J-S73001-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAKELL ADIMU BELL 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1054 MDA 2019

Appeal from the Judgment of Sentence Entered March 1, 2019

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

No(s): CP-55-CR-0000514-2017

BEFORE: SHOGAN, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY SHOGAN, J.: FILED MARCH 10, 2020

Appellant, Shakell Adimu Bell, appeals from the March 1, 2019 judgment 

of sentence imposed by the Court of Common Pleas of Snyder County following 

a jury trial. We affirm.

On July 19, 2017, Appellant was operating a white Subaru Forester 

owned by his girlfriend, Natalie Walter, on South Old Trail, Snyder County, a 

roadway temporarily closed to through traffic due to the installation of gas 

lines. N.T., 6/18/18, at 12–13. As Appellant approached the construction 

area where a flag person was controlling traffic, the flagger stopped him and 

instructed he could proceed only as far as National Beef, a company located 

just before the construction zone. Id. Appellant proceeded past 

National Beef, drove into a construction trench across the roadway, and 

crashed his vehicle. Id. When Pennsylvania State Trooper Philip Dohner 
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arrived at the scene, Appellant was not present, but Natalie Walter was sitting 

near the vehicle. Id. at 4. Ms. Walter explained that Appellant left to go to a 

doctor’s appointment. Trooper Dohner spoke to the flagger, then left in search 

of Appellant. Id. at 4–5. Trooper Dohner subsequently stopped Appellant 

walking further along South Old Trail, where he administered field-sobriety 

tests. Id. at 5–6. Appellant was arrested, and “chemical testing [was] done 

on a blood sample and sent to a lab.” Id. at 6.

A ten-count information was filed on December 27, 2017, charging 

Appellant with Driving While Operating Privilege is Suspended or Revoked; 

Driving under the Influence (“DUI”) of Controlled Substance-Schedule I; DUI 

of Controlled Substances-Metabolite; DUI of Controlled Substances-Impaired 

Ability; Driving without a License; Driving while Operating Privilege is 

Suspended or Revoked-DUI Related; Use of Hearing Impairment Devices;

Driving at Safe Speed; Careless Driving; and Reckless Driving.

1

Appellant filed an omnibus pretrial motion on February 22, 2018, that 

included, inter alia, a motion to suppress the chemical test of his blood. Motion 

to Suppress, 2/22/18, at ¶ 21. Following a June 18, 2018 hearing, the trial 

court denied Appellant’s omnibus pretrial motion. Order, 6/19/18.

Appellant selected a jury on October 15, 2018, and trial ensued on 

November 20, 2018. The jury found Appellant guilty of DUI of controlled 

____________________________________________

1

 75 Pa.C.S. §§ 1543(b)(1.1)(i), 3802(d)(1)(i), 3802(d)(1)(iii), 3802(d)(2), 

1501(a), 1543 (b)(1), 3314(a), 3361, 3714(a), and 3736(a), respectively. 
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substances-metabolite, 75 Pa.C.S. § 3802(d)(1)(iii), and acquitted him of DUI 

with a Schedule 1 controlled substance in his blood, 75 Pa.C.S. 

§ 3802(d)(1)(i), and DUI-impaired ability, 75 Pa.C.S. § 3802(d)(2). After the 

jury rendered its verdict, the trial court found Appellant guilty of the following 

summary offenses: DUI while operating privilege is suspended or revoked, 75 

Pa.C.S. § 1543(b)(1.1)(i), driving without a license, 75 Pa.C.S. § 1501(a), 

driving while operating privilege is suspended-DUI related, 75 Pa.C.S. 

§ 1543(b)(1), and careless driving, 75 Pa.C.S. § 3714(a), and not guilty of 

three other summary offenses. N.T., 11/20/18, at 217.2

The trial court ordered a Presentence Investigation (“PSI”) Report, 

which revealed that Appellant had been convicted of DUI ten years earlier on 

November 24, 2009. Trial Court Opinion, 9/16/19, at 3. On February 25, 

2019, Appellant filed a motion to treat the instant conviction as a first offense. 

Prior to sentencing on March 1, 2019, the trial court denied the motion and 

sentenced Appellant. “The standard range of the Sentencing Guidelines was 

12-18 months and the aggravated range was 21 months. . . . The [c]ourt then 

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2

 Dr. Edward Barbieri, a forensic toxicologist at NMS Laboratories, “an 

approved laboratory to determine analyses of blood for controlled substances 

under the [Motor] Vehicle Code pursuant to 47 Pa. Bulletin 518,” testified at 

trial as an expert in the field of pharmacology and toxicology. N.T., 11/20/18, 

at 138–139. Dr Barbieri testified that Appellant had 1.6 nanograms per 

milliliter of 11-Hydroxy Delta-9 THC, the active metabolite in marijuana; 9.9 

nanograms per milliliter of Delta-9 THC, the active ingredient in marijuana, 

and 29 nanograms per milliliter of Delta-9 Carboxy THC, which in the inactive 

metabolite in marijuana. Id. at 150–151.
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sentenced [Appellant] to a State Prison sentence of 21 months to 5 years” on 

count two, DUI of Controlled Substances-Metabolite, 75 Pa.C.S. 

§ 3802(d)(1)(iii). Id. at 3–4. The trial court also sentenced Appellant on 

count six, Driving While Operating Privilege is Suspended or Revoked-DUI 

Related, 75 Pa.C.S. § 1543(b)(1), to ninety days incarceration, imposed 

consecutively to count two. Id. at 4. The trial court either found the other 

convictions merged for sentencing purposes or imposed fines on those counts. 

Appellant filed a post-sentence motion on March 7, 2019, which the trial court 

denied on June 11, 2019, following a hearing. Appellant filed a timely notice 

of appeal; both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal, which we have 

reordered:

1. Did the suppression court err in denying [Appellant’s] motion 

to suppress the blood evidence in this matter, and/or motion 

to reconsider the denial of suppression of the blood evidence 

as the Commonwealth failed to establish probable cause at the 

suppression hearing where the affiant did not establish his 

training and experience with marijuana or field sobriety tests 

and the lay witness never informed the affiant of the basis for 

her ability to identify the smell of marijuana prior to the arrest 

of [Appellant]?

