Com. v. Sabol, A.

• Court: Superior Court of Pennsylvania
• Decided: July 2, 2024
• Docket: 793 MDA 2023
• Status: Unpublished

Opinion

J-S14024-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ANDREW MARK SABOL : : Appellant : No. 793 MDA 2023

Appeal from the Judgment of Sentence Entered May 3, 2023 In the Court of Common Pleas of Luzerne County Criminal Division at No(s): CP-40-CR-0000686-2022

BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and MURRAY, J.

MEMORANDUM BY PANELLA, P.J.E.: FILED: JULY 2, 2024

Andrew Mark Sabol appeals from the judgment of sentence entered in

the Luzerne County Court of Common Pleas on May 3, 2023, following his

convictions for two counts of driving under the influence (“DUI”) and a

summary offense. We affirm.

On January 14, 2022, Sabol was charged by criminal information with

DUI–general impairment, DUI–highest rate, and the summary offense of

accidents involving damage to attended vehicle/property for an incident that

occurred on December 15, 2021.

Sabol filed omnibus pretrial motions, including a petition for habeas

corpus based on insufficient evidence, and motions to suppress evidence. The

trial court subsequently granted the Commonwealth’s motion to amend the

information to change the charge for accidents involving damage to attended J-S14024-24

vehicle/property to accidents involving damage to unattended

vehicle/property.

On July 11, 2022, the trial court held a hearing on Sabol’s omnibus

pretrial motions. After taking the matter under advisement, and considering

briefs submitted by both parties, the court denied suppression. On March 16,

2023, the matter proceeded to trial.

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

Pertinent to the current appeal, the Commonwealth introduced evidence that during the early morning hours of December 15, 2021, while in his home near the intersection of Huntsville Road and Main Street in Dallas Borough, Joseph Hand heard a crash and then a scraping noise that sounded like a vehicle trying to move. When he went outside to investigate, Hand observed a damaged utility pole, debris and fluid on the road, and the taillights of a vehicle, which was making a scraping sound as it drove west on Huntsville Road. Shortly thereafter, Officer Jason Woodard, who was on duty monitoring traffic at a nearby five-way intersection, saw a red pickup truck with a low-hanging headlight travel through the intersection and continue west along Huntsville [R]oad. When [] Hand reported the crash, Officer William Norris responded and observed the debris (including pieces suggesting that the vehicle involved was red) and a trail of fluids leading away from the scene along Huntsville Road. When Officer Norris learned that Officer Woodard had observed a red pickup with front end damage traveling west along Huntsville Road, he went to area of the five-way intersection and observed a trail of fluid. As Officer Norris proceeded along Huntsville Road he observed fluid and more debris. The trail of fluid eventually led into the driveway of 1356 Huntsville Road, at the top of which Officer Norris observed a red pickup truck parked facing a garage.

A dusk-to-dawn light was on, but no other lights were lit in the garage or the adjacent house. When Officer Norris walked through the yard to the top of the driveway to investigate, he was startled to see [Sabol] sitting near the front passenger side of the truck with his back to the garage. Officer Norris asked [Sabol] if he was okay, and [Sabol] responded that he had hit his head on

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the windshield, but he declined medical attention. Officer Norris did not see anyone else near the truck. When conversing with [Sabol], Officer Norris observed that he smelled of alcohol, had slurred speech, was unsteady, and had glassy eyes. Officer Norris also observed that the truck had fresh front[-]end damage and was leaking fluid, and it was determined that only the driver’s side airbag had deployed. Based on these observations, Officer Norris arrested [Sabol] on suspicion of driving under the influence. A breath test was administered at 3:12 a.m., showing a BAC of .241.

At the close of the Commonwealth’s case, [Sabol] moved for judgment of acquittal, arguing with regard to all three Counts that the Commonwealth had failed to show that [Sabol] was driving. Following brief discussion, the [c]ourt denied the motion. Before the parties gave their closing arguments, they were provided with a written copy of the proposed jury instruction that would be read to the jury by the [c]ourt, regarding Count 2, and a copy of the proposed verdict slip for that charge. The parties agreed that both the instruction and the verdict slip were satisfactory to them.

Following closing arguments, the [c]ourt instructed the jury. When the instructions concluded, the parties indicated to the [c]ourt that they had nothing additional to offer, and the jury began its deliberations. The jury subsequently found [Sabol] guilty of Count 2, and the [c]ourt determined that [Sabol] was guilty of Counts 1 and 3.

On March 23, 2023, the Commonwealth filed a motion to amend the information in order to comply with docketing procedures used by the Luzerne County Clerk of Court, whereby asterisks are used to differentiate between 1st, 2nd, 3rd, and 4th or subsequent offenses. Although [Sabol] had not objected to the March 15, 2023 amendment of the information to reflect that both Counts 1 and 2 represented 2nd offenses in light of [Sabol]’s prior DUI, he filed an answer to the Commonwealth’s March 23rd motion, denying that he had a prior DUI conviction and denying that “this [c]ourt found [Sabol] guilty of second offense DUI because the Commonwealth failed to establish a record to support that finding.” Additionally, despite agreeing to the proposed verdict slip and jury instruction, which placed the BAC information in the instruction but not on the verdict slip, [Sabol] denied that the jury found him guilty of DUI, highest rate because “the verdict slip did not reference BAC, a DUI tier, or a count on the

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information.” [Sabol] further averred that “due to the form of the verdict slip the jury’s verdict can only result in a conviction of DUI, Incapable of Safe Driving, 75 Pa.C.S. § 3802(a)(1). Specifically, the jury did not find beyond a reasonable doubt that [Sabol]’s BAC was .16% or higher or even above .10%.”

The Commonwealth’s March 23rd motion and [Sabol]’s answer thereto were addressed on May 3, 2023, when the parties convened for [Sabol]’s sentencing hearing. The Commonwealth reiterated its request to change the single asterisks to double asterisks. [Sabol] indicated that he was “not fighting over asterisks.” Thus, the [c]ourt ordered the information to be amended to change the single asterisks at Counts 1 and 2 to double asterisks.

Turning to [Sabol]’s sentencing, the [c]ourt entertained argument from the parties, including [Sabol]’s assertion that his prior DUI, which resulted in the ARD, should not be considered a conviction for sentencing purposes under Commonwealth v. Chichkin, 232 A.3d 959 (Pa. Super. 2020). Thereafter, with the benefit of a Pre-Sentence Investigation [Report] (PSI) that confirmed the prior DUI/ARD, the [c]ourt sentenced [Sabol] at Count 2 to 18 months in the Restrictive Probation Program, with the first 6 months under house arrest with electronic monitoring, plus a $ 1,500.00 fine; and a $ 300.00 fine plus costs at Count 3. [Count 1 merged with Count 2 for sentencing purposes.]

Trial Court Opinion, 9/1/23, at 2-5 (some citations omitted). This timely

appeal followed.

Sabol raises the following issues on appeal:

A. Did the trial court err in denying the motion to suppress the fruit of the warrantless search of a residential property?

B. Did the trial court err in denying the motion for judgment of acquittal?

C. Did the trial court err in denying the motion to suppress the fruit of the illegal arrest?

D. Should Sabol be sentenced as a first time DUI offender?

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Appellant’s Brief, at 5.

In his first and third issues, Sabol challenges the trial court’s denial of

his motions to suppress.

Our standard of review in addressing a challenge to a trial court’s denial of a suppression motion is limited to determining whether the factual findings are supported by the record and whether the legal conclusion drawn from those facts are correct. Since the prosecution prevailed in the suppression court, we may consider only the evidence of the prosecution and so much of the evidence for the defense as remains uncontradicted when read in the context of the record as a whole. Where the record supports the factual findings of the trial court, we are bound by those facts and may reverse only if the legal conclusions drawn therefrom are in error.

