J-S84010-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

Appellant

v.

DONNA DRISCOLL

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1215 MDA 2017

Appeal from the Order Entered July 17, 2017

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

No(s): CP-54-CR-0001788-2016

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

MEMORANDUM BY SHOGAN, J.: FILED APRIL 13, 2018

The Commonwealth appeals from the trial court’s pretrial order 

granting Appellee Donna Driscoll’s pretrial motion and directing that the 

offense of driving under the influence (“DUI”),1 which allegedly occurred on 

June 15, 2016, be treated as a first offense. We reverse.

We summarize the pertinent history of this matter as follows. On 

June 15, 2016, Officer Pete Sandor of the Tamaqua Police Department 

responded to a report of a motor vehicle accident at 301 Willing Street in 

Tamaqua Borough. Officer Sandor encountered Appellee at the scene and 

subsequently arrested her. Appellee was charged with DUI. Upon 

discovery, it was revealed that Appellee had previously been convicted of 

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1 75 Pa.C.S. § 3802.
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DUI, as evidenced in her driving record. Specifically, Appellee’s previous 

conviction arose out of an offense that occurred in Schuylkill County on 

April 2, 2006. Subsequently, on February 21, 2007, Appellee pled guilty to 

the previous DUI offense and was sentenced to serve a term of incarceration 

of three to six months.

After being charged in the instant matter, Appellee filed omnibus 

pretrial motions on March 21, 2017. The trial court held a hearing on May 1, 

2017. At the conclusion of the hearing, the trial court directed the parties to 

file briefs addressing the issue of whether Appellee’s instant DUI offense 

should be considered a first offense or a second offense pursuant to 75 

Pa.C.S. § 3806. Appellee filed her brief on May 31, 2017, and the 

Commonwealth filed its brief on June 5, 2017. On July 17, 2017, the trial 

court entered its order determining that Appellee’s instant DUI offense 

should be treated as a first offense. The Commonwealth then filed this 

timely appeal.2 The trial court did not direct the Commonwealth to file a 

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2 Pursuant to Pa.R.A.P. 311(d), in criminal cases the Commonwealth has a 

right to appeal interlocutory orders if the Commonwealth certifies that the 

orders will terminate or substantially handicap the prosecution. 

Commonwealth v. Flamer, 53 A.3d 82, 86 n.2 (Pa. Super. 2012). 

Specifically, Rule 311(d) provides as follows:

In a criminal case, under the circumstances provided by law, the 

Commonwealth may take an appeal as of right from an order 

that does not end the entire case where the Commonwealth 

certifies in the notice of appeal that the order will terminate or 

substantially handicap the prosecution.

(Footnote Continued Next Page)
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statement pursuant to Pa.R.A.P. 1925(b). On August 10, 2017, the trial 

court directed that the certified record be forwarded to this Court and that 

the record include the trial court’s order of July 17, 2017, in lieu of a trial 

court opinion, thereby satisfying Pa.R.A.P. 1925(a).

The Commonwealth now presents the following issue for our review:

1. Did the lower court err in determining that 75 Pa.C.S.A. 

§ 3806 is vague and must be subject to the rule of lenity,[3]

without addressing the rules of statutory construction, and thus 

leniently interpreting § 3806 to define the 10–year lookback 

period from offense date to offense date instead of conviction to 

offense date?

(Footnote Continued) _______________________

Pa.R.A.P. 311(d).

Here, the record reflects that the Commonwealth stated in its notice of 

appeal that “Attached hereto is the Commonwealth’s certification pursuant 

to [Pa.R.A.P.] 311(d)”. Notice of Appeal, 8/3/17, at 1. However, review of 

the certified record reflects that the Commonwealth failed to attach the 

certification to the notice of appeal. Consequently, on August 22, 2017, this 

Court filed an order directing the Commonwealth to show cause why the 

appeal should not be quashed as taken from an unappealable order. Order, 

8/22/17, at 1. On August 30, 2017, the Commonwealth filed its response to 

the rule to show cause. Therein, the Commonwealth indicated that the trial 

court’s order, which held the instant crime should be considered to be 

Appellee’s first DUI, affected the grading of the instant offense because it 

quashed the Commonwealth’s first-degree misdemeanor charge and limited 

prosecution to the charge of DUI as an ungraded misdemeanor. 

Commonwealth’s Response, 8/30/17, at 1-2. The Commonwealth certified 

that the determination will substantially handicap the prosecution of the 

case. Commonwealth’s Response, 8/30/17, at 2. Therefore, pursuant to 

Pa.R.A.P. 311(d), this Court has jurisdiction to hear this appeal from the trial 

court’s interlocutory order, even though the trial court’s order did not 

terminate the prosecution.

