J-S11007-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ISMAEL DOMINGUEZ : : Appellant : No. 195 WDA 2019
Appeal from the Judgment of Sentence Entered January 10, 2019 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0000998-2017
BEFORE: NICHOLS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY NICHOLS, J.: FILED: AUGUST 20, 2021
Appellant Ismael Dominguez appeals from the judgment of sentence
following a non-jury trial and convictions for homicide by vehicle while driving
under the influence (DUI) (Count 2), homicide by vehicle (Count 3),
involuntary manslaughter (Count 4), two counts of accidents involving death
or personal injury while not properly licensed (Counts 5 and 6), two counts of
DUI-general impairment (Counts 8 and 9), four counts of recklessly
endangering another person (REAP) (Counts 10 through 13), reckless driving
(Count 14), and other associated offenses.1 Appellant raises the following
claims: (1) the trial court’s denial of his motion to suppress his medical records
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1 Respectively, 75 Pa.C.S. § 3735(a), 75 Pa.C.S. § 3732(a), 18 Pa.C.S. § 2504(a), 75 Pa.C.S. § 3742.1(a), 75 Pa.C.S. § 3802(a)(1), 18 Pa.C.S. § 2705, and 75 Pa.C.S. § 3736(a). J-S11007-20
because the warrant was (a) overbroad and violated the specificity
requirements of the Fourth Amendment of the U.S. Constitution and Article 1,
Section 8 of the Pennsylvania Constitution, and (b) not supported by probable
cause; (2) the discretionary aspects of his sentence; and (3) his convictions
on the basis of double jeopardy. We affirm the convictions, vacate the
judgment of sentence, and remand for resentencing.
Because the facts that led to Appellant’s convictions are undisputed, we
quote from the trial court’s opinion stating the facts:
During the early evening hours of August 14, 2016, at approximately 5:50 p.m., [Appellant] got behind the steering wheel of a silver Hyundai Accent despite his extreme intoxication and caused a five-car collision on Route 51 that killed his girlfriend and passenger, Maria Luevano.
* * *
When officers arrived at the “chaotic” scene of the multi-car collision, they observed that [Appellant’s] passenger, Maria Luevano, was positioned halfway underneath the front dashboard, “slumped over in a leaning position,” and unconscious. Ms. Luevano was rushed to the hospital following the crash, but she ultimately died as a result of the injuries that she suffered in this accident.
[Appellant] was conscious, but the “interior of the vehicle was completely pushed back into the front occupants,” trapping both passengers inside of the car. Medics “were attempting to extricate both of them from the vehicle,” but [Appellant’s] feet were lodged underneath the dashboard. The rescue crew had to forcibly remove parts of the door to reach the occupants.
Once [Appellant] was freed from the vehicle, he became “combative” and “uncooperative” with police and even tried to remove his restraints. According to responding Officer Shawn Bliss of the Pittsburgh Police Department, [Appellant] “did not ask about the well-being of the passenger,” and “did not seem
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concerned about his own well-being.” This stood out in Officer Bliss’ mind as unusual because, based on his experience, “the first thing from an occupant of a crash is concern for others’ well- being.”
[Appellant] eventually was transported by ambulance to the hospital and received treatment for his serious injuries.
The investigation following this fatal multi-car collision revealed that Ms. Luevano had permitted [Appellant] to drive the silver 2015 Hyundai Accent that she had rented in her name from Enterprise on August 12, 2016, two (2) days before her death. [Appellant] was not listed as an authorized driver on the rental agreement, and he did not have a valid driver’s license at the time of the fatal crash.
A cursory inspection of the rental vehicle showed that the speedometer was “frozen at 99 miles per hour,” and the tachometer was frozen at 5,600 RPM. The data downloaded from the Event Data Recorder (“EDR”) of the vehicle revealed that [Appellant] was traveling at a speed of 100 miles per hour one (1) second prior to impact and that the vehicle was actually accelerating in the five (5) seconds before the crash. The EDR also showed that, at the time of impact, Ms. Luevano was wearing her seatbelt, but [Appellant] was not wearing his.
The EDR showed that [Appellant] had never attempted to apply the brakes in the seconds preceding the crash, but rather had the gas pedal pressed to the floor. The EDR revealed that the engine RPM at the time of impact “was still between 5,500 and 5,300 RPMS, which [meant] that the vehicle was still being accelerated or the speed was being maintained at the time of impact, [and] that there was no braking involved, either.” The information from the antilock brake system (“ABS”) showed that, “from five seconds prior to impact all the way to impact,” there was “no ABS activity, which indicates there was no braking.”
It further was determined that the steering wheel remained in the same fixed position from five (5) seconds before the crash until the point of impact, which meant that, while [Appellant] did not jerk his steering wheel directly towards the median, he also did not attempt to swerve away from it to avoid impact. In sum, the
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EDR showed that there was “no attempt to slow down,” “no attempt to brake,” and no attempt to steer away from the median before impact.
Results from the autopsy show that Ms. Luevano’s death was caused by “multiple blunt impact injuries.” Specifically she sustained “blunt impact injury to the head, neck, torso, and extremities.” There were “multiple abrasions and contusions” on her face, torso, and extremities. Ms. Luevano also suffered a “hemorrhage of the scalp, hemorrhage in the chest,” and rib fractures on the ride sight of her body. She had “a laceration on the left ventricle of the heart,” as well as lung, liver, adrenal, bladder, and uterine lacerations. There were hemorrhages also detected in the center of her chest, pancreas, rectum, and bladder. Ms. Luevano had a whole blood alcohol level of 0.199% at the time that the autopsy was performed.
Evidence of [Appellant’s] actual Blood Alcohol Content (“BAC”) was never introduced by the Commonwealth during trial. The medical evidence only generally confirmed that there was alcohol detected in [Appellant’s] blood. The medical record relied upon as evidence of [Appellant’s] blood alcohol level stated only that at 6:40 p.m. that evening, his “ethanol” was “276” and his “alcohol” was “276 milligrams per dekaliter.” Although these numbers were never translated into an actual BAC level, [Appellant] conceded through his attorney during closing arguments that he was seriously intoxicated at the time that he caused the fatal multi- vehicle collision.
