Com. v. Empoules, J.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

JAMES COTY EMPOULES :

:

Appellant : No. 1075 WDA 2025

Appeal from the Judgment of Sentence Entered October 30, 2024 In the Court of Common Pleas of Fayette County Criminal Division at No(s): CP-26-CR-0002302-2022

BEFORE: SULLIVAN, J., NEUMAN, J., and STEVENS, P.J.E.* MEMORANDUM BY NEUMAN, J.: FILED: August 25, 2026 Appellant, James Coty Empoules, appeals nunc pro tunc from the aggregate judgment of sentence of 27 to 66 months’ incarceration, imposed after he was convicted of two counts of Endangering the Welfare of Children (“EWOC”), 18 Pa.C.S. § 4304(a)(1), two counts of Recklessly Endangering Another Person (“REAP”), 18 Pa.C.S. § 2705, Driving Under the Influence (“DUI”) — Controlled Substance, 75 Pa.C.S. § 3802(d)(1)(iii), Driving at Safe Speed, 75 Pa.C.S. § 3361, Disregard Traffic Lane, 75 Pa.C.S. § 3309, and Reckless Driving, 75 Pa.C.S. § 3736(a). We affirm.

The trial court summarized the facts underlying Appellant’s convictions, as follows:

On July 28, 202[2], at about 5:26 [p.m.], there was a two[-

]vehicle collision on Walnut Hill Road in Georges Township,

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* Former Justice specially assigned to the Superior Court.

Fayette County. Pennsylvania State Troopers and emergency medical services [(“EMS”)] were dispatched to the scene. The posted speed limit for the area of the collision is 40 miles per hour.[1] … Appellant was impaled by [one of the] pedal[s of his 2016 Toyota Tacoma] and was trapped in the driver’s seat…. In the rear seat of the vehicle were his two sons, a two[-]year[-]old male child and a ten[-]month[-]old male child.

In the second vehicle, [a 2005 Chrysler 300,] the operator was Tyler Durst and his passenger was Mercedes Mecozz[i]. These two individuals died of their injuries in the collision. The parties stipulated to the lab report authored by Dr. Daniel Isenschmid[, which stated] … Tyler Durst had a blood alcohol level at the time of the collision of .236.

The parties [also] stipulated to the lab report authored by Nicole Blascovich [which indicated] … Appellant’s blood alcohol level was .[0]66. A whole blood specimen of … Appellant’s blood was also tested by Nicole Blascovich. This test demonstrated … Appellant had marijuana in his system at the time of the collision.

When … EMS arrived on the scene, … Appellant’s vehicle was upside down in the oppos[ing] lane of traffic. [Appellant’s children] were entrapped in the vehicle and … Appellant was impaled by one of the pedals. The older boy was lethargic, having difficulty staying awake, and had a laceration on his head. [Mark Dunham, an off-duty paramedic who arrived first on scene,]

testified … the child wasn’t crying or fussy[,] which was unusual given the situation. The [older] child was placed on a back board and flown to Ruby [Memorial] Children’s Hospital. The [younger]

child was flown in a separate medical helicopter to Ruby [Memorial Children’s Hospital,] as well.

Pennsylvania State Trooper [Wyatt] Tidholm testified … Appellant initially[] refused to speak with him at Ruby [Memorial] Hospital.

Later[,] … Appellant told [Trooper Tidholm] he did not recall what happened at the time of the crash. [Appellant] informed …

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1 There is conflicting trial testimony regarding whether the posted speed limit

was 40 or 45 miles per hour. See N.T. Trial Day 2, 10/8/24, at 48 (Trooper Stevenson’s testifying the speed limit is 40 miles per hour); N.T. Trial Day 3, 10/9/24, at 112 (Defense expert Justin P. Schorr’s testifying police scene photographs demonstrate the speed limit at the point of impact was 45 miles per hour).

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Trooper [Tidholm] … he had smoked marijuana at about 10:00 [a.m.] that morning and … he had a medical marijuana card. … Appellant [admitted] … he smoked marijuana every day to give him relief from anxiety and to help him sleep. … Appellant consented to a blood draw at that time.

Dr. Erin Spargo, a forensic toxicologist, testified that a person having marijuana in their system has some reaction time issues, sp[a]cial issues, and decision[-]making issues with the consumption of marijuana.

Trooper Todd Stevenson testified as an expert in collision reconstruction and in his role with the Pennsylvania State Police Collision, Analysis, and Reconstruction Unit. The members of his unit are called to crashes that result in a fatality or involve serious injuries which could later result in a fatality. … Trooper [Stevenson] displayed enlarged photo[graphs] of the scene of the collision. [He testified he] obtained a search warrant for [Appellant’s] Toyota truck’s Bosch pre-crash data retrieval kit[,]

… [which] provides about five seconds of pre-[c]rash pulse data.

