J-S28021-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TERRY WAYNE ISADORE 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 86 WDA 2023

Appeal from the Judgment of Sentence Entered December 15, 2022

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

No(s): CP-42-CR-0000560-2021

BEFORE: PANELLA, P.J., OLSON, J., and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.: FILED: OCTOBER 23, 2023

Appellant, Terry Wayne Isadore, appeals from the December 15, 2022 

judgment of sentence entered in the Court of Common Pleas of McKean 

County that imposed an aggregate sentence of 45 to 90 days’ incarceration 

and ordered Appellant to pay $1,375.00 in fines and $53.50 in costs of 

prosecution. We affirm Appellant’s convictions but vacate, in part, the 

judgment of sentence in accordance with this memorandum and remand this 

case for further proceedings.

The record reveals that, on November 1, 2022, the trial court, at the 

conclusion of a non-jury trial, convicted Appellant of: Count 1 – drivers 

required to be licensed (summary offense); Count 2 – driving while operating 

privilege is suspended or revoked – unrelated to driving under the influence 

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* Former Justice specially assigned to the Superior Court.
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of alcohol or a controlled substance (“DUI”); Count 3 – required financial 

responsibility – operation of a motor vehicle without required financial 

responsibility (summary offense); Count 4 – registration and certificate of title 

required – driving unregistered vehicle prohibited (summary offense); Count 

5 – operation of vehicle without official certificate of inspection (summary 

offense); Count 6 – turning movements and required signals (summary 

offense); and Count 8 – driving while operating privilege is suspended or 

revoked – DUI related.

1

 On December 15, 2022, the trial court sentenced 

Appellant to an aggregate term of 45 to 90 days’ incarceration and ordered 

Appellant to pay $1,375.00 in fines and $53.50 in costs of prosecution.2 This 

appeal followed.3

Appellant raises the followings issues for our review:

[1.] Did the trial court err in concluding that [] Appellant violated 

[] 75 Pa.C.S.A. § 1543[](b)(1)(i)?

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1 75 Pa.C.S.A. §§ 1501(a), 1543(a), 1786(f), 1301(a), 4703(a), 3334(a), and 

1543(b)(1)(i), respectively. Appellant was charged with habitual offenders, 

75 Pa.C.S.A. § 6503.1, at Count 7. On May 5, 2022, the trial court granted 

the Commonwealth’s motion to withdraw Count 7.

2 On Count 8, the trial court imposed a sentence of 45 to 90 days’ incarceration 

and ordered Appellant to pay $500.00 in fines. The trial court further ordered 

that Appellant be automatically paroled upon expiration of the minimum 

sentence unless the Commonwealth filed a timely objection. At Counts 1 to 

6, the trial court ordered Appellant to pay fines in the amounts of $200.00, 

$200.00, $300.00, $75.00, $50.00, and $50.00 respectively.

3 Both Appellant and the trial court complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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[2.] Did the trial court err in finding [] Appellant guilty of both [] 

75 Pa.C.S.A. § 1501[] and 75 Pa.C.S.A. § 1543[,] and 

[imposing a sentence on] both [convictions]?

[3.] Did the trial court err in finding [] Appellant guilty of both [] 

75 Pa.C.S.A. § 1543[(a)] and § 1543[(b)(1)(i),] and for 

[imposing a sentence on] both [convictions]?

[4.] Did the trial court err in finding [] Appellant guilty of 

violating [] 75 Pa.C.S.A. § 3334[(a)]?

Appellant’s Brief at 5 (extraneous capitalization omitted).

4

Appellant’s first issue challenges the constitutionality of Section 

1543(b)(1)(i) based upon the United States Supreme Court decision in 

Birchfield v. North Dakota, 579 U.S. 438 (2016). Appellant’s Brief at 

12-13. Appellant asserts that pursuant to Birchfield, Section 1543(b)(1)(i) 

is unconstitutional because it “improperly criminalizes his earlier refusal to 

submit to a warrantless blood draw.” Id.; see also Appellant’s Rule 1925(b) 

Statement, 2/3/23, at ¶4.

“As the constitutionality of a statute presents a pure question of law, 

our standard of review is de novo and our scope of review is plenary.” 

