissible and is of a highly prejudicial nature, the 

judge should recuse himself or declare a mistrial if it 

is too late for recusal. The judge should also recuse 

himself whenever there is substantial doubt as to his 

ability to preside impartially. The burden to show 

prejudice, however, is on the party seeking recusal. 

If the evidence is admissible, or not of a highly 

prejudicial nature, recusal is not required, and while 

it may be the better practice to have a different 

judge preside over trial than preside over pre-trial 

proceedings, such a practice is not constitutionally 

required and has not been made the basis for setting 

aside a verdict reached in an otherwise proper trial. 

This principle appears to be based on the prevailing 

view that judicial fact-finders are capable of 

disregarding prejudicial evidence.

Commonwealth v. Lott, 581 A.2d 612, 615 (Pa. Super. 1990).

With respect to the trial judge’s presiding over the suppression 

hearing, Appellant does not explain what “certain admissions of guilt” he 

made. See Appellant’s Brief at 8. We note that DWOPS is defined as 

“driv[ing] a motor vehicle on any highway or trafficway” while one’s 

operating privilege is suspended, revoked, or cancelled, and false reports is 

defined as “giv[ing] information in oral or written reports . . . knowing or 

having reason to believe that the information is false.” 75 Pa.C.S. §§ 

1543(a), 3748.
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The Commonwealth points to the following testimony by Appellant on 

cross-examination:

[Commonwealth: This was the vehicle [t]hat you were 

driving while you were suspended[?]

[Appellant:] Correct.

* * *

Q. Did you lie to [Pennsylvania State Police Trooper 

Larry James McDaniel, the officer who stopped you]?

A. I gave him false identification, yes.

See N.T. Suppression H’rg, 8/15/12, at 18, 19; Commonwealth’s Brief at 8.

The trial court found recusal was not necessary, stating: “I was 

capable of rendering a fair decision regardless of what I heard at 

[Appellant’s] guilty plea and pretrial hearing.” Trial Ct. Op. at 3-4. The 

charges against Appellant—DWOPS and false reports—were relatively 

simple; the issues before the trial court were whether Appellant drove while 

his driving privilege was suspended or revoked and whether he gave 

information he knew to be false to Trooper McDaniel. On appeal, Appellant 

makes no argument that his admissions at the suppression hearing were 

inadmissible or that trial proceedings were flawed. See Lott, 581 A.2d at 

615. We reject, on this same ground, Appellant’s argument pertaining to 

the trial court’s presiding over his initial guilty plea. In light of the 

foregoing, as well as the “prevailing view” that a trial judge is “capable of 

disregarding prejudicial evidence,” we hold the trial court did not abuse its 
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discretion in denying Appellant’s recusal motion. See Harris, 979 A.2d at 

391-92; Lott, 581 A.2d at 615.

Appellant’s second claim on appeal is that the trial court erred in 

finding Trooper McDaniel articulated the requisite reasonable suspicion to 

stop him, and consequently, erred in denying his suppression motion. 

Appellant contends Trooper McDaniel’s purported reasons for stopping him—

tinted windows and a prior encounter with the same vehicle several months 

earlier—were deficient because: (1) the trooper did not “bother to test the 

light transmittance levels of the window in question” and did not have the 

equipment with him to do so; (2) the “alleged violation . . . could not 

possibly have been corroborated through investigation or independent 

evidence;” (3) no citation for tinted windows was ever issued; and (4) 

although “Trooper McDaniel stated he could not see through the window on 

the day of the stop, in full sunlight, he, while in court [at the suppression 

hearing] under artificial lighting, said of Defense exhibit-1, a window tinted 

to the same degree as the windows on the vehicle in question, that he was 

able to see through it.” Appellant’s Brief at 9, 10, 12 (citation to 

suppression transcript omitted). Appellant concludes Trooper McDaniel’s 

“simple statement . . . that he knew the tint was in violation of the 

Inspection Code amounted to nothin[g] more than a conclusory statement to 

the trooper’s belief” and was “simply [a recitation of] the elements of the 

alleged vehicle infraction.” Id. at 12. We find no relief is due.
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This Court has stated:

An appellate court’s 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 conclusions 

drawn from those facts are correct. [Because] 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. Muhammed, 992 A.2d 897, 899-900 (Pa. Super. 2010) 

(citation omitted).

