J-S08009-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

DAVID GENE DANIELS 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1344 MDA 2022

Appeal from the Judgment of Sentence Entered August 10, 2022

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

No(s): CP-66-CR-0000135-2020

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

MEMORANDUM BY OLSON, J.: FILED: JUNE 12, 2023

Appellant, David Gene Daniels, appeals from the August 10, 2022 

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

County after Appellant pleaded guilty to driving under the influence of alcohol 

or controlled substance (“DUI”) – second offense.1 We affirm.

The trial court summarized the factual and procedural history as follows:

On [] January 9, 2020, [Appellant] was charged with driving under 

the influence of alcohol []or controlled substance, 75 Pa.C.S.A.

§ 3802(d)(1)(ii), driving under the influence of alcohol []or 

controlled substance, 75 Pa.C.S.A. § 3802(d)(2)[,] and 

endangering the welfare of children, 18 Pa.C.S.A. [§ ]4304(a)(1).

The charges stem from an incident that occurred on Wednesday, 

August 21, 2019. According to the police criminal complaint, 

[Appellant] was at the courthouse for a hearing [when the 

magisterial district courtFN1] ordered [that Appellant undergo] a 

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* Retired Senior Judge assigned to the Superior Court.

1 75 Pa.C.S.A. § 3802(d)(2).
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drug test. [Appellant] was accompanied to the courthouse [by a]

minor[ child. Appellant] failed a urine test[,] and it was noted he

[drove] a motor vehicle with the child to the courthouse. 

[Appellant] was placed under arrest for suspicion of driving under 

the influence of a controlled substance and transported to [a]

hospital for a blood [draw]. The blood tests were positive for 

Amphetamine, Methamphetamine, Oxycodone-Free[,] and 

Oxymorphone-Free at the time of [Appellant’s] arrest.

[Footnote 1 Appellant] was before [the magisterial district

court] for preliminary arraignment on several charges of 

driving under the influence. [Appellant’s preliminary 

arraignment] was [originally] scheduled for August 20, 

2019[,] but [Appellant] failed to appear so a bench warrant 

was issued. [Appellant] presented to [the magisterial 

district court] on August 21, 2019.

On July 7, 2020[, Appellant] appeared in magisterial district court 

and waived all counts to [the trial] court. A guilty plea to one []

count of driving under the influence - highest rate was entered by 

[Appellant] on May 7, 2021. Thereafter, on July 7, 2021, the 

Commonwealth filed a motion to withdraw [the] guilty plea based 

upon [Appellant’s] prior [conviction for] driving under the 

influence [] in Wyoming County[, Pennsylvania]. On July 1, 

2022[, Appellant] entered a [new] guilty plea to one [] count of 

driving under the influence - tier III, second offense. [Appellant]

was sentenced on August 10, 2022[,] to pay the cost of 

prosecution, to pay a fine in the amount of []$1,500.00[,] and to 

be committed to the Department of Corrections for confinement 

in a state [correctional] institution for a period of not less than 

[16] months nor more than [60] months. [Appellant] received 

credit for prior confinement in the amount of one day. It was 

further ordered that [Appellant] shall be eligible for [a recidivism 

risk reduction incentive (“RRRI”)] minimum sentence.

Following sentencing, [Appellant] filed a timely motion for 

reconsideration which was denied by [the trial] court on August 

23, 2022. [On September 22, 2022, Appellant’s counsel]

simultaneously filed a notice of appeal and a petition [to withdraw

as] counsel. The petition to withdraw was granted[,] and new

counsel was appointed.
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Trial Court Opinion, 11/17/22, at 1-2 (extraneous capitalization and record 

citation omitted).

On appeal, Appellant challenges the sentence imposed by the trial court. 

Specifically, Appellant raises the following issues for our review:

1 Did the [trial] court err as a matter of law by considering 

unproven facts which were specifically excluded by the 

parties from the record and which served to enhance the 

sentence?

2. In the alternative, did the [trial] court abuse its discretion 

in formulating an appropriate sentence by considering facts 

not of record which were specifically excluded from the 

record?

3. Did the [trial] court abuse its discretion in failing to 

adequately consider Appellant's physical health as well as 

his rehabilitative efforts following his arrest and conviction 

in the instant case?

