J-E01005-15
                             2015 PA Super 226



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 at No(s): CP-21-CR-0003380-2011


BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT,
        STABILE, and JENKINS, JJ.

OPINION BY SHOGAN, J.:                            FILED OCTOBER 29, 2015

      Appellant, Lee Allen Kimmel, appeals from the judgment of sentence

entered on December 18, 2012, in the Cumberland County Court of Common

Pleas. Appellant claims that his convictions for driving under the influence of

alcohol and fleeing or attempting to elude a police officer should merge for

sentencing purposes.     After careful review, we conclude that Appellant’s

convictions arose from separate criminal acts. Therefore, the convictions do

not merge for sentencing. Accordingly, we affirm.

      The factual background and procedural history of this case are as

follows. At approximately 10:45 p.m. on November 22, 2011, Cumberland

County dispatch received a call relaying that there was a man, later

identified as Appellant, who appeared to be very intoxicated at the Sheetz
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convenience store in Mt. Holly Springs. The caller provided a description of

Appellant and the license plate number of Appellant’s pickup truck. Before

police could arrive at the Sheetz, Appellant departed the property via Mill

Street. Less than a minute later, Mt. Holly Springs Police Officer Jason Beltz

arrived at the Sheetz.     He then proceeded on Mill Street in the same

direction as Appellant.

      Approximately 3,000 feet farther down Mill Street, Officer Beltz

crossed into South Middletown Township and eventually turned onto Zion

Road. Officer Beltz turned onto Zion Road because he had been informed of

Appellant’s address, and the officer was aware that if Appellant was heading

home, he would likely make that turn. Officer Beltz activated his emergency

lights when he saw Appellant drive into a posted no-trespass area.

      When Officer Beltz stopped and approached Appellant, Appellant had

difficulty locating his license and registration.   Appellant’s breath had an

odor of alcohol, his speech was slurred, and he was unstable on his feet

when he exited the truck.    Appellant told Officer Beltz that he did nothing

wrong, reentered his truck, and attempted to drive away.         Officer Beltz

reached in the truck and removed the keys from the ignition. Appellant then

exited the truck a second time, pushed Officer Beltz, and reentered the truck

with a second set of keys. This time, Appellant succeeded in driving away.

      Officer Beltz briefly pursued Appellant but then changed course and

proceeded toward Appellant’s residence instead of continuing in pursuit. On



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the way to Appellant’s residence, Officer Beltz spotted Appellant’s truck

stuck on a tree stump.         At that point, Officer Beltz took Appellant into

custody. At the police station, Officer Beltz read Appellant the DL-26 form,

which outlines the increased penalties for refusal to submit to chemical

testing. When Officer Beltz asked Appellant if he would submit to a blood

test, Appellant jumped out of his seat and made a threatening move towards

Officer Beltz. No chemical testing was conducted.

       On February 1, 2012, Appellant was charged by criminal information

with fleeing or attempting to elude a police officer (“fleeing”), 1 driving under

the influence – general impairment (“DUI-general impairment”),2 driving

under the influence – general impairment with refusal to submit to chemical

testing   (“DUI-refusal”),3    resisting    arrest,4   defiant   trespass,5   careless


1
    75 Pa.C.S. § 3733(a).
2
    75 Pa.C.S. § 3802(a)(1).
3
   Although the information filed against Appellant charged him with both
DUI-general impairment and DUI-refusal, we note that this was improper.
In Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011), this Court
held that DUI-refusal was not a separate crime from DUI-general
impairment. In so holding, this Court stated:

       The trial court convicted [a]ppellant of two separate counts of
       DUI—general impairment arising out of the same incident, with
       one count alleging [a]ppellant refused the breath/blood test.
       The refusal of a blood alcohol content (“BAC”) test is not a
       separate element under 75 Pa.C.S. § 3802; rather, those who
       refuse a BAC test must be charged pursuant to 75 Pa.C.S.
       § 3802(a)(1), general impairment.           Since refusal of a
       breath/blood test is not an element of the criminal offense that
       pertains to guilt, the court should not have convicted [a]ppellant


