J-A22007-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

HOWARD D. ERDLEY 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 87 WDA 2022

Appeal from the Judgment of Sentence Entered September 7, 2021

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

No(s): CP-03-CR-0000621-2020

BEFORE: OLSON, J., DUBOW, J., and COLINS, J.*

MEMORANDUM BY OLSON, J.: FILED: OCTOBER 25, 2022

Appellant, Howard D. Erdley, appeals from the judgment of sentence 

entered on September 7, 2021, following his guilty plea to driving under the 

influence of alcohol (DUI) (general impairment) and driving while operating 

privilege is suspended or revoked (second offense).

1 On appeal, Appellant 

asserts that 75 Pa.C.S.A. § 1543(b)(1.1)(ii), a provision within the Motor 

Vehicle Code that addresses the grading, fine, and minimum term of 

imprisonment to be imposed following a second conviction for driving while 

operating privilege is suspended or revoked, is unconstitutionally vague. For 

the reasons expressed in this Court’s prior decision in Commonwealth v. 

Rollins, 270 A.3d 1152 (Pa. Super. 2021) (unpublished memorandum), we

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* Retired Senior Judge assigned to the Superior Court.

1

 75 Pa.C.S.A. §§ 3802(a)(2) and 1543(b)(1.1)(i), respectively. 
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conclude that Section 1543(b)(1.1)(ii) is not unconstitutionally vague and, 

therefore, affirm.

The trial court briefly summarize the facts and procedural history of this 

case as follows:

On May 20, 2021, [Appellant] pleaded guilty to [the 

aforementioned crimes]. The [trial c]ourt sentenced [Appellant] 

to three to six months’ incarceration on the DUI count and six to 

12 months’ incarceration on the driving under suspension count 

[pursuant to the grading and penalty provision of 75 Pa.C.S.A. 

§ 1543(b)(1.1)(ii). The] sentences [were imposed] consecutively. 

[Appellant] filed, with leave of court, a post-sentence motion nunc 

pro tunc on September 28, 2021. The [trial c]ourt denied the 

motion on December 15, 2021. [Appellant] filed a timely notice 

of appeal on January 14, 2022, and the [trial c]ourt directed the 

filing of a [] [c]oncise [s]tatement [of errors complained of on 

appeal pursuant to Pa.R.A.P. 1925(b)] on January 19, 2022. 

[Appellant] timely complied on February 3, 2022. [The trial court 

issued an opinion pursuant to Pa.R.A.P. 1925(a) on February 7, 

2022.]

In his [Rule 1925(b)] concise statement, [Appellant] challenge[d] 

only the incarceration portion of the sentence imposed for driving 

under suspension. He argue[d] that the sentence was unlawful 

because [Section] 1543(b)(1.1)(ii) violate[d] the 

“minimum-maximum rule as analyzed in Commonwealth v. Eid, 

249 A.3d 1030 (Pa. 2021).” [Appellant] raised the same issue in 

his post-sentence motion. In denying the motion, the [trial c]ourt 

concluded that [Appellant’s] sentence imposed pursuant to 75 

Pa.C.S.A. § 1543(b)(1.1)(ii),[2] was not unlawful under Eid

because, unlike [Section] 1543(b)(1.1)(i), which was at issue in 

Eid, the [Crimes Code supplies the missing maximum sentencing 

term and] provides for a statutory maximum of 12 months’ 

incarceration for all third-degree misdemeanors. See 18 

Pa.C.S.A. § 1104(3). Thus, the applicable range of sentences is 

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2 “A second violation of [Section 1543(b)(1.1)] shall constitute a misdemeanor 

of the third[-]degree, and upon conviction thereof the person shall be 

sentenced to pay a fine of $2,500[.00] and to undergo imprisonment for not 

less than six months.” 75 Pa.C.S.A. § 1543(b)(1.1)(ii).
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clear and the statute, when interpreted with the applicable 

provisions of the Sentencing Code, is not unconstitutionally vague.

Further, although the [trial c]ourt ha[d] not uncovered in its 

research any cases applying the holding in Eid to [Section] 

1543(b)(1.1)(ii), the Superior Court [in Rollins, supra] has 

applied Eid to [Section] 1543(b)(1)(iii), which has substantially 

the same grading and sentencing language as [Section]

1543(b)(1.1)(ii). Section 1543(b)(1)(iii) provides, in pertinent 

part, as follows:

A third or subsequent violation of this paragraph shall 

constitute a misdemeanor of the third[-]degree and, upon 

conviction of this paragraph, a person shall be sentenced to 

pay a fine of $2,500[.00] and to undergo imprisonment for 

not less than six months.

75 Pa.C.S.A. § 1543(b)(1)(iii). In [Rollins,] which [the trial 

c]ourt cite[d] for its persuasive authority, see Pa.R.A.P. 

126(b)(1)[-]2 and Super. Ct. IOP 65.37(B), the defendant 

challenged his incarceration sentence of six to 12 months under 

[Section] 1543(b)(1)(iii) on the ground that, under Eid, that 

subsection was unconstitutionally vague. [Rollins, 270 A.3d 

1152, at *1 (Pa. Super. 2021) (unpublished memorandum]. The 

Superior Court affirmed the sentence [in Rollins], concluding as 

follows:

Though the “not less than” language is identical in both 

Section 1543(b)(1.1)(i), which was at issue in Eid, and 

Section 1543(b)(1)(iii), they are distinguishable by way of 

grading. Section 1543(b)(1.1)(i) is graded as a summary 

offense while Section 1543(b)(1)(iii) is graded as a 

misdemeanor of the third[-]degree. The grading is 

significant because 75 Pa.C.S.A. § 6502(c) provides that the 

Crimes Code's provisions regarding fines and imprisonment 

do not apply to summary convictions under the Vehicle 

Code. See 75 Pa.C.S.A. § 6502(c) (“Title 18 (relating to 

crimes and offenses), insofar as it relates to fines and 

imprisonment for convictions of summary offenses, is not 

applicable to this title”).