4. Did the [trial] court abuse its discretion in barring Appellant 

from participating in the state intermediate punishment 

program?

Appellant’s Brief at 3 (extraneous capitalization omitted).

Appellant’s issues, in toto, challenge the discretionary aspects of his 

sentence, arguing that the trial court abused its discretion in fashioning 

Appellant’s sentence when the trial court relied on an improper fact (the 

presence of a minor child in the vehicle at the time of the offense), failed to 

consider Appellant’s physical health and rehabilitative needs, and determined 

that Appellant was ineligible to participate in the state intermediate 

punishment (“SIP”) program without stating its reasons on the record. Id. at 

14-15.
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It is well-settled that “the right to appeal [the] discretionary 

aspect[s] of [a] sentence is not absolute.” Commonwealth v. 

Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011). Rather, where 

an appellant challenges the discretionary aspects of a sentence, 

we should regard his[, or her,] appeal as a petition for allowance 

of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 162 

(Pa. Super. 2007). As we stated in Commonwealth v. Moury, 

992 A.2d 162 (Pa. Super. 2010):

An appellant challenging the discretionary aspects of his[, 

or her,] sentence must invoke this Court's jurisdiction by 

satisfying a four-part test:

We conduct a four-part analysis to determine: (1) whether 

[the] appellant [] filed a timely notice of appeal, see

Pa.R.A.P. 902 and 903; (2) whether the issue was properly 

preserved at sentencing or in a motion to reconsider and 

modify sentence, see Pa.R.Crim.P. 720; (3) whether [the] 

appellant's brief has a fatal defect, [see] Pa.R.A.P. 2119(f); 

and (4) whether there is a substantial question that the 

sentence appealed from is not appropriate under the 

Sentencing Code, 42 Pa.C.S.A. § 9781(b).

[Moury, 992 A.2d] at 170. We evaluate on a case-by-case basis 

whether a particular issue constitutes a substantial question about 

the appropriateness of sentence. Commonwealth v. Kenner, 

784 A.2d 808, 811 (Pa. Super. 2001).

Commonwealth v. Hill, 210 A.3d 1104, 1116 (Pa. Super. 2019) (original 

brackets omitted). If an appellant fails to challenge the discretionary aspects 

of a sentence either by presenting a claim to the trial court at the time of 

sentencing or in a post-sentence motion, then the appellant’s challenge is 

waived. Commonwealth v. Lamonda, 52 A.3d 365, 371 (Pa. Super. 2012) 

(en banc) (citation omitted), appeal denied, 75 A.3d 1281 (Pa. 2013). A 

substantial question exists when an appellant presents a colorable argument 

that the sentence imposed is either (1) inconsistent with a specific provision 

of the Sentencing Code or (2) is “contrary to the fundamental norms which 
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underlie the sentencing process.” Commonwealth v. Mastromarino, 2 A.3d 

581, 585 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa. 2011). In 

determining whether a substantial question exists, this Court “cannot look 

beyond the statement of questions presented and the prefatory Rule 2119(f) 

statement[.]” Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 

2013), aff’d, 125 A.3d 394 (Pa. 2015).

Here, the record reflects that Appellant filed a timely notice of appeal 

and properly preserved challenges to the discretionary aspects of his sentence 

in his petition for reconsideration of his sentence. Appellant also included a 

Rule 2119(f) statement in his brief. Appellant’s Brief at 14-15. In his Rule 

2119(f) statement, Appellant asserts that his sentence was excessive because 

(1) the trial curt relied “upon allegations that a minor child was present in the 

vehicle at the time of the offense when such assertion was specifically 

retracted by the Commonwealth from [its] offer of proof at the time of the 

guilty plea[;]” (2) that the trial court “rejected Appellant’s assertion of drug 

and alcohol rehabilitative efforts, noting that his claims were no more than 

unsubstantiated assertions without documentation from health care 

providers[;]” and (3) that the trial court failed to set forth a rational basis for 

denying Appellant the opportunity to participate in a SIP program. Id. at 14. 