Commonwealth v. Russell, 938 A.2d 1082, 1090 (Pa. Super. 2007) (citation

omitted).

In denying suppression, the trial court concluded as follows:

13. Officer Norris had probable cause to believe that crimes had been committed including Accidents Involving Damage to Unattended Vehicle or Property, 75 Pa.C.S.A. § 3745(a)[,] which he was investigating.

14. Officer Norris, upon observing the fluid trail leading to 1356 Huntsville Road, was at a lawful vantage point when he observed the red pick-up truck.

15. Officer Norris did not engage in any unlawful search or seizure by simply walking onto the property at 1356 Huntsville Road, as such area was an area where visitors or members of the public could be expected to go and there is no reasonable expectation of privacy in said driveway/walkway area.

16. The observations of the vehicle and [Sabol] at said time were observed in plain view by Officer Norris where he was at a lawful vantage point and their incriminating character was immediately apparent.

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17. The arrest of [Sabol] was lawful as was the BAC testing of [Sabol].

18. All evidence and observations made by Officer Norris at said time are admissible at trial.

“Findings of Fact and Conclusions of Law,” 12/29/22, at 2.

Preliminarily, we note the focus of Sabol’s argument is that the trial

court erred in its curtilage determination. See Appellant’s Brief, at 16-17

(arguing the court failed to analyze the factors outlined in United States v.

Dunn, 480 U.S. 294, 301 (1987), for determining if an area is curtilage, and

that application of those factors in this case supports the conclusion that the

officer entered protected curtilage). In so arguing, it appears Sabol has

misinterpreted the Commonwealth’s argument and the trial court’s findings.

Notably, the Commonwealth has never argued that the area at issue

was not curtilage. Rather, the Commonwealth’s position was that Officer

Norris had sufficient probable cause to enter the curtilage. As such, the

determination of curtilage was uncontested, and there was no need for an

assessment of whether or not the area constituted curtilage.

“Absent probable cause and exigent circumstances, warrantless

searches and seizures in a private home violate both the Fourth Amendment

and Article 1 § 8 of the Pennsylvania Constitution.” Commonwealth v.

Gibbs, 981 A.2d 274, 279 (Pa. Super. 2009) (citation and footnote omitted).

“These constitutional protections have been extended to the curtilage of a

person’s home.” Id. (citation omitted). “Curtilage has been defined in [the]

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constitutional context … by reference to the factors that determine whether

an individual reasonably may expect that an area immediately adjacent to the

home will remain private.” Id.(citation omitted).

Pennsylvania courts have recognized, however, the following exception:

First, police officers have the authority to enter the curtilage for the purpose of conducting an investigation. Second, entry onto the curtilage generally is not a Fourth Amendment violation when the curtilage is used by the public.

Commonwealth v. Eichler, 133 A.3d 775, 784 (Pa. Super. 2016) (citations

After a careful review of the certified record, including Sabol’s pre-trial

motion to suppress, the transcript of the suppression hearing, as well as the

trial court’s findings of fact and conclusions of law, the briefs, and relevant

case law, we are confident that the suppression court did not err in denying

Sabol’s motion to suppress. In a comprehensive opinion, the suppression court

ably and methodically reviewed all the evidence presented in justifying its

denial of suppression. See Trial Court Opinion, 9/1/23, at 6-10.

We find the trial court did not err in denying Sabol’s motion to suppress

based on the officer’s entrance onto his property. The court’s findings are

supported by the record and the court clearly credited the officers’ testimony.

Accordingly, we affirm based on the trial court’s opinion. See id.

In his second issue, Sabol contends the trial court erred in denying his

motion for judgment of acquittal. Specifically, Sabol contends there was

insufficient evidence to prove that he drove a vehicle.

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Our standard of review for a challenge to the sufficiency of the evidence

is to determine whether, when viewed in a light most favorable to the verdict

winner, the evidence at trial and all reasonable inferences therefrom are

sufficient for the trier of fact to find that each element of the crimes charged

is established beyond a reasonable doubt. See Commonwealth v. Dale, 836

A.2d 150, 152 (Pa. Super. 2003). The Commonwealth may meet this burden

of proving every element of the crime by utilizing only circumstantial evidence.

See Commonwealth v. Bruce, 916 A.2d 657, 661 (Pa. Super. 2007).

“[T]he facts and circumstances established by the Commonwealth need

not preclude every possibility of innocence.” Id. (citation omitted). Any doubt

raised as to the accused’s guilt is to be resolved by the fact-finder, so long as

the evidence presented is utterly incapable of supporting the necessary

inferences. See id. This Court does not independently assess credibility or

otherwise assign weight to evidence on appeal. See Commonwealth v.

Kinney, 863 A.2d 581, 584 (Pa. Super. 2004).

Sabol challenges the sufficiency of all his convictions, all of which contain

driving as an element of the crime. See 75 Pa.C.S.A. § 3745 (pertaining to

the “driver of any vehicle”); 75 Pa.C.S.A. § 3802 (a), (c) (“An individual may

not drive, operate or be in actual physical control of the movement of a

vehicle.”).

Sabol concedes the record establishes he was under the influence of

alcohol. However, he contends the evidence was insufficient to establish he

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was driving, operating, or in actual physical control of the movement of a

vehicle.

We recognize the only evidence Sabol had driven a vehicle is found in

the police officers’ testimony. It is clear from the record that Officer Woodard

and Officer Norris did not witness Sabol driving a vehicle.

However, Sabol has failed to establish the officers’ testimony was

inherently contradictory. The trial court and jury, sitting as fact-finders, were

entitled to find the officers credibly testified that Sabol’s vehicle hit a parked

vehicle; Officer Woodard observed a red pickup truck with a low-hanging

headlight traveling nearby; Officer Norris followed a fluid trail from the scene

of the accident to Sabol’s residence where his vehicle was parked; Sabol’s

vehicle, a red pickup truck, showed damage consistent with the accident that

had just occurred; and Sabol was under the influence when the officers

encountered him at his residence leaning on his vehicle; no one else was

present or near the vehicle. Based on the record before us, we cannot conclude

the officers’ testimony was so unreliable or as a matter of law that it could not

support circumstantial evidence of the driving element of Sabol’s convictions.

Viewed in the light most favorable to the Commonwealth, we are

satisfied that this evidence was sufficient to support Sabol’s convictions for

DUI beyond a reasonable doubt. See Bruce, 916 A.2d at 661. Accordingly,

Sabol’s second issue is without merit.

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In his final issue, Sabol contends he should have been sentenced as a

first time DUI offender pursuant to Chichkin.

“Section 3804 [of the Motor Vehicle Code] sets forth mandatory

minimum sentence terms for first, second, and subsequent DUI offenses.”

Chichkin, 232 A.3d at 963. Section 3806 of the Motor Vehicle Code, in turn,

defines “prior offenses” as follows:

(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)[.]

75 Pa. C.S.A. § 3806(a)(1).

As Sabol highlights, Chichkin held that “the particular provision of 75

Pa. C.S.A. § 3806(a), which defines a prior acceptance of ARD in a DUI case

as a ‘prior offense’ for DUI sentencing enhancement purposes … [is]

unconstitutional.” Chichkin, 232 A.3d at 971. However, this Court expressly

overruled Chichkin in a pair of decisions, i.e., Commonwealth v. Moroz,

284 A.3d 227 (Pa. Super. 2022) (en banc) and Commonwealth v. Richards,

284 A.3d 214 (Pa. Super. 2022) (en banc). Richards stated in no uncertain

terms:

We now hold that the portion of Section 3806(a), which equates prior acceptance of ARD to a prior conviction for purposes of

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imposing a Section 3804 mandatory minimum sentence, passes constitutional muster.