2. Did the trial court err in finding that 75 Pa.C.S. 

§ 3802(d)(1)(iii) and 75 Pa.C.S. § 1543(b)(1.1)(i) are not 

unconstitutionally vague insofar as they criminalize an 

individual’s operation of a motor vehicle with any amount of an 

inactive metabolite in their blood?

3. Did the trial court err in refusing to apply the rule of lenity 

pursuant to the canon of constitutional avoidance to find that 

the term “metabolite” as used in 75 Pa.C.S. § 3802(d)(1)(iii) 

and 75 Pa.C.S. § 1543(b)(1.1)(i) requires proof that an active 
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metabolite be in an individual’s blood and not an inactive 

metabolite?

4. Did the sentencing court err in denying [Appellant’s] motion to 

treat his DUI offense as a first offense for sentencing purposes 

as 75 Pa.C.S. § 3806 is unconstitutional pursuant to Apprendi 

v. New Jersey, 530 U.S. 466 (2000), and Alleyne v. United 

States, 133 S.Ct. 2151 (2013), and is not severable from 75 

Pa.C.S. § 3804 and75 Pa.C.S. § 3803?

5. Is [Appellant’s] sentence of not less than 21 months to not 

more than 5 years illegal insofar as it is in excess of 6 months 

and where no mens rea was alleged by the Commonwealth or 

proven to the jury beyond a reasonable a doubt?

Appellant’s Brief at 4–5.

We first address Appellant’s suppression issue. Appellant argues the 

trial court erred in failing to suppress the blood-test results.

Our 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.

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 

findings of the suppression court, we are bound by 

those facts and may reverse only if the court erred in 

reaching its legal conclusions based upon the facts.

Commonwealth v. Williams, 2008 PA Super 6, 941 A.2d 14, 

26–27 (Pa. Super. 2008) (en banc) (citations, quotations, and 

quotation marks omitted). Moreover, it is within the lower court’s 

province to pass on the credibility of witnesses and determine the 

weight to be given to their testimony. See Commonwealth v. 

Clemens, 2013 PA Super 85, 66 A.3d 373, 378 (Pa. Super. 2013).
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Commonwealth v. McCoy, 154 A.3d 813, 815–816 (Pa. Super. 2017) 

(quoting Commonwealth v. Roberts, 133 A.3d 759, 771 (Pa. Super. 2016)).

“Furthermore, our Supreme Court in In the Interest of L.J., 622 Pa. 126, 

79 A.3d 1073, 1085 (2013), clarified that the scope of review of orders 

granting or denying motions to suppress is limited to the evidence presented 

at the suppression hearing.” McCoy, 154 A.3d at 816.

The Commonwealth’s evidence at the suppression hearing is as follows. 

Chelsea Bendele, the flagger with the road crew that was installing gas lines 

on the roadway on South Old Trail in Snyder County on July 19, 2017, testified 

at the suppression hearing. N.T., 6/18/18, at 12–16. When Appellant 

proceeded by Ms. Bendele, she stopped Appellant, as she did all vehicles, and

advised Appellant that the road was closed to through traffic and open only 

for ingress and egress to National Beef, a company located near where the 

road crew was working. Id. at 12–13. Despite the warning, Appellant failed 

to turn into National Beef and crashed his vehicle into a trench across the 

road, an area clearly marked with traffic cones. Id. Ms. Bendele testified that 

Appellant held a “blunt” in his hand and that she smelled “weed.”

3

 Id. at 14.

Trooper Dohner, who was dispatched to the one-vehicle crash at 11:30 

a.m., also testified. N.T., 6/18/18, at 3. When the officer arrived, Appellant 

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3

 In response to subsequent inquiry by the trial court, Ms. Bendele testified 

that a blunt is rolled marijuana inside of paper. She further testified she can 

identify marijuana by its odor because “I have hung out with people who have 

[smoked it].” N.T., 6/18/18, at 16.
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was not present and Natalie Walter, who owned the car, was sitting near the 

vehicle. Id. at 4. Ms. Walter told Trooper Dohner that Appellant had been 

driving. Trooper Dohner testified that Ms. Walter explained that Appellant had 

telephoned her and asked her to come to the scene because he had to get to 

a doctor’s appointment “further north on the Old Trail.” Id. at 4–5. Ms. Walter 

told the trooper she advised Appellant, “[Y]ou can go to the doctor’s 

appointment [and] I’ll sit with the car.” Id. at 4.

Trooper Dohner proceeded on South Old Trail at noon or 12:15 p.m. and 

located Appellant walking along the roadway. N.T., 6/18/18, at 5–6. The 

trooper testified that when he asked Appellant what happened, Appellant told 

him he was “on his phone”4 when he crashed into the trench. Id. at 6. The 

trooper then asked Appellant if he smoked marijuana. Trooper Dohner 

testified Appellant stated that he smoked marijuana at “approximately two in 

the morning.” Id. at 5, 6. Noting that Appellant had bloodshot eyes and 

dilated pupils, and in light of Appellant’s admission that he had smoked 

marijuana along with Ms. Bendele’s observation of a blunt in Appellant’s hand 

accompanied by the odor of marijuana, Trooper Dohner conducted field 

sobriety tests.

Appellant’s suppression motion asserted that:

the arresting officer, Trooper Dohner, lacked probable cause to 

believe [Appellant] was operating his motor vehicle under the 

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4

 Trooper Dohner testified that Appellant stated he utilized an “ear piece” to 

talk on the telephone. N.T., 6/18/18, at 11.
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influence of alcohol or a controlled substance. In denying relief, 

the suppression court indicated that it was finding probable cause 

existed based upon the credible testimony of the flagger that she 

saw [Appellant] smoking marijuana after he crashed his vehicle 

(R.R., p.41) and based upon Trooper Dohner’s testimony as to the 

appearance of [Appellant] and his performance on the 

Standardized Field Sobriety Tests.

