Commonwealth v. Durrett-King

King construes the statutory defense to fleeing or eluding under 75 Pa.C.S. § 3733(c)(1), which applies when the pursuing vehicle is unmarked and the officers are out of uniform. Finding the term “markings” ambiguous, the Superior Court invoked the rule of lenity and turned to 37 Pa. Code § 42.3, which defines a marked vehicle by reference to a light-bar assembly and identifying decals or graphics — treating lights and sirens as distinct from “markings.” The court held that § 3733(c)(1) focuses solely on the objective characteristics of the vehicle and the officers’ attire, not on what the fleeing driver subjectively perceived; any contrary reading would render the statute’s “markings” language superfluous. On the ineffectiveness claim, the court found arguable merit and prejudice but remanded for an evidentiary hearing on the reasonable-basis prong, consistent with the Supreme Court’s strong preference that counsel be heard before being found ineffective. Judge Bowes concurred in the statutory analysis but would have granted a new trial outright, reasoning that no reasonable basis could exist for omitting a clearly applicable statutory defense.