3 See Commonwealth v. Jarowecki, 985 A.2d 955, 963 (Pa. 2009) (“‘rule 

of lenity’- the mandate that ambiguous penal statutes be interpreted in 

favor of the criminal defendant”) (emphasis added).
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Commonwealth’s Brief at 4.

The Commonwealth argues that the trial court erred in deciding that 

Appellee’s instant DUI charge should be considered a first offense. 

Commonwealth’s Brief at 7-15. Specifically, the Commonwealth contends 

that 75 Pa.C.S. § 3806 is not vague with regard to calculating the ten-year 

look-back period and that the trial court erred in applying the rule of lenity.

Our review of this case focuses upon the trial court’s interpretation of 

a statute and its application of proper legal principles. These are questions 

of law for which our standard of review is de novo and our scope of review is 

plenary. Commonwealth v. Lynn, 114 A.3d 796, 817-818 (Pa. 2015). In 

addition, we are mindful of the following:

Our task is guided by the sound and settled principles set 

forth in the Statutory Construction Act, including the primary 

maxim that the object of statutory construction is to ascertain 

and effectuate legislative intent. 1 Pa.C.S. § 1921(a). In 

pursuing that end, we are mindful that “[w]hen the words of a 

statute are clear and free from all ambiguity, the letter of it is 

not to be disregarded under the pretext of pursuing its spirit.” 1 

Pa.C.S. § 1921(b). Indeed, “[a]s a general rule, the best 

indication of legislative intent is the plain language of a statute.” 

In reading the plain language, “[w]ords and phrases shall be 

construed according to rules of grammar and according to their 

common and approved usage,” while any words or phrases that 

have acquired a “peculiar and appropriate meaning” must be 

construed according to that meaning. 1 Pa.C.S. [§] 1903(a). 

However, when interpreting non-explicit statutory text, 

legislative intent may be gleaned from a variety of factors, 

including, inter alia: the occasion and necessity for the statute; 

the mischief to be remedied; the object to be attained; the 

consequences of a particular interpretation; and the 

contemporaneous legislative history. 1 Pa.C.S. § 1921(c). 

Moreover, while statutes generally should be construed liberally, 

penal statutes are always to be construed strictly, 1 Pa.C.S. 
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§ 1928(b)(1), and any ambiguity in a penal statute should be 

interpreted in favor of the defendant.

Notwithstanding the primacy of the plain meaning doctrine 

as best representative of legislative intent, the rules of 

construction offer several important qualifying precepts. For 

instance, the Statutory Construction Act also states that, in 

ascertaining legislative intent, courts may apply, inter alia, the 

following presumptions: that the legislature does not intend a 

result that is absurd, impossible of execution, or unreasonable; 

and that the legislature intends the entire statute to be effective 

and certain. 1 Pa.C.S. § 1922(1), (2). Most importantly, the 

General Assembly has made clear that the rules of construction 

are not to be applied where they would result in a construction 

inconsistent with the manifest intent of the General Assembly. 1 

Pa.C.S. § 1901.

Commonwealth v. Wilson, 111 A.3d 747, 751 (Pa. Super. 2015). 

In addition, we observe that “[t]he title and preamble of a statute may 

be considered in the construction thereof.” 1 Pa.C.S. § 1924. “The headings 

prefixed to titles, parts, articles, chapters, sections and other divisions of a 

statute shall not be considered to control but may be used to aid in the 

construction thereof.” Id. The title of a statute “is in no sense conclusive, 

particularly when there is no ambiguity in the body of the statute or 

ordinance itself.” Commonwealth v. Reefer, 816 A.2d 1136, 1143 n.10 

(Pa. Super. 2003) (quoting Commonwealth v. Campbell, 758 A.2d 1231, 

1237 (Pa. Super. 2000)). “[T]he title cannot control the plain words of the 

statute and...even in the case of ambiguity it may be considered only to 

resolve the uncertainty.” Commonwealth v. Magwood, 469 A.2d 115, 

119 (Pa. 1983) (internal quotation marks omitted).
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Furthermore, the rule of lenity states, “[it] is axiomatic that . . . penal 

statutes must be strictly construed, with ambiguities being resolved in favor 

of the accused.” Commonwealth v. Rivera, 10 A.3d 1276, 1284 (Pa. 

Super. 2010). However, as we noted earlier, the rule of lenity is applicable 

only when the penal statute has been determined to be ambiguous. 

Jarowecki, 985 A.2d at 963.

The statutory provision at issue here 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:

(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:
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(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.

(3) If the defendant is sentenced for two or more offenses in 

the same day, the offenses shall be considered prior offenses 

within the meaning of this subsection.