Commonwealth v. Lawrence, 99 A.3d 116, 118 (Pa. Super. 2014), appeal 

denied, 114 A.3d 416 (Pa. 2015). “A presumption exists that the General 

Assembly does not intend to violate the Constitution of the United States or 

of this Commonwealth when promulgating legislation.” Lawrence, 99 A.3d 

at 118 (citation, original quotation marks, and brackets omitted). As such, 

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4 For purpose of disposition, we reorganized Appellant’s issues.
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“acts passed by the General Assembly are strongly presumed to be 

constitutional, including the manner in which they were passed.” Id. “Thus, 

a statute will not be found unconstitutional unless it clearly, palpably, and 

plainly violates the Constitution.” Id.

Section 1543(b)(1)(i) of the Vehicle Code states that

A person who drives a motor vehicle on a highway or trafficway of 

this Commonwealth at a time when the person's operating 

privilege is suspended or revoked as a condition of acceptance of 

Accelerated Rehabilitative Disposition for a violation of section 

3802 (relating to [DUI]) or the former section 3731, because of a 

violation of section 1547(b)(1) (relating to suspension for refusal) 

or 3802 or former section 3731 or is suspended under section 

1581 (relating to Driver's License Compact) for an offense 

substantially similar to a violation of section 3802 or former 

section 3731 shall, upon a first conviction, be guilty of a summary 

offense and shall be sentenced to pay a fine of $500[.00] and to 

undergo imprisonment for a period of not less than 60 days nor 

more than 90 days.

75 Pa.C.S.A. § 1543(b)(1)(i). Section 1547(b)(1) of the Vehicle Code states 

that “[i]f any person placed under arrest for a violation of [S]ection 3802

[(DUI)] is requested to submit to chemical testing and refuses to do so, the 

testing shall not be conducted but upon notice by the police officer, the 

[Pennsylvania Department of Transportation] shall suspend the operating 

privilege of the person” for a period of 12 or 18 months.5 75 Pa.C.S.A. 

§ 1547(b)(1)(i) and (ii).

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5 The term “chemical test or testing” is defined by the Vehicle Code as an 

“analysis performed on a biological material, including but not limited to 

breath, blood[,] or urine, to determine the identity or concentration[,] or 
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Upon review, we discern no error in Appellant’s conviction under Section 

1543(b)(1)(i) on the grounds that the statute is constitutionally infirm based 

upon Birchfield. Rather, we find Appellant’s reliance on Birchfield, to be 

misplaced.

In Birchfield, the United States Supreme Court addressed whether 

implied consent laws, which required a motorist to submit to a chemical test 

upon arrest for suspicion of DUI or face criminal punishment, i.e., 

incarceration or fines, violated Fourth Amendment protections against 

unlawful searches and seizures under the United States Constitution.6 

Birchfield, 579 U.S. at 444. First, the High Court, recognized a difference in 

privacy protections afforded to breath tests verses blood tests, explaining that 

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both[,] of particular constituents such as alcohol or controlled substances.” 

75 Pa.C.S.A. § 102.

6 The Fourth Amendment provides,

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to 

be seized.

U.S. CONST. amend. IV.

The underlying premise of an implied consent law is that a motorist, by virtue 

of driving on public roadways, was deemed to have consented to chemical 

tests when there was sufficient reason to believe that the motorist was driving 

while under the influence of alcohol or a controlled substance. See 

Birchfield, 579 U.S. at 444.
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“[b]ecause breath tests are significantly less intrusive than blood tests and[,]

in most cases[,] amply serve law enforcement interests,” a breath test may, 

consistent with the Constitution, be “administered as a search incident to a 

lawful arrest for [DUI.]” Id. at 476. A warrant was not necessary before 

administering a breath test as a search incident to a lawful arrest. Id. 

Conversely, the High Court found blood tests to be “significantly more 

intrusive” of a person’s privacy interests and, as such, absent consent or 

exigent circumstances, law enforcement was required to first obtain a warrant 

before subjecting a motorist to a blood test. Id.