The [Toyota]’s kit showed … Appellant was traveling at 69.[6]

miles per hour [4.8 seconds before impact], and at the time of [the] crash, time zero, he was going 78.3 miles per hour. The data showed … [Appellant’s Toyota] was accelerating and there was no braking by … Appellant; [meanwhile,] Durst, the operator of the Chrysler[,] did brake. … Trooper [Stevenson] concluded … [Appellant’s] Toyota was completely in the opposite lane of travel immediately prior to the collision. [He] also concluded … the Chrysler was partially in the Toyota’s lane and partially in his own lane of travel at the time of the collision.

Trial Court Opinion (“TCO”), 12/1/25, at 1-3 (citations to the record and unnecessary capitalization omitted).

Additionally, Appellant testified at trial in his own defense. He indicated his medical marijuana card had expired a month or two prior to the accident, but he already had a supply of the drug. N.T. Trial Day 3 at 120. Appellant stated he used marijuana on July 28, 2022, at around 4:00 a.m., prior to going to work. Id. at 121. He then testified he arrived home from work

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around 11:00 a.m. and proceeded to pick a friend up for lunch around 11:30 a.m. Id. at 126-27. Appellant admitted that over lunch he had three or four beers but denied taking any shots, despite previously informing his own medical expert he may have done so. Id. at 128-29. Appellant initially testified he left the bar around 2:30 or 2:45 p.m., then testified it was around 3:00 or 3:15 p.m., before finally testifying it was around 3:45 or 4:00 p.m. Id. at 128, 131-32. Appellant admitted his recall of the day of the accident is not clear. Id. at 132. He testified he picked his two sons up around 4:45 or 5:00 p.m. and headed home. Id. at 133, 136. Appellant last remembered talking to his kids before he woke up to them screaming with the truck upside down. Id. at 137-38. Appellant admitted he was “going a little too fast[,]” but it was not uncommon for people to travel a higher speed on that road. Id. at 141. On cross-examination, Appellant could not recall telling Trooper Tidholm he had not been speeding and would not do so with his children in the car, or that he last smoked marijuana at 10:00 a.m. the morning of the accident. Id. at 149.

At the close of Appellant’s trial, the jury convicted him of the EWOC and REAP charges related to his two sons, as well as DUI — Controlled Substance. The jury found him not guilty of all remaining charges including, inter alia, two counts of Homicide by Vehicle, 18 Pa.C.S. § 3732(a), DUI — Combination of Alcohol/Drugs, 75 Pa.C.S. § 3802(d)(3), and DUI — High Rate of Alcohol, 75

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Pa.C.S. § 3802(b).2 The trial court convicted Appellant of the summary offenses of Driving at Safe Speed, Disregard Traffic Lane, and Reckless Driving. A Presentence Investigation Report (“PSI”) was ordered, and on October 30, 2024, he was sentenced to the aggregate term of incarceration set forth supra, along with fines and costs. On November 8, 2024, Appellant filed a timely post-sentence motion. Appellant’s post-sentence motion was denied by the trial court on November 20, 2024. On December 11, 2024, Appellant filed a timely notice of appeal, however, on February 25, 2025, this Court dismissed Appellant’s appeal for failure to comply with Pa.R.A.P. 3517. See Pa.R.A.P. 3517 (addressing docketing statements). On April 30, 2025, Appellant filed a counseled petition under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S. §§ 9541-9546, requesting his direct appeal rights be reinstated due to counsel’s ineffectiveness.3 On July 29, 2025, the trial court granted Appellant’s PCRA petition and reinstated his direct appeal rights. On

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2 Appellant’s oral motion for a directed verdict at Count 5, Aggravated Assault

by Vehicle while DUI, 75 Pa.C.S. § 3735.1(a), and Count 10, Simple Assault, 18 Pa.C.S. § 2701(a)(1), were granted by the trial court and were not submitted to the jury. 3 By request of the court, a conflict waiver signed by Appellant was filed on

May 7, 2025, stating, “I specifically acknowledge that [my counsel] essentially alleges his own ineffectiveness, resulting in the dismissal of my [previous appeal]. By this waiver, I acknowledge I have been fully informed of the facts and circumstances leading to the filing of the [PCRA] petition, and waive any conflict of interest in [counsel]’s continued representation. I hereby indicate my desire that [counsel] continue to represent me in appealing my conviction….” Waiver of Conflict, 5/7/25, at 1 (unpaginated).

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August 26, 2025, Appellant filed a nunc pro tunc notice of appeal, and he and the trial court complied with Pa.R.A.P. 1925.

On appeal, Appellant raises nine issues, which we consolidate, restate, and reorder as follows, for brevity and ease of disposition:

1. Whether the Commonwealth presented insufficient evidence to support the guilty verdicts rendered against Appellant?

2. Whether Appellant’s convictions are against the weight of the evidence?

3. Whether Section 3802(d)(1)(iii), DUI — Controlled Substance (first offense), which Appellant was found guilty of, is in violation of both the United States Constitution and the Constitution of the Commonwealth of Pennsylvania?

4. Whether the trial court committed an abuse of discretion and/or error of law by sentencing Appellant in a manner that is contrary to the fundamental norms which underlie the sentencing process and is excessive given the particular facts of the instant case?