Appellant’s Brief at 11. Appellant avers that because Trooper Dohner “never 

inquired into the flagger’s ability to detect and identify marijuana” nor 

described his own “training and experience with marijuana or even with field 

sobriety tests,” the Commonwealth lacked probable cause to arrest Appellant, 

and the trial court should have suppressed the ensuing blood tests. Id. at 

11–12; N.T., 6/18/18, at 12.

There are three categories of interactions between private citizens and 

the police. Interest of A.A., 195 A.3d 896, 904 (Pa. 2018). “A ‘mere 

encounter’ does not require any level of suspicion or carry any official 

compulsion to stop or respond ... an ‘investigative detention’ permits the 

temporary detention of an individual if supported by reasonable suspicion ... 

and an arrest or custodial detention ... must be supported by probable cause.” 

Id.

Here, we are initially concerned with an investigative detention.

To maintain constitutional validity, an investigative detention 

must be supported by a reasonable and articulable suspicion that 

the person seized is engaged in criminal activity and may continue 

only so long as is necessary to confirm or dispel such suspicion. 

Commonwealth v. Strickler, 563 Pa. 47, 757 A.2d 884, 889 

(2000). The asserted grounds for an investigative detention must 

be evaluated under the totality of the circumstances. See United 

States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 
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L.Ed.2d 621 (1981). So long as the initial detention is lawful, 

nothing precludes a police officer from acting upon the fortuitous 

discovery of evidence suggesting a different crime than that 

initially suspected—such as the odor of alcohol on the breath of a 

driver . . . . However, an unjustified seizure immediately violates 

the Fourth Amendment rights of the suspect, taints the evidence 

recovered thereby and subjects that evidence to the exclusionary 

rule. See, e.g., [Commonwealth v.] Melendez, 676 A.2d 

[226,] 229–230 [(Pa. 1996)].

Commonwealth v. Hicks, 208 A.3d 916, 927–928 (Pa. 2019), cert. denied 

sub nom., Pennsylvania v. Hicks, 19-426, 2019 WL 6689877 (U.S. Dec. 9, 

2019).

The trial court denied suppression. At the conclusion of the suppression 

hearing, the trial court stated it found Ms. Bendele’s testimony persuasive and 

concluded that Trooper Dohner had probable cause to arrest Appellant. In 

pertinent part, the trial court noted:

[Ms. Bendele] testified that she saw [Appellant] smoking 

marijuana[5] while holding it in his hand and she smelled it. That 

would be enough probable cause to believe he was consuming it 

while he was there.

The fact that he drove into a ditch that was marked with 

cones and had a flagger there would give the impression of 

whether he was impaired that he couldn’t drive safely. He 

admitted to smoking marijuana albeit hours before this. It’s not 

uncommon that people get confused on exactly what time they 

did certain things. Trooper testified [Appellant’s] eyes were 

bloodshot and his pupils were dilated . . . .

N.T., 6/18/18, at 19–20.

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5

 Ms. Bendele’s testimony was that she did not see Appellant smoking 

marijuana, but she observed him holding it and she smelled it. N.T., 6/18/18, 

at 14.
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In its Pa.R.A.P. 1925(a) opinion, the trial court supported its denial of 

suppression as follows:

[T]he smell of marijuana is relatively common. The flagger 

seemed well versed in terminology surrounding marijuana 

consumption, hence the term blunt. In addition, the [c]ourt’s 

observation of flagger’s testimony was that she was extremely 

confident that she was aware what marijuana smelled like. 

[Appellant’s] argument seems to go more to the weight of the 

flagger’s testimony th[a]n to its admissibility.

Trial Court Opinion, 9/16/19, 4–5. The trial court also opined that it was 

familiar “with the training that Pennsylvania Police State Troopers complete at 

the Pennsylvania State Police Academy prior to becoming State Police 

Troopers.” Id. at 5.

Our review of the record compels our conclusion that the 

Commonwealth carried its burden of proof at the suppression hearing to 

support the admissibility of the blood test results. See Commonwealth v. 

Salter, 121 A.3d 987, 996 (Pa. Super. 2015) (At a suppression hearing, “the 

burden is on the Commonwealth to establish by a preponderance of the 

evidence that the challenged evidence is admissible.”); Pa.R.Crim.P. 581(H) 

(“The Commonwealth shall have the burden of going forward with the 

evidence and of establishing that the challenged evidence was not obtained in 

violation of the defendant’s rights.”). Herein, Trooper Dohner suspected that 

Appellant operated his vehicle under the influence of a controlled substance

based on his observation that: 1) Appellant drove through a clearly marked 

construction zone and crashed into a ditch despite being stopped by the posted 
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flagger and warned about the hazard; 2) the flagger observed Appellant with 

marijuana and smelled it; 3) Appellant had fled the scene; 4) Appellant had 

bloodshot eyes and dilated pupils; and 5) Appellant admitted that he smoked 

marijuana earlier.

The odor of marijuana alone can be sufficient to support at least 

reasonable suspicion. Interest of A.A., 195 A.3d 896, 904 (Pa. 2018). 

Moreover, at the suppression hearing, in response to Commonwealth 

questioning, Trooper Dohner revealed that as a result of field-sobriety testing, 

Appellant “show[ed] signs of intoxication.” N.T., 6/18/18, at 6. Defense 

counsel, himself, inquired into the specific tests administered by 

Trooper Dohner.

Q. [By Defense Counsel:] Okay. All right. Moving on to the 

field sobriety test, how many tests did you perform?

A. [By Trooper Dohner:] I performed three.

Q. Okay. The first was the HGN,[6] correct?

A. Correct.

Q. And were there any markers on the HGN?

A. There were not.

Q. The second was the walk-and-turn, correct?

A. Correct.

* * *

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6

 HGN is the Horizontal Gaze Nystagmus test. Commonwealth v. Gause, 

164 A.3d 532, 535 n.5 (Pa. Super. 2017).
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Q. During the walk-and-turn test, was there a physical line –-

was there an actual line on which he was walking?