In so arguing, we find Appellant raises substantial questions that his sentence 

was inapposite to the Sentencing Code. See Commonwealth v. Downing, 

990 A.2d 788, 792 (Pa. Super. 2010) (stating that, allegations that the trial 

court relied on evidence not of record or on improper facts raise a substantial 
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question permitting review); see also Commonwealth v. Williams, 562 

A.2d 1385, 1388 (Pa. Super. 1989) (en banc) (stating that, while an allegation 

that the trial court did not adequately consider sentencing factors does not 

raise a substantial question, averments that the trial court was unaware or 

misinformed of a sentencing factor does raise a substantial question);

Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (stating 

that, a trial court’s “failure to set forth adequate reasons for the sentence 

imposed has been held to raise a substantial question” (citation and original 

quotation marks omitted)). Therefore, we proceed to consider the merits of 

Appellant’s discretionary sentencing claims.

In his first and second issues, Appellant asserts that the trial court, in

imposing a sentence, impermissibly “relied upon a factual assertion withdrawn 

by the Commonwealth as part of the plea colloquy[,]” namely that 

“Appellant[,] while impaired[,] operated his vehicle with a minor passenger in 

the motor vehicle.” Appellant’s Brief at 21. Appellant argues that “the nature 

and circumstances of the crime [are] limited to those facts either admitted by 

[Appellant] at the time of the [guilty] plea or those facts established at the 

time of sentencing either through a [pre-sentence investigation (“PSI”)] report 

or through evidence presented.” Id. Appellant contends that, “[a]t the 

sentencing hearing[,] there was no evidence presented to substantiate” a 

minor child was in the vehicle. Id.

In reviewing sentencing matters, we are mindful of our well-settled 

standard of review.
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Sentencing is a matter vested in the sound discretion of the [trial 

court], and a sentence will not be disturbed on appeal absent a 

manifest abuse of discretion. In this context, an abuse of 

discretion is not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the record, that the 

[trial] court ignored or misapplied the law, exercised its judgment 

for reasons of partiality, prejudice, bias[,] or ill[-]will, or arrived 

at a manifestly unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009).

A sentence is invalid if the record discloses that the [trial] court 

may have relied in whole or in part upon an impermissible 

consideration. This is so because the [trial] court violates [a]

defendant's right to due process if, in deciding upon the sentence, 

it considers unreliable information, or information affecting the 

[trial] court's impartiality, or information that it is otherwise unfair 

to hold against the defendant.

Downing, 990 A.2d at 792-793 (citations and original brackets omitted).

Appellate review of a trial court’s sentencing determination is governed 

by Section 9781(c) of the Sentencing Code.

Section 9781(c) specifically defines three instances in which the 

appellate courts should vacate a sentence and remand: (1) the 

[trial] court applied the guidelines erroneously; (2) the sentence 

falls within the guidelines, but is “clearly unreasonable” based on 

the circumstances of the case; and (3) the sentence falls outside 

of the guidelines and is “unreasonable.”

Commonwealth v. Bowen, 975 A.2d 1120, 1123 (Pa. Super. 2009), citing

42 Pa.C.S.A. § 9781(c).

At Appellant’s sentencing hearing in the case sub judice, the trial court

stated its reasons for imposing a sentence of 16 to 60 months’ incarceration 

as follows:
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[Appellant] ha[d] a relevant criminal record, [Appellant] failed to 

address his apparent drug and alcohol abuse pattern, [and 

Appellant] acted without regard in operating a motor vehicle 

under the influence with a minor child[.]

N.T., 8/10/22, at 17. The trial court further stated that “any lesser [] sentence 

would depreciate the seriousness of [Appellant’s] actions, and [Appellant’s] 

continued drug and alcohol use has made him a threat not only to himself, 

but to our community as a whole.” Id. Although the trial court, prior to 

imposing its sentence, identified Appellant’s conviction as “DUI, tier three, 

second offense, controlled substance, with a minor occupant in the vehicle,” 

Appellant’s counsel clarified the record by stating,

If I can just clarify for the record[.] What [Appellant] has pled to 

was just the second offense DUI. At the time of the guilty plea[,] 

the Commonwealth [] agreed not to seek any enhancement for 

the minor in the vehicle. The [PSI report] reflects it correctly. 

And I understand that the standard range allows for that sentence. 

I just wanted to clarify for the record[.]

