J-A09017-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

VERNON K. ROTHWELL, JR., :

:

Appellant : No. 1557 EDA 2014

Appeal from the Judgment of Sentence December 16, 2013,

Court of Common Pleas, Delaware County,

Criminal Division at No. CP-23-CR-0006111-2013

BEFORE: BOWES, DONOHUE and STABILE, JJ.

MEMORANDUM BY DONOHUE, J.: FILED APRIL 14, 2015

In this appeal, Vernon K. Rothwell, Jr. (“Rothwell”) appeals from the 

judgment of sentence entered following his conviction of driving under the 

influence of alcohol – highest rate of alcohol, 75 Pa.C.S.A. § 3802(c). We 

affirm.1

Rothwell’s conviction is the result of events that occurred on June 25, 

2013. The trial court summarized these events, as well as the relevant 

procedural history, as follows:

On June 25, 2013[,] Officer William Righter of the 

Tinicum Township Police Department was on duty 

and working patrol when he discovered a blue 

Pontiac Bonneville in a ditch behind the Wyndam 

Gardens Hotel in Essington, Pennsylvania. The 

vehicle was emitting a large amount of smoke and 

Office Righter heard the engine being revved. Officer 

 

1 Throughout this memorandum, we refer to the offense of driving under the 

influence as “DUI”. 
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Righter approached the driver, who was later 

identified as [Rothwell] ... . [Rothwell] was asked to 

step out of the vehicle and Officer Righter detected a 

strong odor of alcoholic beverages emanating from 

his person. [Rothwell’s] eyes were blood shot and 

his speech was slurred. After [Rothwell] was unable 

to adequately perform several field sobriety tests, he 

was placed under arrest for [DUI].

On December 16, 2013, [Rothwell] pled guilty 

to [DUI] [pursuant to 75 Pa.C.S.A. § 3802(c)], a tier 

III second offense, graded as a misdemeanor of the 

first degree. Pursuant to the terms of the plea 

agreement, which [the trial court] accepted, 

[Rothwell] was sentenced to serve [twenty-four] 

months of intermediate punishment consisting of ten 

[] [forty-eight]-hour periods of incarceration, 

followed by seventy [] days on electronic monitoring, 

as well as 120 hours of community service. 

[Rothwell] was additionally sentenced to [three] 

years of consecutive probation and ordered to pay 

costs, fines, and all required evaluation. 

On March 26, 2014, defense counsel filed a 

[m]otion for [r]econsideration and to [v]acate an 

[i]llegal [s]entence. Following argument on the 

motion, the [trial court] entered an order granting 

the motion on April 28, 2014. The Commonwealth 

filed a [m]otion for [r]econsideration the following 

day. A hearing was held on May 1, 2014, and on 

May 8, 2014, the [trial] court entered an order 

granted [sic] the Commonwealth’s [m]otion for 

[r]econsideration and vacated the order entered on 

April 28, 2014 and reinstated the sentence originally 

imposed on December 16, 201[3]. 

Trial Court Opinion, 10/15/14, at 1-2 (footnote omitted). This timely appeal 

follows. 

Rothwell presents one issue for our review: “Whether the sentence 

imposed by the [trial] [c]ourt on December 16, 2013[] and reinstated by 
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[o]rder dated May 8, 2014[] is in conformity with the penalty provisions of 

75 Pa.C.S.[A.] § 3803(a) and as such legal?” Rothwell’s Brief at 4. This 

Court’s scope and standard of review for determining the legality of a 

sentence are well established. “If no statutory authorization exists for a 

particular sentence, that sentence is illegal and subject to correction. An 

illegal sentence must be vacated. In evaluating a trial court's application of 

a statute, our standard of review is plenary and is limited to determining 

whether the trial court committed an error of law.” Commonwealth v. 

Jurczak, 86 A.3d 265, 267 (Pa. Super. 2014). 

Section 3802 of the Motor Vehicle Code defines the offense of DUI. 

Relevant to the present appeal, it states: 

(a) General impairment.--

(1) An individual may not drive, operate or be 

in actual physical control of the movement of a 

vehicle after imbibing a sufficient amount of alcohol 

such that the individual is rendered incapable of 

safely driving, operating or being in actual physical 

control of the movement of the vehicle.

(2) 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 0.08% but less than 

0.10% within two hours after the individual has 

driven, operated or been in actual physical control of 

the movement of the vehicle.

