J.S76035/13
2014 PA Super 186
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
LEE ALLEN KIMMEL, :
:
Appellant : No. 126 MDA 2013
Appeal from the Judgment of Sentence December 18, 2012
In the Court of Common Pleas of Cumberland County
Criminal Division No(s).: CP-21-CR-0003380-2011
BEFORE: ALLEN, LAZARUS, and FITZGERALD,* JJ.
OPINION BY FITZGERALD, J.: FILED AUGUST 29, 2014
Appellant, Lee Allen Kimmel, appeals from the judgment of sentence
entered in the Cumberland County Court of Common Pleas following his jury
neral impairment
with refusal,1 and related summary offenses. He avers the trial court erred
in: (1) denying his suppression motion, where the arresting officer stopped
*
Former Justice specially assigned to the Superior Court.
1
75 Pa.C.S. §§ 3733(a), 3802(a)(1), 3804(b)(4).
J. S76035/13
officer had violated the Municipal Police Jurisdiction Act2
finding the evidence was sufficient for DUI-refusal;3 (3) finding the DUI-
refusal conviction was not against the weight of the evidence; and (4)
holding the sentences for his DUI and F3-fleeing convictions did not merge.4
We agree that the DUI and F3-fleeing merge for sentencing purposes but
convictions but vacate the judgment of sentence and remand for
resentencing.
vember 22, 2011, around 10:45 p.m., Cumberland County
Dispatch received a call from Linda Cheskey indicating that a man[,
Appellant,5] appeared very intoxicated at the Sheetz gas station in Mt. Holly
at 3.6 She
2
42 Pa.C.S. §§ 8951-8954.
3
See 7
4
As we discuss in detail infra, fleeing is generally graded as a misdemeanor
However,
committed the offense while also committing driving while under the
influence of alcohol. See 75 Pa.C.S. § 3733(a.2)(2)(i).
5
At trial, Ms. Cheskey identified Appellant.
6
The Honorable Christylee L. Peck presided over the suppression
suppression issue. Trial Ct. Op., 5/3/13. The Honorable M. L. Ebert, Jr.
-2-
J. S76035/13
described his vehicle as a blue pickup truck and provided his license plate
number. Appellant left the Sheetz parking lot and turned right onto Mill
Street, northward to South Middleton Township. Within thirty to forty
aw a police car approaching with its emergency
Id. at 4.
The officer in the police vehicle was Officer Jason Beltz of the Mt. Holly
Springs Borough Police Department, and he was responding to the call about
Appellant. Officer Beltz did not se
lot, but travelled in the same direction Appellant was reported to have gone.
-11, 25-26. Officer Beltz continued on
Mill Street to the borough border, which was approximately 3,000 feet from
Sheetz. Id. at 27. The officer initially had his lights and sirens activated,
Id. He continued another half mile in South Middleton
Township and then turned right onto Zion Road. Id. at 28. When asked at
the suppression hearing why he turned onto Zion Road, Officer Beltz replied
that in the interim, dispatch advised him of the home address of the
registered owner of the vehicle, and Officer Beltz knew that Zion Road led to
Id. at 11-
Middleton Township is patrolled by the Pennsylvania State Police, but Officer
presided over trial and authored a Pa.R.A.P. 1925(a) opinion addressing
-3-
J. S76035/13
at 5.
7
- Id.
Eventually the truck stopped, by which time Officer Beltz had driven a
mile to a mile and a half outside h
31.
Officer Beltz . . . conduct[ed] a traffic stop and asked
[Appellant] to produce his license and registration, which
[Appellant] had difficulty finding. According to Officer
Beltz, [Appellant] had a distinct odor of alcohol on his
breath, appeared disheveled, and spoke with slurred
speech. When Officer Beltz asked [Appellant] to exit his
vehicle to perform a field sobriety test, [Appellant] initially
complied but was unstable on his feet. [Appellant] then
told the Officer that he had done nothing wrong and . . .
reenter[ed] and attempt[ed] to restart the engine. Officer
Beltz removed the keys, but [Appellant] exited the vehicle
and pushed Officer Beltz away. [Appellant] then produced
a second set of keys, reentered the vehicle, and locked the
door. He turned on the engine and drove away.