Richards, 284 A.3d at 220.

Sabol concedes that Chichkin was overruled. However, he points out

that the Pennsylvania Supreme Court has since affirmed Chichkin in

Commonwealth v. Verbeck, 290 A.3d 260 (Pa. 2023) (per curiam). While

Sabol correctly acknowledges that, as a per curiam decision, Verbeck does

not have precedential value, he indicates that Verbeck offers him “hope that

his earlier ARD admission should not count as a prior DUI conviction for

sentencing purposes.” Appellant’s Brief, at 30.

Nevertheless, this Court’s decision in Richards remains the precedent

we must follow, and, under that controlling precedent, the sentencing court

did not err by considering Sabol’s ARD as a prior offense for sentencing

purposes on his DUI conviction. 1

As we find none of Sabol’s issues merit relief, we affirm the judgment

of sentence.

Judgment of sentence affirmed.

____________________________________________

1 We acknowledge the Pennsylvania Supreme Court has granted reargument

on this issue. See Commonwealth v. Richards, 294 A.3d 300 (Pa. 2023). However, this does not affect our disposition because this Court’s decision remains binding precedent unless and until the Pennsylvania Supreme Court rules otherwise. There is no question that Sabol has preserved this issue for future review by the Supreme Court.

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Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 07/02/2024

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COMMONWEALTH OF PENNSYLVANIA 11 11 TH JUDICIAL DISTRICT DISTRICT

COMMONWEALTH COMMON WEALTH OF PENNSYLVANIA IN THE COURT OF COMMON PLEAS PLEAS OF LUZERNE COUNTY V.

CRIMINAL DIVISION ANDREW MARK SABOL, Defendant NO. 686 NO. 686 OF OF 2022 2022

OPINION

BY: BY: THE HONORABLE HONORABLE DAVID DAVID W. W. LUPAS

I. FACTS FACTS AND AND PROCEDURAL PROCEDURAL HISTORY: HISTORY

On December On December 15, 15, 2021, 2021, the Defendant, Andrew Andrew Sabol, was suspicion of driving was arrested on suspicion driving

under tthe he influence, and he was subsequently charged with violations of the Motor Vehicle Code.' Code.

On April 22, 2022, the Defendant sought to suppress fruit of a "warrantless search" and an

"unlawful arrest." Omnibus Pre-Trial Motion filed 4/22/2022 at 7,9. 7, 9. The Defendant's pre-trial pre-trial

motion was taken under advisement following aaJuly 11, 2022 hearing, hearing, and was subsequently subsequently

denied on December 29, 2022.

On March 14, 2023, the Commonwealth filed a a motion to amend Counts l1and 22from from "1 1St

"2n d offense," based on a offense" to 2' a prior DUI that occurred on or about March 20, 2016, for

which the Defendant received Accelerated Rehabilitative Disposition Disposition (ARD). (ARD). Motion filed

3/14/2023 at $¶ 3, citing Commonwealth , v. Moroz, 284 A.3d A.3d 227, 233 233 (Pa. (Pa. Super. Super. 2022) (en bane) 2022) (en Banc).

The 1 The Defendant was initially charged as follows: Count 1I DUI general impairment/incapable impairment/incapable of safe driving, 75 Pa. C.S.A. C.S.A. 3802(a)(1), 3802(a)(), 1S 1toffense (misdemeanor); (misdemeanor); Count 22 DUI highest highest rate of alcohol (BAC alcohol (BAC..16+), 16+), 75 Pa. C.S.A. 3802(0), 3802(c), 1 offense (misdemeanor); 1 offense St (misdemeanor); Count 33accident involving involving damage damage to attended vehicle/property, vehicle/property, 75 Pa. Pa. C.S.A. 3743(a), 3743(a), (misdemeanor 3). Information filed (misdemeanor 3). filed 3/29/2022. Count 3 3/2902022. 3 of the Information was subsequently amended to reflect aaviolation of 75 P.C.S.A. P.C.SA. 3745(a), damage to unattended vehicle/property, aasummary summary offense. Order of Court dated 7/11/2022. 1 The The Defendant Defendant did not not file object to file an answer to the Commonwealth's motion, or otherwise object

amending reflect 2 amending Counts I1and 22to reflect "2n d offense." An amended information was thus filed on

March 15, 2023, March 15, 2023, with with the the language language"2" Off' added 2"d Of added to Counts 1 to Counts and 2. I and 2. 2

A jury was selected and sworn on March 15, 2023, and the Defendant's trial commenced A jury

on March appeal, the Commonwealth introduced March 16, 2023. Pertinent to the current appeal, introduced evidence that that

during the early during early morning morning hours of December I5, 15, 2021, while in his home near the intersection of

Huntsville Road and Huntsville Road and Main Main Street Street in in Dallas Dallas Borough, Joseph Hand Borough, Joseph Hand heard heard aacrash crash and and then then aascraping scraping

noise that sounded like a avehicle trying trying to move. move. N.T. 3/16/2023 at 13. 13. When he went outside to

investigate, investigate, Hand observed aadamaged damaged utility utility pole, pole, debris and fluid on the road, and the taillights taillights

of aavehicle, which was making scraping sound as it drove west on Huntsville Road. Id. at 14- making aascraping

16. Shortly 16. Shortly thereafter, Officer Jason thereafter, Officer Jason Woodard, Woodard, who who was on duty was on duty monitoring traffic at monitoring traffic at a a nearby nearby

five-way intersection, five-way intersection, saw aared pickup pickup truck with with aalow-hanging low-hanging headlight headlight travel through the travel through

intersection and continue intersection and continue west along Huntsville west along Huntsville road. road. Id. Id, at 20-21. When at 20-21. When Joseph Joseph Hand Hand reported reported

the crash, Officer William Norris responded debris (including responded and observed the debris (including pieces suggesting pieces suggesting

that the vehicle involved was red) red) and aatrail of fluids leading away from the scene along leading away along Huntsville

Road. ld. Id. at 37-38. When Officer Norris learned that Officer Woodard had observed aared pickup pickup

with front traveling west along front end damage traveling along Huntsville Huntsville Road, Road, he he went to area of the the five-way five-way

intersection and observed observed aa trail fluid. ld. trail of fluid. Id. at 38-39. As As Officer Norris proceeded along Norris proceeded along

Huntsville Road Huntsville Road he observed fluid he observed and more fluid and debris. Id. more debris. at 39. Id. at 39. The The trail of fluid trail of eventually led fluid eventually led into into

the driveway of 1356 Huntsville the driveway Huntsville Road, top of which Officer Norris Road, at the top Norris observed observed aared pickup pickup

truck parked facing truck parked garage. Id. at 39-40. facing aagarage. A dusk-to-dawn light 39-40. A light was was on, on, but lights were but no other lights

The z The amendment did not alter the grading Pa.CS.A. §$ 3803(a)(1). 1. See 75 Pa.C.S.A. grading of Count I. Count 2, 3803(a)(1). Count2, however, became a amisdemeanor 1. 1 See 75 Pa.C.S.A. Pa.CS.A. §$ 3803(b(4) 3803(b)(4).