Id. at 15-18. Thereupon, the trial court acknowledged the clarification. Id.

at 18.

A review of the record demonstrates that Appellant pleaded guilty to 

DUI – second offense pursuant to Section 3802(d)(2) of the Vehicle Code, and 

this offense was graded as a first-degree misdemeanor. 75 Pa.C.S.A. 

§ 3802(d)(2); see also 75 Pa.C.S.A. § 3803(b)(4); Guilty Plea, 7/1/22. As 

such, the statutory penalties for Appellant’s conviction included that he

“undergo imprisonment of not less than 90 days[,] pay a fine of not less than 

$1,500[.00,] attend an alcohol highway safety school approved by the 
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[Pennsylvania Department of Transportation, and] comply with all drug and 

alcohol treatment requirements imposed under [75 Pa.C.S.A. §§ 3814 and 

3815].”

2

 75 Pa.C.S.A. § 3804(c)(2). The PSI report demonstrates, and 

Appellant acknowledges, that Appellant’s prior record score was 3 and his 

offense gravity score was 5. PSI Report, 8/17/22; see also Appellant’s Rule 

1925(b) Statement, 11/10/22, at ¶3. Thus, under the applicable sentencing 

guidelines, a sentence within the standard range called for a minimum period 

of incarceration of 6 to 16 months, and a sentence within the aggravated 

range of the sentencing guidelines would subject Appellant to a minimum 

sentence of 9 to 19 months’ incarceration. PSI Report, 8/7/22; see also 204 

Pa. Code § 303.16(a). Lastly, Appellant’s conviction carried a mandatory 

minimum sentence of 3 months’ incarceration, see 75 Pa.C.S.A. 

§ 3804(c)(2)(i), and a statutory maximum period of incarceration of 60 

months, see 18 Pa.C.S.A. § 106(b)(6) and (e).

Section 3804(c.1) of the Vehicle Code provides additional penalties 

when an individual is convicted of a DUI offense where a minor under the age 

of 18 was an occupant in the vehicle. 75 Pa.C.S.A. § 3804(c.1); see also 75 

Pa.C.S.A. § 3803(b)(5). For a first offense, the additional penalties include a 

fine of not less than $1,000.00 and a requirement that the individual complete 

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2 At the plea hearing, the Commonwealth waived the sentencing enhancement 

set forth in Section 3804(c.1), which imposes additional penalties where a DUI 

violation involves a minor occupant in the vehicle, as discussed infra. N.T., 

7/1/22, at 15.
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100 hours of community service. 75 Pa.C.S.A. § 3804(c.1)(1)(i and ii). For 

a second offense, the additional penalties include a fine of not less than 

$2,500.00 and a minimum sentence of not less than one month nor more than 

six months’ incarceration. 75 Pa.C.S.A. § 3804(c.1)(2)(i and ii). In fashioning 

Appellant’s sentence, the trial court did not apply either Section 3804(c.1)(1) 

or Section 3804(c.1)(2) because the sentence did not require Appellant to 

complete 100 hours of community service (Section 3804(c.1)(1)(ii)) or pay a 

fine “of not less than $2,500.00” (Section 3804(c.1)(2)(i)).3

Section 9721(b) of the Sentencing Code requires a trial court, in 

fashioning its sentence, to “follow the general principle that the sentence 

imposed should call for total confinement that is consistent with [S]ection 

9725 (relating to total confinement) and the protection of the public, the 

gravity of the offense as it relates to the impact on the life of the victim and 

on the community, and the rehabilitative needs of the defendant.” 42 

Pa.C.S.A. § 9721(b). When imposing a sentence for a misdemeanor, such as 

in the case sub judice, the trial court shall “make as a part of the record, and 

disclose in open court at the time of sentencing, a statement of the reason or 

reasons for the sentence imposed.” Id. Thus, in the case sub judice, while 

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3 Although some question arises as to what constitutes a second offense 

pursuant to Section 3804(c.1) - whether an individual must have been 

convicted on two separate occasions of a DUI offense involving a minor child 

as an occupant in the vehicle or whether only the second DUI conviction must 

involve a minor child as an occupant in the vehicle - we do not undertake such 

an analysis of Section 3804(c.1) in the case sub judice.
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the Commonwealth declined to seek the sentencing enhancement under

Section 3804(c.1) for purpose of sentencing, the trial court was free, pursuant 

to Section 9721(b), to consider the presence of a minor in the vehicle at the 

time of the offense in imposing an individualized sentence that accounted for, 

inter alia, the protection of the public and the gravity of the offense. 

