Com. v. Moroz, R.

2022 Pa. Super. 169, 284 A.3d 227

• Court: Superior Court of Pennsylvania
• Decided: October 4, 2022
• Docket: 282 MDA 2021
• Status: Published

Opinion

J-E01003-22

2022 PA Super 169

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellant : : : v. : : : RICHARD ALEKSANDR MOROZ : No. 282 MDA 2021

Appeal from the Judgment of Sentence Entered February 4, 2021 In the Court of Common Pleas of Centre County Criminal Division at No: CP-14-CR-0001515-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., BOWES, J., LAZARUS, J., STABILE, J., KUNSELMAN, J., McLAUGHLIN, J., KING, J., and McCAFFERY, J.

CONCURRING OPINION BY STABILE, J.: FILED: OCTOBER 4, 2022

I concur fully in the Majority’s decision to overrule this Court’s prior

panel decision in Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super.

2020). Chichkin did not accord our Legislature the deference due its

judgment to declare that a prior acceptance into the accelerated rehabilitative

disposition (ARD) program in the prosecution of a driving under the influence

(DUI) reoffender shall be considered as a “prior offense“ for DUI sentencing

enhancement purposes as per 75 Pa.C.S.A. § 3806(a). A defendant who

reoffends after being given the grace of accepting ARD for prior DUI

demonstrates that he or she is not worthy of the chance to rehabilitate

themselves in exchange for forgoing a criminal conviction. Consequently, our

Legislature declared that if a defendant reoffends, prior acceptance of ARD

shall be considered a “prior offense” for sentencing purposes. Our Legislature J-E01003-22

was well within its prerogative to increase punishment for re-offense of this

serious crime. Plain and simple, drunk driving kills people.1 I write separately,

however, to address the statement in Chichkin that, based upon Alleyne, 2

“if the Commonwealth seeks to enhance a defendant’s DUI sentence based

upon that defendant’s prior acceptance of ARD, it must prove, beyond a

reasonable doubt, that the defendant actually committed the prior DUI

offense.” Id. at 970-71 (footnote omitted). The Commonwealth attempted to

do so here by suggesting that a “blind judge” separately hear evidence on the

prior DUI charge. The trial court ultimately rejected this suggestion and,

relying upon Chichkin, sentenced the defendant as a first-time offender. As

well-intentioned as the Commonwealth’s attempt may have been to address

the Alleyne problem at sentencing, its proposed solution would not have

solved the Alleyne problem. In Alleyne, the United States Supreme Court,

held “[a]ny fact that, by law, increases the penalty for a crime is an ‘element’

that must be submitted to the jury and found beyond a reasonable

doubt.” Alleyne, 570 U.S. at 103. Establishing the fact of a prior ARD at

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1 Sadly, it appears that many people do not consider driving while impaired to

be a serious offense. In the continuation of a twenty-year campaign known as Operation Nighthawk, the Pennsylvania State Police announced the arrests of 492 individuals who were driving under the influence of alcohol or controlled substances during a two-day detail on August 12-13, 2022. See https://www.abc27.com/local-news/operation-nighthawk-nets-nearly-500- dui-arrests-in-pennsylvania/

2 Alleyne v. United States, 570 U.S. 99 (2013).

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sentencing during an evidentiary hearing conducted only by the sentencing

judge or a blind judge, without the benefit of Section 3806(a), does not satisfy

a defendant’s right to have all facts that increase the penalty for a crime

determined by a jury.

Alternatively, I also have serious concerns about any attempt to prove

a prior ARD during the trial of a current DUI offense. As a general rule,

evidence of a defendant’s other crimes or wrongful acts is not admissible to

prove the current offense being tried. See Pa.R.E. 404(b). The impact of

introducing evidence of other crimes is significant and may be highly

prejudicial. Commonwealth v. Hicks, 156 A.3d 1114, 1128 (Pa. 2017).

Were we to affirm the panel decision in Chichkin, the practical effect of doing

so would likely be a complete inability of the Commonwealth to seek a

sentencing enhancement for a defendant who is a DUI reoffender. Given this

dilemma, it is likely that prosecutors would substantially curtail their discretion

to offer ARD, thus defeating the use of a program designed to encourage

offenders to make a fresh start after participation in a rehabilitative program.

See Majority Opinion, at 6-7.

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