22 lit lit in the the garage garage or the the adjacent house. house. Id. When When Officer Norris through the Norris walked through yard to the the yard the

top of the driveway to investigate, he was startled to see the Defendant sitting sitting near the front

passenger side passenger side of the the truck truck with with his his back back to garage. Id. at 41. Officer Norris to the garage. Norris asked the the

Defendant if he he was okay, and the Defendant responded responded that that he he had hit hit his head head on the the windshield, windshield,

but he declined medical attention. Id. at 42. Offieer Officer Norris did not see anyone anyone else near the truck truck.

ld. When conversing with Id. with the the Defendant, Defendant, Officer Norris observed that that he he smelled smelled of of alcohol, alcohol, had

speech, was slurred speech, was unsteady, unsteady, and had glassy eyes. had glassy d. at eyes. Id. 43. Officer Norris at 43. Norris also observed that that the

truck had fresh front end damage and was leaking leaking fluid, and it was determined that only the driver's

airbag had side airbag deployed. Id. at 42, 56. Based had deployed. Based on these observations, Officer Norris Norris arrested the

suspicion of driving Defendant on suspicion driving under under the the influence. influence. Id. at 45. A A breath breath test test was administered administered

at 3:12 at 3:12 a.m., a.m., showing showing aaBAC of .241. BAC of .241. N.T. at 5I N.T. at 51.

At the close of the Commonwealth's case, the Defendant moved for judgment judgment of acquittal,

arguing with arguing with regard to to all three Counts that that the Commonwealth had failed to show that the the

Defendant was was driving. Id. at 63. Following Following brief discussion, the Court denied the motion. Id. at

63-65. Before gave their Before the parties gave closing arguments, their closing they were arguments, they were provided provided with with aawritten copy copy of

the proposed jury instruction that would be read to the jury by by the Court, regarding regarding Count 2, and a a

copy of the proposed verdict verdict slip for for that charge. Id. at that charge. 69-70. 3 The at 69.70. The parties agreed that parties agreed that both both the

instruction and the slip were the verdict slip satisfactory to them. Id. at 70. were satisfactory

Following closing arguments, the Court instructed the jury. jury.4 When the instructions

concluded, the parties concluded, the parties indicated to the indicated to Court that the Court that they they had nothing additional to nothing additional to offer, offer, and and the the jury jury

Te 3The Court was tasked with Court was with addressing addressing Counts 1l and and 33. 4The instruction The given to the jury instruction given jury regarding regarding Count 2, the charge charge they were were tasked with considering, with considering, was identical was identical to the the proposed proposed instruction provided to, instruction provided to, and agreed upon, by agreed upon, by the parties. N.T. the parties. N.T, 3/16/2023 at 89-91. 89-91

33 began its deliberations. ld. Id. at 94, 96. The jury subsequently found the Defendant guilty of Count

2, and the Court determined that the Defendant was that the was guilty of Counts I1and and 3. Id. at 98, 104. 3. Id. 104.

On March 23, 2023, the Commonwealth filed a a motion to amend the information in order

to comply with docketing procedures used by the Luzerne County Clerk of Court, whereby whereby

asterisks are used to differentiate between 1,2", 1St, 2nd, 3 d, 3", 0' or subsequent offenses. See Motion and 4"

filed 3/23/2023, Attachment Attachment C.' C. Although Although the 5 the Defendant Defendant had had not objected to to the the March March 15, 15, 2023

2doffenses in light amendment of the information to reflect that both Counts I1and 22represented 2"

of the Defendant's prior DUI, he filed an answer to to the Commonwealth's March 23rd motion,

denying that he had aaprior denying prior DUI conviction and denying "this Court found Defendant guilty denying that this guilty

of second offense DUI because the Commonwealth failed to to establish aarecord record to support support that

finding." finding." Defendant's Answer filed 3/29/2023 at at ¶ 2. Additionally, despite agreeing Additionally, despite agreeing to the

proposed verdict slip and jury instruction, which placed placed the BAC information in the instruction

but not on the verdict slip, the Defendant denied that the jury found him guilty guilty of DUI, highest highest rate

because because "the "the verdict verdict slip did not reference reference BAC, aaDUI DUI tier, or aacount on the Id. the information." ld.

Alleyne , (citing Alleyne v. United States, 570 U.S. 99 99 (2013); Commonwealth , v. Hopkins, 117 A.3d 247,

258 (Pa. 258 (Pa. 2015)). 2015)). The Defendant Defendant further averred that that "due to the form of the verdict slip the the jury's

verdict can only result in aaconviction of DUI, Incapable of Safe Driving, Driving, 75 Pa.C.S. Pa.C.S. §$ 3802(a(1) 3802(a)(1).

Specifically, the jury jury did not find beyond beyond aareasonable doubt that Defendant's BAC was was ..16% 16% or

higher higher or or even above 0%." Id.°6 above ..110%."

'A 5 A review review of the the record record reflects reflects that when when the the information was amended on March March 15, 15, 2023 t0to change the DUI charges from 1S 1toffense to to 22" d offense, the single designate 1 single asterisk used to designate 1St

offense was notnot changed to to the double asterisk needed designate 2 needed to designate 2" d offense. Although 6 the Defendant Although the Defendant does notnot raise raise the the verdict allegation on appeal, verdict slip allegation appeal, we we emphasize emphasize that that he specifically agreed that the information regarding his BAC would be made part specifically agreed that the information regarding his BAC would be made part of the jury of the jury instruction, not the verdict slip. slip. As agreed to byby the parties, the jury parties, the jury was instructed that in order 4 d The Commonwealth's March 23" 23 d motion and the Defendant's answer thereto were

addressed on May 3, 2023, when the parties parties convened for the Defendant's sentencing sentencing hearing. hearing.

The Commonwealth reiterated reiterated its its request request to change the single to change single asterisks to double asterisks. asterisks. N.T. N.T

at 2, 4. The Defendant indicated that he was 5/3/2023 at2, was "not fighting fighting over asterisks." Id. ld. at 3. Thus,

change the single the Court ordered the information to be amended to change single asterisks at Counts 1 I and 22

to double asterisks. Id. at 5. 5.

Turning to the Defendant's sentencing, the Court entertained argument Defendant's sentencing, argument from from the parties, parties,

including the Defendant's assertion that his prior prior DUI, which resulted in the ARD, should not be

considered aaconviction for sentencing purposes under Commonwealth v. v, Chichkin, 232 A.3d 959

(Pa. Super. 2020). N.T. 5/3/2023 at 6. Thereafter, with the benefit of aaPre- Sentence Investigation Pre-Sentence Investigation

(PSI) that (PSI that confirmed confirmed the the prior DUI/ARD, the prior DU/ARD, the Court Court sentenced sentenced the the Defendant at Count Defendant at Count 22 to 18 to 18

months in the Restrictive Probation Program, with the first 66 months under house arrest with

electronic electronic monitoring, plus aa $1,500.00 monitoring, plus $ 1,500.00 fine; fine; and and aa $300.00 $ 300.00 fine fine plus costs at plus costs Count 3.' at Count 3.'

On June 2, 2023, the Defendant filed aanotice of appeal from his judgment judgment of sentence and

from the from the denial denial of of his suppression requests. his suppression requests. Notice Notice of of Appeal filed 6/2/2023. Appeal filed 6/2/2023. The The Defendant was Defendant was

to find find the the Defendant guiltyguilty of DUI DUI highest highest rate rate of alcohol (BAC of alcohol (BAC. . 16+), 16+), itit would have to findfind the the following beyond aareasonable doubt: following First, that the First, that defendant imbibed the defendant alcohol; second, imbibed alcohol; second, that that the defendant then the defendant drove, then drove, operated, or was in in actual actual physical physical control control of thethe movement movement of a a vehicle vehicle upon upon aa highway highway or a a traffic traffic way[;] way[l ...... [a]nd [a]nd third, third, that that within two hours driving, hours after driving, operating, or or in in actual actual physical physical control, the the alcohol concentration in in the defendant's blood blood or breath breath waswas ..I6 16 percent percent or above. above. N.T. N.T. 3/16/2023 3/16/2023 at at 89-90. 89-90. Juries Juries are are presumed presumed to to follow follow the the instructions instructions given given toto them, so we may them, so may presume presume that that in finding finding thethe Defendant guilty, the Defendant guilty, the jury jury determined that that within within two two hours hours after driving, operating, operating, or or being being inin actual physical physical control, the alcohol concentration in in the the Defendant's Defendant's blood or breath was was . 16I6 percent percent or above. Commonwealth v. y, Purnell, 259 A.3d 974, 986 986 (Pa. (Pa 2021). 2021) Count 1 Count 7 merged with I merged with Count Count 2 2 for sentencing sentencing purposes. purposes. Order of Court dated dated 5/3/2023.