Section 6308 of the Motor Vehicle Code provides that when a police 

officer

has reasonable suspicion that a violation of this title is 

occurring or has occurred, he may stop a vehicle . . . for 

the purpose of checking the vehicle’s registration, proof of 

financial responsibility, vehicle identification number or 

engine number or the driver’s license, or to secure such 

other information as the officer may reasonably believe to 

be necessary to enforce the provisions of this title.

75 Pa.C.S. § 6308(b).

[T]o establish grounds for reasonable suspicion, the 

officer must articulate specific observations which, in 

conjunction with reasonable inferences derived from 

those observations, led him reasonably to conclude, 

in light of his experience, that criminal activity was 

afoot and that the person he stopped was involved in 

that activity. The question of whether reasonable 

suspicion existed at the time [the officer conducted 

the stop] must be answered by examining the 

totality of the circumstances to determine whether 

the officer who initiated the stop had a particularized 
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and objective basis for suspecting the individual 

stopped. Therefore, the fundamental inquiry of a 

reviewing court must be an objective one, namely, 

whether the facts available to the officer at the 

moment of the [stop] warrant a [person] of 

reasonable caution in the belief that the action taken 

was appropriate.

. . . [“]While an actual violation need not be 

established, a reasonable basis for the officer’s 

belief is required to validate the stop.”

Muhammed, 992 A.2d at 900-01 (citations omitted) (emphasis added).

At the suppression hearing, Trooper McDaniel testified to the following. 

“Several months” before the instant vehicle stop, Trooper McDaniel had 

stopped a car for window tint on the side and rear windows. N.T. 

Suppression H’rg, 8/14/12, at 7-8. He issued a citation to the driver, Kerry 

Hoffman, who was also the owner of the vehicle, as well as a written 

warning for the window tint violation and instruction to remove the window 

tint.

On July 3, 2011, at approximately 7:56 PM, Trooper McDaniel saw the 

same car. His “initial observation of the vehicle was that it had dark window 

tint on the rear sides and rear window, which did not permit [him] to see 

inside of the vehicle.” Id. at 7. The trooper testified that window tinting is 

governed by Sections 4524(e)(1) and 4107(b)(2) of the Motor Vehicle 

Code.7 Id. at 8. The trooper followed the vehicle, at which point he could

 

7 Section 4524(e)(1) provides: “No person shall drive any motor vehicle with 

any sun screening device or other material which does not permit a person 
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not “see the driver who was sitting in the driver’s seat through the rear 

window.” Id. 

In denying Appellant’s suppression motion, the trial court held:

I find credible [Trooper McDaniel’s] testimony that he 

could not see through the rear window and that he 

believed the tint to be so dark that it was in violation of 

the inspection code. Furthermore, McDaniel had seen this 

same vehicle before and issued the driver a warning to 

have the tint removed. Upon seeing it a second time in 

the same condition, McDaniel likely had probable cause 

to pull the vehicle over.

Order, 10/15/12, at 2 n.1 (emphasis added).

In light of the trial court’s specific finding that Trooper McDaniel’s 

testimony was credible, we find no abuse of discretion in its holding that the 

trooper stated specific observations and properly concluded that criminal 

activity was afoot. See Muhammed, 992 A.2d at 900-01. The trooper 

clearly testified several months earlier, he issued a warning to the driver of 

the vehicle to remove the tint on the windows, and on the day in question, 

observed the same vehicle with windows dark enough that he could not see 

through them. Furthermore, we find no merit to Appellant’s argument that 

he was not issued a citation for tinted windows, as the law does not require 

 

to see or view the inside of the vehicle through the windshield, side wing or 

side window of the vehicle.” 75 Pa.C.S. § 4524(e)(1).

Section 4107(b)(2) sets forth the summary offense of “unlawful activities.” 

