Commonwealth v. Ede

OPINION BY

FITZGERALD, J.:

¶ 1 Appellant, Jeffrey Alan Ede, filed this pro se appeal from the judgment of sentence entered in the Lehigh County Court of Common Pleas following his guilty plea to two counts of recklessly endangering another person (REAP),1 one count of fleeing or attempting to elude police (Fleeing),2 and a summary offense of driving while operating privilege is suspended or revoked.3 We hold 75 Pa.C.S. § 6503 mandates that a sentence of imprisonment for a second-time conviction of Fleeing may not exceed a term of six months. We further hold that the crimes of Fleeing and REAP do not merge for sentencing purposes. Finally, we deny Appellant’s claim regarding credit for time served. Accordingly, we affirm in part, and vacate and remand in part.

¶2 Police were attempting to serve a bench warrant on Appellant when he began to flee in his vehicle, almost striking an officer in the process. After nearly colliding with a police vehicle, Appellant struck a parked vehicle, fire hydrant, fence, and utility pole. He then fled on foot, but was eventually apprehended. He entered an open guilty plea to the above crimes. The trial court sentenced Appellant to consecutive terms of twelve to twenty-four months’ imprisonment for the two REAP convictions and for the Fleeing conviction, resulting in an aggregate term of three to six years’ imprisonment.

¶ 3 Appellant filed a pro se motion to reconsider sentence, challenging the length of his sentences. The trial court denied his motion. Appellant subsequently filed a pro se notice of appeal. Trial counsel filed a motion to withdraw, though she also filed a notice of appeal on Appellant’s behalf. This Court dismissed the pro se appeal as duplicative of his counseled appeal. After granting counsel’s motion to withdraw, the trial court requested Robert Long, Esquire, to consult with Appellant to determine if he wished to proceed with counsel. Attorney Long then filed a motion to withdraw, indicating that Appellant wished to proceed pro se. This Court directed the trial court to conduct a Grazier hearing.4 The trial court conducted the hearing and determined that Appellant’s request was knowing, intelligent, and voluntary. After several procedural issues were resolved, Appellant filed a pro se Pa.R.A.P.1925(b) statement, and the trial court filed its responsive opinion.

¶ 4 Appellant raises the following issues for our review:

1. Did the [trial] [c]ourt impose an illegal sentence, exceeding statutory limits, when it imposed a sentence of twelve to *929twenty-four monthsf] incarceration for Fleeing or Attempting to Elude a Police Officer, when the specific statute governing the particular penal provisions for violations of that statute state that a person convicted for violating the statute may only be sentenced “to imprisonment for not more than six months”?
2. Did the [trial] [c]ourt violate the United States and Pennsylvania Constitutional prohibition against Double Jeopardy and the ‘Single Act’ and Merger Doctrines of Pennsylvania by imposing a consecutive sentence for the charge of Fleeing or Attempting to Elude Police Officer?
3. Did the [trial] [c]ourt fail to give Appellant all the credit he is entitled to for time spent in custody as a result of the charges for which this prison sentence is imposed?

Appellant’s Brief at 2 (parentheticals deleted).

¶ 5 Initially, we note that the Commonwealth has objected to the lack of a Pa.R.A.P. 2119(f) statement in Appellant’s brief.

[A] challenge to the discretionary aspects of [a] sentence ... is not automatically reviewable as a matter of right. When making this challenge, an appellant must include in his or her brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, [571 Pa. 419] 812 A.2d 617 ([Pa.] 2002); Commonwealth v. Tuladziecki, [513 Pa. 508] 522 A.2d 17 ([Pa.] 1987); 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). Where an appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived for purposes of review. Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa.Super.2000), appeal denied, [565 Pa. 637] 771 A.2d 1279 ([Pa.] 2001).

Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.Super.2004). However, Appellant has phrased his claims in the form of challenges to the legality of the sentences, claims which cannot be waived. See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super.2006). Accordingly, we will begin our examination of each issue with a determination of whether that challenge actually implicates the legality of his sentence. If the claim is properly a challenge to the legality of his sentence, then we will proceed to address the merits of his claim; if it is not, then we will find the claim waived for failure to file a Rule 2119(f) statement. See Montgomery, supra.