See Appellant’s Brief at 7-11.4 Sufficiency of the Evidence In his first issue, Appellant argues “the evidence presented by the Commonwealth at trial was insufficient to establish the elements of the offenses for which [he] was found guilty.” Id. at 39.

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note

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4 The Commonwealth did not file a brief in this matter.

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that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.

Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.

Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered.

Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Devine, 26 A.3d 1139, 1145 (Pa. Super. 2011) (citation and brackets omitted).

Initially, we note Appellant does not identify which specific element, of which specific conviction, the Commonwealth failed to prove. See Appellant’s Brief at 35-39. Instead, he merely summarizes testimony presented at trial regarding his “alleged impairment” and reckless or careless driving, with no indication of how the testimony fails to satisfy the elements of the offenses for which he was convicted. Id. Appellant seemingly contends the jury’s not guilty verdict on some offenses indicates the Commonwealth failed to establish his driving was the cause of the accident and, therefore, the evidence also fails to establish the elements of the offenses for which he was convicted. Id. at 39. Appellant’s undeveloped argument and failure to specify which element of which offense lacked sufficient evidence results in waiver of his sufficiency challenge. See Commonwealth v. Hardy, 918 A.2d 766, 771 (Pa. Super. 2007) (“When briefing the various issues that have been preserved, it is an appellant’s duty to present arguments that are sufficiently developed for our

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review. The brief must support the claims with pertinent discussion, with references to the record and with citations to legal authorities. … [W]hen defects in a brief impede our ability to conduct meaningful appellate review, we may dismiss the appeal entirely or find certain issues to be waived.”).

Nevertheless, even if his sufficiency challenge was not waived, Appellant’s argument that there was insufficient evidence to support his convictions is without merit. Appellant’s offense of EWOC is defined as follows:

(a) Offense defined.--

(1) A parent, guardian or other person supervising the welfare of a child under 18 years of age, or a person that employs or supervises such a person, commits an offense if he knowingly endangers the welfare of the child by violating a duty of care, protection or support.

***

(b) Grading.--

(1) Except as provided under paragraph (2), the following apply:

***

(iv) If the actor’s conduct under subsection (a)(1)

created a substantial risk of death or serious bodily injury and was part of a course of conduct, the offense constitutes a felony of the second degree.

(2) The grading of an offense under this section shall be increased one grade if, at the time of the commission of the offense, the child was under six years of age.

18 Pa.C.S. § 4304(a)(1), (b).

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Our review of the record indicates the Commonwealth’s evidence, including testimony and admissions made by Appellant, established the following facts. First, Appellant is the father of the two children in his vehicle, who were both under six years of age when they were involved in the accident on July 28, 2022, which led to the offense at issue. See N.T. Trial Day 3 at 117 (Appellant’s testifying his minor children were born in October 2018 and September 2021). Second, Appellant used marijuana on the day of the offense. See N.T. Trial Day 1, 10/7/24, at 66 (Trooper Tidholm’s testifying Appellant admitted to smoking marijuana at 10:00 a.m. on July 28, 2022, when he spoke to him at the hospital after the accident); N.T. Trial Day 3 at 120-21 (Appellant’s testifying he used marijuana on the day of the accident around 4:00 a.m.); Commonwealth’s Exhibit 7 (indicating Appellant’s blood, which was taken at the hospital after the accident, tested positive for cannabinoids).5 Third, Appellant consumed multiple alcoholic drinks the afternoon of the offense, knowing he had to pick up his children later that afternoon. See N.T. Trial Day 3 at 128-29 (Appellant’s testifying he had three or four beers the afternoon of the accident, but denying he consumed any shots (despite previously telling his expert he may have) because “if I knew I had to … pick up my kids[,] … I didn’t want to be too intoxicated”); N.T. Trial Day 1 at 14-15 (stipulating Appellant’s blood alcohol content was .066 when

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5 We note that Commonwealth’s Exhibit 7, as contained in the certified record, was entered at trial as Commonwealth’s Exhibit 4.

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his blood was drawn at the hospital four hours after the accident). Fourth, Appellant, with both children in his truck, failed to maintain his lane of travel and was knowingly traveling at a rate of speed significantly above the speed limit. See N.T. Trial Day 2 at 50-51, 58-59, 72 (Trooper Stevenson’s testifying the data retrieval kit in Appellant’s Toyota truck indicated that prior to the crash, Appellant had drifted to the left into the oncoming lane of travel before turning back sharply to the right); id. at 48 (Trooper Stevenson’s testifying the data retrieval kit indicated that at 4.8 seconds prior to impact, Appellant was traveling at 69.6 miles per hour and at the time of impact Appellant’s speed was 78.3 miles per hour); N.T. Trial Day 3 at 140-41 (Appellant’s testifying he would not be surprised by the speeds the police report indicated he was driving because it was “a faster straight road [that] a lot of people travel [at] … a higher speed…. I would say I was going a little too fast, yes. I’d say it’s not uncommon for that area.”). See also note 1, supra.