See 75 Pa.C.S. § 4107(b)(2). Trooper McDaniel acknowledged this, stating: 

“4107(b)(2), which is unlawful activities, would reference the inspection 

manual.” N.T., 8/14/12, at 9. However, there was no further discussion or 

explanation about an inspection manual.
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a violation to be established. See id. Accordingly, we do not disturb the 

trial court’s suppression order.

Appellant’s third claim on appeal is that the court improperly made 

biased and inflammatory remarks during the suppression hearing. Before 

citing Appellant’s specific challenge, we quote the paragraph surrounding it, 

in order to give context to his argument:

To protect our children from the harmful effects of overexposure to the Sun, we add sun-screening to the rear 

windows of our sedans[.] For those who[ ] cannot afford 

to purchase or maintain the fuel bills and payments of a 

massive SUV, the Pennsylvania Department of 

Transportation finds a way to discriminate against them by 

creating rules that could suggest that the children of the 

less fortunate are of less value than their counterparts 

whom are more fortunate. Or as the suppression court 

suggested, their cargo is more important or more 

valuable than the little lives we entrust and confine 

to these same locations.

Appellant’s Brief at 14-15 (citing N.T., 8/14/12, at 35) (emphasis added). 

Appellant maintains, “When [J]udge Anthony uttered in court that people 

who have tinted windows on their cars ‘are up to no good[,]’ he clearly held 

a negative opinion of me which directly led to the deleterious outcome of 

this case.” Id. at 15 (citing N.T., 8/14/12, at 31). We agree with the trial 

court that this issue is waived.

The trial court suggested waiver for lack of specificity in Appellant’s 

pro se 1925(b) statement. Pennsylvania Rule of Appellate Procedure 

1925(b)(4) provides in pertinent part: “The Statement shall concisely 

identify each ruling or error that the appellant intends to challenge with 
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sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P. 

1925(b)(4)(ii). The comment to this subsection acknowledges that 

vagueness is a “very case specific inquir[y].” However, the comment 

explains,

The more carefully the appellant frames the Statement, 

the more likely it will be that the judge will be able to 

articulate the rationale underlying the decision and provide 

a basis for counsel to determine the advisability of 

appealing that issue. Thus, counsel[8]should begin the 

winnowing process when preparing the Statement and 

should articulate specific rulings with which the appellant 

takes issue and why.

Pa.R.A.P. 1925, cmt.

Appellant’s 1925(b) statement raises the issue as follows: “3) Whether 

trial court erred in allowing trial Judge, during suppression hearing, to make 

inflammatory and bias remarks indicating Defendant was guilty.” Appellant’s 

Concise Statement of Errors Complained of on Appeal, 3/22/13, at 1 

(verbatim). The trial court stated, “Without a more specific indication of 

what remarks [Appellant] is referring to, I cannot properly address [his] 

claim.” Trial Ct. Op. at 4.

The suppression hearing was conducted over two days. The first 

 

8 As stated above, Appellant’s 1925(b) statement was prepared pro se. 

“Although this Court is willing to construe liberally materials filed by a pro se

litigant, pro se status generally confers no special benefit upon an appellant. 

Accordingly, a pro se litigant must comply with the procedural rules set forth 

in the Pennsylvania Rules of the Court.” Commonwealth v. Lewis, 63 

A.3d 1274, 1278 (Pa. Super. 2013) (citation omitted).
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volume of testimony is forty-three pages long and the second is thirty-nine. 

Appellant’s 1925(b) statement does not cite any specific remark or transcript 

page, but qualifies only that the court’s remarks “indicat[ed he] was guilty.” 

Id. Without any further explanation by Appellant, we agree with the trial 

court that the 1925(b) statement was overly vague.

Furthermore, the Commonwealth argues this issue is waived for 

Appellant’s failure to challenge the trial court’s remarks in the proceedings 

below. Commonwealth’s Brief at 14-15. We agree. While Appellant’s brief 

identifies the remarks which he now challenges, our review of the record 

reveals he raised no objection, either contemporaneously or in a post-verdict 

motion, to them. See Pa.R.A.P. 302(a) (“Issues not raised in the lower 

court are waived and cannot be raised for the first time on appeal.”).