(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 
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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

(c) Highest 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 

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 (a)-(c). 

Section 3803 of the Motor Vehicle Code governs the grading of DUI 

offenses for sentencing purposes. At the time of Rothwell’s sentencing, it 

read, in relevant part, as follows:

(a) Basic offenses.— Notwithstanding the 

provisions of subsection (b):

(1) An individual who violates section 3802(a) 

(relating to driving under influence of alcohol or 

controlled substance) and has no more than one 

prior offense commits a misdemeanor for which the 

individual may be sentenced to a term of 

imprisonment of not more than six months and to 

pay a fine under section 3804 (relating to penalties).

***

(b) Other offenses.--

***

(4) An individual who violates section 

3802(a)(1) where the individual refused testing of 

blood or breath, or who violates section 3802(c) or 

(d) and who has one or more prior offenses commits 

a misdemeanor of the first degree.
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75 Pa.C.S.A. § 3803(a)(1), (b)(1),(4) (rescinded October 26, 2014).2

Rothwell recognizes that pursuant to § 3803(b)(4), his offense is a 

first-degree misdemeanor because he was convicted under § 3802(c) and 

had a prior DUI conviction. Generally, first-degree misdemeanors are 

punishable by up to five years of imprisonment. See 18 Pa.C.S.A. § 

106(b)(6). Yet, Rothwell argues that pursuant to § 3803(a), the trial court 

could not impose as sentence greater than six months. Rothwell’s Brief at 8. 

Rothwell bases his argument on this Court’s decision in Commonwealth v. 

Musau, 69 A.3d 754 (Pa. Super. 2013). The defendant in Musau was 

convicted of DUI under § 3802(a)(1). Because he had a prior DUI offense 

and refused blood or breath testing, the trial court graded the defendant’s 

offense as a first-degree misdemeanor pursuant to § 3803(b)(4) and 

sentenced the defendant to ninety days to five years of incarceration. 

Musau, 69 A.3d at 755-56. On appeal, the defendant argued that pursuant 

to § 3803(a)(1), the maximum sentence he could receive was six months of 

incarceration. This Court examined the language of § 3803(a)(1) and (b), 

and applying principles of statutory construction, concluded as follows:

The American Heritage Dictionary defines the word 

notwithstanding as “in spite of” or “although.” 

American Heritage Dictionary of the English 

Language 1203–04 (4th ed. 2006). Our Supreme 

 

2

 Effective October 27, 2104, the first line of subsection (a) was amended to 

read, “Except as provided in subsection (b)[,]” seemingly as a result of this 

Court’s decision in Commonwealth v. Musau, 69 A.3d 754 (Pa. Super. 

2013), which we discuss infra. 
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Court has defined “notwithstanding” as “regardless 

of.” See City of Philadelphia v. Clement & 

Muller, [] 715 A.2d 397, 399 ([Pa.] 1998) (holding 

that the plain meaning of the phrase 

“notwithstanding a contrary provision of law of the 

Commonwealth ...” is “regardless of what any other 

law provides ...”). Given these definitions, the 

Commonwealth's interpretation might be persuasive 

if the legislature had instead prefaced subsection (a) 

with “except as provided in subsection (b),” or began 

subsection (b) with “notwithstanding the provisions 

of subsection (a).” But it did not. Therefore, we hold 

that the plain language of the statute, giving the 

words their ordinary meanings, indicates as follows: 

regardless of the fact that refusal to submit to blood 

alcohol testing results in the grading of the offense 

as a first degree misdemeanor, the maximum 

sentence for a first or second DUI conviction is six 

months' imprisonment.

Id. at 757-58. 

This holding has no effect on Rothwell, as it addresses only the 

language in § 3803(a) and (b) with regard to certain convictions of § 

3802(a) (DUI – general impairment). Rothwell was convicted of § 3802(c) 

(DUI – highest rate of alcohol). By the plain language of the statute, § 

3803(a) applies only to convictions of DUI – general impairment and does 

not apply to convictions of DUI – highest rate of alcohol. Further, the 

language of § 3803 is clear that where a defendant is convicted of DUI –

highest rate of alcohol and has one prior DUI conviction, the offense is to be 

graded as a first-degree misdemeanor. As noted above, the statutory limit 

for a first-degree misdemeanor is five years of incarceration. Rothwell’s 

sentence does not exceed this limit, and so his sentence is legal. 
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Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/14/2015