Com. v. Degrauw, R.

• Court: Superior Court of Pennsylvania
• Decided: May 23, 2023
• Docket: 1053 EDA 2022
• Status: Unpublished

Opinion

J-S11041-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : v. : : ROBERT CHARLES DEGRAUW : : Appellee : No. 1053 EDA 2022

Appeal from the Order Entered March 23, 2022 In the Court of Common Pleas of Pike County Criminal Division at No(s): CP-52-CR-0000411-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

JUDGMENT ORDER BY KING, J.: FILED MAY 23, 2023

Appellant, the Commonwealth of Pennsylvania, appeals from the order

entered in the Pike County Court of Common Pleas, which granted the pretrial

motion in limine of Appellee, Robert Charles Degrauw. We reverse.

On March 27, 2021, a state police trooper observed Appellee driving his

pickup truck northbound on Route 739 in Blooming Grove Township. The

trooper effectuated a traffic stop after watching Appellee’s vehicle cross into

the southbound lane. During the stop, the trooper noted indicia of

intoxication. Appellee failed field sobriety tests, and a preliminary breath test

indicated that Appellee’s blood alcohol concentration was .170%.

On August 30, 2021, the Commonwealth filed a criminal information

charging Appellee with two (2) counts of driving under the influence of

alcohol—second offense (“DUI”) and two (2) summary violations of the Motor J-S11041-23

Vehicle Code.1 On November 10, 2021, the Commonwealth filed a motion in

limine seeking to introduce evidence of a prior DUI arrest. Specifically, police

arrested Appellee for the prior DUI in 2014, and the Commonwealth permitted

Appellee to enter the Accelerated Rehabilitative Disposition (“ARD”) program

at that time. (See Motion In Limine, filed 11/10/21, at ¶¶ 3, 5). The

Commonwealth argued for permission to introduce evidence of the 2014 DUI

to establish the grading of the current DUI charges.

By opinion and order entered March 23, 2022, the court denied the

Commonwealth’s motion. In its opinion, the court relied upon

Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), for the

proposition that the Commonwealth “can no longer simply rely on evidence of

a defendant’s prior admission into an ARD program as proof of a prior

conviction for purposes of enhanced penalties for repeat DUI offenders.”

(Order and Opinion, filed 3/23/22, at 2) (unnumbered). On April 8, 2022, the

Commonwealth timely filed a notice of appeal and Pa.R.A.P. 1925(b) concise

statement of errors complained of on appeal.

On appeal, the Commonwealth argues that it may present evidence of

Appellee’s prior DUI charges that resulted in his admission into ARD. This

Court addressed this topic in Commonwealth v. Richards, 284 A.3d 214

(Pa.Super. 2022) (en banc), appeal granted, 2023 WL 2520895 (Pa. March

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1 75 Pa.C.S.A. §§ 3802(a)(1), (c), 3309(1), and 1311(b), respectively.

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15, 2023) and Commonwealth v. Moroz, 284 A.3d 227 (Pa.Super. 2022)

(en banc). These cases specifically overruled Chichkin and held that a

defendant’s placement in ARD following a DUI arrest constituted a “prior

offense” for purposes of DUI sentencing. Considering the holdings in

Richards and Moroz, we reverse the order granting Appellee’s motion in

limine.2

Order reversed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/23/2023

2 We acknowledge our Supreme Court’s recent decision in Commonwealth v. Verbeck, ___ Pa. ___, 290 A.3d 260 (2023) (plurality), where the justices were evenly divided on the issue of whether a defendant’s acceptance into an ARD program qualified as a prior conviction that could compel an increased sentence for DUI. Nevertheless, “[w]hile the ultimate order of a plurality opinion, i.e., an affirmance or reversal, is binding on the parties in that particular case, legal conclusions and/or reasoning employed by a plurality certainly do not constitute binding authority.” Commonwealth v. Brown, 23 A.3d 544, 556 (Pa.Super. 2011) (quoting In Interest of O.A., 552 Pa. 666, 676 n.4, 717 A.2d 490, 496 n.4 (1998)).

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