A. There was not.

* * *

THE COURT: There’s—how many indicators are there 

for you to check on in the walk-and-turn?

A. For our purposes of the standardized field sobriety, there's 

eight clues.

THE COURT: Eight?

A. Eight, correct.

THE COURT: So three out of eight indicators on the 

walk-and-turn and one out of eight on the one-leg stand?

A. One out of four on the one-leg stand.

THE COURT: Okay. And what was the third field 

sobriety test?

A. The one-leg stand.

THE COURT: One-leg stand, walk-and-turn.

A. The HGN.

N.T., 9/18/18, at 9–10.

In consideration of the totality of the circumstances, in the light most 

favorable to the Commonwealth, the evidence presented at the suppression

hearing supports the existence of probable cause. Accordingly, the trial court 

did not err in denying Appellant’s motion to suppress.

In his next two issues, Appellant challenges 75 Pa.C.S. § 3802(d)(1)(iii) 

and 75 Pa.C.S. § 1543(b)(1.1)(i). First, he asserts the statutes are void for 

vagueness insofar as “they criminalize an individual’s operation of a motor 

vehicle with any amount of an inactive metabolite in their blood.” Appellant’s 
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Brief at 28. Second, he suggests the trial court erred in refusing to apply the 

rule of lenity to find that the term “metabolite” as used in the statutes 

“requires proof that an active metabolite be in an individual’s blood and not 

an inactive metabolite.” Id. at 36. We address the issues together.

The statutes in question provide, in pertinent part, as follows:

§ 3802. Driving under influence of alcohol or controlled 

substance

* * *

(d) Controlled substances.—An individual may not drive, 

operate or be in actual physical control of the movement of a

vehicle under any of the following circumstances:

(1) There is in the individual’s blood any amount of a:

(i) Schedule I controlled substance, as defined in the 

act of April 14, 1972 (P.L. 233, No. 64),1 known as 

The Controlled Substance, Drug, Device and Cosmetic 

Act;

(ii) Schedule II or Schedule III controlled substance, 

as defined in The Controlled Substance, Drug, Device 

and Cosmetic Act, which has not been medically 

prescribed for the individual; or

(iii) metabolite of a substance under subparagraph (i) 

or (ii).

1 35 P.S. § 780-101 et seq.

75 Pa.C.S. § 3802(d)(1)(iii) (emphasis added).

§ 1543. Driving while operating privilege is suspended or 

revoked

* * *

(b) Certain offenses.—
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* * *

(1.1)(i) A person . . . who at the time of testing has in his 

blood any amount of a Schedule I or nonprescribed 

Schedule II or III controlled substance, . . . or its metabolite 

. . . and who drives a motor vehicle on any 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 or former section 

3731 or because of a violation of section 1547(b)(1) or 3802 

or former section 3731 or is suspended under section 1581 

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 $1,000 and to undergo imprisonment for a 

period of not less than 90 days.

75 Pa.C.S. § 1543(b)(1.1)(i) (emphasis added).

The trial court has offered no explanation for its disposition of the issues. 

Regarding the statutes’ constitutionality, the trial court stated, in whole, 

“Statu[t]es are presumptively constitutional. This [c]ourt finds no violations 

of the Pennsylvania or United States Constitutions.” Trial Court Opinion, 

9/16/19, at 5. Similarly, regarding the claim that the trial court refused to 

apply the Rule of Lenity, the trial court stated in conclusory fashion, “The 

[c]ourt does not find any ambiguity in the wording of the Statute.” Id. at 6.

Our standard of review is clear:

Because this is a matter of statutory interpretation, our scope of 

review is plenary and the standard of review is de novo. As 

always, when interpreting statutory provisions, we aim to 

ascertain and effectuate the intent of the General Assembly. 1 

Pa.C.S. § 1921(a). The best indication of the General Assembly’s 

intent may be found in the plain language of the statute. “When 

the words of a statute are clear and free from all ambiguity, the 
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letter of it is not to be disregarded under the pretext of pursuing 

its spirit.” 1 Pa.C.S. § 1921(b).

Commonwealth v. Popielarcheck, 190 A.3d 1137, 1140 (Pa. 2018) 

(internal citations omitted). “The party seeking to overcome the presumption 

of validity must meet a formidable burden.” Commonwealth v. Costa, 861 

A.2d 358, 361 (Pa. Super. 2004). Moreover, “[w]e presume that the General 

Assembly intends the entire statute to be effective and certain, and thus 

construe a statute to give effect to all of its provisions. 1 Pa.C.S.A. § 1922(2).” 

In Interest of R.A.F., 149 A.3d 63, 67 (Pa. Super. 2016). “A statute will not 

be declared unconstitutional unless it clearly, palpably, and plainly violates the 

Constitution; all doubts are to be resolved in favor of a finding of 

constitutionality.” Costa, 861 A.2d at 361 (quoting Commonwealth v. 

Mayfield, 832 A.2d 418, 421 (Pa. 2003)).

In the case sub judice, Appellant argues that Sections 3802(d) and 

1543(b) are unconstitutionally vague as applied to Appellant because they 

inflict criminal penalties for operating a motor vehicle with any trace amounts 

of an inactive metabolite in the bloodstream, but fail “to give warning of the 

conduct” that is criminalized. Appellant’s Brief at 31. Appellant argues as 

follows:

[T]he Commonwealth only proved beyond a reasonable doubt that 

[Appellant] operated a motor vehicle with the inactive metabolites 

of marijuana in his blood. Inactive metabolites may stay in the 

blood for many days following ingestion of marijuana and have no 

intoxicating effects on a driver which would put them on notice as 

to whether they were violating the law at the time. Therefore, 

[Appellant], being a man of ordinary intelligence, had no way of 
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knowing that he had inactive metabolites in his blood and that he 

was in violation of75 Pa.C.S. § 3802(d)(1)(iii) and 75 Pa.C.S. 