55 directed to file aa concise statement of errors complained complained of on appeal appeal pursuant pursuant to Pa.R.A.P.

1925(b), and did so on in a atimely manner, raising raising the following allegations of error: following allegations

1. denying Sabol's motion to suppress I. The Court erred by denying suppress the fruit of a awarrantless search.

2. The Court erred by denying Sabol's motion to suppress suppress the fruit of an illegal illegal arrest.

3. The Court erred by by denying Sabol's motion for judgment of acquittal. for judgment acquittal.

4. The verdict is not supported by sufficient evidence concerning concerning the element of driving/actual physical control over the movement movement of aavehicle driving on aa vehicle and/or driving highway or trafficway that is necessary to support convictions pursuant pursuant to Sections 3745 3745 and 3802 of the Vehicle Vehicle Code. Code

5. Sabol's sentence is illegal illegal because aajury jury did not decide whether the enhanced sentencing penalties pursuant to Section 3804 of the Vehicle Code applied applied to this case. case

6. The Court erred by sentencing sentencing Sabol as a asecond offense DUI because he did not have aaprior conviction. prior DUI conviction

7. The Court 7. The Court erred erred by sentencing Sabol by sentencing Sabol as as aa second second offense offense DUI DUI because the because the Commonwealth failed Commonwealth failed to establish at to establish at trial trial or or during during the sentencing hearing the sentencing hearing that that Sabol Sabol had had a a prior prior DUI conviction. DUI conviction.

Rule 1925(b) Statement filed 6/7/2023.

II. LAW AND DISCUSSION:

Turning to the Defendant's assertions that this Court erred in its suppression suppression ruling, ruling, the

record record reflects that the reflects that the Defendant Defendant sought suppression of sought suppression of the evidence obtained the evidence obtained from from the the warrantless warrantless

entry onto 1356 Huntsville arguing that since Officer Norris Huntsville Road, arguing Norris "had private "had to stand on private

property to observe/obtain evidence he alleges was in plain view view... • Norris was aatrespasser trespasser and

did not view the damage nor Sabol from aalawful vantage vantage point point as required by the plain required by plain view

doctrine." Defendant's Pre-Trial Motion filed 4/22/2022 4/22/2022 at 8.

6 ' The Commonwealth countered that Officer Norris Norris had had the the authority authority to to enter onto the

Defendant's Defendant's property property during his his investigation investigation of the the crash, that he he restricted his his movements to

areas where where visitors could be expected to go, go, and that that his observations were all made made from aalawful

vantage point, therefore, the plain plain view exception exception did apply, apply, and the evidence should not not be

suppressed. Commonwealth's Brief in Opposition Opposition to Defendant's Omnibus Pre-Trial Motion filed

(citing Commonwealth v. 7/21/2022, Discussion ¶ 2 (citing y. Eichler, 133 A3d 777 777 (Pa. (Pa. Super. Super. 2016), 2016),

appeal denied, 161 A.3d 791 (Pa. 2016). (Pa. 2016)

The Defendant Defendant responded responded that Eichler had been been overruled by by Loughnane, Loughnane, supra, and he he

continued to continued to dispute dispute the the nature of Officer nature of Officer Norris's vantage point Norris's vantage when he point when discovered the he discovered Defendant the Defendant

and the the damage to the truck. Defendant's Defendant's Reply Reply Brief Brief in Support of Granting in Support Granting the Omnibus Pre- Pre-

Trial Motion filed 7/27/2022. THal

At the At suppression hearing the suppression hearing conducted on July conducted on July 11, 11, 2022, the Court 2022, the Court heard testimony from heard testimony from

Joseph Hand, Joseph Hand, and Officers Woodard and Officers Woodard and and Norris, Norris, which, which, in pertinent part, in pertinent part, mirrored mirrored what was what was

presented at trial, as set forth above. See N.T. 7/11/2022 at 4-8, 10-12, 14-20, 27-28, 31. 31

Following Following the presentation of the presentation of testimony testimony and and argument argument by by the the parties, parties, this Court assessed this Court assessed the the

credibility of the witnesses and the weight weight to be given their testimony, testimony, and determined that the

Commonwealth had met Commonwealth met its its burden burden to prove, by to prove, by aa preponderance preponderance of of the evidence, that the evidence, that the the

challenged evidence was not obtained in violation of the Defendant's rights." rights. g This determination

was not not in in error.

8 "Pa.R.Crim.P. 58I "pg.R.Crim.P. 581 provides provides that `[t]he '[t]he Commonwealth shall have the burden burden ... ... of establishing establishing that that the challenged evidence the challenged evidence was not obtained was not obtained in in violation of the violation of the defendant's defendant's rights.' rights.' Pa.R.Crim.P. Pa.R.Crim.P. 581(H). 581(H). Specifically, Specifically, the Commonwealth has the Commonwealth has the the burden of "establish[ing] burden of "establish[ing] by by aa preponderance preponderance of of the the evidence that the the evidence properly obtained." Commonwealth v. evidence was properly y Smith, 285 A.3dA.3d 328, 328, 332 (Pa. 332 Super. 2022) (Pa. Super 2022) (citing (citing Commonwealth Commonwealth v, v. Galendez, Galendez, 27 27 A.3d A.34 1042, 1042, 1046 1046 (Pa. (Pa. Super. Super. 2011) 2011) (citation omitted) omitted).

77 As the Pennsylvania Supreme Court has explained: explained:

Both the Fourth Amendment to the United States Constitution and Article I, Section 88of the Pennsylvania Constitution protect protect individuals from unreasonable searches searches and and seizures seizures by police police in areas where individuals have have aa reasonable reasonable expectation of expectation of privacy. privacy. An An expectation expectation of of privacy privacy exists exists if if a a person person has has a a subjective subjective expectation of privacy that society society is willing willing to recognize recognize as legitimate legitimate and reasonable. reasonable. Where Where there exists a there exists a reasonable expectation of reasonable expectation of privacy, privacy, Article Article I,I, Section 88and Section and the the Fourth Fourth Amendment generally require Amendment generally require police police to to obtain obtain a a warrant, warrant, issued by aa neutral and detached magistrate magistrate and founded upon probable upon probable cause, cause, prior prior to conducting aasearch or seizure of a a person and/or aaperson's person's property, property, unless one of the of the few well delineated few well exceptions apply. delineated exceptions apply.

Commonwealth v. y. Loughnane, 643 Pa. Loughnane, 643 408, 420, Pa. 408, 420, 173 A.3d 733, 173 A.3d 733, 741 741 (2017). (2017) See also See also

Commonwealth v. v, Heidelberg, 267 A.3d 492, 502 502 (Pa. Super. 2021) (Pa. Super. 2021) (en (en bane) Banc) (citation (citation omitted), omitted),

38 (Pa. appeal denied, 279 A.3d 38 (Pa. May 25, 2022) 2022) ("As (As aageneral general rule, rule, `'aawarrant stating stating probable probable

cause is required before aapolice officer may evidence. "'). The may search for or seize evidence.""). The "well well delineated

exceptions" to exceptions" to the the warrant requirement include warrant requirement include `the the consent consent exception, exception, the the plain view exception, plain view exception,

the the inventory search exception, inventory search exception, the exigent circumstances the exigent circumstances exception, exception, the automobile exception the automobile exception ... ...

the stop and the stop and frisk exception, and frisk exception, and the search incident the search to arrest incident to arrest exception."" exception."' Commonwealth y v.