Next, the High Court addressed the constitutionality of laws under which 

a motorist was deemed to have impliedly consented to a blood test by virtue 

of driving on public roadways. Under such statutes, motorists were subject 

to compulsory, warrantless blood tests upon arrest and faced criminal 

punishment for refusal. Id. at 476-478. In reaching its conclusion that 

implied consent laws that imposed criminal penalties for refusing a blood test 

were unconstitutional, the Birchfield Court reasoned that “motorists cannot 

be deemed to have consented to submit to a blood test on pain of committing 

a criminal offense.” Id. at 477. The High Court limited its holding in 

Birchfield, however, to those implied consent laws which imposed criminal 

penalties for refusal, noting that its holding in Birchfield should not be read 

to cast doubt on its prior opinions which “referred approvingly to the general 

concept of implied-consent laws that impose civil penalties and evidentiary 
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consequences on motorists who refuse to comply” with requests for blood 

tests. Id. at 476-477.

Here, Appellant violated Section 1543 and was subjected to criminal 

punishment pursuant to that provision of the Vehicle Code because he 

operated a motor vehicle while his operating privileges were suspended, 

revoked, or cancelled, not because he refused to submit to a blood test, either 

presently or on a prior occasion. In general, Section 1543 makes it a criminal 

offense for a motorist to operate a motor vehicle when the motorist’s 

operating privileges have been suspended, revoked, or cancelled. A motorist’s 

operating privileges can be suspended or revoked for any number of reasons, 

including, inter alia, the refusal to submit to a blood test upon arrest for DUI. 

The criminal punishment applicable to a violation of Section 1543 depends on 

the reason for the suspension, revocation, or cancellation of the motorist’s 

operating privileges. For example, Section 1543(a) imposes a $200.00 fine 

when a motorist operates a motor vehicle despite a suspension, revocation, 

or cancellation of operating privileges resulting from non-DUI-related matters. 

See 75 Pa.C.S.A. § 1543(a); compare 75 Pa.C.S.A. § 1543(b). On the other 

hand, when the motorist operates a motor vehicle despite a suspension, 

revocation, or cancellation of operating privileges resulting from DUI-related 

matters, the motorist is subject to a punishment of a $500.00 fine and 

incarceration of not less than 60 days nor more than 90 days. 75 Pa.C.S.A. 

§ 1543(b)(1)(i). Thus, a plain-reading of Section 1543 reveals that operating 

a motor vehicle while a motorist’s operating privileges are suspended, 
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revoked, or cancelled triggers a violation of Section 1543, and the punishment 

for a violation of Section 1543 differs depending upon the cause for the 

suspension, revocation, or cancellation. Stated another way, Appellant’s

conviction of Section 1543 resulted from his operating a motor vehicle while 

his operating privileges were suspended, and the punishment he received was 

based upon the reason his operating privileges were suspended.

Birchfield held that implied consent to submit to a blood test was 

constitutionally invalid when a motorist faced criminal punishment for refusal

to comply. Notwithstanding, the High Court in Birchfield expressed its 

continued approval of implied consent laws that imposed civil penalties and 

evidentiary consequences upon a motorist’s refusal to comply with a request 

for blood testing. Appellant has not cited, and we are unaware of, any legal 

authority which invalidates an implied consent scheme in which a blood test 

refusal leads only to a suspension of operating privileges (but not criminal 

punishment) and where, in turn, criminal punishment attaches to the 

operation of a motor vehicle by a motorist whose driving privilege has been 

suspended pursuant to a valid implied consent law. If a state can validly 

suspend a driver’s operating privilege for refusal to submit to a blood test, it 

can certainly punish an individual who refuses to comply with such a lawful 

suspension. Therefore, Appellant’s challenge to his conviction of Section 

1543(b)(1)(i) on the grounds the statute was constitutionally invalid pursuant 

to Birchfield, is without merit.
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Appellant’s second and third issues challenge his convictions under

Section 1501, 1543(a), and 1543(b)(1)(i) and the corresponding sentences 

that he received for each of these convictions. Appellant’s Brief at 9-12.