¶ 6 Appellant’s first claim is that his sentence of one to two years’ imprisonment for Fleeing exceeded the statutory limit for that crime. He contends that, because this conviction was his second for Fleeing, Section 6503 of the Motor Vehicle Code specifically provided that the trial court could not impose a sentence exceeding six months’ imprisonment. He asserts the trial court improperly relied on the more general provision for second-degree misdemeanors, rather than the specific provision of Section 6503. We agree.

¶ 7 A claim that a sentence is outside the legal parameters prescribed by statute implicates the legality of that sentence. Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280, 1284 (2000). Thus, Appellant’s claim cannot be waived, and we must address its merits. See Thur, supra.

¶ 8 The relevant statutes provide:

[75 Pa.C.S.] § 3733. Fleeing or attempting to elude police officer.
(a) Offense defined. — 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 *930a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits a misdemean- or of the second degree.
[75 Pa.C.S.] § 6503. Subsequent convictions of certain offenses
(a) General offenses. — Every person convicted of a second or subsequent violation of any of the following provisions shall be sentenced to ... imprisonment for not more than six months ...:
Section 3733 (relating to fleeing or attempting to elude police officer).
[18 Pa.C.S.] § 106. Classes of offenses
(b) Classification of crimes.—
(7) A crime is a misdemeanor of the second degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than two years.

75 Pa.C.S. §§ 3733(a), 6503(a) (2005);5 18 Pa.C.S. § 106(b)(7).6

In order to determine the relationship between [ ] two provisions ... a review of the general principles of statutory construction is appropriate. When construing a statute, our objective is to ascertain and effectuate the legislative intent. 1 Pa.C.S.[ ] § 1921(a). “In pursuing that end, we are mindful that ‘when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.’ ” Commonwealth v. Shiffler, [583 Pa. 478] 879 A.2d 185, 189 ([Pa.] 2005) (citing 1 Pa.C.S.[ ] § 1921(b)). “Indeed, ‘as a general rule, the best indication of legislative intent is the plain language of a statute.’ ” Id.[]. “Moreoever, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, 1 Pa.C.S.[ ] § 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant.” Id. Additionally, when construing a statute, we must begin with a presumption that the General Assembly intends the entire statute to be effective and certain. 1 Pa.C.S.[ ] § 1922(2).

Commonwealth v. Tareila, 895 A.2d 1266, 1269 (Pa.Super.2006). Finally, Section 1933 of Pennsylvania’s General Provisions addresses conflicting statutes:

§ 1933. Particular controls general
Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933. “Statutes designed to establish proper procedures for sentencing all defendants who commit crimes are gen*931eral provisions.” Commonwealth v. Klingensmith, 437 Pa.Super. 453, 650 A.2d 444, 447 (1994).

¶ 9 Instantly, Appellant notes that the trial court was aware of his prior conviction of Fleeing. See Trial Ct. Op. at 5 (“More recently, in Bucks County, he was again convicted of ... Fleeing or Attempting to Elude Police in a second case. [These] cases happened less than two (2) weeks prior to the instant offenses.”). Thus, the court should have considered the instant Fleeing conviction Appellant’s second, subjecting him to the penalties prescribed in Section 6503.

¶ 10 The Commonwealth counters that Fleeing is indisputably a second-degree misdemeanor, for which Section 106(b)(7) permits a maximum sentence of two years’ imprisonment. However, the Commonwealth does not address Section 6503 in any way, nor does it attempt to resolve the conflict between 18 Pa.C.S. § 106(b)(7) and 75 Pa.C.S. § 6503(a). It is apparent that Section 6503(a) is a provision specifically enacted for those convicted of multiple violations of Section 3733. See 75 Pa.C.S. § 6503(a). Sections 3733 and 6503 are both statutes of the Motor Vehicle Code, while Section 106 is part of the Crimes Code. Compare 18 Pa.C.S. §§ 106(b)(7), 1104(2), with 75 Pa.C.S. § 6503(a). When a statute restricts the punishment allowed for a specifically named crime, that specific provision takes precedence over a statute prescribing the maximum punishment for a general class of crimes. See 1 Pa.C.S. § 1933. We recognize that our holding today could lead to the seemingly unique circumstance where a first-time Fleeing offender may receive a sentence of up to two years’ imprisonment, but would be subject only to a six-month term if he commits the crime again. See 1 Pa.C.S. § 1922(1) (noting presumption that General Assembly did not intend result that is absurd, impossible to execute, or unreasonable). Nonetheless, we do not consider this scenario to rise to the level of an absurd or unreasonable result.

