Appeal from the Judgment of Sentence of June 13, 2011, in the Court of Common Pleas of Philadelphia County, Criminal Division, at No: CP-51-CR-0001629-2011.
BEFORE: LAZARUS, J., OTT, J., and STRASSBURGER, J. [*]
John M. Masau (Appellant) appeals from his judgment of sentence of 90 days to 5 years of imprisonment following his conviction for driving under the influence (DUI), 75 Pa.C.S. § 3802(a)(1). We vacate Appellant's judgment of sentence and remand for resentencing consistent with this opinion.
At 3:45 a.m. on June 11, 2010, Officer Felicia Seabron of the Philadelphia Police found Appellant in the driver's seat of a vehicle stopped in front of a fire hydrant. The engine was running, the car was in gear, and Appellant's foot was on the brake. When Officer Seabron knocked on the window, Appellant put the car in park and took the keys out of the ignition. Appellant, who smelled of alcohol, had bloodshot eyes, and could barely stand, also could produce no driver's license, registration, or proof of insurance. Appellant was taken to police headquarters where he refused to submit to chemical testing.
Upon these facts, the trial court convicted Appellant of DUI. Because Appellant refused testing and had a prior DUI conviction, the trial court graded Appellant's offense as a first-degree misdemeanor pursuant to 75 Pa.C.S. § 3803(b)(4). Accordingly, the trial court sentenced Appellant to incarceration for a minimum of 90 days to a maximum of 5 years, to be served on 45 consecutive weekends with immediate parole after serving the first weekend. This timely appeal followed. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
In his concise statement filed pursuant to Rule 1925(b), Appellant challenged only the sufficiency of the evidence to sustain his conviction, and the trial court's opinion addresses that issue alone. However, in his brief on appeal, Appellant abandons that argument and instead asks this Court to consider the legality of his sentence. "As long as the Court has jurisdiction over the matter, a legality of sentencing issue is reviewable and cannot be waived." Commonwealth v. Stein, 39 A.3d 365, 367 (Pa. Super. 2012). Therefore, we will address the issue which Appellant presents in the first instance to this Court: "[i]s not six months [of] incarceration the maximum permissible sentence, pursuant to 75 Pa.C.S. §3803(a), for a second conviction for [DUI] under §3802(a), notwithstanding the offense's grading as a first-degree misdemeanor?" Appellant's Brief at 3.
Before we examine the language of the statute at issue, we consider the applicable rules of statutory construction. "The object of all interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly." 1 Pa.C.S. § 1921(a).
In ascertaining the intention of the General Assembly in the enactment of a statute the following presumptions, among others, may be used:
(1) That the General Assembly does not intend a result that is absurd, impossible of execution or unreasonable.
(2) That the General Assembly intends the entire statute to be effective and certain.
1 Pa.C.S. § 1922.
Further, if two statutes appear to conflict, they are to be construed by giving effect to both when possible. See Commonwealth v. Hansley, 47 A.3d 1180, 1186 (Pa. 2012). "When the conflict between the provisions cannot be reconciled, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail." Id. (internal quotation omitted).
Finally, penal statutes must be strictly construed. Commonwealth v.Dixon, 53 A.3d 839, 846 (Pa. Super. 2012). However, "the rule of lenity itself has limits." Commonwealth v. ...