Trial Ct. Op., 6/21/19, at 6-14 (citations omitted).2
Appellant proceeded to a non-jury trial and was convicted of the above
crimes. After a pre-sentence investigation, on September 25, 2018, the trial
court sentenced Appellant to an aggregate sentence of eight years and three
months to sixteen-and-a-half years’ incarceration.
2 We summarize additional facts and procedural history below to the extent
that they may be relevant to Appellant’s issues.
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Appellant timely filed a post-sentence motion and a court-ordered
supplemental post-sentence motion. Appellant’s Suppl. Post-Sentence Mot.,
12/3/18, at 6-7. In addition to challenging the discretionary aspects of his
sentence, Appellant also contended that convicting him of two counts of DUI
for the same criminal act violated double jeopardy. Id. He also argued that
the trial court failed to “put adequate reasons on the record for departing from
the standard range of the Sentencing Guidelines.” Id. at 9. After a hearing,
the trial court granted in part and denied in part Appellant’s post-sentence
motions on January 10, 2019. Specifically, the trial court vacated the “no
further penalty” for counts three and four and sentenced Appellant to “guilty
but merged” with Count 2. Order, 1/10/19.
Appellant timely appealed and timely filed a court-ordered Pa.R.A.P.
1925(b) statement. The trial court filed a responsive Rule 1925(a) opinion.3
Appellant raises four issues on appeal:
1. Did the trial court err in failing to suppress [Appellant’s] medical records because they were obtained pursuant to an overbroad, general warrant in violation of the particularity requirements of the U.S. and Pennsylvania Constitutions?
3 The trial court’s Rule 1925(a) opinion addressed other issues that Appellant
does not raise in this appeal. However, he does not argue these issues in his appellate brief, and therefore, they are waived. See Commonwealth v. Felder, 247 A.3d 14, 20 (Pa. Super. 2021) (stating that “an issue identified on appeal but not developed in the appellant’s brief is abandoned and, therefore, waived” (citation omitted and formatting altered)).
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2. Did the trial court err in failing to suppress [Appellant’s] medical records because they were obtained via a search warrant that was not supported by probable cause?
3. Did the trial court violate the sentencing code by imposing an above-aggravated range sentence without stating the guidelines or the reasons for departing from them, and by imposing an excessive sentence that failed to consider [Appellant’s] character and rehabilitative needs?
4. Were [Appellant’s] rights under the double jeopardy clause of the Fifth Amendment of the U.S. Constitution and Article 1, § 10 of the Pennsylvania Constitution . . . violated because he was charged and convicted of two identical DUI offenses, even though there was only one incident?
Appellant’s Brief at 9.
1. Overbroad Search Warrant
Before summarizing Appellant’s arguments in support of his first issue,
we state the following as background.4 During its investigation, two different
assistant district attorneys separately requested Appellant’s hospital records:
one was via subpoena and the other was via search warrant. In pertinent
part, on November 3, 2016, Assistant District Attorney Ken Harris issued a
subpoena to UPMC Mercy Hospital for “all med records . . . for [Appellant]
treated 08/14/2016.” Ex. A. to Appellant’s Am. Omnibus Pretrial Mot.,
4 As we note below, the trial court’s Rule 1925(a) opinion reasoned that this
Court should affirm the constitutional validity of the search based in part on the “independent source doctrine.” See Trial Ct. Op., 6/21/19, at 14-15. Appellant, however, did not raise an “independent source” argument on appeal. We find it necessary to briefly summarize these facts, however, to provide some context.
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9/21/17. On November 10, 2016, the hospital responded, enclosing copies of
responsive medical records that were sent to Attorney Harris. Id. Officer
Wolfe never saw those medical records.5 N.T. Am. Omnibus Pretrial Mot. Hr’g,
11/9/17, at 5.
Separately, Assistant District Attorney Chris Avetta instructed Officer
Wolfe to obtain a search warrant for the medical records.6 Id.; see N.T.
Pretrial Mot. Hr’g, 12/6/17, at 19-20 (summarized below). On December 13,
2016, Officer Wolfe prepared an affidavit of probable cause. Aff. of Probable
Cause, 12/13/16, attached as Ex. C to Am. Omnibus Pretrial Mot. The first
paragraph summarized Officer Wolfe’s background, education, and
experience, which included ten years as a certified crash reconstructionist and
over twenty-three years of experience as a police officer.7 Id.
The second paragraph summarized the accident:
On August 14, 2016 approx 1753 hours, [Appellant] based on the investigation, was operating a 2015 Hyundai Accent . . . on Saw Mill Run Blvd. [Appellant] was driving at a speed of 100 MPH, this has been documented through Electronic Data Recorder (EDR) download and the “locked” position of the speedometer after the crash. [Appellant] crossed over the concrete divider, into the opposing traffic lanes and collided with a pickup truck and then collided head on with a Hyundai SUV. The roadway has a slight right curve at scene of this crash. Scene investigation did not ____________________________________________
5 Attorney Harris did not speak about these events at any court hearing.
6 Attorney Avetta never stated whether he was aware of the subpoena before
asking Officer Wolfe to obtain a search warrant. 7 Officer Wolfe was not part of the on-scene investigation. N.T. Pretrial Mot. Hr’g, 12/6/17, at 16.
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reveal any brake marking or steering inputs by the operator. The roadway was wet from recent rain. As result of the crash, Maria LUEVANO suffered fatal injuries and was pronounced dead at Allegheny General Hospital . . . .
Id.
The next two paragraphs summarized Officer Wolfe’s investigation,
including interviewing the victim’s minor daughter who stated that the victim
was with Appellant at a bar. Id. The affidavit stated that on November 3,
2016, Officer Wolfe received the victim’s toxicology test results, which
revealed that the victim had “whole blood ethanol of .199%.” Id.
The concluding paragraph of the affidavit of probable cause follows:
Based on my training and experience, impairment due to alcohol and/or drug use, would be a significant contributing factor in this crash investigation. An impaired driver would have slowed reactions and poor judgement which would contribute to this vehicle crossing the divider into oncoming traffic. When an individual involved in a crash is taken to the hospital for medical treatment, the hospital frequently draws blood and tests the blood for medical purposes during initial examination. Your Affiant, Investigator WOLFE, is requesting a warrant for the medical records of [Appellant] from his admission into UPMC Mercy Hospital on August 14, 2016, to determine if alcohol and/or drug impairment was a factor of the crash resulting in the death of Maria LUEVANO. Affiant believes there is probable cause to believe the medical records will contain evidence of blood draws and blood testing which would be material evidence.
