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