Viewing this evidence in the light most favorable to the Commonwealth, we conclude there was sufficient evidence to establish Appellant knowingly engaged in a course of conduct that violated a duty of care, protection, or support, which created a substantial risk of death or serious bodily injury for each of his two minor children. Therefore, the evidence was sufficient to sustain Appellant’s convictions for EWOC.

For Appellant’s offense of REAP, “[a] person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may

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place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.

A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and intent of the actor’s conduct and the circumstances known to him, its disregard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor’s situation.

18 Pa.C.S. § 302(b)(3).

As set forth above, the Commonwealth’s evidence established Appellant acted recklessly by driving erratically at more than 25 miles per hour over the speed limit while his minor children were in the vehicle, having previously consumed alcohol and marijuana earlier in the day. Thus, the evidence was sufficient to support Appellant’s convictions at both REAP counts.

For Appellant’s offense of DUI — Controlled Substance,

[a]n individual may not drive, operate[,] or be in physical control of the movement of a vehicle … [if t]here is in the individual’s blood any amount of a … metabolite of a substance [that is a Schedule I controlled substance, or Schedule II or III controlled substance which has not been medically prescribed for the individual].

75 Pa.C.S. § 3802(d)(1)(iii). Here, Appellant stipulated to the Commonwealth’s Exhibit 7, which stated he had 3.2 ng/mL of THC, 22 ng/mL of Carboxy-THC, and 1.2 ng/mL of 11-OH-THC in his blood when it was drawn after the accident. As testified to by Appellant’s own expert, these are the active components and metabolites of marijuana. N.T. Trial Day 3 at 39.

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Under 35 P.S. § 780-104(1)(iv), marijuana is a Schedule I controlled substance. Further, as set forth supra, Appellant admitted to using marijuana on the date of the accident. We recognize Appellant possessed a medical marijuana card. However, not only did Appellant’s prescription expire a month or two before the crash, even if it had not, he could still be convicted of DUI under section 3802(d)(1)(iii) for driving with medical marijuana in his system. See Commonwealth v. Dabney, 274 A.3d 1283, 1292 (Pa. Super. 2022) (holding that “[b]ecause Dabney drove with marijuana in his blood, and because all marijuana, including medical marijuana, remains a Schedule I controlled substance for purposes not prohibited by the [Medical Marijuana Act (‘MMA’), 35 P.S. §§ 10231.101-10231.2110,] … Dabney could be charged and prosecuted under Section 3802(d)(1)(i) and (iii)). Thus, the evidence was sufficient to support Appellant’s conviction for DUI — Controlled Substance.

For Appellant’s conviction of Driving at Safe Speed,

[n]o person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing, nor at a speed greater than will permit the driver to bring his vehicle to a stop within the assured clear distance ahead. Consistent with the foregoing, every person shall drive at a safe and appropriate speed when approaching and crossing an intersection or railroad grade crossing, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway and when special hazards exist with respect to pedestrians or other traffic or by reason of weather or highway conditions.

75 Pa.C.S. § 3361.

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As set forth above, the Commonwealth’s evidence established Appellant was driving between 20 and 30 miles per hour over the posted speed limit and accelerated into the crash, rather than braking. Additionally, the Commonwealth set forth the following testimony of Trooper Stevenson regarding the conditions of Walnut Hill Road:

[The Commonwealth:] Is this a straight, flat roadway?

[Trooper Stevenson:] No.

[The Commonwealth:] Can you describe[ it, meaning] are there contours?

[Trooper Stevenson:] Yes.

[The Commonwealth:] And where are the contours? What does it look like?

[Trooper Stevenson:] So, the approach of [Durst’s] Chrysler, I think the closest intersection would be Hague Lane…. If you are passing Hague Lane[,] there is a downhill, you [can] see quite a distance. … [W]hen you’re traveling[,] it’s kind of … a downhill and this collision occur[red] … near the bottom of that recess in the roadway. … [O]n [Appellant’s] Toyota’s approach[,] there is an area if you’re … approaching from Clay [Street,] … in the distance you can see Walnut Hill Road coming down but you can’t see the recess of the road there. You can’t see that bottom of the basin, if you will. As you come over the crest of the hill[,] then the bottom of the basin becomes … readily apparent…. But … leading up to the collision there’s kind of a blind area in that basin on the Toyota’s approach[,] but the Chrysler has a long, sweeping vision of the approach.

N.T. Trial Day 2 at 63-64. Based on the foregoing, the Commonwealth’s evidence was sufficient to support Appellant’s conviction, as Appellant drove at a speed that was not reasonable or prudent under the conditions.

For Appellant’s offense of Disregard Traffic Lane,

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[w]henever any roadway has been divided into two or more clearly marked lanes for traffic the following rules in addition to all others not inconsistent therewith shall apply:

(1) Driving within single lane.-- A vehicle shall be driven as nearly as practicable entirely within a single lane and shall not be moved from the lane until the driver has first ascertained that the movement can be made with safety.