Officer Wolfe also prepared the application for the search warrant, which
in relevant part requested, “All Medical Records, to include laboratory
reports, of [Appellant] from admission date of 08/14/2016 to UPMC Mercy
Hospital as result of a vehicle crash.” Appl. for Search Warrant, 12/13/16,
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attached as Ex. C to Am. Omnibus Pretrial Mot. (emphasis added). The issuing
authority approved the application on December 15, 2016. In response, the
hospital produced a compact disc (CD), Officer Wolfe reviewed the CD,
retrieved the laboratory reports, and provided the laboratory reports to the
district attorney’s office.8 N.T. Pretrial Mot. Hr’g, 12/6/17, at 13-14.
On September 21, 2017, Appellant filed an amended motion to suppress
the medical records. Appellant asserted that the “warrant application lacks
the requisite probable cause to justify the search,” and the “request for ‘all
medical records to include laboratory reports . . .’ is overbroad based on the
information contained in the affidavit of probable cause.” Am. Omnibus
Pretrial Mot. at ¶¶ 11-12 (ellipses in original).
At the suppression hearing, Officer Wolfe explained that in the warrant
application, he requested “more than just the laboratory reports,” because the
medical records would be “important . . . to reconstruct the crash.” N.T.
Pretrial Mot. Hr’g, 12/6/17, at 22. Specifically, the “injury pattern” would
provide “information on how the crash occurred, who was driving, what their
8 Officer Wolfe testified that he executed the warrant on December 14, 2016.
N.T. Pretrial Mot. Hr’g, 12/6/17, at 13. The hospital sent records that established Appellant had an ethanol of “276” and alcohol “at 276 milligrams per dekaliter [sic].” N.T. Trial, 6/26-27/18, at 185. As the trial court noted in its opinion, “these numbers were never translated into an actual BAC level . . . .” Trial Ct. Op. at 14. Typically, blood alcohol count is measured in milligrams per deciliters of whole blood. See Commonwealth v. Karns, 50 A.3d 158, 163 (Pa. Super. 2012). Officer Wolfe never provided the actual CD to the district attorney’s office. N.T. Pretrial Mot. Hr’g, 12/6/17, at 15.
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sitting position was, whether or not they were wearing a seat belt.” Id.
Officer Wolfe acknowledged he did not “mention any of that” in the affidavit
of probable cause. Id. At the conclusion of the suppression hearing, Appellant
argued there was insufficient probable cause and the warrant was overbroad.
Id. at 26-27. The trial court denied the motion to suppress on February 28,
2018. Order, 2/28/18.
We turn to Appellant’s first issue on appeal, for which he raises two
arguments. First, Appellant argues that the Commonwealth’s seizure of all of
his medical records from the crash date under a general warrant was
unconstitutional. Appellant’s Brief at 19-29. In Appellant’s view, the affidavit
of probable cause failed to aver “that evidence of criminal activity was likely
to result” from a search of his “medical records unrelated to his toxicology
report.” Id. at 21. Appellant argues the Fourth Amendment bars this “open-
ended fishing expedition.” Id. (quoting Trial Ct. Op. at 4). In sum, Appellant
claims the warrant requesting “all medical records” was too broad and
authorized an unconstitutional “indiscriminate ‘rummaging’” through his
medical records, which is barred by the Fourth Amendment. Id.
Appellant’s second argument is that the seizure was unconstitutional
because the warrant failed to specify the items to be searched for under Article
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1, Section 8 of the Pennsylvania Constitution.9 Appellant analogizes his case
to the facts and holding of Commonwealth v. Grossman, 555 A.2d 896 (Pa.
1989), which held that “a warrant authorizing the seizure of all of an insurance
agency owner’s files” was unconstitutional because the “accompanying
affidavit averred probable cause only for three of the more than 2,000 files in
the [defendant’s] possession.” Id. at 23 (emphasis in original) (summarizing
Grossman). Appellant argues that the warrant at issue here is identical to
the unconstitutional warrant in Grossman because the affidavit “offered
nothing to suggest that probable cause existed to believe that [Appellant’s]
other medical records would contain evidence of criminal activity.” Id. at 23-
24 (emphasis in original). Appellant similarly faults the trial court’s rationale
that his medical records “potentially contained information that would be
relevant in determining whether alcohol and/or drugs” caused the accident
because “[e]xisting caselaw offers no basis for a court to cure a defective
search warrant on the basis that items for which no probable cause was even
averred to exist may nevertheless ‘potentially . . . be relevant’ to determining”
whether a crime occurred. Id. at 24.
9 “The people shall be secure in their persons, houses, papers and possessions
from unreasonable searches and seizures, and no warrant to search any place or to seize any person or things shall issue without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation subscribed to by the affiant.” Pa. Const. art. 1, § 8.
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The Commonwealth counters that the search warrant specifically
requested, as quoted above, “all medical records” of Appellant from the date
of his admission to the hospital as a result of the vehicle crash.
Commonwealth’s Brief at 19-20. In the Commonwealth’s view, the trial court
correctly held that the warrant was sufficiently limited to help the police
determine the cause of the crash. Id. at 20. The Commonwealth asserts that
“the warrant was written broadly enough to include records that had
evidentiary value.” Id. (citing Commonwealth v. Sherwood, 982 A.2d 483
(Pa. 2009), and Commonwealth v. Dougalewicz, 113 A.3d 817 (Pa. Super.
2015), in support). The Commonwealth concludes that this was not a “fishing
expedition” and that the “items sought were as specifically identified as was
reasonable” based on what the police knew about the crash. Id. at 25.
The trial court’s Rule 1925(a) opinion refers this Court to its February
28, 2019 order. Trial Ct. Op. at 14-15. In its February 28, 2019 order, the
trial court briefly reasoned that the “search warrant was not overly broad
because it was limited to the records generated following” Appellant’s
admission to the hospital. Order, 2/28/19, at 3-4.
The standard and scope of review for a suppression ruling follows: “our
standard of review is highly deferential with respect to the suppression court’s
factual findings and credibility determinations.” In re L.J., 79 A.3d 1073,
1080 n.6 (Pa. 2013). “[O]ur standard of review of the suppression court’s
legal conclusions is de novo: appellate courts give no deference to the
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suppression court’s legal conclusions.” Id. (citation omitted). Moreover, “[a]s
for the record, we are limited to considering only the evidence of the prevailing
party, and so much of the evidence of the non-prevailing party as remains
uncontradicted when read in the context of the record as a whole.” Id. at
1080 (citations and footnote omitted).