Appellant’s fourth claim on appeal is that the “trial court err[ed] in 

allowing the Commonwealth to withdraw a summary offense and later 

reinstate the same offense.” Appellant’s Brief at 17 (capitalization 

removed). In support, he avers: (1) under his initial plea agreement, the 

Commonwealth agreed to withdraw the DWOPS charge and recommend a 

sentence of one to six months9in exchange for his pleading to habitual 

offenders and false identification; (2) Appellant pleaded accordingly; (3) the 

Commonwealth then “abrogated this initial agreement when Assistant 

 

9 The claim that the Commonwealth would recommend a sentence of one to 

six months appears in the statement of the case section of Appellant’s brief. 

Appellant’s Brief at 5.
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District Attorney who [sic] was present informed the court something on the 

order of ‘that wasn’t my deal, I would recommend the court sentence him to 

the max’, whereupon the court handed down a sentence of 1-24 months for 

the [habitual offenders] charge, a misdemeanor 2 offense;” (4) the court 

immediately allowed Appellant to withdraw his plea; and (5) the 

Commonwealth reinstated the charge of DWOPS. Appellant’s Brief at 5, 18. 

Appellant then concludes that because the Commonwealth failed to honor its 

“agreement, the court should not have allowed the reinstating of this 

charge.” Id. We find no relief is due.

We note: 

Where a plea agreement has been entered of record and 

accepted by the trial court, the state is required to abide 

by the terms of the plea agreement. However, prior to the 

entry of a guilty plea, the defendant has no right to 

specific performance of an “executory” agreement.

Commonwealth v. Mebane, 58 A.3d 1243, 1246 (Pa. Super. 2012) 

(quoting Mabry v. Johnson, 467 U.S. 504 (1984), disapproved on other 

grounds, Puckett v. U.S., 556 U.S. 129 (2009); Santobello v. New York, 

404 U.S. 257 (1971)).

The trial court recounted the procedural history more simply, as 

follows:

As part of [Appellant’s] guilty plea of April 9, 2012, the 

Commonwealth agreed not to pursue the charge of 

[DWOPS. Appellant] subsequently made the decision to 

withdraw that guilty plea and, as a result, the 

Commonwealth determined it would again pursue that 

charge. 
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Trial Ct. Op. at 4.

The April 9, 2012 transcript is not included in the certified record, and 

we therefore cannot ascertain the terms of the agreement as presented to 

the trial court. Nevertheless, we may find no relief is due. Appellant initially 

pleaded guilty to habitual offenders, a misdemeanor of the second degree 

(“M-2”), and false identification, a misdemeanor of the third degree (“M-3”), 

purportedly in exchange, in part, for the Commonwealth’s recommendation 

of a one to six-month sentence. After he withdrew the plea, the 

Commonwealth withdrew the M-3 false identification charge, reinstated the 

charge of DWOPS, and added a charge of false reports. The latter two 

offenses are both summary offenses.10

 

10 Although this was Appellant’s twentieth conviction of DWOPS, the charge 

remained a summary offense. In Commonwealth v. Soboleski, 617 A.2d 

1309 (Pa. Super. 1992), this Court explained:

A violation of section 1543(a)[, DWOPS,] is a summary 

offense punishable by a fine of $200. 75 Pa.C.S. § 

1543(a). If sentenced under the recidivist provision, 

section 6503, the sentencing possibilities are enlarged—“a 

fine of not less than $ 200 nor more than $ 1,000 or to 

imprisonment for not more than six months, or both.” 75 

Pa.C.S. § 6503. Pursuant to section 106(c) of the Crimes 

Code, a fine of up to $1000 and/or imprisonment of up to 

six months alters the grade of the offense, from a 

summary offense to a misdemeanor of the third degree. 

See 18 Pa.C.S. § 106(c) and (e). However, . . . section 

6502(c) specifically states that this classification “as it 

relates to fines and imprisonment for convictions of 

summary offenses, is not applicable to [Title 75].” 75 
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The trial court aptly noted the M-3 false identification charge carried a 

maximum sentence of twelve months, whereas false reports exposed him 

only to a $200 fine and no incarceration. See 18 Pa.C.S. § 1104(3); 75 

Pa.C.S. § 3748;11 Trial Ct. Op. at 5. The DWOPS charge carried a maximum 

sentence of six months. 75 Pa.C.S. § 6503(a.1).