Consequently, Appellant’s first and second issues are without merit.

In his third issue, Appellant asserts that the trial court failed to 

adequately consider his physical condition and rehabilitative efforts in 

determining a sentence. Appellant’s Brief at 22-23. Appellant asserts that 

the trial court “obviously discounted Appellant’s rehabilitative efforts on the 

basis of a lack of written verification from the health [care] providers[.]” Id.

at 23. Appellant contends he “informed the [trial] court [that] he[,] in fact[,] 

completed a course of drug and alcohol treatment [] subsequent to his arrest 

in the instant case and was accepted into an [intensive outpatient treatment

(“IOP”)] program” but that he “faced insurance difficulties which delayed his 

latest application for [an] IOP [program.]” Id. at 22.

In so arguing, Appellant concedes that the trial court was aware of 

several mitigating circumstances, including his physical and medical 

conditions and his history of drug and alcohol treatment. Despite the trial 

court’s admitted awareness of these factors, Appellant asserts that the trial 

court failed to adequately consider these mitigating circumstances, as well as 

Appellant’s need for rehabilitative treatment, in fashioning its sentence. The 

record reveals that the trial court reviewed a PSI report, and Appellant 
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concedes that the PSI report correctly set forth the guidelines for sentencing. 

See PSI Report, 8/17/22; see also Trial Court Opinion, 11/17/22, at 3; N.T., 

8/10/22, at 10, 18. When a trial court orders and reviews a PSI report prior 

to sentencing, this Court presumes that the trial court “was aware of all 

relevant sentencing factors.” Commonwealth v. Knox, 219 A.3d 186, 199 

(Pa. Super. 2019), appeal denied, 228 A.3d 256 (Pa. 2020). The record 

further reveals that Appellant’s counsel, as well as Appellant, informed the 

trial court, prior to sentencing, of Appellant’s extensive physical and medical 

history, as well as his history involving drug and alcohol abuse and attempts 

at treatment. N.T., 8/10/22, at 10-11, 13-14; see also Commonwealth v. 

Devers, 546 A.2d 12, 18 (Pa. 1988) (stating that, “[i]t would be foolish, 

indeed, to take the position that if a [trial] court is in possession of the facts, 

it will fail to apply them to the case at hand”).

The trial court imposed a sentence that fell within the standard range of 

the sentencing guidelines and, in so doing, adequately considered, inter alia,

the PSI report, Appellant’s criminal record, and his apparent drug and alcohol

abuse. We discern no abuse of discretion or error of law in the sentence 

imposed by the trial court, and the trial court took into consideration all of the 

relevant factors, pursuant to Section 9721(b). Moreover, under the individual 

circumstances of the case sub judice, we cannot reweigh the factors

considered by the trial court to determine that the sentence, which fell within 

the standard range of sentencing guidelines, was unreasonable. Therefore, 

Appellant’s third issue is without merit.
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In his final issue, Appellant challenges that aspect of the trial court’s 

sentencing determination that denied him the opportunity to participate in a 

SIP program. Appellant’s Brief at 24-25. Appellant asserts that the trial court 

“denied Appellant’s participation in [a] SIP [program] without identifying the 

reasons for the denial.” Id. at 24.

Preliminarily, we note that at the time Appellant committed the 

aforementioned offense (August 2019), participation in a SIP program was 

available as a sentencing alternative pursuant to Section 9721(a) of the 

Sentencing Code. 42 Pa.C.S.A. § 9721(a)(7) (effective September 4, 2012 to 

December 17, 2019). Section 9721(a.1)(2) stated that “[a]n eligible offender 

may be sentenced to State intermediate punishment pursuant to [Section 

9721](a)(7) and as described in 61 Pa.C.S.[A. Chapter] 41 . . . even if a 

mandatory minimum sentence would otherwise be provided by law.”