¶ 11 The dissent offers a cogent analysis of the legislative histories of these sections to conclude that the legislature intended for Section 3733’s stricter punishment to apply over Section 6503’s limitations. As the dissent observes, in 1994, the General Assembly amended Section 3733 to increase the grading of the crime from a summary offense to a second-degree misdemeanor. Compare 75 Pa.C.S. § 3733 (1993), with 75 Pa.C.S. § 3733 (1995). Nonetheless, under 1 Pa.C.S. § 1933, the special provision prevails unless: (1) the general provision is enacted later; and (2) the General Assembly manifests its intention that the general provision should prevail. See also Harristown Dev. Corp. v. Dep’t of Gen. Servs., 532 Pa. 45, 614 A.2d 1128, 1134 (1992) (“[E]ven if the [general provision] were more recently enacted, in order for it to control, [the appellant] would have to show that the General Assembly manifestly intended for the general provisions ... to control the particular provisions.... ”); Commonwealth v. Smith, 375 Pa.Super. 419, 544 A.2d 991, 997-98 (1988) (noting that even though general provision was enacted “long after” special provision, special provision prevailed because “legislature did not clearly indicate that the former should be given priority”). Moreover, we observe that four years after the relevant amendment of Section 3733, the General Assembly amended Section 6503. See 75 Pa.C.S. § 3733 (1998). In this amendment, the General Assembly removed “drivers required to be licensed,” 75 Pa.C.S. § 1501(a), from the list of “certain offenses,” and in a separate subsection reduced the scope of Section 1501(a) repeat offenses. Compare 75 Pa.C.S. § 6503 (1996) (stating that all repeat offenders of *932Section 1501(a) shall be subject to stated punishment), with 75 Pa.C.S. § 6503(b) (1999) (reducing scope of subsequent Section 1501(a) violations to look-back period of “seven years of the date of commission of the offense preceding the offense for which sentence is to be imposed”). Section 3733, however, remains in the general list, subject to the same sentencing and look-back provisions. See 75 Pa.C.S. § 6503(a) (1999). Although a general failure by the legislature to remove conflicting language from the statute would not automatically indicate its intent to keep the provision in force, its failure to alter the terms of Section 3733 subsequent violations, while plainly doing so for Section 1501(a) violations, at the least casts doubt on the manifest intention found by the dissent.7 Accordingly, we conclude that the specific provision of Section 6503(a) applies, requiring us to vacate Appellant’s Fleeing sentence and remand for resentencing on that conviction.

¶ 12 Although we vacate Appellant’s Fleeing sentence, we address his next claim because it is implicated in his resentencing. Appellant claims that his consecutive sentences for Fleeing and REAP should have merged because they were part of a single act. He claims that each of these crimes are a result of his “stomping” on the accelerator in reaction to an officer’s attempt to arrest him, therefore constituting a single act requiring merger of his sentences. He urges this Court to adopt a fact-based approach to the merger doctrine. We decline to do so.