In sum, after Appellant withdrew his plea, he was charged with lessergraded offenses that exposed him to lesser sentences; indeed, false reports 

did not allow any sentence of incarceration. Furthermore, the DWOPS 

charge exposed Appellant to a sentence of thirty days to six months, the 

very same sentence that the Commonwealth allegedly promised to 

recommend. Appellant’s brief ignores these circumstances, which are in his 

favor, and instead only advances a bald insistence that the Commonwealth 

should not have been allowed to pursue the so-called “reinstated” charges. 

Appellant also ignores that the “new” charges carried the very same 

sentence which the Commonwealth allegedly promised to recommend under 

the plea agreement. In light of the foregoing, we deny relief on Appellant’s 

 

Pa.C.S. § 6502(c). Consequently, the offense remains a 

summary offense.

Id. at 1311 n.1.

11 The false report statute states: “Any person who gives information in oral 

or written reports required by this subchapter knowing or having reason to 

believe that the information is false is guilty of a summary offense and 

shall, upon conviction, be sentenced to pay a fine of $200.” 75 

Pa.C.S. § 3748.
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claim.

Appellant’s fifth claim on appeal is that the trial court erred in 

imposing a “flat” sentence on the DWOPS conviction of four months’ 

imprisonment in a state correctional institution. Appellant avers the 

Sentencing Code, as well as case authority, require a sentence of total 

confinement to include minimum and maximum terms.12 We agree and 

remand for resentencing.

We note Appellant did not raise this claim before the trial court or in 

his 1925(b) statement. See Pa.R.A.P. 302(a), 1925(b)(4). Nevertheless, a 

claim that a flat sentence should have instead had minimum and maximum 

terms goes to the legality of the sentence, and such issues are nonwaivable. See Commonwealth v. Milhomme, 35 A.3d 1219, 1221 (Pa. 

Super. 2011).

“Our scope of review of challenges to the legality of a sentence is 

plenary, and the standard of review is de novo.” Id. Appellant’s DWOPS 

conviction, although being his twentieth, is graded a summary offense. See 

Soboleski, 617 A.2d at 1311 n.1; Sentencing Order, 1/15/13. Section 6503 

of the Vehicle Code, which governs subsequent convictions of certain 

 

12 Appellant cites Section 9721(a)(4) for the requirement of minimum and 

mandatory terms. Appellant’s Brief at 16. However, Section 9721(a) 

merely provides that in determining a sentence, the trial court shall consider 

sentencing alternatives, and the alternative at (a)(4) is total confinement. 

42 Pa.C.S. § 9721(a)(4).
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offenses, including DWOPS, provides in pertinent part that a person 

convicted of a sixth or subsequent offense of DWOPS “shall be sentenced to 

pay a fine of not less than $1,000 and to imprisonment for not less than 30 

days but not more than six months.” 75 Pa.C.S. § 6503(a.1). Section 9756 

of the Sentencing Code provides that in imposing total confinement, the trial 

court shall specify a maximum period, as well as a minimum sentence that 

does not exceed one-half of the maximum. 42 Pa.C.S. § 9756(a), (b)(1).

Although our review of Pennsylvania authority has not revealed a 

decision discussing the applicability of Section 9756 to the particular 

subsection of DWOPS of which Appellant was convicted, this Court has 

applied Section 9756 applies to summary offenses and Vehicle Code 

offenses.13

The plain language of Section 9756 of the Sentencing Code directs the 

trial court to specify minimum and maximum periods imposing 

imprisonment. See id.; Commonwealth v. Destephano, 87 A.3d 361, 

365 (Pa. Super. 2014) (stating: (1) object of all interpretation and 

construction of statutes is to ascertain and effectuate intention of General 

Assembly; (2) every statute shall be construed, if possible, to give effect to 

all its provisions; and (3) plain language of statute is generally best indicator 

 

13 Commonwealth v. Basinger, 982 A.2d 121, 123, 127 (Pa. Super. 2009) 

(holding sentence of ninety days’ imprisonment for DUI was illegal under 42 

Pa.C.S. § 9756); Commonwealth v. Barzyk, 692 A.2d 211, 215-16 (Pa. 