§ 1543(b)(1.1)(i) when he drove after smoking marijuana . . . .

To avoid the constitutional vagueness concerns that this 

case presents the court with regard to 75 Pa.C.S. § 3802(d)(1)(iii) 

and 75 Pa.C.S. § 1543(b)(1.1)(i), this Honorable Court should 

interpret the term “metabolite” as used in these two statutes to 

mean only active metabolites. Under this interpretation, the 

evidence was insufficient to find [Appellant] guilty as the 

Commonwealth could not establish and the jury did not find that 

the active chemicals of marijuana found in [Appellant’s] blood 

were not caused by ingestion after driving.

Appellant’s Brief at 9–10. We disagree.

Appellant significantly ignores that Section 3802(d)(1)(iii) proscribes 

operation of a vehicle if there is any amount of metabolite of a Schedule I or 

II substance, that has not been medically prescribed for the individual, in the 

individual’s blood. 75 Pa.C.S. § 3802(d)(1)(iii). It does not require proof that 

“the individual is rendered incapable of safely driving,” as in subsection 

3802(a)(1). Thus, Appellant’s claim that because “[i]nactive metabolites may 

stay in the blood for many days following ingestion of marijuana and [they] 

have no intoxicating effects” that would put him “on notice” that he was 

“violating the law at the time,” is irrelevant. Section 3802(d)(1)(iii) requires 

only that metabolite of the Schedule I or II drug, which includes marijuana, is 

present. Drivers are on notice that they may not ingest the drug and drive.

In undertaking a challenge to a statute based on vagueness, “we bear 

in mind that every Pennsylvania statute is presumed valid and will not be 

declared unconstitutional unless the party challenging it carries a ‘heavy 
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burden of persuasion’ to demonstrate that the statute ‘clearly, palpably, and 

plainly violates the Constitution.’” Commonwealth v. Morrison, 934 A.2d 

709, 713 (Pa. Super. 2007). Moreover, the “due process void-for-vagueness 

doctrine ‘requires that a penal statute define the criminal offense with 

sufficient definiteness that ordinary people can understand what conduct is 

prohibited and in a manner that does not encourage arbitrary and 

discriminatory enforcement.’” Id. (citing Commonwealth v. Duda, 923 A.2d 

1138, 1147 (Pa. 2007)).

In a case rejecting a mandatory requirement for expert testimony in all 

situations involving 75 Pa.C.S. § 3802(d), our Supreme Court compared 

§ 3802(d)(1) to subsection 3802(a)(2), (b), and (c) and explained as follows:

Most of the alcohol-related provisions, i.e., subsections 

3802(a)(2), (b), and (c), prohibit driving after an individual has 

imbibed sufficient alcohol such that the alcohol concentration in 

that individual’s blood or breath reaches certain, specific levels 

within two hours after driving. To prove the specific level of 

alcohol in the defendant’s blood or breath at the relevant time, a 

blood or breath test is obviously required. . . .

The General Assembly chose to construct a similar statutory 

framework with regard to prohibitions against driving after drug 

usage. First, subsection 3802(d)(1) [as in the instant case,]

prohibits one from driving if there is any amount of a Schedule I 

controlled substance, any amount of a Schedule II or Schedule 

III controlled substance that has not been medically prescribed for 

the individual, or any amount of a metabolite of a controlled 

substance in one’s blood. Analogously to subsections 3802(a)(2), 

(b), and (c) for alcohol intoxication, subsection 3802(d)(1) 

requires a measurement to determine if any amount of a

Schedule I, II, or III controlled substance is detectable in the 

defendant’s blood.
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Commonwealth v. Griffith, 32 A.3d 1231, 1238–1239 (Pa. 2011)

(emphases added). The General Assembly’s use of “any amount” forecloses 

Appellant’s vagueness challenge. An individual need not be concerned with 

how much of the drug he consumed; he is on notice that he cannot ingest any

amount of the drug and operate a vehicle.

In Commonwealth v. Etchison, 916 A.2d 1169, 1172–1173 (Pa. 

Super. 2007), this Court previously addressed, inter alia, an overbreadth 

challenge to 75 Pa.C.S. § 3802(d)(1), where the defendant argued the statute 

violated due process, and his conviction under Section 3802(d)(1) for the 

presence of prohibited metabolites should be reversed. In rejecting this 

constitutional challenge, we stated:

As our Supreme Court has explained, “a statute is 

‘overbroad’ if by its reach it punishes constitutionally protected 

activity as well as illegal activity.” If it does not reach both 

categories of activity, “then the overbrea[d]th challenge must 

fail.” There is no constitutional right to the use of marijuana 

prior to driving; indeed, under Pennsylvania’s Controlled 

Substance, Drug, Device and Cosmetic Act, 35 P.S. § 780–101 et. 

seq., which has not been deemed unconstitutional, an individual 

is prohibited from any use of marijuana.

Id. at 1173 (internal citations omitted) (emphases added). See also 

Morrison, 934 A.2d at 713–714 (rejecting void-for-vagueness and 

overbreadth challenge to 75 Pa.C.S. 3802(a)). Based upon the above 
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reasoning, we conclude that the challenged subsections of the statutes7 are 

not void for vagueness.

Appellant also posits that the trial court erred in refusing to apply the 

rule of lenity “to find that the term ‘metabolite’ as used in 75 Pa.C.S. 

§ 3802(d)(1)(iii) and 75 Pa.C.S. § 1543(b)(1.1)(i) requires proof that an

active metabolite be in an individual’s blood and not an inactive metabolite.” 

Appellant’s Brief at 36.

The rule of lenity:

provides that where a statute is penal and the language of the 

statute is ambiguous, the statute must be construed in favor of 

the defendant and against the government. Underpinning the rule 

of lenity is the fundamental principle of fairness that gives validity 

to our laws and requires a “clear and unequivocal warning in 

language that people generally would understand as to what 

actions would expose them to liability for penalties and what the 

penalties would be.”

Sondergaard v. Com., Dep’t of Transp., 65 A.3d 994, 997–998 (Pa. 