75 Pa.C.S. § 3309.

As set forth supra, our review of the record indicates the Commonwealth’s evidence established Appellant was not in his normal lane of travel prior to the collision. See N.T. Trial Day 2 at 51 (Trooper Stevenson’s testifying “if [Appellant’s vehicle was] in his lane of travel, … and .8 seconds prior to the collision he would have induced a 108[-]degree steering maneuver to the right, he would have been in a field”); id. at 58-59 (Trooper Stevenson’s testifying, “We know that [Appellant’s vehicle was] in the oncoming lane. We know that [the] princip[al] direction of force ha[d] to pass in front of the center mass of [Durst’s vehicle] in order to get [a counterclockwise] rotation…[.]”). The evidence was therefore sufficient to sustain Appellant’s conviction for this offense.

For Appellant’s crime of Reckless Driving, “[a]ny person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.” 75 Pa.C.S. § 3736(a). As set forth above, the Commonwealth’s evidence established Appellant drove into the oncoming lane of traffic, at speeds far exceeding the speed limit, having previously consumed alcohol and marijuana, with his two minor children in the backseat of his truck. This was sufficient to prove he committed the offense of Reckless Driving.

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In sum, viewing all the evidence in the light most favorable to the Commonwealth, it is clear there was sufficient evidence to find the Commonwealth had proven, beyond a reasonable doubt, every element of each of the offenses for which Appellant was convicted. Therefore, even if Appellant’s sufficiency claim was not waived, we would conclude it lacks merit.

Weight of the Evidence

In his second issue, Appellant argues the guilty verdicts were against the weight of the evidence. Appellant’s Brief at 40-49. Initially, we conclude Appellant’s claim is waived. To properly preserve a challenge to the weight of the evidence, that claim must be raised before the trial court. See Pa.R.Crim.P. 607(A) (stating a claim the verdict was against the weight of evidence must be raised before the trial court orally or in a written motion prior to sentencing, or in a post-sentence motion). Appellant did not orally raise this issue, nor file a written pre- or post-sentence motion raising it, and he fails to point to where in the record he preserved this claim prior to sentencing. Pa.R.A.P. 2119(e) (directing the appellant to set forth in the argument portion of his brief where in the record he preserved the issue before the trial court); Commonwealth v. Griffin, 65 A.3d 932, 938 (Pa. Super. 2013) (finding a weight of the evidence claim waived where the appellant

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failed to raise it in a pre-sentence motion, did not address the issue orally prior to sentencing, and did not raise it in a post-sentence motion).6 Constitutionality of DUI Offense In his third issue, Appellant argues Section 3802(d)(1)(iii) is “unconstitutionally overbroad as it [implicates] both a fundamental right and a sensitive classification.” Appellant’s Brief at 31. Appellant cites Yanakos v. UPMC, 218 A.3d 1214 (Pa. 2019), which states that under Pennsylvania law, “where a suspect classification has been made[,] or a fundamental right has been burdened, the standard of review is strict scrutiny.” Id. at 1229. He contends, in this case, both the fundamental right to be free from criminal prosecution without having committed any actual malfeasance, and the suspect classification of those with “various health conditions necessitating the prescription of Schedule II and III controlled substances, without regard for how ingesting such prescriptions may or may not affect their ability to drive, operate[,] or be in the actual physical control of a vehicle” have been implicated and, thus, Section 3802(d)(1)(iii) must be evaluated under a strict

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6 In a weight of the evidence claim, “an appellate court reviews the exercise

of the trial court’s discretion; it does not answer for itself whether the verdict was against the weight of the evidence.” Commonwealth v. Houser, 18 A.3d 1128, 1135 (Pa. 2011). Here, while the trial court set forth the appropriate standard of review for a weight of the evidence claim, TCO at 9, it did not otherwise provide any analysis regarding Appellant’s weight of the evidence claim.

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scrutiny standard. Appellant’s Brief at 31.7, 8 Appellant argues Section 3802(d)(1)(iii) fails strict scrutiny review as it is

not narrowly tailored to address [the Commonwealth’s interest in highway safety], as it criminalizes all driving, operating[,] and/or being in the actual physical control of a vehicle with any amount of a Schedule I, II, or III controlled substance in an individual’s system, without regard for the actual impairment or lack thereof that ingesting such a controlled substance may have effected.

Furthermore, [Section 3802(d)(1)(iii)] makes criminal the driving, operating[,] and/or being in the actual physical control of a vehicle by anyone lawfully prescribed a Schedule II or III controlled substance, without any regard for the actual impairment of such an individual’s ability to safely do the same.