Super. 1997) (finding flat sentence of thirty days’ incarceration for summary 

offense of harassment violated 42 Pa.C.S. § 9756).
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of General Assembly's intent). Although Pennsylvania courts have found 

some exceptions provided by statute, none applies in the case before us.14 

Accordingly, we agree with Appellant that his flat sentence of four months is 

illegal under Section 9756, and we remand for the trial court to impose a 

sentence that complies with that statute. See 42 Pa.C.S. § 9756(a), 

(b)(1).15

In so holding, we reject the Commonwealth’s arguments in favor of 

affirming the flat sentence. First, the Commonwealth reasons that Sections 

1543(a) and 6503(a.1) of the Vehicle Code, when read together, “create an 

exception to 42 Pa.C.S. § 9756(b) by permitting a sentencing court to 

impose a mandatory sentence of 30 days and a discretionary sentence not to 

exceed six months[ ] for subsequent violations of driving with a suspended 

 

14 See Commonwealth v. Bell, 645 A.2d 211, 217 (Pa. 1994) (reasoning 

flat five year sentence for possession with intent to deliver at least fifty 

pounds of marijuana, 35 P.S. § 780-113(a)(30), would stand despite 42 

Pa.C.S. § 9756, where 18 Pa.C.S. § 7508(a)(1)(iii) provides mandatory 

minimum of five years’ imprisonment and 35 P.S. § 780-113(f)(2) provides 

maximum of five years), cited with approval, Commonwealth v. Ramos, 

83 A.3d 86, 91 (Pa. 2013).

15 See Commonwealth v. Milhomme, 35 A.3d 1219, 1221-22 (Pa. Super. 

2011) (holding flat sentence of four months for delivery of a controlled 

substance was illegal under 42 Pa.C.S. § 9756); Commonwealth v. 

Mitchell, 986 A.2d 1241, 1244 (Pa. Super. 2009) (holding flat sentence of 

six months for violation of protection from abuse order was valid but flat 

sentence of ninety days for harassment was illegal); Basinger, 982 A.2d at 

123, 127; Barzyk, 692 A.2d at 215-16; Commonwealth v. Cain, 637 A.2d 

656, 658-59 (Pa. Super. 1994) (finding flat sentence of one year 

imprisonment for criminal contempt of court illegal because court did not 

specify any minimum sentence).
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license.[ ]” Commonwealth’s Brief at 19. We reject this interpretation. 

Section 1543(a) merely defines the offense of DWOPS and states that 

DWOPS is a summary offense and that an offender shall “be sentenced to 

pay a fine of $200.” 75 Pa.C.S. § 1543(a). Section 6503(a.1) states, in 

sum, “Certain repeat offenses.—A person convicted of a sixth or 

subsequent offense under section 1543(a) shall be sentenced to pay a fine 

of not less than $1,000 and to imprisonment for not less than 30 days but 

not more than six months.” 75 Pa.C.S. § 6503(a.1). These subsections, 

independently and read together, do not provide for a flat sentence.

The Commonwealth further contends Commonwealth v. 

Klingensmith, 650 A.2d 444 (Pa. Super. 1994), “recognized that 75 Pa.C.S. 

§ 1543(b) implicitly creates an exception to § 9756(b) by specifically 

authorizing a trial court to impose a flat minimum mandatory sentence of 

ninety days for driving with a suspended license when the suspension was 

the result of a DUI conviction.” Commonwealth’s Brief at 20 (emphasis 

added). “The Commonwealth submits that a 1543(a) violation is similarly 

situated and thus receives the same treatment.” Id. (emphasis added).