Cmwlth. 2013) (citing Commonwealth v. Reaser, 851 A.2d 144, 149 (Pa. 

Super. 2004)) (quoting Commonwealth v. Cluck, 381 A.2d 472, 477 (Pa. 

Super. 1977)); see also Commonwealth v. Rivera, 10 A.3d 1276, 1284 

(Pa. Super. 2010) (“[U]nder the rule of lenity, penal statutes must be strictly 

construed, with ambiguities being resolved in favor of the accused.”).

____________________________________________

7

 The similar use of “any amount of a Schedule I or nonprescribed Schedule 

II or III controlled substance or its metabolite” in 75 Pa.C.S. § 1543(b)(1.1)(i)

compels the same reasoning, explanation, and disposition. (Emphasis added).
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As noted supra, Section 3802(d)(1)(iii) does not require that a driver be 

impaired; rather, “it prohibits the operation of a motor vehicle by any driver 

who has any amount of a metabolite of specifically enumerated controlled 

substances in his blood, regardless of impairment.” Etchison, 916 A.2d at 

1174. This subsection of the statute does not distinguish between active and 

inactive metabolites. In Pennsylvania, a reasonable person understands that 

ingestion of marijuana prior to operating a motor vehicle could subject him to 

criminal liability. We agree with the Commonwealth that “Section 3802(d)(1)

is clear, unambiguous and its message is straightforward: do not ingest 

marijuana and thereafter drive a motor vehicle.” Commonwealth Brief at 10.

Indeed, we are unconvinced by Appellant’s claim that the rule of lenity 

should be applied. “[T]he touchstone of the rule of lenity is statutory 

ambiguity.” Bifulco v. United States, 447 U.S. 381, 387 (1980). Appellant

begins with the erroneous assumption that the statutes in question are 

ambiguous. The United States Supreme Court has stated countless times that 

the rule of lenity comes into play only “after consulting traditional canons of 

statutory construction.” United States v. Hayes, 555 U.S. 415, 429 (2009). 

Instantly, Appellant has not offered any analysis pursuant to the rules of 

statutory construction. Appellant’s Brief at 36–40; See Commonwealth v. 

Cousins, 212 A.3d 34, 39 (Pa. 2019) (rejecting ambiguity claim, inter alia, 

where the appellant offered no support for his non-textual interpretation of 

the statute). As we noted supra, Section 3802(d)(1)(iii) prohibits the 
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operation of a motor vehicle by any driver who has any amount of a metabolite 

of specifically enumerated controlled substances in his blood. The rule of 

lenity applies only if, after considering text and structure, there is a “grievous 

ambiguity or uncertainty in the statute,” such that the Court must “simply 

guess” what the Legislature intended. Barber v. Thomas, 560 U.S. 474, 

(2010). The trial court found no ambiguity present. Trial Court Opinion, 

9/16/19, at 6. These statutes do not contain a grievous ambiguity nor do we 

need now simply guess what the statute means. This issue lacks merit.

Appellant’s final two issues concern the sentence imposed. Because the 

procedural history relates to both claims, we will address them in tandem. 

Appellant contends the trial court erred in denying his motion to treat his DUI 

offense as a first offense for sentencing purposes because 75 Pa.C.S. § 3806 

is unconstitutional pursuant to Apprendi v. New Jersey, 530 U.S. 466 

(2000), and Alleyne v. United States, 570 U.S. 99 (2013). Appellant’s Brief 

at 17. He also maintains that his sentence of twenty-one months to five years 

is an illegal sentence. Id. at 40.

Regarding the sentence imposed, the trial court stated as follows:

On February 25, 2019 [Appellant] filed a Motion to treat the 

instant conviction as a first offense. Prior to sentencing on 

March 1, 2019, the Court denied the Motion to treat the conviction 

as a first offense and sentenced [Appellant].

At the sentencing, the [c]ourt had the benefit of a 

January 25, 2019 Pre-Sentence Investigation Report prepared by 

the Snyder County Probation Department. The Pre-Sentence 

Report revealed that [Appellant] had been convicted of a [DUI] 

offense on November 24, 2009. In addition, the Pre-Sentence 
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Report revealed that [Appellant] had a substantial criminal 

history. The standard range of the Sentencing Guidelines was 12-

18 months and the aggravated range was 21 months. It is 

significant that [Appellant] did not dispute the prior conviction.

The [c]ourt then sentenced [Appellant] to a State Prison 

sentence of 21 months to 5 years. The [c]ourt stated the reasons 

for the aggravated sentence on the record. Specifically it was due 

to [Appellant’s] driving through a construction zone and causing 

an accident while it was an active construction site.

The [c]ourt also sentenced [Appellant] on Count 6 of the 

Information to 90 days incarceration. The [c]ourt amended this 

sentence on June 19, 2019 to clarify that it was the [c]ourt’s intent 

that Count 6 was to be served consecutively to the sentence 

imposed to Count 2.

On March 7, 2019[,] [Appellant] filed a Post-Sentence 

Motion. In [Appellant’s] Post-Sentence Motion . . . he filed a 

Motion to Modify his sentence alleging it was illegal and should 

have been considered a first offense.

The Court held a hearing on June 10, 2019[,] and denied 

the Post-Sentence Motion.

Trial Court Opinion, 9/16/19, at 3–4.

At the sentencing hearing, the following exchange and argument by 

Appellant’s counsel occurred:

[Defense Counsel]: Your Honor, the prior is not at issue, 

it’s the timeline for the prior within the past ten years and that’s 

a fact that a jury would have to decide if this prior happened within 

the past 10 years to trigger an enhancement of the sentence. 

We’re not disputing that the prior did not have to be proved. 

Alleyne and Apprendi says a prior does not have to be submitted 

to a jury but it’s the fact that shows when the prior happened and 

when the current offense happened to establish that it was within 

the 10-year period of time. Our vision is that the section in 

Pennsylvania law is unconstitutional because it allows the judge 

to make the preponderance of the evidence determination that 

these facts that should be presented to the jury to enhance 

someone’s sentence are not presented to a jury.
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THE COURT: But that’s a fact of record in a Court where the 

conviction is entered, that’s not a fact for a jury to determine. 