After a brief attempt to pursue [Appellant] as he drove
home in an attempt to relocate [Appellant]. Officer Beltz
wheels spinning. [Appellant] exited his vehicle and was
taken into custody by Officer Beltz. The arrest took place
in South Middleton Township.
After [taking Appellant] to Cumberland County Prison
for processing, Officer Beltz read [Appellant] the DL-26
form verbatim. According to Officer Beltz, after reading
the form and asking if [Appellant] would submit to a blood
7
At the suppression hearing, Officer Beltz referred to this area as both a
-4-
J. S76035/13
ed out of his seat and basically
shown to the jury[, which] personally observed what
[Appellant] did at the Booking Center.
Id. at 5-6 (citations to trial transcript omitted).
Appellant was charged with fleeing, DUI, and related offenses. On
April 13, 2012, he filed a motion to suppress all evidence obtained from the
vehicle stop, on the ground that Officer Beltz violated the Municipal Police
J
jurisdiction. The court held a suppression hearing on May 25, 2012, and
denied the motion on September 26th. The court found that Officer Beltz
lacked the requisite probable cause to suspect Appellant had committed an
offense and thus violated Section 8953, but nevertheless found the infraction
was minimal and did not necessitate suppression of the evidence.
A jury trial commenced on December 4, 2012. The jury found
Appellant guilty of an F3 fleeing, DUI third offense, DUI with refusal-third
offense.8 Furthermore, the trial court found Appellant guilty of the summary
offenses of public drunkenness and careless driving.9 On December 18th,
the court imposed sentences of imprisonment as follows: (1) DUI with
refusal fourteen months to four years; and (2) fleeing a consecutive eight
8
The DUI convictions were Appellant
9
18 Pa.C.S. § 5505; 75 Pa.C.S. § 3714(a).
-5-
J. S76035/13
months to two years.10 Appellant filed a timely post-sentence motion, which
was denied. He then filed a timely notice of appeal and complied with the
appeal Appellant challenges: the denial of his suppression motion, the
sufficiency and weight of the evidence for DUI-
finding that his DUI convictions did not merge with fleeing. We agree that
suppression motion, where it had found Officer Beltz violated Section 8953
of the Municipal Police Jurisdiction Act. Appellant avers that the officer
lacked probable cause, where he relied solely on a 911 call. Appellant
hout having any idea where . . . the
catching sight of [Appellant] could indicate a certain degree of bad faith . . .
Id. at 36. Appellant further
10
The aggregate sentence is twenty-
sentence of ten months and fifteen days for DUI/general impairment with
refusal and an RRRI sentence of six months for fleeing. See 61 Pa.C.S. §§
4501-4512 (recidivism risk reduction incentive). Additionally, the court
imposed fines and costs. The court found that both DUI and public
drunkenness merged with DUI with refusal.
-6-
J. S76035/13
Id. We find no relief
is due.
We first note the standard of review of a suppression ruling:
factual findings are supported by the record and whether
the legal conclusions drawn therefrom are correct. We
may consider the evidence of the witnesses offered by the
Commonwealth, as verdict winner, and only so much of
the evidence presented by defense that is not contradicted
when examined in the context of the record as a whole.
We are bound by facts supported by the record and may
reverse only if the legal conclusions reached by the court
were erroneous.
Commonwealth v. Hilliar, 943 A.2d 984, 989 (Pa. Super. 2008) (citation
omitted).
Section 8953(a) of the MJPA provides in pertinent part:
§ 8953. Statewide municipal police jurisdiction.
