Submitted December 10, 2014.
Appeal from the Judgment of Sentence entered November 14, 2013, In the Court of Common Pleas of Allegheny County, Criminal Division at No(s): CP-02-CR-0009856-2013. Before BIGLEY, J.
Jessica L. Herndon, Pittsburgh, for appellant.
Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
BEFORE: BENDER, P.J.E., BOWES, and ALLEN, JJ. DISSENTING OPINION BY BENDER, P.J.E.
Steve Edward Wilson (" Appellant" ) appeals from the judgment of sentence imposed after the trial court convicted him of
four counts of driving under the influence (" DUI" ), one count of careless driving, and one count of obscured plates.
The trial court detailed the pertinent facts as follows:
At approximately 1:00 a.m. on May 7, 2013, Springdale Township police officer Joseph Martino was on patrol on Freeport Road in a marked police vehicle with external lights. Officer Martino approached a black Expedition, driven by [Appellant], which was completely stopped in the middle of the roadway. As Officer Martino drove toward the Expedition, it began to travel in the direction of Riddle Run Road. As it traveled, Officer Martino observed the vehicle cross the yellow line approximately four times. At this time, Officer Martino activated his lights and effectuated a traffic stop on the Expedition.
When Officer Martino activated his lights, his vehicle's dash camera turned on and recorded the traffic stop for approximately 37 minutes, including the periods immediately before and after the lights are activated. The camera records for approximately two minutes before the lights are turned on and 45 seconds after the lights are shut off. At 27 seconds, [Appellant's] brake lights are not on and the vehicle was able to move. At 44 seconds, the vehicle crossed the double yellow line. At 50 seconds, the vehicle crossed the double yellow line. At 51-52 seconds, the vehicle crossed the white " fog" line. At 1:08, the vehicle crossed the double-yellow line. At this point, the lights were activated.
Officer Martino noticed that there was a partially tinted license plate cover affecting his view of the registration. Though his police report did not reference the license plate, the criminal complaint did. Officer Martino then went to the driver's window where he identified the driver as [Appellant] and detected a strong odor of alcohol coming from the vehicle. He obtained [Appellant's] information and observed four children, all estimated to be under the age of twelve in the back of the vehicle, none of whom were wearing a seat belt. Officer Martino also observed a glass filled with wine in the middle console of the front seat. The substance was determined to be wine based on its smell and the passenger's statement that it was " just a little bit of wine." The passenger did not say that it was her wine.
Based on the odor of alcohol, [Appellant's] bloodshot and glassy eyes, and his slurred speech, Officer Martino asked [Appellant] to exit the vehicle so that he could perform field sobriety tests. Officer Martino intended to conduct the [horizontal gaze nystagmus], the walk-and-turn, and one-legged stand tests. Appellant failed to complete the one-legged stand and during the performance of the walk-and-turn test, [Appellant] said, " Just take me to jail." At this time, Officer Martino placed [Appellant] under arrest and placed him in the back of the patrol vehicle based on the results of the HGN, onelegged stand, and walk-and-turn tests, his observations of [Appellant's] red glassy eyes, slurred speech, and odor of alcohol. [Appellant] was taken into custody around the 18-minute mark of the recording.
Trial Court Opinion, 5/16/14, at 4-6 (citations to notes of testimony omitted).
Appellant was charged with four counts of DUI, one count of violating the restriction on open alcoholic beverages in a motor vehicle, one count of driving at less than
normal speed, one count of careless driving, three counts of improper child restraints, and one count of obscured plates.
On November 6, 2013, Appellant filed a suppression motion. Following a hearing on November 14, 2013, the trial court denied Appellant's suppression motion. That same day, following a non-jury trial, the trial court found Appellant guilty of four counts of DUI, careless driving, and obscured license plates, and not guilty of the remaining charges.
Following a sentencing hearing, the trial court, on November 14, 2013, sentenced Appellant at Count 1 to a sentence of 12 months of probation, and a concurrent sentence requiring him to attend 4 days of a DUI alternative to jail program, to commence 120 days from the date of sentencing, with no further penalty on the remaining charges.
Appellant filed a timely notice of appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents two issues for our review:
I. IS A SENTENCE ILLEGAL WHEN A PERSON RECEIVES A SENTENCE EXCEEDING THE STATUTORY MAXIMUM OF SIX MONTHS ON A FIRST-TIME DUI CONVICTION UNDER 75 PA.C.S.A. § 3803(b), EVEN THOUGH THE OFFENSE IS GRADED AS A FIRST DEGREE MISDEMEANOR?
II. DID LAW ENFORCEMENT HAVE REASONABLE SUSPICION TO BELIEVE THAT [APPELLANT] COMMITTED A VIOLATION OF THE MOTOR VEHICLE CODE IN ORDER TO LEGALLY PERFORM A TRAFFIC STOP?
Appellant's Brief at 6.
In his first issue, Appellant argues that the trial court imposed a sentence that exceeded the permissible statutory maximum for a first-time DUI offense, and that the sentence was therefore illegal. Appellant's Brief at 13-30. Appellant argues that the trial court's sentence of 12 months of probation plus 4 days at a DUI alternative program for his conviction for violating 75 Pa.C.S.A. § 3802(b) (DUI-high rate of alcohol with a minor in the vehicle) exceeded the statutory maximum.
Appellant asserts that 75 Pa.C.S.A. § 3803(b)(1), which pertains to the grading of DUI offenses, provides that a first-time DUI (high rate of alcohol) offender can only receive a maximum sentence of 6 months, and that the trial court's ...