Commonwealth v. Ede

CONCURRING AND DISSENTING OPINION BY

ALLEN, J.:

¶ 1 I agree with the Majority that the crime of fleeing or attempting to elude law *935enforcement (“fleeing or eluding”) does not merge with the crime of recklessly endangering another person. I also agree with the Majority that Appellant has failed to provide this Court with sufficient information to grant him relief on his claim that he is entitled to credit for time served. I, however, disagree with the Majority’s decision to vacate Appellant’s sentence for fleeing or eluding on the ground that it is illegal under 75 Pa.C.S.A. § 6503. In my view, 75 Pa.C.S.A. § 6503 is inapplicable. Therefore, I would affirm Appellant’s judgment of sentence in its entirety.

¶2 The Majority contends that Appellant’s sentence for fleeing or eluding must be vacated as an illegal sentence. Majority Opinion at 929-31. The Majority bases this contention on the conclusion that “the [trial] court should have considered the instant Fleeing conviction Appellant’s second, subjecting him to the penalties described in Section 6503.” Majority Opinion at 931. I disagree. Under 75 Pa.C.S.A. § 6503:

Every person convicted of a second or subsequent violation of [Section 3733] shall be sentenced to pay a fine of not less than $200 nor more than $1,000 or to imprisonment for not more than six months, or both....

75 Pa.C.S.A. § 6503(a).

¶ 3 Section 6503 is a recidivist provision that is designed to enhance the punishment for repeat motor vehicle offenders. Commonwealth v. Soboleski, 421 Pa.Super. 311, 617 A.2d 1309 (1992), appeal denied, 535 Pa. 661, 634 A.2d 224 (Pa.1993); Commonwealth v. Bernal, 411 Pa.Super. 44, 600 A.2d 993 (1992). It is well settled that under a recidivist provision, a prior conviction is “ ‘any finding of guilt ... prior to the commission of the current offense.” 42 Pa.C.S. § 2154(a)(2).’ Commonwealth v. Cozzone, 406 Pa.Super. 42, 593 A.2d 860, 864 (1991), See also Commonwealth v. McDermott, 224 Pa. 363, 73 A. 427, 428 (1909), Commonwealth v. Calio, 155 Pa.Super. 355, 38 A.2d 351, 351-52 (1944), Commonwealth v. Eyster, 401 Pa.Super. 477, 585 A.2d 1027, 1031 (1991) (en banc), appeal denied, Commonwealth v. Larsen, 529 Pa. 646, 602 A.2d 857 (Pa.1992). Although Appellant asserts that the fleeing or eluding incident in this case constitutes a second or subsequent conviction under Section 6503, this is not supported by the law or the facts of this case.

¶ 4 On March 14, 2006, Appellant was arrested in Quakertown, Bucks County, Pennsylvania and charged at docket number CP-09-CR0003376-2006 (“2006-03376”) with aggravated assault, simple assault, recklessly endangering another person, resisting arrest, two counts of fleeing or attempting to elude law enforcement, and drivers required to be licensed. Pre-sentence Investigation Report, 8/07/2006, at 4. In the present case, Appellant was arrested in Lehigh County on March 24, 2006 and charged at docket number CP-39-CR-0001507-2006 (“2006-01507”) with escape, three counts of recklessly endangering another person, resisting arrest, two counts of fleeing or attempting to elude law enforcement, driving while operating privilege is suspended, driving under the influence of a controlled substance, accidents involving damage to an unattended vehicle or property, operating a vehicle without required financial responsibility, reckless driving, and two counts of aggravated assault.

¶ 5 On July 10, 2006, Appellant entered a guilty plea at 2006-03376 for simple assault, recklessly endangering another person, resisting arrest, two counts of fleeing or attempting to elude law enforcement, and drivers required to be licensed. On the fleeing or eluding counts, Appellant was sentenced to two concurrent 11]£ to 23 month terms of incarceration. On July 12, *9362006, Appellant entered a guilty plea in the present case. Since Appellant was not convicted on 2006-03376 until after the offense date in the instant case, 2006-03376 does not constitute a prior conviction under Section 6503. Therefore, Section 6503 is not applicable in this case.

¶ 6 Even if the instant conviction were Appellant’s second fleeing or eluding conviction, I would still find Section 6503 inapplicable. The Majority accurately noted that in the present case, there is an irreconcilable conflict between the sentencing of fleeing or eluding as a second or subsequent offense under Section 6503 and the grading of fleeing or eluding as an “offense” under Section 3733. Majority Opinion at 931. In resolving this conflict, we must consider the intent of the General Assembly.