(a) General rule. Any duly employed municipal
police officer who is within this Commonwealth, but
beyond the territorial limits of his primary jurisdiction,
shall have the power and authority to enforce the laws of
this Commonwealth or otherwise perform the functions of
that office as if enforcing those laws or performing those
functions within the territorial limits of his primary
jurisdiction in the following cases:
* * *
(2) Where the officer is in hot pursuit of any person
for any offense which was committed, or which he has
probable cause to believe was committed, within his
primary jurisdiction and for which offense the officer
continues in fresh pursuit of the person after the
commission of the offense.
-7-
J. S76035/13
42 Pa.C.S. § 8953(a)(2). This Court has summarized:
Under subsection two, if a police officer possesses probable
cause that an offense has been committed in his or her
primary jurisdiction, and is in hot and fresh pursuit of the
perpetrator of the offense, the officer is vested with the
same powers of law enforcement when the officer crosses
out of his or her primary jurisdiction.
Hilliar, 943 A.2d at 989. In reviewing
whether a violation of the MPJA has occurred, and if so,
whether suppression of the evidence is warranted[, w]e
have taken a case by case approach, noting that the MPJA
promote public safety while maintaining police
accountability to local authority; it is not intended to erect
impenetrable jurisdictional walls benefit[ing] only criminals
Id. at 990-91 (citation omitted).
In Commonwealth v. Peters, 915 A.2d 1213 (Pa. Super. 2007), this
Court
held that suppression of the evidence was not warranted
even if there had been a violation of the MPJA.[ ] . . .
One of the principal purposes of the MPJA is to
promote public safety while placing a general
limitation on extraterritorial police patrols. It is in
the interest of promoting public safety, therefore,
that the MPJA exceptions contemplate and condone
extra-territorial activity in response to specifically
identified criminal behavior that occur[s] within the
primary jurisdiction of the police.
Because of this purpose, our Supreme Court has
explained that suppression of evidence is not always
an appropriate remedy when there has been a
violation of the MPJA. [The Supreme Court has]
stated:
-8-
J. S76035/13
In Commonwealth v. Mason, . . . 490 A.2d
421 (1985), we held that suppression of
evidence was an inappropriate remedy for a
violation of the Rules of Criminal Procedure
relating to the issuance and execution of a
primary jurisdiction where said violation did
not implicate fundamental, constitutional
concerns, was not conducted in bad faith or did
not substantially prejudice the accused in the
sense that the search would not otherwise
have occurred or would not have been as
intrusive. Automatic exclusion of evidence
obtained by searches accompanied by
relatively minor infractions of the rules of
criminal procedure would be a remedy out of
all proportion to the violation, or to the
benefits gained to the end of obtaining justice
while preserving individual liberties.
Hilliar, 943 A.2d at 991-92 (some citations omitted).
In the case sub judice, Appellant emphasizes that at the time Officer
court considered. While the court found that Officer Beltz did not have
minimal. Officer Beltz received information of a potentially
intoxicated driver in his jurisdiction who posed a risk to
public safety. In response, Officer Beltz immediately
sought out to trail the intoxicated driver, who had just left
a business located within his jurisdiction, and soon
thereafter found [Appellant] not far outside of his
jurisdiction. He responded to no other calls during the
pursuit of the intoxicated driver and did not engage in any
other police business. This deviation from the letter and
-9-
J. S76035/13
spirit of the MPJA was minimal and intended to protect the
public.
Trial Ct. Op., 5/3/13, at 3.
See
ns were
undertaken in the interest of promoting public safety, namely, stopping an
intoxicated person from driving. See Hilliar, 943 A.2d at 991-92. Although
the total distance the officer travelled was relatively short. Officer Beltz
testified that it was approximately 3,000 feet from Sheetz to the borough
border, and another half mile to Zion Road,11 which the officer knew led to
owner. Accordingly, we agree
Had Officer Beltz located [Appellant] within his jurisdiction,
Officer Beltz clearly would have had reasonable suspicion
to initiate a valid traffic stop based on the identified
See e.g. Commonwealth v.