No such provision exists for misdemeanors under the 

Vehicle Code. As a result, the sentencing provisions of the 

Crimes Code apply. Rollins was found guilty of a 

misdemeanor of the third[-]degree, and relevant provisions 

of the Crimes Code provide a maximum sentence of one 
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year. See 75 Pa.C.S.A. § 1543(b)(1)(iii); 18 Pa.C.S.A. 

§ 106(b)(8) (“A crime is a misdemeanor of the third[-

]degree if it is so designated in this title or if a person 

convicted thereof may be sentenced to a term of 

imprisonment, the maximum of which is not more than one 

year.”). Therefore, Section 1543(b)(1)(iii) is not 

unconstitutionally vague, pursuant to Eid.

[Rollins], at *2. See also 18 Pa.C.S.A. § 1104(3)[(sentence of 

imprisonment for misdemeanors).] Thus, although [Section] 

1543(b)(1.1)(ii) was not at issue in Rollins, given the similarity 

of language, [the trial c]ourt conclude[d] that its rationale and 

holding are strongly pervasive and should control here. 

Subsection 1543(b)(1.1)(ii) is not unconstitutionally va[gu]e.

Trial Court Opinion, 2/7/2022 (unpaginated) (original footnote incorporated).

Citing Eid, on appeal, Appellant argues that 75 Pa.C.S.A. 

§ 1543(b)(1.1)(ii) “only provides a minimum sentence, but is silent on a 

maximum sentence, and is [] violative of the minimum-maximum rule and is 

therefore unconstitutional under the same principles articulated by our 

Supreme Court in Eid.” Appellant’s Brief at 6.

“Analysis of the constitutionality of a statute is a question of law and, 

thus, our standard of review is de novo.” Commonwealth v. Proctor, 156 

A.3d 261, 268 (Pa. Super. 2017) (citation omitted). “Our scope of review, to 

the extent necessary to resolve the legal question before us, is plenary.” Id.

(brackets, ellipses, and citation omitted). 

In 2021, 

our Supreme Court decided Commonwealth v. Eid, 249 A.3d 

1030 (Pa. 2021). There, the defendant was found guilty of the 

summary offense of [driving while operating privilege is 

suspended] by a person who refused a breath test. See 75 

Pa.C.S.A. § 1543(b)(1.1)(i). The Court held that due to the 

“absence of a maximum term,” Section 1543(b)(1.1)(i) was 
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“unconstitutionally vague and inoperable[.]” Eid, 249 A.3d at 

1044. The Court stated that it refused to infer a maximum 

sentence because by doing so it would have been forced to 

“engage in sheer speculation as to which sentence the General 

Assembly intended.” Id. at 1043, quoting Commonwealth v. 

Bell, 645 A.2d 211, 217 (Pa. 1994).

Rollins, 270 A.3d 1152, at *1 (emphasis added).

Our Court in Rollins subsequently distinguished Eid, explaining, 

grading is significant because 75 Pa.C.S.A. § 6502(c) provides 

that the Crimes Code's provisions regarding fines and 

imprisonment do not apply to summary convictions under the 

Vehicle Code. See 75 Pa.C.S.A. § 6502(c) (“Title 18 (relating to 

crimes and offenses), insofar as it relates to fines and 

imprisonment for convictions of summary offenses, is not 

applicable to this title”).

No such provision exists for misdemeanors under the Vehicle 

Code. As a result, the sentencing provisions of the Crimes Code 

apply.

Rollins, 270 A.3d 1152, at *2. Under the Crimes Code, “[a] crime is a 

misdemeanor of the third[-]degree if it is so designated in this title or if a 

person convicted thereof may be sentenced to a term of imprisonment, the 

maximum of which is not more than one year.” Id., citing 18 Pa.C.S.A. § 

106(b)(8). Thus, the Rollins Court determined that Section 1543(b)(1)(iii) 

was not unconstitutionally vague. 

Here, Appellant was convicted of a second violation of driving while 

operating privilege is suspended or revoked. The statute provides that a 

second violation of Section 1543(b)(1.1) constitutes a third-degree 

misdemeanor and that an individual, upon conviction, shall “be sentenced to 

pay a fine of $2,500[.00] and to undergo imprisonment for not less than six 
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months.” 75 Pa.C.S.A. § 1543(b)(1.1)(ii). While the language of Section 

1543(b)(1.1)(ii), as set forth above, does not specify a maximum sentence, 

the offense “constitute[s] a misdemeanor of the third-degree” and the statute 

plainly contemplates imprisonment for not less than six months following a 

second violation. Id. For the reasons expressed in Rollins,

3 we read the 

Crimes Code in conjunction with Section 1543(b)(1.1)(ii), which is 

substantially similar to Section 1543(b)(1)(iii), the Motor Vehicle Code 

provision at issue in Rollins. Hence, we hold that Section 1543(b)(1.1)(ii) is 

not unconstitutionally vague.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/25/2022

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3 See Pa.R.A.P. 126(b) (providing that unpublished non-precedential 

memorandum decisions of the Superior Court filed after May 1, 2019 may be 

cited for their persuasive value). Additionally, we recognize that on June 22, 

2022, the Pennsylvania Supreme Court granted allowance of appeal in 

Rollins. See Commonwealth v. Rollins, 280 A.3d 861 (Pa. 2022). If or 

until the Supreme Court finds otherwise, however, we are persuaded by the 

rationale expressed by another panel of this Court in Rollins.