Com. v. Lee, D.

J-E02002-25

                               2026 PA Super 85

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                   Appellant             :
                                         :
                                         :
              v.                         :
                                         :
                                         :
 DWAYNE ERIC LEE                         :   No. 1471 MDA 2023

       Appeal from the Judgment of Sentence Entered June 29, 2023
            In the Court of Common Pleas of Dauphin County
            Criminal Division at No: CP-22-CR-0003175-2022



BEFORE: LAZARUS, P.J., PANELLA, P.J.E., OLSON, J., STABILE, J.,
        KUNSELMAN, J., MURRAY, J., KING, J., SULLIVAN, J., and LANE, J.

DISSENTING OPINION BY STABILE, J.:                 FILED: APRIL 23, 2026

     I respectfully dissent.     The majority’s decision conflicts with our

Supreme Court’s decision in Commonwealth v. Glover, 397 Pa. 543, 156

A.2d 114 (Pa. 1959), which construed statutory text materially similar to and

operatively identical to the statute under review today, 75 Pa.C.S.A. §

1543(b)(1)(i). Moreover, the sentence prescribed by the majority violates the

principle codified in 42 Pa.C.S.A. § 9756 that Appellant’s minimum sentence

cannot exceed half his maximum sentence. In addition, it is my view that the

majority errs by following Commonwealth v. Eid, 665 Pa. 684, 249 A.3d

1030 (2021), because the statutory text construed in Eid is distinguishable

from Section 1543(b)(1)(i). In my opinion, under both Glover and Section

9756, Appellant’s maximum sentence under Section 1543(b)(1)(i) must be

no less than 60 and no more than 90 days’ imprisonment, and his minimum
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sentence cannot exceed half of the maximum imposed by the court. I would

remand this case for resentencing under these parameters.

     The trial court found Appellant guilty of multiple summary offenses,

including Section 1543(b)(1)(i). The court sentenced Appellant to pay fines

and costs but did not sentence him to jail time. The Commonwealth appealed,

claiming that Section 1543(b)(1)(i) required the court to impose a minimum

of 60 days’ imprisonment and a maximum of 90 days’ imprisonment. Relying

on Eid, the majority concludes that Section 1543(b)(1)(i) requires an

indeterminate sentence with a minimum of 60 days’ imprisonment and a

maximum of 90 days’ imprisonment. I disagree.

     Section 1543(b)(1)(i) provides:

     A person who drives a motor vehicle on a highway or trafficway of
     this Commonwealth at a time when the person’s operating
     privilege is suspended or revoked as a condition of acceptance of
     Accelerated Rehabilitative Disposition for a violation of section
     3802 (relating to driving under influence of alcohol or controlled
     substance) or the former section 3731, because of a violation of
     section 1547(b)(1) (relating to suspension for refusal) or 3802 or
     former section 3731 or is suspended under section 1581 (relating
     to Driver’s License Compact) for an offense substantially similar
     to a violation of section 3802 or former section 3731 shall, upon
     a first conviction, be guilty of a summary offense and shall be
     sentenced to pay a fine of $500 and to undergo imprisonment
     for a period of not less than 60 days nor more than 90 days.

Id. (emphasis added).

     Under Glover, the bolded text in Section 1543(b)(1)(i) provides the

maximum sentencing range. The defendant in Glover was convicted under a

statute, the Drug Act of 1957, 35 P.S. § 865 (repealed) (“Drug Act”), whose



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text was materially similar to the text in Section 1543(b)(1)(i). The Drug Act

provided:

      Any person who sells, dispenses or gives away any drugs in
      violation of the provisions of this act shall be guilty of a felony,
      and, upon conviction thereof, shall be sentenced as follows: for a
      first offense, to pay a fine not exceeding five thousand dollars
      ($5000) and to undergo imprisonment by separate or solitary
      confinement at labor of not less than five (5) years and not
      exceeding ten (10) years…

Id., 156 A.2d at 116 (citing 35 P.S. § 865) (emphasis added). The trial court

sentenced the defendant to 5-10 years’ imprisonment, which it believed was

the mandatory sentence under the statute. Id. at 115-16.

      The Supreme Court reversed and remanded for resentencing. The Court

observed that the Drug Act, as a penal statute, must be strictly construed.

Id. at 116. Applying this standard, the Court held that the Drug Act prescribed

that (1) the range of maximum sentences was 5-10 years’ imprisonment, and

(2) the minimum sentence was no more than half the maximum and no more

than five years’ imprisonment:

      We conclude that a reasonable and sensible interpretation is that
      the court must impose a sentence of imprisonment by separate or
      solitary confinement at labor and that the maximum sentence
      shall be for a period of not less than five years nor more than ten
      years, the precise maximum between those limitations being in
      the discretion of the court. The precise minimum sentence is also
      in the discretion of the sentencing judge subject only to the
      requirement that it shall not exceed more than one-half the
      maximum sentence . . . and in no event more than five years.
      This interpretation is further borne out by the use of the phrase
      ‘and not exceeding ten (10) years’. If we were to interpret this
      act so that the trial judge must impose a minimum sentence of
      five years and a maximum sentence of ten years, of what effect

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      would be the words ‘not exceeding’ ten years as applied to the
      maximum term? The word ‘sentence’ when unmodified by the
      words ‘maximum’ or ‘minimum’ necessarily refers only to the
      maximum sentence for that is the legal sentence. The minimum
      sentence is merely an administrative notice by the court to the
      parole board that the question of parole might, at its expiration,
      properly be considered.