Anthony, 977 A.2d 1182, 1187 (Pa. Super. [ ] 2009)
officers need not personally observe the illegal or
suspicious conduct, but may rely upon the information of
had Officer Beltz contacted the State Police after traveling
11
We note that 3,000 feet is 0.568 miles.
- 10 -
J. S76035/13
outside of his jurisdiction as required by the MJPA, the
driving under the influence would have been identical.
Trial Ct. Op., 5/3/13, at 3.
On appeal, Ap
Id. at 36. In light of the policy of
the MJPA, we decline to grant relief on this rationale. See Hilliar, 943 A.2d
Smokey and the Bandit,
Appellant would have this Court hold that law enforcement officers should
step on the brakes at the borough line and watch the suspected criminal
drive away on safe ground. . . . The MPJA was not enacted to afford
that in this case, suppression
was not warranted.
the sufficiency of the evidence for DUI-refusal. He avers the Commonwealth
a meaningful
Brief at 40. He claims that the video played at trial showed Officer Beltz
-
statement to certify he was provided meaningful opportunity to the motorist
- 11 -
J. S76035/13
Id. at 40-41. Appellant maintains that in the video, he
Id. at 41. Appellant describes
enough that Ptl. Beltz should have attempted to determine if the action was
Id. at 43.
In his next issue, Appellant challenges the weight of the evidence for
DUI-refusal.12 He
-
Id. at 49. He again maintains that no evidence was presented
showing that refused chemical testing by actions or words. Id. at 50. We
hold no relief is due.
Subsection 1547(a) of the Motor Vehicle Code, also known as the
implied consent law, sets forth a general rule that any person who operates
to determine blood alcohol content or the presence of a controlled substance
Section 3802, DUI. 75 Pa.C.S. § 1547(a); see Commonwealth v. Olsen,
12
This issue is preserved for appeal, as Appellant raised it in his post-
sentence motion. See Pa.R.Crim.P. 607(A)(1)-(3) (requiring claim that
verdict was against weight of evidence to be raised with trial judge in motion
for new trial orally any time before sentencing, by written motion any time
before sentencing, or in post-sentence motion).
- 12 -
J. S76035/13
82 A.3d 1041, 1046 (Pa. Super. 2013).
Subsection 1547(b)(1) provides in pertinent part that if any person
arrested for a DUI violation under Section 3802 refuses to submit to
prescribed duration of time. 75 Pa.C.S. § 1547(b)(1). Subsection
1547(b)(2) provides,
(2) It shall be the duty of the police officer to inform the
person that:
upon refusal to submit to chemical testing; and
(ii) if the person refuses to submit to chemical
testing, upon conviction or plea for violating section
3802(a)(1), the person will be subject to the penalties
provided in section 3804(c) (relating to penalties).
75 Pa.C.S. § 1547(b)(2)(i)-(ii). This Court has explained:
Thus, pursuant to the implied consent law, any person
who drives a vehicle and refuses a request for a blood
draw, when such request is predicated upon reasonable
grounds to believe that the driver was driving under the
influence of alcohol, will be sentenced to the enhanced
penalties codified at 75 Pa.C.S. § 3804(c). That section
states, in pertinent part, as follows:
Incapacity; highest blood alcohol; controlled
substances. An individual who violates section
3802(a)(1) and refused testing of blood or breath . .
. shall be sentenced as follows:
* * *
(3) for a third or subsequent offense, to:
- 13 -
J. S76035/13
(i) undergo imprisonment of not less than one
year;
(ii) pay a fine of not less than $2,500; and
(iii) comply with all drug and alcohol treatment
requirements under sections 3814 and 3815.
75 Pa.C.S. § 3804(c)(3).
Olsen, 82 A.3d at 1046-47.