Further,
We do not look to evidence “of record” at other stages of the proceedings, such as sentencing. Similarly, in the scenario presented sub judice, it is inappropriate to consider trial evidence as a matter of course, because it is simply not part of the suppression record, absent a finding that such evidence was unavailable during the suppression hearing.
Id. at 1085.
The Pennsylvania Rules of Criminal Procedure include the following
requirement:
(A) Each search warrant shall be signed by the issuing authority and shall:
(2) identify specifically the property to be seized;
Pa.R.Crim.P. 205(A)(2). The comment to paragraph (A)(2) states that the
subsection is
intended to proscribe general or exploratory searches by requiring that searches be directed only towards the specific items, persons, or places set forth in the warrant. Such warrants should, however, be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description may suffice.
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Id. cmt. (citation omitted).
This Court has stated:
The Pennsylvania Supreme [Court] has concluded Article 1, Section 8 of the Pennsylvania Constitution affords greater protection than the Fourth Amendment, including a more demanding particularity requirement; the description must be as particular as reasonably possible. The twin aims of Article 1, Section 8 are the safeguarding of privacy and the fundamental requirement that warrants shall only be issued upon probable cause.
In order to protect these twin aims, a warrant must describe the place to be searched and the items to be seized with specificity, and the warrant must be supported by probable cause. The place to be searched must be described precise enough to enable the executing officer to ascertain and identify, with reasonable effort the place intended, and where probable cause exists to support the search of area so designated a warrant will not fail for lack of particularity.
Commonwealth v. Korn, 139 A.3d 249, 253-54 (Pa. Super. 2016) (citations
omitted and formatting altered). Simply, a “warrant is unconstitutional under
the Fourth Amendment for its overbreadth if it is broader than can be justified
by the probable cause on which the warrant is based.” Commonwealth v.
Santner, 454 A.2d 24, 26 (Pa. Super. 1982) (citation omitted and formatting
altered).
For example, in Grossman, our Supreme Court addressed “whether a
warrant that authorized the seizure of ‘all insurance files, payment records,
receipt records, copies of insurance applications and policies, and cancelled
checks’ is unconstitutional . . . because it failed to describe with particularity
the precise files to be seized.” Grossman, 555 A.2d at 897 (formatting
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altered). Ultimately, the Grossman Court concluded that while probable
cause existed for the three specific files named in the affidavit of probable
cause, it did not exist for the files of the insurance company’s 2,000 clients.
Id. at 900. Therefore, the Court held that “the warrant . . . was
unconstitutionally overbroad in its failure to describe as specifically as was
reasonably possible the three files described in the affidavit for which there
was probable cause.” Id.
Similarly, in Commonwealth v. Rega, 933 A.2d 997 (Pa. 2007), our
Supreme Court considered a defendant’s appeal involving an allegedly
overbroad search warrant involving Jefferson County jury documents. Rega,
933 A.2d at 1010. The defendant asserted that because the affidavit of
probable cause “identified only jury questionnaires and lists,” the issuing
authority erred by granting a broadened warrant outside of the “four corners
of the affidavit of probable cause” that included “Jury Questionnaires, Jury
List[s], and any and all papers, documents containing the names of
prospective jurors.” Id. at 1010-11. Therefore, the defendant contended that
the trial court abused its discretion by “admitting evidence obtained from an
overly broad search warrant.” Id. at 1011.
In resolving the defendant’s claim, the Rega Court set forth the
following guidelines:
A search warrant cannot be used as a general investigatory tool to uncover evidence of a crime. Nor may a warrant be so ambiguous as to allow the executing officers to pick and choose among an individual’s possessions to find which items to seize,
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which would result in the general rummaging banned by the Fourth Amendment. Thus, Pa.R.Crim.P. 205 specifies the necessary components of a valid search warrant. The comment to Rule 205 provides, however, that even though general or exploratory searches are not permitted, search warrants should be read in a common sense fashion and should not be invalidated by hypertechnical interpretations. This may mean, for instance, that when an exact description of a particular item is not possible, a generic description will suffice. Embracing this approach, we have held that where the items to be seized are as precisely identified as the nature of the activity permits the searching officer is only required to describe the general class of the item he is seeking.
A warrant is defective when its explanatory narrative does not describe as clearly as possible those items for which there is probable cause to search. In assessing the validity of a description contained in a warrant, a court must initially determine for what items there was probable cause to search. The sufficiency of the description in the warrant must then be measured against those items for which there was probable cause. Any unreasonable discrepancy between the items for which there was probable cause to search and the description in the warrant requires suppression.
Id. at 1011-12 (citations omitted and formatting altered). Additionally, unlike
the overbroad warrant in Grossman, the Rega Court held that the affidavit
at issue “provided probable cause to believe that evidence of a crime would
be found in all documents and papers containing juror information, and the
warrant plainly was tailored to permit seizure of those papers pertaining to
jurors.” Id. at 1013.
In Sherwood, the defendant challenged two search warrants as
overbroad. Sherwood, 982 A.2d at 504. Specifically, each of the warrants
at issue sought “[a]ny and all evidence” related to injuries sustained by the
four-year-old victim. Id. After quoting from Rega, 933 A.2d at 1011-12, the
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Sherwood Court agreed with the suppression court that the “warrants were
not overbroad because they described the items police were seeking as nearly
as possible under the circumstances.” Id. at 504. Further, the Sherwood
Court reasoned that “since the evidence police were seeking included evidence
of physical injury, the warrant had to be sufficiently broad to encompass all of
the items that possibly could contain material of evidentiary value.” Id.; see
also Dougalewicz, 113 A.3d at 821, 828 (finding that a search warrant
seeking “[a]ny and all text messages, picture mail, and phone calls to and
from” the defendant’s phone was not overly broad because the affidavit of
probable cause specifically limited the time frame for the phone records to be
searched and “sufficiently identified and limited the items to be searched and
seized . . . .”).
With respect to medical records, we have stated the following:
Courts of this Commonwealth have consistently recognized that an individual has a substantial privacy interest in his medical records.