4

 42 

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4 An “eligible offender” was defined as

a defendant designated by the [trial] court as a person convicted 

of a drug-related offense who:

(1) Has undergone an assessment performed by the 

Department of Corrections, which assessment has 

concluded that the defendant is in need of drug and 

alcohol addiction treatment and would benefit from 

commitment to a drug offender treatment program 

and that placement in a drug offender treatment 

program would be appropriate.

(2) Does not demonstrate a history of present or past 

violent behavior.
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Pa.C.S.A. § 9721(a.1)(2) (effective September 4, 2012 to December 17, 

2019). “A defendant is not entitled to SIP, instead SIP is a privilege granted 

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(3) Would be placed in the custody of the [Department 

of Corrections] if not sentenced to State intermediate 

punishment.

(4) Provides written consent permitting release of 

information pertaining to the defendant's participation 

in a drug offender treatment program.

The term shall not include a defendant who is subject to a 

sentence the calculation of which includes an enhancement for the 

use of a deadly weapon, as defined pursuant to law or the 

sentencing guidelines promulgated by the Pennsylvania 

Commission on Sentencing, a defendant who has been convicted 

or adjudicated delinquent of any crime requiring registration 

under 42 Pa.C.S.[A. Chapter] 97 [Subchapter] H (relating to 

registration of sexual offenders) or a defendant with a current 

conviction or a prior conviction within the past ten years for any 

of the following offenses: 18 Pa.C.S.[A.] § 2502 (relating to 

murder)[,] 18 Pa.C.S.[A.] § 2503 (relating to voluntary 

manslaughter)[,] 18 Pa.C.S.[A.] § 2506 (relating to drug delivery 

resulting in death)[,] 18 Pa.C.S.[A.] § 2901(a) (relating to 

kidnapping)[,] 18 Pa.C.S.[A.] § 3301(a)(1)(i) (relating to arson 

and related offenses)[,] 18 Pa.C.S.[A.] § 3502 (relating to 

burglary), in the case of burglary of a structure adapted for 

overnight accommodation in which at the time of the offense any 

person is present[,] 18 Pa.C.S.[A.] § 3701(a)(1)(i), (ii) or (iii) 

(relating to robbery)[,] 18 Pa.C.S.[A.] § 3702 (relating to robbery 

of motor vehicle)[, or] 18 Pa.C.S.[A.] § 7508(a)(1)(iii), (2)(iii), 

(3)(iii) or (4)(iii) (relating to drug trafficking sentencing and 

penalties).

61 Pa.C.S.A. § 4103 (effective July 1, 2013 to February 1, 2020) (paragraph 

formatting modified).
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at the discretion of the [trial] court.”

5

 Commonwealth v. Kuykendall, 2 

A.3d 559, 565 (Pa. Super. 2010). Nonetheless, Section 9721(b) of the 

Sentencing Code requires a trial court, when imposing a sentence for a 

misdemeanor, to state, as part of the record, “the reason or reasons for the 

sentence imposed.” 42 Pa.C.S.A. § 9721(b).

Here, the trial court, in imposing Appellant’s sentence, stated, inter alia, 

that “[Appellant] shall be eligible for [a] RRRI minimum sentence, but shall 

not be eligible for [SIP.]” N.T., 8/10/22, at 16. The trial court explained that 

Appellant’s sentence was based upon a consideration of his criminal record, 

his failure to address his drug and alcohol abuse pattern, and his operation of 

a vehicle with a minor child present at the time of the offense and that “any 

lessor of a sentence would depreciate the seriousness of [Appellant’s]

actions”. Id. at 17. As such, the trial court explained the reasons for its 

sentencing determinations on the record, and we are without grounds to deem 

Appellant’s punishment unreasonable. Kuykendall, 2 A.3d at 565. 

Consequently, we do not find the trial court abused its discretion or erred in 

sentencing Appellant.

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5 Section 4108 states, “[n]otwithstanding any other provision of law to the 

contrary, [61 Pa.C.S.A. Chapter 41] shall not be construed to[ c]onfer any 

legal right upon any individual, including an individual participating in the drug 

offender treatment program, to[] participate in a drug offender treatment 

program[.]” 61 Pa.C.S.A. § 4108(1)(i) (effective October 13, 2009).
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/12/2023