¶7 Under the Statutory Construction Act, “[wjhenever the provisions of two or more statutes enacted finally by different General Assemblies are irreconcilable, the statute latest in date of final enactment shall prevail.” 1 Pa.C.S.A. § 1936. However, a “special [provision] 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. Since Section 6503 is a special provision, we must determine which provision was enacted last and the intent of the General Assembly in amending Section 3733 to reconcile the conflict between Section 3733(a) and Section 6503.

¶ 8 In 1994, 75 Pa.C.S.A. Section 3733(a), was amended to make fleeing or eluding a second degree misdemeanor rather than a summary. The relevant portion of Section 6503 has not been amended since 1986.11 Therefore, Section 3733(a) was enacted last. To determine whether Section 3733(a) controls, we must determine the intent of the legislature.

¶ 9 It is apparent that when Section 6503 was enacted in 1976, the General Assembly intended to enhance punishment for repeat motor vehicle offenders, increasing the maximum punishment for certain summary offenses from a maximum of 90 days’ imprisonment to a maximum of one year of imprisonment for each subsequent offense. It is equally clear that in 1994, the General Assembly intended to increase punishment for the offense of fleeing or eluding itself by grading the crime as a second degree misdemeanor, which is punishable by up to two years’ imprisonment.12

¶ 10 “Where the language of a later statute differs from a prior Act on the same subject, the change of language is significant in determining legislative intent.” Commonwealth v. One 1957 Chevrolet Sedan, 191 Pa.Super. 179, 155 A.2d 438, 440 (1959), citing Commonwealth v. One 1939 Cadillac Sedan, 158 Pa.Super. 392, 45 A.2d 406 (1946), Commonwealth v. Moon, 383 Pa. 18, 117 A.2d 96 (1955), See *937also Rivera v. Phila. Theol. Seminary of St. Charles Borromeo, 326 Pa.Super. 509, 474 A.2d 605, 610 (1984) (“It is a rule of statutory construction that [a] change in the language of a statute ordinarily indicates a change in legislative intent.”) (citations omitted).

¶ 11 On June 17, 1976, the Pennsylvania General Assembly enacted 75 Pa.C.S.A. § 3733 as follows:

§ 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 a pursuing police vehicle, when given visual or audible signal to bring the vehicle to a stop, is guilty of a summary offense and shall, upon conviction, be sentenced to pay a fine of $200.
In 1994, Section 3733 was amended to read:
(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 visual or audible signal to bring the vehicle to a stop, commits a misdemeanor of the second degree. Any driver upon conviction shall pay an additional fine of $500. This fine shall be in addition to and not in lieu of all other fines, court expenses, jail sentences or penalties.

¶ 12 Through this amendment, the General Assembly elevated the offense of fleeing or eluding to a second-degree misdemeanor. The General Assembly has established that “[a] person who has been convicted of a misdemeanor may be sentenced to imprisonment for a definite term which shall be fixed by the court and shall be not more than ... [t]wo years in the case of a misdemeanor of the second degree.” 18 Pa.C.S.A. § 1104. By changing the language of Section 3733 to make fleeing or eluding a second-degree misdemeanor rather than a summary offense, the General Assembly indicated its intent to increase the level of punishment for fleeing or eluding. By making Section 3733 a misdemeanor rather than a summary offense, the General Assembly showed its manifest intention that all incidents of fleeing or eluding be punished more severely than a summary offense.

¶ 13 The General Assembly has stipulated that, in “construing legislative intent, the Court may look to the occasion and necessity of a statute, the circumstances in which it was enacted, the mischief to be remedied, the object to be attained by law, former law on the same subject and what the consequences of a particular interpretation would be.” Commonwealth v. Davis, 421 Pa.Super. 454, 618 A.2d 426, 428-429 (1992), appeal denied, 535 Pa. 630, 631 A.2d 1004 (Pa.1993), citing 1 Pa.C.S. § 1921(c)(1-6), Commonwealth v. Snyder, 385 Pa.Super. 58, 560 A.2d 165 (1989). After considering the occasion and necessity of Section 3733, the mischief it is designed to remedy, the object it aims to attain, and the consequences of the possible interpretations, I conclude that the most reasonable interpretation requires Section 3733 to control the provisions of Section 6503.

¶ 14 It is clear that Section 3733(a) was enacted to deter individuals from leading police on a chase after law enforcement has signaled the driver to stop. It is also clear that the General Assembly enacted Section 6503 to deter offenders from fleeing or eluding after a first conviction. By vacating the sentence imposed by the trial court, the Majority interprets Section 6503 in a manner that is inconsistent with our legislature’s intent in enacting Section 6503 and amending Section 3733(a). This interpretation also creates a result that is *938illogical, i.e., a first-time fleeing offender under Section 3733 may receive a sentence of up to two years’ imprisonment, whereas a subsequent offender is only subjected to a maximum sentence of six months.