Id. at 32.9

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7 Confusingly, Appellant repeatedly refers to the constitutionality of Section 3802(d)(1)(iii) as it relates to Schedule II and III controlled substances. Here, as set forth supra, Appellant was convicted of DUI based on his usage of marijuana, a Schedule I controlled substance under Section 780-104(1)(iv). It is unclear how Schedule II or III controlled substances are relevant to Appellant’s argument. 8 Throughout his brief, Appellant references his marijuana usage as lawful under the MMA. See Appellant’s Brief at 18-19 (“As such, the statute criminalizes behavior without malfeasance, and further, it creates a sensitive class by way of criminalizing the driving of individuals such as Appellant who are lawfully prescribed Schedule II or III medications without regard for the impact of the same on their ability to drive.”); id. at 23 (“In addition, at all times relevant hereto, … Appellant possessed a valid and lawful prescription for the THC which was detected in his blood….”); id. at 32 (“In the instant case, … Appellant, at all relevant times, possessed a valid and lawful medical marijuana card.”). However, our review of the record belies this contention. At trial, Appellant was asked by his counsel whether his medical marijuana card was expired on July 28, 2022, to which he confirmed, “Yes, it had expired.” N.T. Trial Day 3 at 120. As Appellant’s medical marijuana card had expired, his usage on July 28, 2022, was not legal under the MMA. 9 We note that Appellant misinterprets Section 3802(d)(1)(iii) as prohibiting

anyone lawfully prescribed a Schedule II or III controlled substance from (Footnote Continued Next Page)

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Initially, we conclude Appellant’s argument is waived. Our Supreme Court

has consistently held that an appellate court cannot reverse a trial court judgment on a basis that was not properly raised and preserved by the parties. Where the parties fail to preserve an issue for appeal, the Superior Court may not address that issue sua sponte. The rule is no different in the constitutional context.

Commonwealth v. Colavita, 993 A.2d 874, 891 (Pa. 2010); see also Pa.R.A.P. 302 (“Issues not raised in the trial court are waived and cannot be raised for the first time on appeal.”). Here, Appellant did not raise any challenge to the constitutionality of Section 3802(d)(1)(iii) before the trial court. This challenge was first raised in Appellant’s Rule 1925(b) statement. Accordingly, he has waived this issue for our review. Additionally, Appellant has also waived this claim by failing to specifically raise it in his Rule 1925(b) statement. There Appellant stated, “whether the specific statute, [Section] 3802(d)(1)(iii), DUI — Controlled Substance (first offense), of which Appellant was found guilty, is in violation of both the United States Constitution and the

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driving if there is any amount of that controlled substance in their system. The plain language of Section 3802(d)(1) prohibits driving if an individual’s blood contains “any amount of a[] … Schedule I controlled substance,” such as marijuana, 75 Pa.C.S. § 3802(d)(1)(i), or “any amount of a[] … Schedule II or Schedule III controlled substance … which has not been medically prescribed for the individual[,]” 75 Pa.C.S. § 3802(d)(1)(ii). Section 3802(d)(1)(iii) states an individual may not drive if their blood contains “any amount of a[] … metabolite of a substance under subparagraph (i) or (ii).” 75 Pa.C.S. § 3802(d)(1)(iii). Reading these provisions together makes clear that Section 3802(d)(1)(iii) prohibits driving with metabolites of a Schedule II or III controlled substance in an individual’s blood only when that substance was not lawfully prescribed to the individual.

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Constitution of the Commonwealth of Pennsylvania?” Concise Statement of Errors Complained of on Appeal, 9/24/25, at unpaginated 2. This Court has previously held

[a]n appellant’s concise statement must properly specify the error to be addressed on appeal. In other words, the Rule 1925(b)

statement must be specific enough for the trial court to identify and address the issue an appellant wishes to raise on appeal. A concise statement which is too vague to allow the court to identify the issues raised on appeal is the functional equivalent of no [c]oncise [s]tatement at all. The court’s review and legal analysis can be fatally impaired when the court has to guess at the issues raised. Thus, if a concise statement is too vague, the court may find waiver.

Commonwealth v. Hansley, 24 A.3d 410, 415 (Pa. Super. 2011) (cleaned up). As noted by the trial court,

it is the appellant’s burden to explicitly state the specific constitutional grounds for the challenge. Pursuant to Rule 302…, the party raising a constitutional challenge must articulate the specific constitutional provisions that are allegedly violated.

Without this information, this [c]ourt and the Appellate Court [have] no clear basis to evaluate the claim. As … Appellant failed to specify how [Section 3802(d)(1)(iii)] violates the state and federal constitutions, the issue is waived for consideration.

TCO at 8. Appellant’s brief is also deficient in this regard. Although Appellant indicates he is challenging Section 3802(d)(1)(iii) for overbreadth and sets forth a standard of review, he fails to specify which provisions of the Pennsylvania or United States Constitutions are at issue. See Hardy, supra. Based on the foregoing, we conclude Appellant has waived his constitutional challenge.