McMahon, 280 A.3d 1069, 1072 (citing 1069, 1072 (citing Commonwealth v. y, Simonson, 148 148 A.3d 792, 797 (Pa. 792, 797 (Pa.

Super. 2016)). Super. 2016)).

The plain plain view view exception permits permits aawarrantless warrantless search and seizure seizure when: when: ((I) 1) an officer

views the views evidence from the evidence from aalawful lawful vantage vantage point; point; (2) (2) itit is is immediately apparent to immediately apparent to him him that the that the

evidence is evidence is incriminating; and (3) incriminating; and (3) the officer has the officer has aa lawful lawful right right of of access access to to the evidence. the evidence

Commonwealth v. Commomwealth • Davis, 287 A.3d 467, 471 (Pa. Super. 2022). (Pa. Super 2022). As noted above, in disputing disputing the

applicability of the plain exception in this case, the Defendant limited his plain view exception argument to the his argument the

The constitutional protections guaranteeing individuals freedom from unreasonable searches and The 9

seizures apply seizures apply to the inside to the of a inside of ahome, as well home, as well as as the curtilage surrounding the curtilage surrounding it. Commonwealth v. it. Commonwealth_ Simmen, 5858 A.3d A.3d 811, 811, 815 815 (Pa. Super. 2012); Commonwealth_. Gibbs, 981 A.2d 274, (Pa. Super. 2012); Commonwealth v. Gibbs, 981 A.2d 274, 279-280 279-280 (Pa. Super. 2009). 2009).

8 8 assertion that that the the first first prong prong was not not met, contending that Officer Norris met, contending Norris did not not observe the

evidence from aalawful vantage point. point. Defendant's Pre-Trial Motion filed 4/22/2022 at 8. A A

review review of the record record clearly shows, however, that that the the evidence presented presented to the the Court demonstrated

that Officer Norris Norris made made his his observations from from aalawful lawful vantage point. vantage point.

The credible testimony testimony of Officers Woodard Woodard and Norris explained their response Norris explained 911 response to the 91l

call placed by Joseph Hand, their observations at and near the scene of the accident, and Office Officer

Norris's discovery of the trail of fluids leading leading from Huntsville Huntsville Road into the driveway driveway at 1356 1356

Huntsville Road, where aared pickup pickup truck was parked. parked. Officer Norris observed the trail of fluid

and and the the pickup pickup truck from the truck from the vantage vantage point of the point of the public public road, therefore therefore no no privacy privacy issues issues arose. arose.

Based on these coupled with these observations, coupled with Officer Norris's Norris's recent recent observations of red vehicle vehicle parts parts

and aatrail trail of fluid leading away from the the accident scene on Huntsville Road, Road, he he continued his

investigation by entering onto the property property at 1356 Huntsville Road. Officer Norris was permitted permitted

to make such entry onto the property property in the course of his investigation. investigation. See Eichler 133 A.3d at

784 784 (police (police officers had had the the authority authority to curtilage of aaproperty to enter the curtilage property for purposes purposes of conducting conducting

an investigation). investigation)."10

With regard " With 10 regard to to the the Defendant's assertion that Defendant's assertion was overruled that Eichler was overruled by Loughnane, we disagree by Loughnane, disagree. In Loughnane, police were investigating In investigating aahit-and-run homicide involving involving aatruck. Days Days after the incident, incident, a a witness witness identified aatruck truck in in Loughnane's driveway. Police Loughnane's driveway. Police seized thethe truck truck without without aa warrant, discovering discovering evidence that connected the truck to the scene of the crime and, therefore, therefore, pointing to pointing to Loughnane's Loughnane's involvement. involvement. See See Loughnane, 643 Pa. Loughnane, 643 Pa. at at 410-412, 410-412, 173 173 A.3d A.3d atat 735-36. 735-36. The trial court suppressed the evidence obtained from the search of the truck, and the matter The trial court suppressed the evidence obtained from the search of the truck, and the matter eventually reached the Pennsylvania Supreme Court, which held that the automobile exception exception to the the warrant warrant requirement requirement recognized recognized by by Commonwealth v. v Gary, 625625 Pa. 183, 183, 9191 A.3d 102 (2014) A.3d 102 (2014) does not apply to to vehicles vehicles parked parked in in private private driveways. Id., 643 Pa. Pa. at 411, 411, 733 A.3dA.3d at at 735. 735. Loughnane citedcited Eichler, and other cases, and other cases, asas examples examples ofof established legal precedent established legal precedent requiring requiring curtilage determinations be made on a "case-by-case multi-factoral basis." ld. that curtilage Id. 643 Pa.Pa. at 418 fn. 7, 173 A.3d 7,173 A.3d at 740 fn. at 740 fn. 7. 7. Loughnane did did not not address address the the investigative investigative intentions intentions of of the the police police as a reason to access property in the first instance, nor did it address whether as a reason to access property in the first instance, nor did it address whether the investigation the investigation permitted the police to have access to the driveway involved. As the Superior Court has noted,

99 Thus it was from aalawful vantage point that Officer Norris encountered the Defendant and

observed the damage to truck. Accordingly, to the exterior of the truck. Accordingly, the Defendant's allegation allegation of error

in this regard does not entitle him to relief.' 1 For these reasons, the Defendant's judgment to appellate relief.'' judgment

of sentence should not be disturbed on the grounds asserted in his first or second allegations allegations of

error.

The Defendant's third allegation on appeal asserts that the Court erred by denying his by denying

motion for judgment of acquittal. Rule 1925(b) Statement filed 6/7/2023."A 6/7/2023. "A motion for judgment judgment

of acquittal challenges the sufficiency of the evidence to sustain aaconviction on aaparticular charge, particular charge,

and is and granted only is granted only in cases in in cases which the in which the Commonwealth Commonwealth has failed to has failed carry its to carry its burden burden regarding regarding

tthat charge." hat charge." v. Richard, Commonwealth y, Richard, 150 A.3d 504, 150 A.3d 514 (Pa. 504, 514 Super. 2016) (Pa. Super. 2016) (citing (citing

Commonwealth v.v. Abed, 989 A.2d Abed, 989 A.2d 23, 23, 26 26 (Pa. Super. 2010)). (Pa. Super. 2010)). As As such, such, we we will will discuss discuss the the

Defendant's Defendant's third third allegation of error allegation of error in conjunction with in conjunction with his his fourth allegation of fourth allegation of error, error, which which

asserts that asserts that the the verdicts verdicts were were not supported by not supported by sufficient sufficient evidence evidence "concerning "concerning the element of the element of

driving/actual physical control over the movement of aavehicle and/or driving on aahighway highway or

trafficway that is necessary to support convictions pursuant to support pursuant to to Sections 3745 and 3802 of the

Vehicle Code." Rule 1925(b) 1925(b) Statement filed 6/7/2023 at at ¶ 4.

Evidence Evidence will be deemed to to support support the verdict when it it establishes each each element of the crime charged and the commission thereof by by the accused, beyond beyond aareasonable doubt. The Commonwealth need need not preclude every possibility possibility of innocence or the defendant's establish the defendant's guilt to a a mathematical certainty. Finally, Finally, the trier of fact

however, however, "those circumstances were addressed in detail by Eichler, supra. See Commonwealth v. Chesney, 196 196 A.3d A.3d 253, 253, 258-259 258-259 (Pa. Super. 2018). (Pa. Super. 2018) ' We 11 We note note that the the Defendant's suppression request Defendant's suppression request additionally additionally asserted that that the the automobile exception to the warrant requirement requirement did not apply to this matter because the Defendant's truck was parked inin a a residential driveway. Defendant's residential driveway. Defendant's Omnibus Omnibus Pre-Trial Pre-Trial Motion Motion filed filed 4/22/2022 4/22/2022 at 9 (citing (citing Loughnane, supra). This Court's suppression suppression ruling ruling is supported by the plain plain view exception, however, thus we need not discuss the automobile exception. McMahon, 280 A.3d at 1073-1074 1073.1074 (A(A search involving involving a a vehicle may may be justified justified under the plain plain view exception, exception, without regard regard to the applicability of the automobile exception). exception). 10 while passing upon the credibility of witnesses and the weight weight of the evidence produced, is produced, is free to to believe believe all, part or or none none of the evidence.

