Com. v. Degrauw, R. ( 2023 )

J-S11041-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
v. :
:
ROBERT CHARLES DEGRAUW :
:
Appellee : No. 1053 EDA 2022
Appeal from the Order Entered March 23, 2022
In the Court of Common Pleas of Pike County
Criminal Division at No(s): CP-52-CR-0000411-2021
BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.
JUDGMENT ORDER BY KING, J.: FILED MAY 23, 2023
Appellant, the Commonwealth of Pennsylvania, appeals from the order
entered in the Pike County Court of Common Pleas, which granted the pretrial
motion in limine of Appellee, Robert Charles Degrauw. We reverse.
On March 27, 2021, a state police trooper observed Appellee driving his
pickup truck northbound on Route 739 in Blooming Grove Township. The
trooper effectuated a traffic stop after watching Appellee’s vehicle cross into
the southbound lane. During the stop, the trooper noted indicia of
intoxication. Appellee failed field sobriety tests, and a preliminary breath test
indicated that Appellee’s blood alcohol concentration was .170%.
On August 30, 2021, the Commonwealth filed a criminal information
charging Appellee with two (2) counts of driving under the influence of
alcohol—second offense (“DUI”) and two (2) summary violations of the Motor
J-S11041-23
Vehicle Code.1 On November 10, 2021, the Commonwealth filed a motion in
limine seeking to introduce evidence of a prior DUI arrest. Specifically, police
arrested Appellee for the prior DUI in 2014, and the Commonwealth permitted
Appellee to enter the Accelerated Rehabilitative Disposition (“ARD”) program
at that time. (See Motion In Limine, filed 11/10/21, at ¶¶ 3, 5). The
Commonwealth argued for permission to introduce evidence of the 2014 DUI
to establish the grading of the current DUI charges.
By opinion and order entered March 23, 2022, the court denied the
Commonwealth’s motion. In its opinion, the court relied upon
Commonwealth v. Chichkin, 232 A.3d 959 (Pa.Super. 2020), for the
proposition that the Commonwealth “can no longer simply rely on evidence of
a defendant’s prior admission into an ARD program as proof of a prior
conviction for purposes of enhanced penalties for repeat DUI offenders.”
(Order and Opinion, filed 3/23/22, at 2) (unnumbered). On April 8, 2022, the
Commonwealth timely filed a notice of appeal and Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal.
On appeal, the Commonwealth argues that it may present evidence of
Appellee’s prior DUI charges that resulted in his admission into ARD. This
Court addressed this topic in Commonwealth v. Richards, 284 A.3d 214(Pa.Super. 2022) (en banc), appeal granted, 2023 WL 2520895 (Pa. March
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1 75 Pa.C.S.A. §§ 3802(a)(1), (c), 3309(1), and 1311(b), respectively.
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15, 2023) and Commonwealth v. Moroz, 284 A.3d 227 (Pa.Super. 2022)
(en banc). These cases specifically overruled Chichkin and held that a
defendant’s placement in ARD following a DUI arrest constituted a “prior
offense” for purposes of DUI sentencing. Considering the holdings in
Richards and Moroz, we reverse the order granting Appellee’s motion in
limine.2
Order reversed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/23/2023
____________________________________________
2 We acknowledge our Supreme Court’s recent decision in Commonwealth
v. Verbeck, ___ Pa. ___, 290 A.3d 260 (2023) (plurality), where the justices
were evenly divided on the issue of whether a defendant’s acceptance into an
ARD program qualified as a prior conviction that could compel an increased
sentence for DUI. Nevertheless, “[w]hile the ultimate order of a plurality
opinion, i.e., an affirmance or reversal, is binding on the parties in that
particular case, legal conclusions and/or reasoning employed by a plurality
certainly do not constitute binding authority.” Commonwealth v. Brown,
23 A.3d 544, 556 (Pa.Super. 2011) (quoting In Interest of O.A., 552 Pa.
666, 676 n.4, 717 A.2d 490, 496 n.4 (1998)).
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