You’re saying that the jury gets to determine the date of the 

offense?

[Defense Counsel]: No, Your Honor, what we’re saying is 

that we’re arguing the jury should be the one to find beyond a 

reasonable doubt the date of a prior conviction and the date of the 

current conviction to determine if it’s within the 10-year lookback 

of the statute to establish that it is a second offense.

* * *

THE COURT: [Appellant’s] motion to treat the instant 

conviction as a first offense is denied. By the Court.

N.T. (Sentencing), 3/1/19, at 2–3. The trial court apparently misunderstood 

Appellant’s argument, and viewed the claim merely as one challenging the 

date of the prior conviction, as evidenced by the above exchange and the trial 

court’s disposition in it Pa.R.A.P. 1925(a) opinion, as follows: “Courts are 

permitted to take judicial notice of their own records. [Appellant] was 

convicted in this [c]ourt in November of 2009. This offense occurred in 2018. 

It is clear this was a second offense within the 10 year period based on the 

review of the [c]ourt’s own records.” Trial Court Opinion, 9/16/19, at 5.

In pertinent part, 75 Pa.C.S. § 3806 provides as follows:

§ 3806. Prior offenses

(a) General rule.--Except as set forth in subsection (b), the term 

“prior offense” as used in this chapter shall mean any conviction 

for which judgment of sentence has been imposed, adjudication 

of delinquency, juvenile consent decree, acceptance of 

Accelerated Rehabilitative Disposition or other form of preliminary 

disposition before the sentencing on the present violation for any 

of the following:
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(1) an offense under section 3802 (relating to driving under 

influence of alcohol or controlled substance);

(2) an offense under former section 3731;

(3) an offense substantially similar to an offense under 

paragraph (1) or (2) in another jurisdiction; or

(4) any combination of the offenses set forth in paragraph 

(1), (2) or (3).

(b) Timing.--

(1) For purposes of sections 1553(d.2) (relating to 

occupational limited license), 1556 (relating to ignition 

interlock limited license), 3803 (relating to grading), 3804 

(relating to penalties) and 3805 (relating to ignition 

interlock), the prior offense must have occurred:

(i) within 10 years prior to the date of the offense for 

which the defendant is being sentenced; or

(ii) on or after the date of the offense for which the 

defendant is being sentenced.

(2) The court shall calculate the number of prior offenses, if 

any, at the time of sentencing.

75 Pa.C.S. § 3806.

The trial court ordered and had before it a PSI Report dated January 25, 

2019,8 along with the Guideline Sentencing Form. N.T. (Sentencing), 3/1/19, 

at 2. In response to questioning by the trial court, Appellant’s counsel 

indicated he had no additions or corrections to the PSI Report. Id.

____________________________________________

8

 While a copy of the PSI Report is not in the record certified to us on appeal, 

Appellant’s certified driving history is included as Commonwealth Exhibit 4, 

indicating Appellant’s prior DUI conviction on July 28, 2009. Docket Entry 

24K; N.T., 11/20/18, at 171.
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Appellant’s argument is as follows:

Here, [Appellant] was convicted of, inter alia, 75 Pa.C.S. 

§ 3802(d)(1)(iii). This offense has a set of penalties that 

increases based upon prior convictions. For a first offense, a 

person is subject to a mandatory minimum of 72 hours in prison 

and a maximum of six months. 75 Pa.C.S. § 3804(c)(1); 75 

Pa.C.S. § 3803(b)(2). If the person has one prior conviction for 

[DUI], they are subject to a mandatory minimum of 90 days in 

prison and a maximum penalty of 5 years. 75 Pa.C.S. 

§ 3804(c)(2); 75 Pa.C.S. § 3803(b)(4). A third or subsequent 

offense increases that mandatory minimum to one year in prison. 

75 Pa.C.S. § 3804(c)(3).

By itself, this scheme would be governed by AlmendarezTorres[v. United States, 523 U.S. 224 (1998),] and pose no 

constitutional problem as the only facts that trigger the increases 

in mandatory minimum sentences and maximum sentences is a 

prior conviction. However, this scheme of penalties is complicated 

by 75 Pa.C.S. § 3806 which alters the definition of prior offenses 

for the purposes of 75 Pa.C.S. § 3804 and 75 Pa.C.S.§ 3803. 

Section 3806 expands the definition of “prior offenses” from mere 

prior convictions of Driving Under the Influence to include juvenile 

consent decrees and placement into Accelerated Rehabilitation 

Disposition (ARD) for [DUI] allegation. 75 Pa.C.S. § 3806(a). 

Section 3806 then limits the definition of “prior offenses” to 

offenses which occurred:

(i) within 10 years prior to the date of the offense for which 

the defendant is being sentenced; or

(ii) on or after the date of the offense for which the 

defendant is being sentenced.

75 Pa.C.S. § 3806(b)(1). Section 3806 then dictates that it is the 

court, at sentencing, which shall determine the number of prior 

offenses, 75 Pa.C.S. § 3806(b)(2).

Appellant’s Brief at 18–19. While acknowledging this Court has no authority 

to do so, Appellant goes on to suggest that Almendarez-Torres “was wrongly 

decided and should be overruled.” Id. at 25. This we cannot do. Bosse v. 
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Oklahoma, ___ U.S. ___, 137 S.Ct. 1, 2 (2016) (“It is this Court’s prerogative 

alone to overrule one of its precedents.”).9

We reject Appellant’s claim that Apprendi and Alleyne mandate that 

because Appellant had a prior DUI conviction, which has the effect of 

increasing the penalty for the instant offense, the prior conviction had to be 

submitted to a jury for determination before imposition of sentence. This 

claim ignores the essence of Apprendi that “[o]ther than the fact of a prior 

conviction, any fact that increases the penalty for crime beyond the 

prescribed statutory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” Apprendi, 530 U.S. at 49 (emphasis added). 