To the extent that Appellant challenges his convictions under Sections 

1501, 1543(a), and 1543(b)(1)(i), we find this issue waived for failure to raise 

a challenge to his convictions with the trial court.7, 8 See Pa.R.A.P. 302(a) 

(stating, “[i]ssues not raised in the trial court are waived and cannot be raised 

for the first time on appeal”); see also Commonwealth v. Hill, 238 A.3d 

339, 408 (Pa. 2020) (finding waiver of challenges to convictions for failure to 

raise the issues with the trial court).

Inasmuch as Appellant’s second and third issues challenge his judgment 

of sentence on grounds that certain convictions should have merged for 

sentencing purposes, such a claim implicates the legality of sentence for which 

our standard and scope of review are well-settled. When presented with a 

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7

Inasmuch as Appellant contends the trial court erred in convicting him of 

multiple offenses arising from the same episode, this claim “is patently 

frivolous.” Commonwealth v. Laing, 456 A.2d 204, 207 (Pa. Super. 1983) 

It is well-established that an individual “may be charged, tried and found guilty 

of several offenses for but one criminal act.” Id. (stating, “[i]ndeed 

prosecutors generally offer the [fact-finder] a smorgasbord of offenses” upon 

which to convict an accused (citation and original quotation marks omitted)).

8 Following his conviction, Appellant filed pro se a “post conviction motion” on 

November 2, 2022. A review of this motion reveals that Appellant raised a 

claim sounding in ineffective assistance of trial counsel rather than a challenge 

to his convictions. As such, this motion did not preserve a challenge to his 

convictions.
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challenge to the legality of a sentence, our standard of review is de novo and 

our scope of review is plenary. Commonwealth v. Quintua, 56 A.3d 399, 

400 (Pa. Super. 2012), appeal denied, 70 A.3d 810 (Pa. 2013).

Appellant was convicted of the following pertinent offenses under the 

Vehicle Code:

§ 1501. Drivers required to be licensed

(a) General rule.--No person, except those expressly exempted, 

shall drive any motor vehicle upon a highway or public property 

in this Commonwealth unless the person has a driver's license 

valid under the provisions of this chapter. As used in this 

subsection, the term “public property” includes, but is not limited 

to, driveways and parking lots owned or leased by the 

Commonwealth, a political subdivision or an agency or 

instrumentality of either.

. . .

(d) Penalty.--Any person violating subsection (a) is guilty of a 

summary offense and shall, upon conviction, be sentenced to pay 

a fine of $200[.00], except that, if the person charged furnishes 

satisfactory proof of having held a driver's license valid on the last 

day of the preceding driver's license period and no more than one 

year has elapsed from the last date for renewal, the fine shall be 

$25[.00]. No person charged with violating subsection (a) [] shall 

be convicted if the person produces at the office of the issuing 

authority within 15 days of the violation:

(1) a driver's license valid in this Commonwealth at the time 

of the violation; or

(2) if the driver's license is lost, stolen, destroyed or 

illegible, evidence that the driver was licensed at the time 

of the violation.

75 Pa.C.S.A. § 1501(a) and (d).

§ 1543. Driving while operating privilege is suspended or 

revoked
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(a) Offense defined.--Except as provided in subsection (b), any 

person who drives a motor vehicle on any highway or trafficway 

of this Commonwealth after the commencement of a suspension, 

revocation[,] or cancellation of the operating privilege and before 

the operating privilege has been restored is guilty of a summary 

offense and shall, upon conviction or adjudication of delinquency, 

be sentenced to pay a fine of $200[.00].

(b) Certain offenses.--

(1) The following shall apply:

(i) A person who drives a motor vehicle on a highway 

or trafficway of this Commonwealth at a time when 

the person's operating privilege is suspended or 

revoked as a condition of acceptance of Accelerated 

Rehabilitative Disposition for a violation of section 

3802 (relating to [DUI]) or the former section 3731, 

because of a violation of section 1547(b)(1) (relating 

to suspension for refusal) or 3802 or former section 

3731 or is suspended under section 1581 (relating to 

Driver's License Compact) for an offense substantially 

similar to a violation of section 3802 or former section 

3731 shall, upon a first conviction, be guilty of a 

summary offense and shall be sentenced to pay a fine 

of $500[.00] and to undergo imprisonment for a 

period of not less than 60 days nor more than 90 days.