We set forth the standard of review for a sufficiency of the evidence
claim:
We must determine whether the evidence admitted at
trial, and all reasonable inferences drawn therefrom, when
viewed in a light most favorable to the Commonwealth as
verdict winner, support the conviction beyond a reasonable
doubt. Where there is sufficient evidence to enable the
trier of fact to find every element of the crime has been
established beyond a reasonable doubt, the sufficiency of
the evidence claim must fail.
The evidence established at trial need not preclude
every possibility of innocence and the fact-finder is free to
believe all, part, or none of the evidence presented. It is
not within the province of this Court to re-weigh the
evidence and substitute our judgment for that of the fact-
finder. The Commonwealth's burden may be met by
wholly circumstantial evidence and any doubt about the
defendant's guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the
combined circumstances.
Id. at 1046 (citation omitted).
We note that in reviewing a weight of the evidence challenge:
the underlying
question of whether the verdict is against the weight of the
- 14 -
J. S76035/13
-finder is free to believe all, part, or
none of the evidence; an appellate court will not make its
tri
refusal to award a new trial only when we find that the
trial court abused its discretion in not concluding that the
motion for a new trial based on a weight of the evidence
Id. at 1049 (citations omitted).
We note that our Commonwealth Court has stated,13
In order to sustain a suspension of operating privileges
under section 1547 of the Code, DOT must establish that:
(1) the licensee was arrested for drunken driving by a
police officer who had reasonable grounds to believe that
the motorist was operating a motor vehicle while under the
influence of alcohol; (2) the licensee was requested to
submit to a chemical test; (3) the licensee refused to
submit; and (4) the licensee was warned that refusal
would result in a license suspension. In proving whether a
licensee refused to submit to chemical testing, DOT has
the burden of showing that the licensee was offered
a meaningful opportunity to comply with section
1547 of the Code. Once DOT satisfies its burden, the
licensee must establish that the refusal was not knowing or
conscious or that the licensee physically was unable to
take the test.
13
Commonwealth Court. However, such decisions provide persuasive
authority, and we may turn to our colleagues on the Commonwealth Court
Lockley v. CSX Transp., Inc., 66 A.3d
322, 326 n.5 (Pa. Super. 2013), appeal denied, 74 A.3d 127 (Pa. 2013)
(citation omitted). Appellant relies on Broadbelt and related
-42, 44-45.
- 15 -
J. S76035/13
Broadbelt v. DOT, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa.
Cmwlth. 2006) (citations omitted) (emphasis added).
In Olsen, a police officer arrested the defendant for DUI and was
transporting her to the hospital for blood alcohol testing. Olsen, 82 A.3d at
1044. During the ride, the defendant
began to get loud, was screaming and continued on a
vulgar tirade about law enforcement and about [the
officer] specifically. [The officer] described that he
read the chemical testing warnings from the DL-26 Form,
but it was clear that [the defendant] was not paying
officer] did not actually read very much of the DL-26 Form,
he read the beginning of the form and only abandoned the
would not permit him to finish. [The officer abandoned his
effort to take [the defendant] into the hospital for a blood
draw, and instead [drove] towards the [p]olice
[d]epartment in order to have [the defendant] processed
on the DUI charge.]
Id. at 1044-45.
On appeal from her conviction of DUI, the defendant challenged the
refused chemical testing under Section 1547. Id. at 1045, 1049. This Court
fficer attempts to administer the warnings,
completing the recitation, the arrestee will be deemed to have refused the
Id. at 1049 (citing Commonwealth v. Xander, 14 A.3d 174,
- 16 -
J. S76035/13
against the police, preventing [him] from
Olsen, 82 A.3d at 1048. This Court thus held
reasonable doubt that [the defendant] had knowingly refused the blood
dr Id. With respect to the weight of the evidence, the Court reasoned
Id. at 1049. The jury
credible. Id.
supported by the record. Id.