Commonwealth yv. Teems, 74 74 A.3d 142, 144-145 (Pa. 142, 144-145 Super. 2013) (Pa. Super. 2013) (citation (citation omitted). omitted).

Here, the Defendant's Here, the Defendant's judgment judgment of acquittal and of acquittal and his sufficiency of his sufficiency of the the evidence claim evidence claim

challenged all three three crimes charged, each driving as an element. 12 each of which contain driving The

Defendant's motion specifically challenged the driving element of the crimes only, only, and his

sufficiency claim sufficiency claim challenges challenges whether whether the Defendant was the Defendant driving, and was driving, and if so, if if so, if he did so he did so on on a a

trafficway trafficway or or highway. N.T. 3/16/2023 3/16/2023 at 63; Rule 1925(b) 1925(b) Statement filed The filed 6/7/2023. 13 Te

12 section Section 3802(a(1) 3802(a)(1) of the Vehicle Code directs that "[a]n individual may operate or may not drive, operate be in actual be in actual physical control of physical control of the the movement movement of of aavehicle after imbibing vehicle after imbibing a a sufficient sufficient amount amount of of alcohol such that the individual is rendered incapable incapable of safely driving, operating safely driving, operating or being being in actual physical control of the movement of the vehicle. 75 PA.C.S.A. Pa.C.S.A. §$ 3802(a)(1). 3802(a(1). Section 3802(c) 3802(¢) directs that: that An An individual individual may may not drive, operate not drive, operate oror be be in in actual actual physical physical control control of of the the movement movement of of aa vehicle after imbibing vehicle after imbibing a a sufficient amount of sufficient amount of alcohol alcohol such such that the that the alcohol concentration concentration in in the the individual's individual's bloodblood or breath breath is is 0.16% or or higher higher within two hours two hours after after the individual individual has has driven, driven, operated operated or been been inin actual physical physical control the movement of the movement of of the the vehicle. vehicle 75 Pa.C.S.A. PA.C.S.A. §$ 3802(c). 3802(¢). Section 3745 directs that: that The driver of any vehicle which collides with or is involved in an accident with any vehicle vehicle or or other other property property whichwhich is unattended unattended resulting resulting in any damage in any damage to to the the other vehicle or property property shall immediately immediately stop the vehicle at the scene of the accident or as close thereto or thereto as possible possible and and shall shall then then and and there there either locate locate and and notify notify the the operator operator or owner owner of the damaged vehicle the damaged vehicle or other other property property of his his name, name, address, information information relating relating to financial financial responsibility responsibility andand the registration registration number number of of the the vehicle vehicle being being driven driven or or shall shall attach securely in a attach securely conspicuous place a conspicuous place inin or or onon the the damaged vehicle damaged vehicle or other property or other property aa written written notice notice giving giving hishis name, name, address, address, information information relating relating toto financial financial responsibility responsibility andand the the registration registration number number of the the vehicle being driven and shall without unnecessary delay notify notify the nearest office of aa duly authorized police department. Every Every stop shall be made without obstructing traffic traffic more more thanthan is is necessary. necessary. 75 Pa.C.S.A. Pa.CS.A. §$ 3745(a). 3745(a). 13 Although Although Section 3802 3802 hashas no specific "highway" no specific "highway" or or "trafficway" "traffic way" element in statutory in its statutory language, Section language, Section 3101(b) 3101(b) of the the Motor Motor Vehicle Code states that Chapter 38, that Chapter 38, as aawhole, whole, relating relating to driving driving after imbibing imbibing alcohol or using using drugs, applies to the highways highways and trafficways. trafficways. 75 Pa.C.S.A. Pa.CS.A. §$3101(b). 3101(b). A A "highway" "highway" is is defined as: as: The entire entire width width between between the the boundary boundary lines every way lines of every way publicly publicly maintained when any part part thereof is open open to the use of the public public for purposes of vehicular 11 Defendant Defendant does not not contest the sufficiency of the the evidence that that he he was under the influence of

alcohol. As such, we limit our discussion on appeal to whether the Commonwealth presented presented

sufficient evidence that the Defendant drove on aatrafficway trafficway or highway. highway.

"An eyewitness is not An not required to to establish that that aadefendant was driving, driving, operating, operating, or was was

in in actual physical control of aamotor vehicle. vehicle. The Commonwealth can establish through wholly through wholly

circumstantial evidence that aadefendant was driving, driving, operating operating or in actual physical physical control of aa

motor vehicle." Cormomwealth Commonwealth • v. Johnson, 833 A.2d 260, 263 (Pa. (Pa. Super. 2003). See also

Commonwealth v,v. Whitmire, 2023 PA Super 137, 2023 WL 4834616 4834616 (Pa. Super. July (Pa. Super. July 28, 2023) 2023)

(citing Commonwealth (citing Commonwealth v.v, Young, Young, 904 904 A.2d 947 (Pa. A.24 947 (Pa. Super. Super. 2006)); v. Goose Commonwealth • 2006)); Commonwealth Goosebv- by- Byrd, 188 188 A.3d A.34 1186, 1186, 1188 1188 (Pa. (Pa. Super. 2018). Super. 2018).

Here, as set set forth forth above, the Commonwealth introduced introduced credible circumstantial evidence

sufficient for the jury and this Court, as fact-finders, to conclude that the Defendant was the driver

of the truck that struck the pole, pole, and that he drove the truck on Huntsville Road, aahighway highway or

trafficway. As such, the Defendant's judgement of sentence should not be disturbed on appeal appeal on

the grounds suggested suggested by by his third or fourth allegation of error.

The Defendant's allegation of error asserts that Defendant's fifth allegation that his illegal because his sentence is illegal because aajury jury

did not decide whether sentencing penalties whether the enhanced sentencing penalties pursuant pursuant to to Section 3804 3804 of the the Vehicle Vehicle

Code applied Code applied to to this this case. Rule Rule 1925(b) Statement filed 1925(b) Statement filed 6/7/2023. 6/7/2023. Section Section 3804 directs in 3804 directs in pertinent pertinent

part part as follows: follows:

travel. The term includes a aroadway open to the use of the public public for vehicular travel on grounds on grounds ofof aa college college oror university or public university or or private public or private school school or or public or public or historical historical park. park 75 Pa.C.S.A. Pa.CS.A. §$102. 102. AA "trafficway" "trafficway" is defined as is defined as "[t]he entire width "[t]he entire width between property lines between property or lines or other boundary lines of every way or place of which any part is open to the public for purposes of other boundary lines of every way or place of which any part is open to the public for purposes of vehicular vehicular travel travel as aa matter matter of of right right or custom." 75 Pa.C.S.A. PA.C.S.A. §$ 102. 102. 12 (c) Incapacity; Incapacity; highest highest blood alcohol; controlled substances.-- substances. -- ... [ A]n individual ... [AJn who violates section 3802(¢) 3802(c) ..... shall be sentenced as follows: (1) For () For aa first first offense, offense, to: to: (i) undergo (i) imprisonment of undergo imprisonment of not not less less than than 72 72 consecutive hours; hours; (ii) pay pay aafine of not less than $1,000 $ 1,000 nor more than $5,000; $ 5,000; (iii) attend an an alcohol highway highway safety schoolschool approved approved by by the the department; and comply with all drug (iv) comply drug and alcohol requirements alcohol treatment requirements imposed imposed under under sections 3814 3814 and 3815. 3815 (2) For For aasecond offense, to: (i) undergo imprisonment imprisonment of not not less less than than 90 days; days; (ii) pay pay aa fine fine of not not less less than $ 1,500; than $1,500; (iii) attend an alcohol highway safety school highway safety approved by school approved by the the department; and department; and (iv) comply with all drug and alcohol treatment requirements requirements imposed imposed under under sections sections 3814 3814 and 3815. and 381 5.