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Nevertheless, even if not waived, Appellant’s challenge lacks merit. This Court has long recognized that “[t]he constitutional validity of duly enacted legislation is presumed[,]” and “[a] statute will not be declared unconstitutional unless it clearly, palpably, and plainly violates the Constitution[.]” Commonwealth v. Crawford, 24 A.3d 396, 400 (Pa. Super. 2011) (citations omitted). A panel of this Court has previously addressed the constitutionality of Section 3802(d)(1) in Commonwealth v. Smith, 320 A.3d 674 (Pa. Super. 2024). Therein, Smith raised a similar overbreadth argument to the one raised by Appellant herein, “posit[ing] that Section 3802(d)(1)(i) unconstitutionally criminalizes what should be lawful conduct, that is, driving while unimpaired. Because the statute reaches those who drive with the presence of inactive metabolites lacking any potential to impair their driving, it comes under jurisprudence invalidating unconstitutionally overbroad statutes.” Id. at 688-89. The Smith Court was unconvinced, holding “we discern no unconstitutional, significant overbreadth with the statute, as it coexists with the MMA as a reasonable, rational measure to advance the legitimate governmental interest in limiting driving after marijuana use and promoting lawful marijuana usage by MMA patients.” Id. at 690. Overall, the Smith court held the DUI statutory scheme at Sections 3802(d)(1)(i) and (iii) did not violate the Equal Protection Clause, id. at 686- 88; Section 3802(d)(1) of the DUI statute did not violate the substantive due process rights of MMA patients, id. at 688-90; and Section 3802(d)(1), both

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on its face and independently as applied to the appellant, did not violate procedural due process guarantees and rights. Id. at 690-91.

Therefore, even if Appellant’s claim was not waived, we would find the Smith decision is dispositive of the issue at hand, and based on the foregoing precedent, Appellant’s constitutional claim would warrant no relief.

Discretionary Aspects of Sentence In his fourth and final issue, Appellant argues the sentence imposed was “contrary to the fundamental norms which underlie the sentencing process” and “excessive given the particular facts of the instant case.” Appellant’s Brief at 23. Appellant’s issue implicates the discretionary aspects of his sentence.

Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. Commonwealth v.

Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant challenging the discretionary aspects of [their] 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 has 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, 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.[] § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.

2006)…. Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or in a motion to modify the sentence imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa. Super. 2003)….

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007). A substantial question

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exists “only when the appellant advances a colorable argument that the sentencing judge’s actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.”

Sierra, supra at 912–13.

Griffin, 65 A.3d at 935 (quoting Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010)).

Here, Appellant filed a timely notice of appeal and the issue raised was properly preserved in a post-sentence motion. Appellant, though, failed to include a separate statement in his brief as required by Rule 2119(f) and, instead, co-mingles his reasoning that a substantial question is raised with his substantive argument. See Appellant’s Brief at 21-28. However, as the Commonwealth failed to file a brief and therefore did not object, the omission will not serve as a basis for waiver. See Commonwealth v. Archer, 722 A.2d 203, 211 (Pa. Super. 1998) (en banc) (“If an appellant fails to comply with [Rule] 2119(f) and [the] appellee fails to object, this Court may review [the] appellant’s claims with regard to the discretionary aspects of sentence.”).

Appellant alleges a substantial question is raised as his sentence is contrary to the fundamental norms of sentencing, which would typically call for a sentence of probation or intermediate punishment rather than the term of incarceration received by Appellant. See Appellant’s Brief at 22-23, 26, 28. Appellant further alleges the sentence is excessive given the particular facts of the instant case. See id. at 23, 26, 28. Finally, he contends the trial court improperly considered the impact statements of the families of the victims in

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this case, even though the jury found him not guilty of the offenses related to their deaths. Id. at 23-24.

We conclude Appellant has raised a substantial question. See Commonwealth v. King, 182 A.3d 449, 454 (Pa. Super. 2018) (holding that a claim that the trial court considered improper factors raises a substantial question). Finding Appellant has raised a substantial question, we grant his request for review of the discretionary aspects of his sentence and consider the merits of his claim. In doing so, we are mindful that,

[s]entencing is a matter vested in the sound discretion of the sentencing judge, 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 sentencing 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006). Additionally, in crafting a sentence, courts are directed to consider “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. § 9721(b).

Here, Appellant argues “the mandatory[-]minimum sentence for the offense of DUI — Controlled Substance, first offense, is a term of incarceration of not less than seventy-two … hours, nor more than six … months with the availability of intermediate punishment (house arrest)” and, therefore, his sentence of 3 to 6 months’ incarceration “greatly exceeded the mandatory[-

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]minimum term of incarceration….” Appellant’s Brief at 22. He also maintains the typical sentence for his EWOC offenses, as dictated by the fundamental norms of sentencing, would be for a term of probation and/or intermediate punishment, as opposed to the sentence he received, which is “the lengthiest term of imprisonment provided within the standard sentencing guideline range.” Id. at 25-26, 28. Appellant contends his lack of a prior criminal record, home ownership, employment status, and role in supporting his wife and children, who were the victims in this case, all support that his sentence is contrary to the fundamental norms of sentencing. Id. at 23. Finally, Appellant argues the trial court erred by allowing and considering the “victim impact” statements of Tyler Durst’s mother, brother, and aunt, as well as Mercedes Mecozzi’s sister, when the jury’s verdicts indicated they were not victims of a crime committed by Appellant in this case. Id. at 23-24.