75 Pa.C.S.A. § 1543(a) and (b)(1)(i).

Whether offenses merge for sentencing purposes turns on Section 9765 

of our Sentencing Code, which provides,

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes unless the crimes 

arise from a single criminal act and all of the statutory elements 

of one offense are included in the statutory elements of the other 

offense. Where crimes merge for sentencing purposes, the [trial] 

court may sentence the defendant only on the higher graded 

offense.
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42 Pa.C.S.A. § 9765. Thus, Section 9765 “prohibits merger unless two distinct 

facts are present: 1) the crimes arise from a single criminal act; and 2) all of 

the statutory elements of one of the offenses are included in the statutory 

elements of the other.” Commonwealth v. Baldwin, 985 A.2d 830, 833 

(Pa. 2009). “If both crimes require proof of at least one element that the 

other does not, then the sentences do not merge.” Commonwealth v. Allen, 

856 A.2d 1251, 1253 (Pa. Super. 2004) (stating, the operative consideration 

in a merger analysis is “whether the elements of the offenses are the same or 

different”), relying on Commonwealth v. Anderson, 650 A.2d 20 (Pa. 

1994).

Here, Appellant claims that the trial court erred in sentencing him 

separately for his convictions under Section 1501 and Section 1543. We find 

this claim to be without merit. Section 1501 requires the Commonwealth to 

prove, inter alia, that Appellant operated his motor vehicle without a valid 

driver’s license.

9

 75 Pa.C.S.A. § 1501. To convict Appellant under Section

1543(a), the Commonwealth was required to prove that Appellant operated

his motor vehicle “after the commencement of a suspension, revocation[,] or 

cancellation of [his] operating privilege and before [his] operating privilege

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9 Section 102 of the Vehicle Code defines “driver’s license” as “[a] license or 

permit to drive a motor vehicle issued under this title.” 75 Pa.C.S.A. § 102.
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[was restored.]”10 75 Pa.C.S.A. § 1543(a) (emphasis added). Section 

1543(b)(1)(i) required the Commonwealth to prove that Appellant operated 

his motor vehicle “at a time when [his] operating privilege [was] suspended 

or revoked[.]” 75 Pa.C.S.A. § 1543(b)(1)(i) (emphasis added). Thus, 

Sections 1501 and 1543(a) and (b)(1)(i) draw a distinction between driving 

without a driver’s license and driving without operating privileges. Section 

1501 proscribes driving without a valid credential, but at a time when the 

operator has the right to seek one. Sections 1543(a) and 1543(b)(1)(i), 

however, proscribe driving when the operator lacks both a privilege to drive 

and the right to apply for or obtain a valid credential to operate a vehicle. As 

such, Section 1501 requires an element (driving without a driver’s license) not 

included in the elements necessary to support a conviction under Section

1543. Similarly, Section 1543 requires an element (driving without operating 

privileges) not included in the elements necessary to support a conviction 

under Section 1501. Therefore, we discern no error in the trial court’s 

imposition of a separate sentence under Section 1501.

In addressing Appellant’s claim that the trial court erred in imposing 

separate sentences for his convictions under Section 1543(a) and Section 

1543(b)(1)(i), we agree. A conviction under Section 1543(a) is “indisputably 

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10 Section 102 of the Vehicle Code defines “operating privilege” as “[t]he 

privilege to apply for and obtain a license to use as well as the privilege to use 

a vehicle on a highway as authorized in this title, but not a contract, property 

right[,] or civil right.” 75 Pa.C.S.A. § 102.
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a lesser included offense of [Section 1543(b)(1)(i)].” See Commonwealth

v. Ball, 146 A.3d 755, 757 (Pa. 2016); see also Commonwealth v. 

Cunningham, 551 A.2d 288, 290 (Pa. Super. 1988), appeal denied, 562 A.2d 

318 (Pa. 1989). In other words, all of the elements necessary to establish a 

conviction of Section 1543(a) are included in the elements necessary to prove 

a conviction under Section 1543(b)(1)(i). See 75 Pa.C.S.A. § 1543(a); 

compare 75 Pa.C.S.A. § 1543(b)(1)(i). As such, pursuant Section 9765, 

Appellant’s conviction under Section 1543(a) should have merged with his 

conviction under Section 1543(b)(1)(i) for sentencing purposes. 

