dissenting.
I dissent from the determination of the Majority that concludes that driving under the influence is a lesser included offense for sentencing purposes with the crime of homicide by vehicle while driving under the influence. The Majority relies upon Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989) and Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) to support its position. However, having read those cases I do not find that they have either directly or sub silentio overruled a previous Supreme Court case of Commonwealth v. McCane, 517 Pa. 489, 539 A.2d 340 (1988). In the McCane case the Supreme Court held categorically that the crimes of driving under the influence and homicide by vehicle while driving under the influence do not merge for sentencing purposes. The Court stated:
[Djriving under the influence of alcohol or a controlled substance is part of the statutory definition of the offense of homicide by vehicle while driving under the influence. The statute requires that an accused by convicted of driving under the influence before he can be found guilty under § 3735 (Homicide by Vehicle While DUI). To this extent driving under the influence is included in the vehicular homicide offense. It is not, however, an included offense in the same sense as larceny is necessarily included in robbery. It is not required that an accused be found guilty of a larceny and that the commission of the larceny caused the loss before he can be found guilty of robbery. Likewise, it is not required that a defendant be found guilty of violating 2701 of the Crimes Code (Assault) and that such violation was the cause of the victim’s death in order to be found guilty of murder.
539 A.2d at 345.
I believe that Commonwealth v. McCane is still the law of the Commonwealth of Pennsylvania and for that reason I *56dissent from that portion of the Majority’s disposition of this matter which would seek to include the DUI offense with the homicide by vehicle while DUI.