We note, however, that although an individual has an expectation of privacy in his medical records, this privacy interest does not preclude all searches and seizures of medical records. The proper function of Art. I, § 8 of the Pennsylvania Constitution, is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. Therefore, an individual’s privacy interest in his medical records is subject to reasonable searches and seizures.
Commonwealth v. Miller, 996 A.2d 508, 512 (Pa. Super. 2010) (en banc)
(citations omitted and formatting altered).
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In Commonwealth v. Kuhn, 2775 EDA 2018, 2019 WL 4338227 (Pa.
Super. filed Sept. 12, 2019) (unpublished mem.),10 appeal denied, 225 A.3d
1097 (Pa. 2020), the defendant was convicted of, inter alia, third-degree
murder and DUI after a two-vehicle crash. Kuhn, 2019 WL 4338227 at *1.
The police submitted an affidavit of probable cause for a search warrant for
the defendant’s medical records from the hospital that treated the defendant’s
injuries from the crash. Id. at *3. The defendant argued that the trial court
should have granted his motion to suppress the medical records because the
affidavit was overbroad and “failed to describe the items to be seized with the
requisite specificity.” Id. at *13 (citation omitted). The Kuhn Court
disagreed with the defendant and found no basis to conclude that the warrant
was overbroad because the
affidavit of probable cause indicated [the defendant] drove erratically, caused a car crash that resulted in the child being ejected from his vehicle, and then fled the scene without any apparent concern for the child. Based on these allegations, we agree with the trial court that the magistrate had a substantial basis to find a fair probability that [the defendant’s] medical records from [the] Hospital could contain evidence regarding [the defendant’s] conduct and state of mind before, during, and after the crash.
Id. at *15 (citation omitted).
10 As an unpublished memorandum decision filed after May 1, 2019, it may be
cited for its persuasive value only. See Pa.R.A.P. 126.
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Instantly, we agree with the Commonwealth that the search warrant
was not overbroad. See Korn, 139 A.3d at 253-54. After summarizing his
investigation, which included the victim’s .199 BAC, Officer Wolfe’s affidavit
requested Appellant’s medical records “to determine if alcohol and/or drug
impairment was a factor,” because they would “contain evidence of blood
draws and blood testing . . . .” Aff. of Probable Cause. The warrant sought
“all medical records” of Appellant, including “laboratory reports” limited to
Appellant’s hospitalization due to the crash. Appl. for Search Warrant.
These facts are similar to those in Rega, in which the affidavit of
probable cause identified “juror questionnaires/lists” while the warrant was for
“any and all papers, documents containing the names of prospective jurors.”
See Rega, 933 A.2d at 1010. Here, the affidavit averred “probable cause to
believe the medical records will contain evidence of blood draws and blood
testing which would be material evidence,” while the warrant was for “all
medical records.” See Aff. of Probable Cause; Appl. for Search Warrant.
Therefore, similar to the Rega Court, we conclude that the affidavit “provided
probable cause to believe that evidence of a crime would be found in all” of
Appellant’s medical records, including evidence of blood draws and blood
testing. See id. Although the affidavit did not aver “that evidence of criminal
activity was likely to result” from a search of medical records unrelated to
Appellant’s toxicology, that is not an “unreasonable discrepancy between the
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items for which” probable cause existed and the requested items in the
warrant. See Rega, 933 A.2d at 1012.
We also agree with the Commonwealth that the warrant properly
specified the items to be searched. Unlike the defective warrant in
Grossman, which sought all records relating to an incident involving only
three clients, the instant warrant requested Appellant’s medical records
directly related to his hospitalization from the crash. Cf. Grossman, 555 A.2d
at 900. Further, to paraphrase the Sherwood Court, since the police sought
all medical records from Appellant’s hospitalization containing evidence of
Appellant’s blood tests, “the warrant had to be sufficiently broad to encompass
all of the items” of evidentiary value. See Sherwood, 982 A.2d at 504;
accord Dougalewicz, 113 A.3d at 828 (holding that warrant limiting time
and content of records to be searched “sufficiently identified and limited the
items to be searched and seized”).
Finally, we are persuaded by this Court’s decision in Kuhn, in which this
Court found no basis to conclude that a warrant seeking the defendant’s
medical records for injuries sustained from a car crash was overbroad, but
was rather supported by an affidavit of probable cause describing the
defendant’s involvement in that crash. See Kuhn, 2019 WL 4338227 at *3,
15.
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For these reasons, we disagree with Appellant that the warrant was
unconstitutional, and therefore, no relief is due. See Korn, 139 A.3d at 253-
54; Miller, 996 A.2d at 512.
2. Insufficient Probable Cause
In support of Appellant’s second issue, he argues that the search
warrant was unsupported by probable cause. Appellant’s Brief at 26.
Appellant contends that the averred facts in Officer Wolfe’s affidavit, i.e., the
vehicle’s high rate of speed, lack of brake markings, and wet roadway “in and
of itself, [were not] sufficient to establish probable cause to believe” Appellant
was impaired. Id. at 27-28. Moreover, Appellant challenges the averments
in the officer’s affidavit regarding the passenger’s toxicology report indicating
a “blood ethanol of .199%,” claiming instead that the report established that
he was serving as a designated driver “before hydroplaning into oncoming
traffic on a rain-slicked roadway.” Id. at 28-29. Therefore, in Appellant’s
view, the issuing magistrate lacked a “substantial basis” to conclude “a fair
probability” that evidence of a crime would be found in Appellant’s medical
records. Id.
The Commonwealth counters that the affidavit contained sufficient
information to establish probable cause. Commonwealth’s Brief at 28. The
Commonwealth summarizes the affidavit, reiterates Officer Wolfe’s experience
and testimony from the suppression hearing, and emphasizes that the search
warrant “specifically requested . . . All Medical Records, to include laboratory
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reports of [Appellant] from admission date of 08/14/2016 to UPMC Mercy
Hospital as result of a vehicle crash.” Id. at 28-30. Because of this, the
Commonwealth concludes that the trial court correctly held that probable
cause existed to support the search warrant. Id.
The trial court’s Rule 1925(a) opinion directed this Court to its February
28, 2018 order in which it summarized Officer Wolfe’s background and facts
within the affidavit of probable cause. Trial Ct. Op. at 14; Order, 2/28/18, at
2. Ultimately, the trial court held that the affidavit “contained sufficient
information in its four corners to establish probable cause that” Appellant was
impaired to justify issuance of the warrant. Id.