Id. at 116-17 (cleaned up). The Court further observed:

      When the legislature has desired to provide for a mandatory
      minimum in the past it has done so in unequivocal language. In
      the Barr-Walker Act, Act of January 8, 1952, P.L. 1851, 19 P.S. §
      1166, the court was given the power to sentence certain sex
      offenders ‘to a State institution for an indeterminate term having
      a minimum of one day and a maximum of his natural life.’ The
      words ‘minimum’ and ‘maximum’ are noticeably missing from the
      sentencing provision of the Drug Act …

Id. at 117.

      Glover remains good law today; it has never been overturned by our

Supreme Court. As an intermediate appellate court, we are required to follow

precedent set down by our Supreme Court. Commonwealth v. Fuentes,

272 A.3d 511, 521 (Pa. Super. 2022).

      The statutory language in Glover is materially similar to and operatively

identical to Section 1543(b)(1)(i). The critical text in Section 1543(b)(1)(i) at

issue in this appeal provides,

      undergo imprisonment for a period of not less than 60 days nor
      more than 90 days.

The critical text in Glover provided,

      undergo imprisonment…of not less than five (5) years and not
      exceeding ten (10) years.




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Given this clear similarity, we are obliged to follow Glover and hold that

Section 1543(b)(1)(i) prescribes the maximum sentencing range for a

violation of this statute.1 I perceive no substantive difference between that

part of the operative language we examined in Glover (“not exceeding”) and

that part of the operative language in Section 1543(b)(1)(i) (“nor more than”).

I therefore conclude that Glover is binding here.        Accordingly, Section

1543(b)(1)(i) requires (1) a maximum sentence between 60 and 90 days’

imprisonment and (2) a minimum sentence that is no more than half of the

maximum sentence. If, for example, the court enters a maximum sentence

of 90 days, the minimum sentence can range from zero to 45 days’

imprisonment.

       We also need to follow Glover because it is faithful to the longstanding

principle, codified in 42 Pa.C.S.A. § 9756(b)(1), that the defendant’s minimum

sentence cannot exceed half of his maximum sentence.2           The sentence

____________________________________________


1 A three-judge panel of this Court reached precisely this conclusion in
Commonwealth v. White, 268 A.3d 499, 501 (Pa. Super. 2022). The
majority “overrule[s] this aspect of White.” Majority Op. at 16. In my view,
White is good law and should not be overruled.

2 This Court followed Section 9756 in another case arising under Section 1543,

Commonwealth v. Postie, 110 A.3d 1034 (Pa. Super. 2015), a decision not
mentioned by the majority. Postie held that a flat sentence of 4 months’
imprisonment for a summary offense (75 Pa.C.S.A. § 1543(a) — driving while
operating privilege was suspended or revoked) was illegal for failing to comply
with Section 9756’s minimum/maximum requirements. Id., 110 A.3d at
1044.

(Footnote Continued Next Page)


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prescribed by the majority violates Section 9756(b)(1) because the minimum

sentence of 60 days is more than half the maximum sentence of 90 days.

       The majority errs by following Eid instead of Glover.     The majority

attempts to dismiss Glover, and suggests it no longer is good law, by

concluding that our Supreme Court in Eid reinterpreted the language “not less

than” in a sentencing statute and – contrary to Glover – held that the phrase,

“by its plain terms, establishes a mandatory minimum term below which a

sentencing court may not fall when imposing a penalty.” Majority Opinion at

13. The majority’s reliance on Eid is misplaced.    Eid construed a statutory

provision3 that only provided for “imprisonment for a period of not less than

90 days” without providing a maximum sentence. Eid held that this specific

provision “established a mandatory minimum term below which a sentencing

court may not fall…” Id., 232 A.3d at 1042.4 The Drug Act in Glover was

materially different than the provision in Eid, because the Drug Act had a

range of sentences, i.e., “not less than” 5 years’ and “not exceeding” 10

years’ imprisonment. Nothing in Eid suggests that it applies to statutes such

as the Drug Act that prescribe a range of sentences. Moreover, nothing in Eid


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In the present case, the sentence prescribed by the majority of a minimum of
60 and a maximum of 90 days’ imprisonment not only violates Section 9756
but impermissibly overrules Postie sub silentio.

3 75 Pa.C.S.A. § 1543(b)(1.1)(i).


4 The Court went on to hold that this provision was unconstitutional due to the

absence of a maximum term. Id., 232 A.3d at 1044.

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suggests that the Court intended to overrule or “reinterpret” its decision in

Glover or that it was unaware of this previous precedent. Simply stated, a

sentencing statute that only provides for a sentence “not less than”, as in Eid,

is not the same as a sentencing statute that provides for “not less than nor

more than”, as here under Section 1543(b)(1)(i). Thus, notwithstanding Eid,

Glover continues to apply to statutes like Section 1543(b)(1)(i).

      Pursuant to Glover and 42 Pa.C.S.A. § 9756, I would remand this case

for resentencing and direct the trial court to impose a minimum and maximum

sentence under Section 1543(b)(1)(i) with the maximum sentence not less

than sixty days nor more than ninety days and the minimum sentence not

exceeding half of the maximum sentence.

      I respectfully dissent.

      President Judge Emeritus Panella joins this Dissenting Opinion.




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