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filed: November 1, 1989.


Appeal from the Judgment of Sentence Entered November 7, 1988, in the Court of Common Pleas of Delaware County, Criminal Division, No. 540 of 1988.


Joseph J. Mittleman, Asst. Dist. Atty., Media, for Com., appellant.

Francis R. Lord, Media, for appellee.

Cirillo, President Judge, and Cavanaugh and Hester, JJ. Cirillo, President Judge, files a concurring opinion. Cavanaugh, J., files a concurring statement and concurs in the result of the majority opinion.

Author: Hester

[ 388 Pa. Super. Page 370]

This is an appeal by the Commonwealth from the judgment of sentence of thirty days to one year imprisonment for a second conviction for driving under the influence, entered by the Court of Common Pleas of Delaware County on November 7, 1988. The Commonwealth does not appeal

[ 388 Pa. Super. Page 371]

    the actual sentence imposed, which is the statutorily mandated minimum sentence,*fn1 but asserts that the trial court erroneously credited appellee, John Conahan, with time served in an inpatient alcohol treatment program, and granted him immediate parole. The Commonwealth contends that this negates the legislature's purpose of punishment and deterrence by enacting 75 Pa.C.S. § 3731(e). We agree, reverse the trial court's according appellant credit for inpatient alcohol treatment, and remand for proceedings consistent with this opinion.

The record reveals that Upper Providence Township Police were notified of an accident near a highway exit ramp on February 8, 1988. Upon their arrival, the police discovered a single vehicle off the road and on an embankment. The owner, appellee, was in a nearby service station making a telephone call to locate a tow truck. Appellee stated that he had been forced off the road by an unidentified automobile. The police noted that appellee's speech was slurred and that he had a strong odor of alcohol on his breath. The police placed appellee under arrest after he failed to perform satisfactorily on several field sobriety tests. Despite being advised of the consequence of his refusal, appellee refused to submit to any chemical test of his blood for alcohol content. This was appellee's second drunk driving offense.

Pursuant to an agreement, appellee pled guilty to a negotiated plea. At sentencing on November 7, 1988, appellee established that he had participated in three in-patient alcohol treatment programs over a consecutive ninety-five day period. This testimony was uncontested. Appellee

[ 388 Pa. Super. Page 372]

    argued that the legislature used the word "imprisonment" in 75 Pa.C.S. § 3731(e) and inpatient treatment programs come within the definition of imprisonment; thus, he should be given credit for time served in those programs. We disagree.

"Imprisonment" is defined as:

The act of putting or confining a man in prison. The restraint of a man's personal liberty; coercion exercised upon a person to prevent the free exercise of his powers of locomotion. It is not a necessary part of the definition that the confinement should be in a place usually appropriated to that purpose; it may be in a locality used only for the specific occasion; or it may take place without the actual application of any physical agencies of restraint (such as locks or bars), as by verbal compulsion and the display of available force. Every confinement of the person is an "imprisonment," whether it be in a prison, or in a private house, or even by forcibly detaining one in the public streets. Any unlawful exercise or show of force by which person is compelled to remain where he does not wish to be.

Black's Law Dictionary (5th ed. 1979). Consequently, appellee argued at sentencing that the legislature intended that the mandatory minimum sentence for a second DUI conviction could be served by "imprisonment," i.e. "confinement," in broader circumstances than just "jail." Otherwise, he contended, the legislature would have used the word "jail" in Section 3731(e), rather than "imprisonment." Appellee then asserted that his participation in inpatient alcohol treatment programs constituted confinement in custody, and thus imprisonment, so that the trial court must credit him with this time against his mandated imprisonment pursuant to the general rules requiring credit for time served. 42 Pa.C.S. § 9760;*fn2 Pa.R.Crim.P. 1406(b).*fn3

[ 388 Pa. Super. Page 373]

The court sentenced appellee to thirty days imprisonment to be served by fifteen consecutive, forty-eight hour weekends. The sentencing court then accepted appellee's arguments for credit, credited him for the in-patient time, and granted immediate parole. This appeal by the Commonwealth followed. ...

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