75 Pa.C.S.A. Pa.CS.A. §$ 3804(¢). 3804(c). Additionally, pertinent part Additionally, Section 3806 directs in pertinent part as follows:

(a) General (a) General rule.--Except as set rule.--Except as set forth forth in in subsection subsection (b), the term (b), the term "prior "prior offense" offense" as as used in in this chapter shall meanmean ... ... acceptance acceptance of Accelerated Accelerated Rehabilitative Rehabilitative Disposition ... Disposition ... before before the the sentencing sentencing on on the the present present violation violation for for any any of the following: following: (1) an (1) an offense offense under under section section 3802 3802 (relating (relating to driving under to driving under influence influence of of alcohol or controlled substance);

Timing.-- (b) Timing.-- (1) For For purposes ofof ... 3804 (relating ... Section 3804 (relating to penalties) penalties) ... ...,, the the prior prior offense must must have have occurred: occurred: (i) within 10 I0 years prior prior to the date of the offense for which the defendant is defendant is being being sentenced; sentenced; or or (ii) on or (ii) on or after after the date of the date of the the offense for which offense for which the defendant is the defendant is being being sentenced. sentenced. (2) The court shall calculate the the number number of prior prior offenses, if if any, any, at at the the time time of sentencing. of sentencing.

75 Pa.C.S.A. §$ 3806. Thus, aadefendant who accepted accepted ARD for aaprior prior DUI offense is considered

aa second-time offender under under the the Section 3804 3804 penalty penalty provisions, provisions, and faces an increased increased

minimum minimum sentence. sentence

In In Apprendi Apprendi v. y New Jersey, Jersev, the the United Supreme Court determined that United States Supreme "[o]ther than that "[ojther than

the fact fact of aaprior any fact that prior conviction, any that increases increases the penalty penalty for aacrime beyond beyond the prescribed prescribed

13 statutory maximum maximum must be submitted to to aajury, and proved proved beyond beyond aareasonable doubt. Apprendi Apprendf

• New v. New Jersey, 530 U.S. S.Ct. 2348, 2362-63, 147 L.Ed.2d 435 U.S. 466, 490, 120 S.CL 435 (2000). Alleyne, (2000). Alleyne,

reached the same conclusion for facts that increase the mandatory mandatory minimum sentence to which aa

Allevne, 570 U.S. at 1H6, defendant is exposed. Alleyne, 116, 133 S.Ct. at 2163; Commomwealth_, Commonwealth v. Williams,

2023 PA Super 147 147 (Pa. (Pa. Super. Ct. Aug. 4,2023); Aug. 4, v. Riggle, 2023); Commonwealth , Riggle, 119 A.3d 1058, 1064

Super. 2015) (Pa. Super. 2015).

In Commonwealth v. v Chichkin, the the Superior Court concluded that:

[B]ecause Appellants' prior acceptances of ARD do not constitute convictions [Because cloaked in all the constitutional safeguards," we conclude they "cloaked "fact" that, they are a facet" pursuant pursuant to to Alleyne, Apprendi, Apprendi, and their progeny, progeny, must must be be presented presented to to the the fact fact finder finder and determined beyond beyond aareasonable reasonable doubt before before a a trial trial court court may may impose impose a a mandatory minimum sentence under Section 3804.

Chichkin, 232 A.3d A.3d at 968 (footnote at 968 (footnote omitted). Chichkin, however, however, was expressly overruled by was expressly by

Commonwealth v. v, Richards, 284 A.3d 214 214 (Pa. Super. 2022) (Pa. Super. 2022) (en (en bane), Banc), appeal granted, 294 A.3d appeal granted,

(Pa. 2023) and Moroz, 284 A.3d at 233, which held that "the portion of Section 3806(a), which 300 (Pa. 300

equates prior equates prior acceptance acceptance of of ARD ARD to to aaprior conviction for prior conviction for purposes of imposing purposes of imposing aaSection Section 3804 3804

mandatory minimum sentence, passes "adefendant's prior passes constitutional muster," and therefore, "a

within tthe acceptance of ARD fits within he limited limited `'prior prior conviction' exception exception set forth in in Apprendi Apprendi and

Alleyne." Richards, 284 Alleyne." 284 A.3d at 220; A.3d at 220; Moroz, 284 284 A.3d A.3d at at 233. 233.

Although Chichkin Although Chichkin's holding has since been affirmed per 's holding per curiam by by an equally equally divided

Pennsylvania Supreme Court in Commonwealth v. y Verbeck, Pa.-, Pa. , 290 A.3d 260 260 (2023), (2023),

that case has no precedential value, and Richards and Moroz are currently the controlling controlling law such

that that ARD counts as ARD counts as aaprior prior offense offense for for purposes purposes of sentencing for of sentencing for a a subsequent subsequent DUI offense. DUI offense.

Commonwealth v. Commomwealth Super 122, y, Corson, 2023 PA Super 122, fn. fn. 4 (Pa. Super. June 11, (Pa. Super. 11, 2023) (citing (citing

v. Moslev, Commonwealth y. 114 A.3d 1072, 1082 Mosley, 1H4 1082 (Pa. Super. 2015) (Pa. Super. ("When a 2015)(When ajudgment judgment of sentence

14 •

is is affirmed affirmed by by an an equally divided count, equally divided court,... ... no precedent is no precedent is established and the established and the holding is not holding is not binding binding

cases."); on other cases. "); Hummel, /Hummel, 295 A.3d at 720, fn. I1.

As such, the Defendant's prior acceptance acceptance of ARD fit within the limited limited `'prior prior conviction'

forth in Apprendi exception set forth Apprendi and Allevne, Alleyne, and his sentence sentence is is not not rendered rendered illegal illegal because because aajury jury

did not decide whether the enhanced sentencing penalties pursuant pursuant to Section 3804 of the Vehicle

Code applied Code applied to to this case. Richards, 284 this case. 284 A.3d at 220; A.3d at Moroz, 284 220; Mroz, 284 A.3d at 233. A.3d at 233.

allegations raised by The sixth and seventh allegations by the Defendant on appeal appeal assert that that this Court

erred by sentencing the the Defendant as as aasecond offense DUI because he did not not have have a a prior prior DUI DUL

conviction, and because the Commonwealth failed to establish at trial or during during the sentencing sentencing

hearing that Sabol had a aprior DUI conviction. conviction. Rule 1925(b) Statement filed 6/7/2023.

As the record reflects, the Court sentenced the Defendant with the benefit of aaPSI that

confirmed that the Defendant had aaDUI in 2016, for which he received ARD. As we explained explained

above with regard to the Defendant's fifth allegation of error, the ARD is considered aaprior prior

conviction for conviction for sentencing sentencing purposes, and thus purposes, and thus it was was not not necessary necessary for the Commonwealth for the Commonwealth to to submit submit

that issue to the jury at trial. As such, the Defendant's judgment judgment of sentence should not not be

grounds. disturbed on these grounds.

For the foregoing reasons, the Defendant's judgment of sentence should be affirmed on

appeal.

END OF OPINION