“Probable cause exists where the facts and circumstances within the
affiant’s knowledge and of which he has reasonably trustworthy information
are sufficient in themselves to warrant a man of reasonable caution in the
belief that a search should be conducted.” Commonwealth v. Leed, 186
A.3d 405, 413 (Pa. 2018) (citation omitted). “Probable cause is based on a
finding of probability and does not require a prima facie showing of criminal
activity.” Commonwealth v. Huntington, 924 A.2d 1252, 1256 (Pa. Super.
2007) (citation omitted). “[T]he police need not rule out all other possibilities
in establishing probable cause for the issuance of a search warrant.”
Commonwealth v. Rapak, 138 A.3d 666, 672-73 (Pa. Super. 2016) (citation
omitted).
Our Supreme Court has stated:
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The task of the issuing magistrate is simply to make a practical common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a substantial basis for concluding that probable cause existed.
Commonwealth v. Housman, 986 A.2d 822, 843 (Pa. 2009) (citation
omitted and formatting altered). Moreover, we are mindful that
[t]he Supreme Court of the United States has instructed that after-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. Indeed, a magistrate’s probable cause determination should receive deference from the reviewing courts. In keeping with the Fourth Amendment’s strong preference for warrants, courts should not invalidate warrants by interpreting affidavits in a hyper-technical, rather than a commonsense, manner.
Leed, 186 A.3d at 413 (citations omitted and formatting altered); accord
Pa.R.Crim.P. 205(A)(2) cmt.
Here, the record supports the issuing authority’s determination that it
had a substantial basis for concluding probable cause existed. See Leed, 186
A.3d at 413; Housman, 986 A.2d at 843. As set forth above, the affidavit
established the following facts: a fatal accident occurred, a victim with a whole
blood ethanol of .199% died because of the injuries that she suffered in the
accident, and an interview with the victim’s daughter confirmed that the victim
was with Appellant at a bar. See Aff. of Probable Cause. Officer Wolfe stated
that based on those facts, his training, and his experience, he believed there
was probable cause that Appellant’s medical records would contain evidence
of a crime. Id. The issuing authority agreed with Officer Wolfe, and we agree
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it “had a substantial basis for concluding that probable cause existed.” See
Housman, 986 A.2d at 843 (formatting altered); Kuhn, 2019 WL 4338227
at *3. As the Rapak Court noted, the police did not need to rule out that “all
other possibilities” before requesting a warrant. See Rapak, 138 A.3d at 672-
73. Accordingly, Appellant’s claim fails.
3. Failure to Reflect Awareness of Sentencing Guidelines
Before summarizing Appellant’s argument in support of his third issue,
we set forth the following as background. In relevant part, at Appellant’s
sentencing hearing, the trial court stated Appellant’s convictions and the
maximum possible sentences. N.T. Sentencing Hr’g, 9/25/18, at 3-5. The
trial court stated it read the presentence investigation report three times prior
to Appellant’s sentencing hearing. Id. at 6. Appellant gave an allocution and
the trial court imposed the sentence. Id. at 39-40. In imposing the sentence,
the trial court only referenced “the standard range of the guidelines” for Count
6.11 Id. at 39.
Appellant’s post-sentence motion challenged the court’s failure to “put
adequate reasons on the record for departing from the standard range of the
Sentencing Guidelines” for Count 2, which was the homicide by vehicle with a
11 Specifically, the trial court stated, “At Count 6, sir, you will serve a period
of three to six months in the Allegheny County Jail, which is in the standard range of the guidelines.” N.T. Sentencing H’rg at 39.
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DUI conviction. Appellant’s Suppl. Post-Sentence Mot. at 9. Appellant’s Rule
1925(b) statement contained similar assertions.
On appeal, Appellant raises several challenges to the discretionary
aspects of his sentence. Appellant’s Brief at 35. Appellant asserts that the
trial court failed to state on the record “the permissible range of sentences
under the guidelines and the factual basis and specific reasons which
compelled it to deviate from” that range with respect to his five-to-ten-year
statutory maximum sentence for Count 2. Id. (citation omitted and
formatting altered). Appellant analogizes his case to Commonwealth v.
Rich, 572 A.2d 1283 (Pa. Super. 1990), concluding that this Court must
similarly vacate his sentence and remand for resentencing. Id. at 42.
The Commonwealth counters that to the extent the trial court
“erroneously failed to recite the sentencing guideline ranges,” that was “not
reversible error.” Id. at 40-42 (citing, inter alia, Commonwealth v. Rodda,
723 A.2d 212, 213 (Pa. Super. 1999) (en banc), Commonwealth v.
Antidormi, 84 A.3d 736 (Pa. Super. 2014), and Commonwealth v. Macias,
968 A.2d 773 (Pa. Super. 2009)).
The trial court’s Rule 1925(a) opinion did not address Appellant’s
argument about the failure to state the sentencing guideline ranges. The trial
court noted that it had the benefit of a PSI, which it reviewed three times, and
therefore considered “all of the relevant sentencing factors,” including the
mitigating evidence. Trial Ct. Op. at 20.
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It is well settled that
[c]hallenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[ ] § 9781(b).
Commonwealth v. Proctor, 156 A.3d 261, 273 (Pa. Super. 2017) (some
citations omitted). “A substantial question exists only when the appellant
advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Id. (citation omitted).
Instantly, Appellant has preserved his sentencing issues in a post-
sentence motion, a timely appeal, and a Rule 2119(f) statement in his brief.
See id. Furthermore, Appellant’s claim that the trial court “failed to state
sufficiently its reasons for imposing sentence outside the sentencing
guidelines” states “a substantial question for our review.” Rodda, 723 A.2d
at 214 (citation omitted); see also Commonwealth v. Coulverson, 34 A.3d
135, 143 (Pa. Super. 2011) (stating, “to the extent that [the defendant’s]
claim impugns the trial court’s failure to offer specific reasons for the sentence
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that comport with the considerations required in section 9721(b) . . . it raises
a substantial question”). We therefore address the merits of Appellant’s claim.
By way of guidance:
Where, as here, a court imposes a sentence outside of the Sentencing Guidelines, the court must provide, in open court, a contemporaneous statement of reasons in support of its sentence. 42 Pa.C.S. § 9721(b).
A sentencing judge must demonstrate on the record, as a proper starting point, its awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.