Consequently, the trial court erred in ordering Appellant to pay a fine of 

$200.00 for his conviction of Section 1543(a). See Trial Court Opinion, 

2/8/23, at 2 (acknowledging that Appellant’s conviction under Section 1543(a) 

does merge for sentencing purposes and that the $200.00 fine should be 

vacated).

Appellant’s final issue challenges his conviction under Section 3334(a) 

of the Vehicle Code. It is unclear, upon review of Appellant’s Rule 1925(b) 

statement, the grounds upon which Appellant lodges this challenge to his 

conviction under Section 3334(a).

11

 To the extent that Appellant attacks the

sufficiency of the evidence, we concur with the trial court, and the record 

supports, that Appellant waived a sufficiency claim for failure to specify the 

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11 Appellant’s Rule 1925(b) frames the issue simply as: “The [trial c]ourt erred 

in concluding that [Appellant] was guilty of violating [Section 3334(a)] (Count 

6).” Appellant’s Rule 1925(b) Statement, 2/3/23, at ¶2.
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element or elements of the crime upon which the evidence was insufficient. 

See Trial Court Opinion, 2/8/23, at 2; see also Commonwealth v. Rivera, 

238 A.3d 482, 496 (Pa. Super. 2020) (stating, “in order to preserve a 

challenge to the sufficiency of the evidence on appeal, an appellant's Rule 

1925(b) statement must state with specificity the element or elements upon 

which the appellant alleges that the evidence was insufficient” or the 

sufficiency issue is waived (citation and brackets omitted)), appeal denied, 

250 A.3d 1158 (Pa. 2021).

In his appellate brief, Appellant asserts “that he gave an appropriate 

signal of his intention to turn – and the trial [c]ourt abused its discretion in 

simply disregarding that evidence.” Appellant’s Brief at 10. Inasmuch as this 

assertion raises a challenge that his conviction under Section 3334(a) is 

contrary to the weight of the evidence, we find this issue waived for failure to 

comply with Pennsylvania Rule of Criminal Procedure 607(A). See

Pa.R.Crim.P. 607(A) (stating that, “[a] claim that the verdict was against the 

weight of the evidence shall be raised with the trial [court] in a motion for a 

new trial [] orally, on the record, at any time before sentencing; [] by written 

motion at any time before sentencing; or [] in a post-sentence motion” 

(formatting modified)); see also Commonwealth v. Washington, 825 A.2d 

1264, 1266 (Pa. Super. 2003) (stating that, a weight of the evidence claim is 

waived when it is first raised on appeal rather than in compliance with Rule 

607(A)).
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For the reasons expressed herein, we affirm Appellant’s convictions. We

vacate in part Appellant’s judgment of sentence to the extent that the trial 

court ordered Appellant to pay a fine in the amount of $200.00 for his 

conviction under Section 1543(a). Furthermore, we are constrained to vacate 

in part Appellant’s judgment of sentence to the extent that the trial court 

sentenced Appellant to a term of incarceration of 45 to 90 days, as this 

sentence is illegal pursuant to Section 1543(b)(1)(i).

12

 Pursuant to Section 

1543(b)(1)(i), a trial court is required to sentence a defendant for a conviction 

thereunder “to undergo imprisonment for a period of not less than 60 days

nor more than 90 days.” 75 Pa.C.S.A. § 43(b)(1)(i). Because the trial court 

in the case sub judice imposed a minimum term of incarceration that was less 

than 60 days, Appellant’s sentence is illegal.

Convictions affirmed. Judgment of sentence affirmed, in part, and 

vacated, in part, in accordance with this memorandum. Case remanded. 

Jurisdiction relinquished.

Date: 10/23/2023

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12 This Court may raise and address sua sponte issues concerning an illegal 

sentence. Commonwealth v. Hill, 238 A.3d 399, 407 (Pa. 2020.