In the instant case, Officer Beltz testified at trial that he read the DL-
Form 26 verbatim to Appellant. N.T. Trial, 12/4/12, at 44. The officer
testing, he jumped up out of his seat and basically made a threatening move
Id. at 45. As stated above, the Commonwealth played a
video depicting the reading of DL-Form 26 to Appellant. Id. at 72.
see uires this Court to discredit
- 17 -
J. S76035/13
we cannot do. See Olsen, 82 A.3d at 1049. Furthermore, we note the trial
her in
words or by uncooperative conduct after examining all the surrounding facts
with the Pennsylvania Suggested Standard Jury Instruction.14 Appellant did
not object to this instruction at the time it was given or at the conclusion of
all the instructions. See N.T. Trial, at 100, 107. In light of all the foregoing,
not shock its conscience. See Olsen, 82 A.3d at 1049. We rely on the
claim.
sentences, we note the following statutory authority. Section 3802 of the
Vehicle Code defines DUI/general impairment as follows:
14
Suggested Standard Criminal Jury Instruction 17.6502C states:
1. The Commonwealth contends that the defendant
refused to give a sample of [[his] [her]] [[blood] [urine]]
conduct. You should consider everything said and done by
the [police] [official] and the defendant, and all the
surrounding circumstances, at the time of the alleged
refusal when determining whether the defendant did in
fact refuse to give the sample. [If a person refuses, that
initial refusal can still be regarded as a refusal even if he
or she later offers a sample for testing.]
Pa. SSJI (Crim) 17.6502C(1).
- 18 -
J. S76035/13
An individual may not drive, operate or be in actual
physical control of the movement of a vehicle after
imbibing a sufficient amount of alcohol such that the
individual is rendered incapable of safely driving, operating
or being in actual physical control of the movement of the
vehicle.
75 Pa.C.S. § 3802(a)(1).
Section 3733(a) defines the offense of fleeing or attempting to elude a
police officer as follows:
Any driver of a motor vehicle who willfully fails or refuses
to bring his vehicle to a stop, or who otherwise flees or
attempts to elude a pursuing police officer, when given a
visual and audible signal to bring the vehicle to a stop,
commits an offense as graded in subsection (a.2).
75 Pa.C.S. § 3733(a). Subsection 3733(a.2) sets forth the grading of this
offense:
(1) Except as provided in paragraph (2), an offense
under subsection (a) constitutes a misdemeanor of the
second degree. . . .
(2) An offense under subsection (a) constitutes a felony
of the third degree if the driver while fleeing or attempting
to elude a police officer does any of the following:
(i) commits a violation of section 3802 (relating to
driving under influence of alcohol or controlled
substance)[.]
75 Pa.C.S. § 3733(a.2)(1), (2)(i).
In the instant appeal, Appellant argues that the trial court erred in
holding his DUI and DUI with refusal convictions did not merge with his F3
fleeing conviction. He points out that while fleeing is generally graded as an
M2, if an individual commits fleeing while also committing DUI, fleeing is
- 19 -
J. S76035/13
then graded as an F3. See 75 Pa.C.S. § 3733(a.2)(2)(i). Appellant thus
degree felony, [it] must find beyond a reasonable doubt that each and every
determine whether a violation of § 3802 occurred while a violation of § 3733
Id.
Id. He avers instead that under Apprendi v. New Jersey,
an element of an offense is any fact which the jury
must find beyond a reasonable doubt in order to convict the defendant of the
Id. Appellant accordingly urges this Court to find that the
offenses merged. We agree.
ine is codified at section 9765 of the
Sentencing Code:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
[Section 9765] is clear. It prohibits merger unless two distinct facts are
present: 1) the crimes arise from a single criminal act; and 2) all of the
statutory elements of one of the offenses are included in the statutory
- 20 -
J. S76035/13
Commonwealth v. Tanner, 61 A.3d 1043, 1046
(Pa. Super. 2013) (cita
sentencing is a question implicating the legality of [a] sentence.