75 Pa.C.S. § 3806.

In reviewing the application of the statute, the trial court offered the 

following analysis:

On May 25, 2016, the Pennsylvania Legislature amended 

75 Pa.C.S. § 3806. . . . The amendment completely changed 

subsection (b) and removed the former subsection (b)’s 

reference to a conviction, replacing it with reference to the date 

of the offense. Furthermore, the amendment completely 

removed reference to section 3802, the offense of driving under 

the influence, from subsection (b), as well as former section 

3731, which had been repealed some time ago. The references 

to sections 3803 and 3805, relating to grading and penalties of 

section 3802 offenses respectively, remained intact.

We have researched the legislative history of this 

amendment and have found not one whiff of the legislature’s 

intent in making the revisions to subsection (b). This change 

appears to have been made sometime between 2015 and when 

the bill was finally passed in 2016. None of the legislative 

remarks refers to this change. The primary purpose of the 2016 

amendments was to overhaul the occupational limited license 

and created the new ignition interlock license.

The Commonwealth argues that 3806(a) clearly states that 

an offense under section 3802 is to be calculated from the prior 

conviction, and the date of the conviction on that prior offense 

was [February 21, 2007], making this a second offense. 

[Appellee] takes the position that under section 3806(b), which 
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controls as an exception to 3806(a), the date of the offense, 

[April 2, 2006], was more than ten years from the date of the 

second offense on June 15, 2016. [Appellee] argues in her brief 

that the amendment was probably passed to avoid the timing 

issues that arise when a defendant seeks continuances in order 

to avoid a second offense being calculated within ten years of a 

prior conviction. No case law or legislative history is cited to 

support that proposition.

Whatever the reason, the Pennsylvania Legislature has 

written a law that is unclear and that cannot be deciphered, 

regardless of whether the statutory language is given its plain 

meaning or is read to give effect to all of its provisions. We 

agree with [Appellee] that section 3806 must be strictly 

construed pursuant to 1 Pa.C.S. § 1928(b)(1) and that we must 

apply the rule of lenity. . . . 

We have reviewed the statute and conclude that the 

apparent inconsistency in that language of the statute appears 

impenetrable. Where the law is not clear, so that a citizen may 

know the terms of any such law, the law must be interpreted to 

favor the citizen. We, therefore, hold that [Appellee’s] position 

that the offense is a first offense is correct, when timed by the 

date of the offense and not by the date of conviction. The 

citizens of the Commonwealth should not find themselves 

oppressed by the failure of the Pennsylvania Legislature to enact 

clearly written legislation.

Trial Court Order, 7/17/17, at 1-4. We are constrained to disagree. 

Our review of the statute reflects that the current version of Section 

3806 was enacted by the General Assembly on May 25, 2016. Subsection 

(a) sets forth the following general rule defining the term “prior offense” as 

follows: “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 . . .” 75 Pa.C.S. § 3806(a) (emphasis 

added). Thus, the plain language of the statute instructs that a “prior 
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offense” is a judgment of sentence imposed on a conviction. Hence, the 

entry of a judgment of sentence on a conviction is the triggering mechanism 

for a crime to amount to a “prior offense.” Consequently, there is no “prior 

offense” without the entry of a judgment of sentence on a conviction. 

Subsection (a) sets forth the convictions for which the term “prior offense” is 

applicable. In summary, under subsection (a), a “prior offense” pertains to 

violations of the current or former DUI statutes, whether a violation of 

Pennsylvania law or substantially similar laws of another state law. 

Therefore, under the general rule set forth in subsection (a), any prior DUI 

conviction for which a judgment of sentence has been imposed during an 

offender’s entire lifetime qualifies as a “prior offense.”

However, as stated in subsection (a), subsection (b) sets forth

exceptions to the term “prior offense” as defined in subsection (a). 

Subsection (b), which is titled “Timing,” explains that for the purposes of 

grading (75 Pa.C.S. § 3803) and penalties (75 Pa.C.S. § 3804) the “prior 

offense,” i.e., the judgment of sentence on a conviction, must have occurred 

within a delineated timeframe or look-back period. Specifically, the statute 

instructs that for purposes of grading and penalties, a “prior offense” is not 

“any conviction for which judgment of sentence has been imposed,” 75 

Pa.C.S. § 3806(a) (emphasis added), but is limited to a conviction that 

occurred within ten years prior to the date of the offense for which the 

defendant is currently being sentenced. 75 Pa.C.S. 3806(b)(1)(i). This 
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language of subsection (b) does nothing more than specify the timeframe 

and look-back period to be used in calculating the number of prior DUI 

offenses. Subsection (b) contains no language that changes the subsection

(a) definition of “prior offense” from being the entry of the judgment of 

sentence on a conviction to the actual date of the prohibited conduct. 

Accordingly, we are constrained to conclude that the trial court erred in 

determining that the statute is ambiguous. Consequently, the trial court 

also erred in applying the rule of lenity to this unambiguous statute. 

Therefore, we reverse the order of the trial court and remand this case for 

further proceedings.

Order reversed. Case remanded for further proceedings. Jurisdiction 

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/13/2018