Commonwealth v. Beatty, 227 A.3d 1277, 1287-88 (Pa. Super. 2020)
(some citations omitted and formatting altered).
In Rich, the trial court imposed statutory maximum sentences but
“neither advised [the defendant] of the applicable guideline ranges, nor stated
its reasons for deviating from those guidelines.” Rich, 572 A.2d at 1286.
Therefore, on appeal, the Rich Court vacated the sentences at issue and
remanded for resentencing. Id.
In Rodda, the defendant pled guilty and the trial court imposed
sentences that it acknowledged “exceeded the standard range of the
sentencing guidelines.” Rodda, 723 A.2d at 213. At the sentencing hearing,
the trial court “recognized the role of the guidelines in suggesting an
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appropriate sentence,” but prior to imposing sentence, merely stated, “I have
determined . . . that it’s appropriate to sentence [the defendant] above the
guideline range.” Id. at 217 (citations and quotation marks omitted). The
trial court was mistaken, however, as “the sentence actually imposed did not
depart from the applicable guideline ranges.” Id. The trial court denied the
defendant’s post-sentence motion, and the defendant appealed. Id. at 213.
On appeal, the defendant argued that the trial court failed to “state the
permissible range of sentencing under the guidelines prior to imposing
sentence . . . .” Id. (quotation marks omitted). Ultimately, the Rodda Court
agreed with the defendant, holding that although “the court recognized the
role of the guidelines in suggesting an appropriate sentence, it failed to
demonstrate its understanding of the applicable sentencing ranges under the
guidelines.” Id. at 217 (citation omitted). The Rodda Court therefore
vacated the judgment of sentence and remanded to have the trial court
“clearly identify whether the sentence it wishe[d] to impose [was] meant to
be a departure from the guidelines or a sentence in the aggravated range.”
Id. at 218.
In Beatty, the trial court acknowledged reviewing a PSI, did not
mention any of the guideline ranges, and stated that for various reasons,
which we do not reiterate here, the defendant “will be sentenced in the
aggravated range to punish, to deter him, to deter others from engaging in
a lifetime of criminal conduct . . . .” Beatty, 227 A.3d at 1289 (emphasis in
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original and citation omitted). The Beatty Court explained that although the
trial court “provided its reasons for the sentence at sentencing, these reasons
were advanced to support a sentence in the aggravated range. Nowhere did
the court indicate that it was in fact sentencing [the defendant] outside of the
guidelines, nor did it provide a contemporaneous statement of its reasons for
such deviation.” Id. at 1290. The Beatty Court therefore vacated the
judgment of sentence and remanded for resentencing. Id. at 1290-91.
Instantly, we note that prior to sentencing Appellant, the trial court
mentioned the maximum possible sentences but did not mention the
sentencing guideline ranges. See N.T. Sentencing Hr’g, 9/25/18, at 3-6. As
Appellant accurately points out, the trial court failed to set forth on the record
“the permissible range of sentences under the guidelines.”12 Appellant’s Brief
at 35. The facts of this case are, therefore, akin to the facts in Beatty,
Rodda, and Rich.
Identical to the trial court in Beatty, the instant trial court
acknowledged reviewing a PSI but failed to mention any of the guideline
ranges. See Beatty, 227 A.3d at 1289-90. Similarly, the Rodda and Rich
Courts vacated the judgments of sentence and remanded for resentencing
12 As we noted above, the trial court’s only reference to the guidelines at the
time of sentencing occurred when the court sentenced Appellant on Count 6 to three to six months’ imprisonment, “which is in the standard range of the guidelines.” N.T. Sentencing at 39.
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after the trial courts failed to inform the defendant of the “applicable guideline
ranges,” i.e., “the permissible range of sentencing under the guidelines.” See
Rodda, 723 A.2d at 213; Rich, 572 A.2d at 1286. We are similarly
constrained to vacate Appellant’s judgment of sentence and remand for
resentencing.13 See, e.g., Beatty, 227 A.3d at 1289-91.
4. Double Jeopardy
Before summarizing Appellant’s argument for his final issue, we set forth
the following background. On March 16, 2017, the Commonwealth filed a
criminal information against Appellant listing numerous counts, including two
counts of DUI-general impairment. Specifically, Count 8 charged Appellant
with violating “Section 3802(a)(1); Section 3803(b)(3) and Section
3804(b)(3) of the Pennsylvania Vehicle Code.” Crim. Information, 3/16/17,
at 4. Count 9 charged Appellant with violating “Section 3802(a)(1); Section
3803(a)(2) and Section 3804(a)(3) of the Pennsylvania Vehicle Code.” Id. at
5.
Further, at Appellant’s hearing on his post-sentence motions, the trial
court vacated sentences of “no further penalty” it had imposed for Counts 8
13 Appellant’s argument was limited to Count 2. The Commonwealth also cited Antidormi, which did not address the argument Appellant raises here, namely that the trial court failed to indicate its awareness of the applicable sentencing guidelines. See Antidormi, 84 A.3d at 759-60. Finally, the Commonwealth cited Macias, which is inapposite to the instant case because the defendant in Macias was not sentenced above the aggravated range of the Sentencing Guidelines. See Macias, 968 A.2d at 777.
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and 9 and replaced the sentences with “guilty but merged.” N.T. Post-
Sentence Mot., 1/10/19, at 4-5. With respect to these counts, Appellant’s
counsel argued that Commonwealth v. Farrow, 168 A.3d 207 (Pa. Super.
2017), provides, “the proper remedy . . . is actually to vacate the second
conviction in its entirety rather than reflect those [two counts] merging.” N.T.
Post-Sentence Mot. at 5. The Commonwealth initially disagreed, arguing that
Appellant’s counsel was relying on dicta in Farrow. After hearing further
argument, the trial court stated it was “just going to vacate the sentences on
them and not vacate the actual count nine” conviction. Id. at 7.
The trial court’s Rule 1925(a) opinion explains that it did not believe that
Farrow stands “for the proposition that multiple convictions violate the
principles of double jeopardy.” Trial Ct. Op. at 27 (emphasis in original). The
trial court acknowledges the Farrow Court’s commentary in a footnote that a
“second conviction is an impermissible punishment even if it results in no
greater sentence,” but opines that this commentary was mere dicta. Id. The
trial court concludes that because Appellant’s “conviction at Count 9, for which
no sentence at all was imposed, does not run afoul of the Double Jeopardy
Clauses of the state or federal constitution.” Id.