We disagree, and find Klingensmith, when considered in historical 

context, supports the opposite result. The Klingensmith Court first noted 

that “[w]here two statutory sections arguably cover the same matter and 

appear to be inconsistent, the specific provision will prevail over the general 

provision.” Klingensmith, 650 A.2d at 447. The Court considered Section 
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9756 to be the general provision. Id. The Court then applied the thenapplicable version of Section 1543(b), which stated that an offender “shall 

be sentenced . . . to undergo imprisonment for a period of not less than 90 

days.” Id. at 447 n.7. The current version of Section 1543(b) provides 

that an offender shall “undergo imprisonment for a period of not less than 

60 days nor more than 90 days.” 75 Pa.C.S. § 1543(b). Section 6503(a.1), 

which applies to Appellant in this case, provides a similar range of sentence: 

“not less than 30 days but not more than six months.” 75 Pa.C.S. § 

6503(a.1). Accordingly, in the present case, there is no specific statutory 

provision that would prevail over Section 9756’s requirement of minimum 

and mandatory terms.

Appellant’s final issue on appeal is that the court abused its discretion 

in ordering him to serve his sentence for a summary offense in state prison. 

Although we vacate the judgment of sentence for the reasons set forth 

above, we address this issue as it may arise at resentencing.

We first consider Section 9762, which governs where a sentence of 

imprisonment will be served. Subsection 9762(a) applies in the case sub 

judice and states:

(a) Sentences or terms of incarceration imposed 

before a certain date.–For the three-year period 

beginning on the effective date of this subsection,[16]all 

 

16 The effective date of Section 9756 is Monday, August 6, 2012. See 1 

Pa.C.S. § 1908; 42 Pa.C.S. § 9762(a). Appellant was sentenced on January 

15, 2013, which falls within the three-year period immediately following.
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persons sentenced to total or partial confinement for the 

following terms shall be committed as follows:

(1) Maximum terms of five or more years shall be 

committed to the Department of Corrections for 

confinement.

(2) Maximum terms of two years or more but less 

than five years may be committed to the Department 

of Corrections for confinement or may be committed to 

a county prison within the jurisdiction of the court.

(3) Maximum terms of less than two years shall be 

committed to a county prison within the jurisdiction of 

the court.

See 42 Pa.C.S. § 9762(a)(1)-(3) (emphases added).

We also consider Subsection 9762(f):

(f) Aggregation.–For purposes of this section, the 

sentences or terms of incarceration shall mean the entire 

continuous term of incarceration to which a person is 

subject, notwithstanding whether the sentence is the result 

of any of the following:

(1) One or more sentences.

* * *

(4) Any other manner of sentence.

42 Pa.C.S. § 9762(f)(1), (4).

On appeal, the Commonwealth frames Appellant’s claim as a challenge 

to the consecutive nature of his sentence, and thus the discretionary aspects 

of his sentence. The Commonwealth then reasons Appellant has waived this 

issue by failing to raise it before the trial court and raise a substantial 

question. However, Subsection 9762(a) directs that a defendant “shall” or 
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“may be” confined to state or county prison, depending on the length of the 

sentence. See 42 Pa.C.S. § 9762(a)(1)-(3). Because Appellant’s claim goes 

to the statutory authority of the court to sentence him to state prison, we 

deem the claim is a challenge to the legality of sentence, and do not find 

waiver. See Eisenberg, 98 A.3d at 1275.

Had Appellant not been serving any other sentence, Subsection 

9762(a) would direct the instant sentence for DWOPS, capped by statute at 

six months, to be completed in a county prison. See 42 Pa.C.S. § 

9762(a)(3); 75 Pa.C.S. § 6503(a.1). However, the trial court specifically 

imposed the instant sentence to run consecutive to an unrelated sentence he 

was currently serving in state prison. N.T., 1/15/13, at 25. The record does 

not indicate the length of the current state sentence.17 In light of the fact 

that the trial court will impose a new sentence upon remand, and the various 

results that may arise under Section 9762(f), we direct the trial court, at 

resentencing, to state where Appellant is to serve the new sentence and its 

reasoning pursuant to Section 9762(f).

Judgment of sentence vacated. Case remanded for resentencing 

consistent with this opinion.

 

17 Appellant states in his brief that he “is currently serving a 14-30 month 

sentence imposed by the Northampton County Court of Common Pleas 

docketed at CP0002304 (OTN:T1646783) for a conspiracy-burglary charge.” 

Appellant’s Brief at 17 n.4. However, without any support it the record, we 

will not rely on that statement in our disposition.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/17/2015