Consequently, our standard of review is de novo and the scope of our review
Id. at 1046.
Our review of relevant decisional authority has not revealed a
discussion on whether the crimes of fleeing-F3 and DUI merge. However,
we find guidance in Tanner. In that case, the defendant pleaded guilty to
homicide by motor vehicle while DUI, aggravated assault by vehicle while
DUI, and DUI highest rate of alcohol.15 Id. at 1045. The trial court
imposed sentences at all three counts, to be served consecutively. Id. On
appeal, this Court sua sponte reviewed whether the DUI conviction merged
with the convictions for homicide by motor vehicle while DUI and aggravated
assault by vehicle while DUI. Id. at 1046. This Court considered the
following.
The Vehicle Code defines homicide by vehicle while DUI as follows:
result of a violation of . . . section 3802 (relating to [DUI]) and who is
convicted of violating section 3802 is guilty of a felony of the second degree
Id. at 1046 (quoting 75
15
75 Pa.C.S. §§ 3735(a), 3735.1(a), 3802(c).
- 21 -
J. S76035/13
Pa.C.S.A. § 3735(a)). Aggravated assault by vehicle while DUI is defined as
person as the result of a violation of . . . section 3802 (relating to [DUI]) and
who is convicted of violating section 3802 commits a felony of the second
Tanner, 61 A.3d at
1046 (quoting 75 Pa.C.S.A. § 3735.1(a)).
The Tanner
from a single criminal act. Tanner, 61 A.3d at 1047. It found that
homicide by motor vehicle while DUI and aggravated
assault by vehicle while DUI. Indeed, the crimes of
homicide by motor vehicle while DUI and aggravated
assault by vehicle while DUI require, as essential elements,
convicted of DUI. Therefore, the statutory elements of
DUI are completely subsumed within the crimes of both
homicide by motor vehicle while DUI and aggravated
assault by vehicle while DUI. As such, for sentencing
purposes, [the] DUI conviction merged with both
[the]homicide by motor vehicle while DUI and aggravated
assault by vehicle while DUI convictions.
Id. (citations omitted).
In the case sub judice, the trial court further reasoned that the
legislative intent for the fleeing-F3 subsection was to increase sentencing for
fleeing when it is committed during a DUI, and not to merge the two crimes
for sentencing purposes. Trial Ct. Op., 3/28/13, at 8. We respectfully
- 22 -
J. S76035/13
disagree, and instead hold that the rationale in Tanner applies.16 Fleeing-F3
includes the element of committing DUI, 75 Pa.C.S. § 3733(a.2)(2)(i),
similar to homicide by vehicle while DUI and aggravated assault while DUI.
75 Pa.C.S. §§ 3735(a), 3735.1(a). Accordingly, we hold that DUI merges
with fleeing-
illegal. Our
See Olsen, 61 A.3d at 1048.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for resentencing. Jurisdiction relinquished.
Allen, J. files a concurring and dissenting opinion.
16
Commonwealth v. Everett, 705 A.2d 837 (Pa. 1998), applies to control
that the two offenses in the instant matter do not merge. In Everett, the
-
felony and attempted murder conviction was a second degree-felony. Id. at
838 n.1, 839. The issue before our Supreme Court was not whether these
two offenses merged; the Court cited Commonwealth v. Anderson, 650
A.2d 20 (Pa. 1994), which held they did. Everett, 705 A.2d at 838-
but see Commonwealth v. Coppedge,
984 A.2d 562, 564 (Pa. Super. 2009) (noting 2003 merger statute, 42
Pa.C.S. § 9765, superseded prior common law decisions, including
Anderson). Instead, the issue before the Everett Court was whether a
court was required to sentence on the greater offense and not the lesser
offense. Id.
rejection of such a claim
legislature intended that a lesser maximum sentence
Id. at 839.
- 23 -
J. S76035/13
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/29/2014
- 24 -