¶ 15 One of the most concerning consequences of the Majority’s interpretation of Section 6503 involves a defendant who is convicted of third-degree felony fleeing or eluding. When Section 3733(a) was amended to create third-degree felony fleeing or eluding, members of the General Assembly stated:

Senator M.J. White: ... I serve on the Pennsylvania Commission on Sentencing, and one of the complaints I get most frequently from judges and from law enforcement people is that the offense of a high-speed chase is under-graded. It is currently a misdemeanor with a $500 fine. My amendment is upgrading an aggravated offense of fleeing or not stopping for a police officer under two circumstances, when the driver is under the influence of drugs or alcohol, or crosses a State line. My amendment would add a third aggravating factor that would move this into the felony classification, and that is when the driver endangers a law enforcement officer or a member of the general public due to engaging in a high-speed chase. I am told that these chases are extremely dangerous to the public, and I think they should be graded well beyond a $500 fine....
Senator O’Pake: Madam President, under the gentlewoman’s amendment, what would the penalty be?
Senator M.J. White: Madam President, well, it would be a felony of the third degree. I am afraid it has been a long time since I practiced criminal law, so I do not remember what the range of penalties is for that particular offense.
Senator O’Pake: Madam President, counsel advises that in his opinion, the maximum would be up to seven years in jail.
Senator M.J. White: Madam President, the sentencing guidelines would apply to whatever the minimum and maximum are under criminal law for a felony of the third degree.

Pennsylvania Legislative Journal, Senate, 6/27/2006, at 1839.

¶ 16 Under the Majority’s interpretation of Section 6503, a defendant would be limited to a maximum of six months of imprisonment for a second or subsequent third-degree felony fleeing or eluding conviction. This construction is against the intent of Section 6503 and the stated intent of the General Assembly in amending Section 3733(a).

¶ 17 Because Section 3733(a) was enacted after the relevant provision of Section 6503 and expresses our legislature’s most recent intent on the penalty to be imposed for the offense of fleeing or eluding, I conclude that Section 3733(a) is the controlling statute in this matter. This Court is required to give a statute the “most sensible construction possible.” Commonwealth v. Berryman, 437 Pa.Super. 258, 649 A.2d 961, 966 (1994), appeal denied, 541 Pa. 632, 663 A.2d 685 (Pa.1995), citing Commonwealth v. Coleman, 289 Pa.Super. 221, 433 A.2d 36 (1981). Since we are to operate under the presumption “that the legislature did not intend a result that is absurd or unreasonable,” I am unable to conclude that our legislature intended to punish a first-time fleeing or eluding offender more severely under Section 3733 than as a repeat offender under Section 6503. Id., citing Commonwealth v. Fouse, 417 Pa.Super. 534, 612 A.2d 1067 (1992), appeal denied 535 Pa. 614, 629 A.2d 1376 (Pa.1993). Instead, I conclude that the 1994 amendment to Section 3733 manifests *939our legislature’s intent that the crime of fleeing or eluding is a second degree misdemeanor and should be sentenced as such, regardless of the sentencing provision of Section 6503.

¶ 18 Ultimately, the Majority’s interpretation of the interplay between Sections 6503 and 3733 rewards a defendant for committing the same crime twice. I cannot agree with the Majority’s assessment. Hence, I depart from the Majority’s conclusion that Appellant is subjected to a maximum sentence of six months’ imprisonment under Section 6503. Rather, in my view, the trial court properly sentenced Appellant to one to two years’ imprisonment for the crime of fleeing under 75 Pa.C.S.A. Section 3733(a) and 18 Pa.C.S.A. § 1104. As such, I would affirm the judgment of sentence in its entirety.

. Section 6503 was amended in 1986 to change the term of imprisonment from one year to six months. This amendment was drafted in response to the holdings in Baldwin v. New York, 399 U.S. 66, 90 S.Ct. 1886, 26 L.Ed.2d 437 (1970) and Commonwealth v. Mayberry, 459 Pa. 91, 327 A.2d 86 (1974), which determined that any offense that carried a punishment greater than six months of imprisonment invokes the Sixth Amendment right to a jury trial.

. The current version of Section § 3733, which elevates certain offenses of fleeing and eluding to a third-degree felony, became effective three months after the offense date in the instant case. It should be noted, however, that under the Majority's interpretation of Section 6503, a defendant who commits a second or subsequent Section 3733 offense at the third-degree felony level would be limited to a six-month term of imprisonment.