No relief is due. Initially, we observe that a thorough review of the record reveals the court was aware of and considered Appellant’s personal history, character, and treatment and rehabilitative needs. Notably, the court had and reviewed a PSI. Thus, we “presume[] the court was aware of and weighed all relevant information contained [in the report] along with any mitigating sentencing factors.” Commonwealth v. Velez, 273 A.3d 6, 10 (Pa. Super. 2022) (internal quotation marks omitted). Additionally, counsel for Appellant raised each of the mitigating factors he has set forth before this Court in his statement on behalf of Appellant at sentencing. See N.T. Sentencing, 10/30/24, at 35.

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Additionally, prior to sentencing Appellant, the trial court set forth its reasoning as follows:

[Appellant], you made a number of conscious decisions on … July 28, 2022. You made a conscious decision to go to the bar … and consume alcohol. You made a conscious decision to then … pick up your children and place them into your vehicle. You made a conscious decision to drive with them in the vehicle after you placed them into it. Then, you made a conscious decision to drive that vehicle in a very erratic manner by exceeding the speed limit.

Having sat through the trial and having listened to the expert witnesses that testified on [the accident] reconstruction, and having seen photographs, quite frankly, I am astounded that anyone survived that accident. But, God, in his infinite wisdom spared you and your children from serious injury or even death on that tragic day. Your actions and your memory of them is something that you will have to live with for the rest of your life irrespective of and in addition to the sentence … that will be imposed upon you today.

Id. at 38-39.

Further, in its Rule 1925(a) opinion, the trial court explained its reasoning for Appellant’s sentence as follows:

The [c]ourt sentenced … Appellant in the standard range. The disregard by … Appellant of the welfare of his two minor sons to drive at such an excessive rate of speed, to consume marijuana, and to consume alcohol until he was only somewhat intoxicated exceeded the normal sentencing in a driving under the influence case. The [c]ourt, after considering the testimony of [Appellant]’s actions prior to picking up his young sons from daycare and his continued lack of concern with them in his vehicle[,] led the court to impose a sentence in the standard range but at the high end of that range. The [c]ourt considered sentencing criteria and determined that the high end of the standard range was an appropriate sentence. It is the [c]ourt’s role and responsibility to individually consider the factors and where appropriate sentence accordingly.

TCO at 7.

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Here, it is clear from the record the court considered all relevant sentencing factors. Based upon all the evidence before it, the court imposed an aggregate sentence of 27 to 66 months’ incarceration. We conclude the record supports the sentencing court’s reasoning and that its decision conforms to the applicable law. Appellant was sentenced within the standard ranges for DUI — Controlled Substance and EWOC, and the trial court merged Appellant’s sentences for his charges of REAP. The record reflects the court carefully considered all the evidence presented at the sentencing hearing.

To the extent Appellant argues the trial court improperly considered the victim impact statements made by the decedents’ families, we note the record belies this contention. Notably, the following exchange occurred at sentencing between the trial court and defense counsel:

[Defense Counsel:] May it please the [c]ourt. My client and I have had this discussion, and we are confident that this … [c]ourt would make the appropriate legal determination[,] which is why we did not object to the statements by the Mecozzi and Durst families.

[Trial Court:] Well, quite frankly, even though from a legal standpoint I can’t consider those in sentencing [Appellant], a lawyer can provide some mechanism[,] however insignificant it might be[,] to allow them to have closure, they needed an opportunity to speak.

[Defense Counsel:] And, I understand.

[Trial Court:] And, to the extent that it provides them [with] some comfort and closure, they should speak.

[Defense Counsel:] My client and I had this discussion and we would agree.

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N.T. Sentencing at 28-29. Further, prior to hearing any statements, the trial court addressed Appellant stating:

[Appellant], the jury having found you guilty of criminal and vehicle code violations involving your own children as the victims and not guilty of violations of the criminal and vehicle code … resulting in the death of Tyler Durst and Mercedes Mecozzi, however tragic that might have been, we cannot consider their deaths in imposing the sentence[]…. Nevertheless, we will, given that understanding, permit them to off[er] victim/witness statements.

Id. at 3 (unnecessary capitalization omitted). After hearing all the statements, the trial court addressed the Commonwealth stating, “[Y]ou clearly know that no matter how tragic or horrific the accident was resulting in the deaths of Tyler and Mercedes, I cannot and will not legally consider their deaths based on the jury’s verdict in fashioning a sentence for the charges for which [Appellant] was found guilty.” Id. at 27. Thus, the record is clear the trial court did not consider the victim impact statements in imposing the sentence on Appellant.

As such, we discern no abuse of discretion, as Appellant has not established “the sentencing 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.” Shugars, 895 A.2d at 1275.

For these reasons, we conclude Appellant’s claims are waived and/or meritless. As he is not entitled to relief, we affirm the judgment of sentence.

Judgment of sentence affirmed.

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DATE: 08/25/2026