¶ 13 Appellant’s contention that the offenses should have merged is a challenge to the legality of his sentences. See Commonwealth v. Robinson, 931 A.2d 15, 24 (Pa.Super.2007) (en banc).8 Therefore his claim is not waived. The issue Appellant raises, however, is a contentious one. Our courts have examined the merger doctrine extensively in the past fifteen years, to the point where even an enactment by this Commonwealth’s Legislature has not clarified all of the appropriate standards of analysis. See Commonwealth v. Jones, 590 Pa. 356, 912 A.2d 815, 818-21 (2006) (citing and quoting 42 Pa.C.S. § 9765; Commonwealth v. Carter, 482 Pa. 274, 393 A.2d 660 (1978); Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994); Commonwealth v. Comer, 552 Pa. 527, 716 A.2d 593 (1998); Commonwealth v. Collins, 564 Pa. 144, 764 A.2d 1056 (2001); Commonwealth v. Gatling, 570 Pa. 34, 807 A.2d 890 (2002) (Opinion Announcing Judgment of Court)) (summarizing history of merger analysis in Pennsylvania). In effect, the primary issue in dispute was whether merger analysis requires a fact-based consideration of the elements of the offenses or a strict, element-based approach. Commonwealth v. Williams, 920 A.2d 887, 889-90 (Pa.Super.2007) (quoting Jones, supra). While the Jones majority adopted the former test, Justice Saylor concurred only because the criminal act occurred before enactment of Section 9765. *933Jones, 912 A.2d at 825 (Saylor, J., concurring). However, because Justice Saylor agreed with the dissent’s position that Section 9765 now requires a strict, element-based approach, it appears that our Supreme Court has not definitively stated which analysis applies for criminal acts occurring after Section 9765’s enactment in 2008. See Williams, 920 A.2d at 889 n. 4 (citing Jones, supra). As a result, a panel of this Court examined both the lead and dissenting opinions and adopted the dissent’s strict, element-based approach. Id. at 891.

¶ 14 Unless our Supreme Court or an en banc panel of this Court overrules Williams, we are bound by that panel’s adoption of the strict approach. Commonwealth v. Smith, 772 A.2d 75, 78 (Pa.Super.2001) (en banc), rev’d on other grounds, 570 Pa. 34, 807 A.2d 890 (2002)). See also Commonwealth v. Martz, 926 A.2d 514, 526 (Pa.Super.2007) (adopting Williams approach to merger analysis). Accordingly, we rely on the element-based approach of Section 9765, which provides:

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.

42 Pa.C.S. § 9765. Thus, “we need to assess whether the charges arose out of a single set of facts and whether all the statutory elements of one offense coincide with the statutory elements of the other offense.” Martz, 926 A.2d at 526 (emphases in original). We turn then to the relevant statutes.

¶ 15 Section 3733, at the time of the incident, provided:

(a) Offense defined. — 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 a misdemean- or of the second degree.

75 Pa.C.S. § 3733 (2005). On the other hand, Section 2705 provides: “A person commits a misdemeanor of the second degree if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury.” 18 Pa.C.S. § 2705.

¶ 16 In examining each crime, we find that each contains an element which the other does not. Fleeing requires a police officer to give a signal for the vehicle to stop, which REAP does not. Meanwhile, REAP requires the action to have placed another person in some possible danger of serious bodily injury or death, which Fleeing does not. Compare 75 Pa.C.S. § 3733 (2005), with 18 Pa.C.S. § 2705. Therefore, neither crime is completely subsumed within the other. Because Appellant’s single act of “stomping” on the accelerator supports separate sentences for both Fleeing and REAP, these sentences do not merge. See 42 Pa.C.S. § 9765; Williams, supra.

¶ 17 Finally, Appellant contends that he did not receive proper credit for time served. Initially, we note an allegation that the trial court failed to award credit for time served challenges the legality of the sentence, rendering the claim unwaivable. Commonwealth v. Pettus, 860 A.2d 162, 164 (Pa.Super.2004).9 Appellant avers the following:

*934Appellant was incarcerated for the instant charges on 3/24/06, and never posted bail. He remained incarcerated on these charges through sentencing on 8/07/06, however, at sentencing, the Court did not give Appellant credit for all the time he spent in custody as a result of these charges. On 6/29/05, Appellant was arrested for unrelated charges, and was out on bail when he was arrested and incarcerated for these instant charges. On 5/15/06, Appellant was sentenced on these prior charges to 6 months [“]Immediate Work Release!.”] However, because Appellant had these instant charges still pending, he was not permitted to start serving the sentence of Immediate Work Release, and consequently, remained incarcerated in Le-high County Prison “as a result of the (instant) criminal charges for which a (this) prison sentence is imposed or as a result of the conduct on which such charge is based.” [ ] 42 Pa.C.S. § 9760(1).... Appellant was not given credit towards this instant sentence from 5/15/06 through 8/07/06. Appellant asserts that, because he remained in custody “as a result of (these) criminal charges!,]” [ ] he is entitled to have this pre-trial/sentencing incarceration credited towards his current sentence for this time spent in custody between 5/15/06 and 8/07/06.

Appellant’s Brief at 11-12. Nowhere in his brief does Appellant specify how much time he was credited for time served, nor is this information contained in the record.10 The only information we have regarding Appellant’s time-credit is that the trial court ordered “credit be given you, as required by law, for all time spent in custody, as a result of these criminal charges for which sentence is being imposed.” Sentencing Order, CR-1507-2006, filed Oct. 20, 2006. It is Appellant’s burden to provide all information and the necessary records for our review. Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super.2006) (en banc), appeal denied, 591 Pa. 663, 916 A.2d 632 (Pa.2007). Because we have no information on which to compare the credit given to Appellant with the credit to which he is entitled, and the trial court specifically granted credit for time served to which he is legally entitled, we cannot grant him any relief on this claim.

¶ 18 In conclusion, we vacate Appellant’s sentence for Fleeing. On remand, Appellant shall not be sentenced to a term of imprisonment exceeding six months. Further, Appellant’s new Fleeing sentence will not merge with his REAP convictions. Finally, the trial court’s sentencing orders regarding credit for time spent in custody are affirmed.

¶ 19 Judgment of sentence affirmed in part and vacated in part. Case remanded for proceedings consistent with this Opinion. Jurisdiction relinquished.

¶ 20 Judge ALLEN files a Concurring and Dissenting Opinion.

. 18 Pa.C.S. § 2705.

. 75 Pa.C.S. § 3733(a) (2005).

. 75 Pa.C.S. § 1543(a). The Commonwealth dropped aggravated assault charges as a result of the plea agreement.

. Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998).

. Section 3733 was revised after Appellant’s arrest and conviction. For purposes of this appeal, the revisions are not relevant.

. We note that 18 Pa.C.S. § 1104(2) also provides that a conviction for a misdemeanor of the second degree subjects the defendant to a maximum of two years’ imprisonment. Because the Commonwealth relies only on Section 106, we will refer solely to 18 Pa.C.S. § 106(b)(7).

. It is possible that the continuing conflict of language was an oversight by the General Assembly, but in light of the unambiguous language of newly amended Section 6503(a), we conclude that any speculation into the reasons for the General Assembly’s omission would be improper. See Commonwealth v. Rieck Inv. Corp., 419 Pa. 52, 213 A.2d 277, 282 (1965) (noting that courts must interpret a statute by its plain and obvious meaning if its language is clear and unambiguous, even if court is convinced that legislature intended the contrary).

. Both the trial court and the Commonwealth address the issue as a challenge to the court’s discretion to impose consecutive sentences, which would not raise a substantial question. However, Pennsylvania caselaw has consistently established that merger is a non-waivable sentencing issue. See Robinson, supra.

. The trial court suggests that a decision on this issue should be reserved for collateral review because "[A]ppellant’s time credit issue is [] devoid of information, which pre-*934dueles consideration of the merits.” Trial Ct. Op. at 5. Because this claim implicates the legality of his sentence, we may address Appellant’s claim sua sponte. See Commonwealth v. Randal, 837 A.2d 1211, 1214 (Pa.Super.2003) (en banc).

. We assume that he has the information on how much credit he received, based on his statement, "Appellant was not able to confirm exactly what time he was being given credit for until he received his ["jstatus sheet!”] at Camp Hill.” Appellant’s Brief at 2. In the event he does not have this information, he may request it from the Department of Corrections.