We reject Appellant’s claim.

In his final issue, Appellant argues as follows:

Appellant’s judgement of sentence is unlawful in that it imposes a 

sentence greater than six months where no mens rea was pleaded 

in the information or found by the jury beyond a reasonable doubt. 

While the Commonwealth may create and prosecute absolute 

liability crimes, those crimes are limited to instances of minor 

traffic offenses carrying no greater than six months. Thus, 

[Appellant’s] sentence of 21 months to 5 years is unconstitutional 

as no mens rea finding was made by the jury.

Appellant’s Brief at 10.

This issue concerns the legality of Appellant’s sentence. “When 

reviewing the legality of a sentence, our standard of review is de novo and 

____________________________________________

9

 Indeed, Appellant acknowledges our inability to overrule case law from the 

United States Supreme Court but asserts he “is obligated to preserve this 

argument for further appeal.” Appellant’s Brief at 25 n.3.
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our scope of review is plenary.” Commonwealth v. Seskey, 170 A.3d 1105, 

1107 (Pa. Super. 2017) (citation omitted).

Appellant cites 18 Pa.C.S. § 305 and by implication, 18 Pa.C.S. § 301, 

to support his position that the Commonwealth was required to establish mens 

rea with regard to 75 Pa.C.S. § 3802(d)(1)(iii) in order for Appellant to be 

sentenced to a period of incarceration beyond six months. Appellant’s Brief 

at 40–41. Sections 301 and 305 of the Pennsylvania Crimes Code state in 

pertinent part as follows:

§ 301. Requirement of voluntary act

(a) General rule.—A person is not guilty of an offense unless his 

liability is based on conduct which includes a voluntary act or the 

omission to perform an act of which he is physically capable.

18 Pa.C.S. § 301.

§ 305. Limitation on scope of culpability requirements

(a) When culpability requirements are inapplicable to 

summary offenses defined by other statutes.—The 

requirements of culpability prescribed in section 301 of this title 

(relating to requirement of voluntary act) . . . do not apply to:

* * *

(2) offenses defined by statutes other than this title, in so 

far as a legislative purpose to impose absolute liability for 

such offenses or with respect to any material element 

thereof plainly appears.

18 Pa.C.S. § 305(a) (emphases added).

Review of these statutes compels the conclusion that the voluntary-act 

requirement set forth in Section 301 relates only to offenses defined in Title 
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18. Instead, the statutory elements of DUI offenses are set forth in Title 75. 

Thus, Appellant’s conviction of 75 Pa.C.S. § 3802 is presumptively exempt 

from the requirements of 18 Pa.C.S. § 301. Further, the statutory language 

of 75 Pa.C.S. § 3803, grading of Title 75 offenses, omits any reference to 

culpability. That section provides in pertinent part:

§ 3803. Grading

* * *

(b) Other offenses.

* * *

(4) An individual who violates . . . section 3802[](d) and 

who has one prior offense commits a misdemeanor of the 

first degree.

75 Pa.C.S. § 3803. The statutory maximum sentence for a first-degree 

misdemeanor is five years of incarceration. Commonwealth v. Grow, 122 

A.3d 425, 428 (Pa. Super. 2015) (en banc) (citing 18 Pa.C.S. §§ 1104(1)).

Appellant cites to Commonwealth v. Collins, 810 A.2d 698 (Pa. Super. 

2002), where this Court interpreted the omission of any reference to 

culpability in 75 Pa.C.S. § 380210 to mean that the Legislature intended DUI 

to be a strict or absolute liability offense. He thus maintains that because DUI 

is a strict-liability offense, it must be graded as a summary offense with a 

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10

 Collins actually was addressing the former DUI statute, 75 Pa.C.S. § 3731, 

repealed effective February 1, 2004.
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maximum penalty of ninety days imprisonment. Appellant’s Brief at 41 (citing 

18 Pa.C.S. § 305(b)(2) and Commonwealth v. Mikulan, 470 A.2d 1339 (Pa. 

1983) (Plurality)).

11

The relevant portion of 18 Pa.C.S. § 305(b) provides:

§ 305. Limitations on scope of culpability requirements

* * *

(b) Effect of absolute liability in reducing grade of offense 

to summary offense.--Notwithstanding any other provision of 

existing law and unless a subsequent statute otherwise 

provides:

(1) when absolute liability is imposed with respect to any 

material element of an offense defined by a statute other 

than this title and a conviction is based upon such liability, 

the offense constitutes a summary offense;

18 Pa.C.S. § 305(b)(1) (emphasis added).

We reject Appellant’s contention and rely on the qualifying phrase of 

Section 305(b), highlighted above. A subsequent statute, 75 Pa.C.S. 

§ 3803(b)(4), quoted supra, provides that a violation of Section 3802(d), as 

herein, where the individual has a prior offense, “commits a misdemeanor of 

the first degree.” 75 Pa.C.S. § 3803(b)(4). As noted supra, such an offense 

is punishable by up to five years of imprisonment. 18 Pa.C.S. § 1104(1). 

Therefore, we accept the Commonwealth’s argument that even though the 

____________________________________________

11

 Mikulan was called into question in Commonwealth v. Griscom, 600 

A.2d 996 (Pa Super. 1991) (plurality nature of case and fact that it has never 

been cited, compelled Griscom Court to decline reliance on Mikulan).
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statute under which Appellant was convicted, 75 Pa.C.S. § 3802(d), is a strict 

liability offense, because the applicable statutes under both the Motor Vehicle 

Code, 75 Pa.C.S. § 3803, and the Crimes Code, 18 Pa.C.S. § 1104, provide 

for both the grading of the offense and the maximum penalty to be imposed, 

the default provisions of 18 Pa.C.S. § 305 are not applicable. Thus, we decline 

to find Appellant’s sentence illegal.

Judgment of sentence affirmed.

Judge Lazarus joins this Memorandum.

Judge Musmanno concurs in the result.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 03/10/2020