On appeal, Appellant argues that under Farrow, and Commonwealth
v. Bezick, 207 A.3d 400 (Pa. Super. 2019), this Court must vacate his DUI
conviction at Count 8, and remand for resentencing on the DUI conviction at
Count 9. Appellant’s Brief at 53 & 53 n.1. Appellant summarizes Farrow and
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notes that his offenses under Count 8 and Count 9 represent “the legally and
factually identical allegation,” that he violated 75 Pa.C.S. § 3802(a)(1). Id.
at 54 (citation omitted). Moreover, Appellant notes that in Bezick, the Court
held “that a double jeopardy violation occurs even when convictions merge for
sentencing purposes.” Id. at 57 (summarizing Bezick).
In response, the Commonwealth revised its argument and stated that
because “the sentencing order purports to impose a sentence for two identical
counts of section 3802(a)(1)[,] it would appear to violate this Court’s
precedent.” Commonwealth’s Brief at 43-44 (citing Bezick and Farrow).
Therefore, the Commonwealth “acknowledges that there may be a basis for
this Court to vacate the conviction at Count 8” consistent with Bezick and
Farrow because the instant case is factually analogous. Id. at 45.
In reviewing this claim, our standard of review is de novo and our scope
of review is plenary. See Commonwealth v. Kuykendall, 2 A.3d 559, 563
(Pa. Super. 2010) (citation omitted).
In Farrow, the defendant was driving when she struck two parked
vehicles, fled the scene, and subsequently refused a breath/blood alcohol test.
Farrow, 168 A.3d at 208-09. The Commonwealth filed a four-count
information against the defendant, which in relevant part included the
following: count one was for DUI-general impairment under 75 Pa.C.S. §§
3802(a)(1) and 3804(c) for refusing a breath/blood alcohol test, count two
was for DUI-general impairment under 75 Pa.C.S. §§ 3802(a)(1) and 3804(b)
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for accident resulting in damage to a vehicle, and count three was for DUI-
general impairment under 75 Pa.C.S. § 3802(a)(1). Id. Following a bench
trial and conviction on all counts, the trial court sentenced the defendant to
three to six days’ incarceration for count one and “guilty without further
penalty” for the remaining counts. Id. at 210.
The defendant timely appealed, arguing that the trial court violated her
protection against double jeopardy. Id. Ultimately, the Farrow Court held
that the trial court erred because it “imposed three separate sentences at
three counts that each alleged, at bottom, a single criminal act in violation of
the same criminal statute.” Id. at 216 (footnote omitted). As a result, the
Farrow Court vacated the defendant’s convictions and sentences for counts
one and two, affirmed the conviction at count three, but remanded for
resentencing for count three. Id. at 219.
Subsequently, in Commonwealth v. Hill, 238 A.3d 399 (Pa. 2020), our
Supreme Court disapproved of the Superior Court’s reasoning in Farrow.
Hill, 238 A.3d at 406 n.5. Briefly, like the defendants in Farrow and Bezick,
the defendant in Hill was convicted of two counts of DUI-general impairment
for a single incident. Hill, 238 A.3d at 402; Bezick, 207 A.3d at 402; Farrow,
168 A.3d at 210. In relevant part, the Hill defendant raised a double jeopardy
claim for the first time in his petition for allowance of appeal. Id. at 404. He
argued that he did not waive his double jeopardy claim because such a claim
implicated the legality of his sentence. Hill, 238 A.3d at 404 (citing, inter
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alia, Farrow). In response, the Commonwealth argued, among other things,
that our Supreme Court should disapprove of “Farrow’s result in conformity
with the reasoning the [Farrow C]ourt employed in the body of its opinion . .
. .” Id. at 406.
Our Supreme Court agreed with the Commonwealth, and disapproved
of Farrow’s result as inconsistent with its reasoning:
The Farrow [Superior C]ourt’s decision to vacate two of Farrow’s DUI convictions is curious, as the court asserted in its opinion that, while it is clear that double jeopardy shields defendants from multiple punishments for the same offense, there is no Pennsylvania authority for the proposition that double jeopardy precludes multiple convictions for the same offense. Further, the court seemingly refused to adopt the position that double jeopardy protections preclude multiple convictions for the same offense.
Id. at 406 n.5 (citations omitted and formatting altered).
Instantly, Appellant, much like the defendants in Farrow, Bezick, and
Hill, was charged with two counts of DUI-general impairment under Section
3802(a)(1) for the same criminal act. Unlike the defendant in Hill, Appellant
preserved his double jeopardy challenge. The Hill Court, however,
disapproved of the Farrow Court’s reasoning, which the Bezick Court
adopted, and therefore we must also reject Appellant’s argument that double
jeopardy precluded multiple convictions for the same DUI offense.14 See Hill,
238 A.3d at 406 n.5. Therefore, Appellant is due no relief on this issue.
14Although double jeopardy does not preclude Appellant’s convictions for Counts 8 and 9, double jeopardy does bar multiple punishments for the same
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Conclusion
For these reasons, we affirm the convictions, vacate the judgment of
sentence, and remand for resentencing on all counts.15
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/20/2021
offense. See Hill, 238 A.3d at 411. For Counts 8 and 9, the instant trial court had imposed sentences of “guilty but merged” with Count 2 for sentencing purposes, which are not illegal sentences. See generally 42 Pa.C.S. § 9721 (identifying the sentences a court may impose); Commonwealth v. Wade, 33 A.3d 108, 116 (Pa. Super. 2011) (explaining that merged offenses do not violate double jeopardy). 15Because of our mandate, we need not address Appellant’s claim that his aggregate sentence was excessive. See Appellant’s Brief at 43.
Further, although we do not believe vacating the judgment of sentence only at Count 2 would disturb the trial court’s overall sentencing scheme, out of an abundance of caution, we vacate the entire judgment of sentence. See Commonwealth v. Vanderlin, 580 A.2d 820, 831 (Pa. Super. 1990) (holding, “if a trial court errs in its sentence for one count in a multi-count case, then all sentences for all counts will be vacated so that the court can re- structure its entire sentencing scheme” (citation omitted)); accord Commonwealth v. Williams, 871 A.2d 254, 266 (Pa. Super. 2005).
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