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driving,6 public drunkenness,7 and possession of an open container in a

motor vehicle.8

       On April 13, 2012, Appellant filed a motion to suppress all evidence

gathered as a result of the traffic stop.9 A suppression hearing was held on

May 25, 2012.       On September 26, 2012, the suppression court issued




       of the same criminal offense, DUI—general impairment, arising
       out of the identical criminal episode. Instead, [a]ppellant should
       have been convicted of one count of DUI—general impairment
       and been subject to the sentencing enhancement provided by
       statute relative to a blood or breath test refusal.

Id. at 891 (footnotes and citations omitted). Neither party raises this as an
issue. Moreover, there is no concern with respect to sentencing since the
Commonwealth conceded at the time of sentencing that the two counts
merged because Appellant was not charged with two separate DUI crimes,
and the trial court imposed a legal sentence under 75 Pa.C.S. § 3804. See
footnote 11 below. Thus, we need not address this issue further.
4
    18 Pa.C.S. § 5104.
5
    18 Pa.C.S. § 3503(b)(1)(ii).
6
    75 Pa.C.S. § 3714(a).
7
    18 Pa.C.S. § 5505.
8
    75 Pa.C.S. § 3809(a).
9
   Appellant’s motion argued that Officer Beltz violated the Municipal Police
Jurisdiction Act, 42 Pa.C.S. § 8951, et seq., because South Middletown
Township is outside of his primary jurisdiction and is patrolled by the
Pennsylvania State Police.



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findings of fact and conclusions of law and denied Appellant’s motion to

suppress. On December 4, 2012, the case proceeded to a jury trial.10

     Appellant was convicted of fleeing, DUI, careless driving, and public

drunkenness.   Fleeing is generally a second-degree misdemeanor (“M2”).

75 Pa.C.S. § 3733(a.2)(1). When the fleeing occurs while driving under the

influence, however, it is graded as a third-degree felony (“F3”). 75 Pa.C.S.

§ 3733(a.2)(2)(i). Therefore, in this case, the fleeing offense was elevated

to an F3.   On December 18, 2012, Appellant was sentenced to eight to

twenty-four months of incarceration for F3 fleeing and fourteen to forty-

eight months for DUI,11 resulting in an aggregate sentence of twenty-two to

seventy-two months.     On December 28, 2012, Appellant filed a post-

sentence motion arguing, inter alia, that his DUI conviction merged with his

F3-fleeing conviction. On January 4, 2013, the trial court denied Appellant’s

post-sentence motion. This timely appeal followed.12


10
   The jury adjudicated the misdemeanor and felony counts while the trial
court adjudicated the summary offenses.

11
   Appellant was subject to a mandatory one-year minimum sentence for his
DUI conviction because this was his fourth offense, and he refused chemical
testing. See 75 Pa.C.S. § 3804(c)(3)(i) (an individual who violates section
3802(a)(1), refuses testing of blood or breath, and has committed a third or
subsequent offense shall be sentenced to prison for not less than one year).
12
    On January 16, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b).     On February 6, 2013, Appellant filed his concise
statement. On March 28, 2013, the judge who presided over Appellant’s
jury trial issued a Rule 1925(a) opinion. On May 3, 2013, the judge who
presided over Appellant’s suppression hearing issued a Rule 1925(a) opinion.


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       A divided three-judge panel of this Court initially affirmed Appellant’s

convictions but vacated his judgment of sentence and remanded for

resentencing.     The majority concluded that Appellant’s DUI conviction

merged with his F3-fleeing conviction.        On September 12, 2014, the

Commonwealth filed an application for reargument en banc, which was

granted. Oral argument was held before the Court en banc, and this matter

is now ripe for disposition.

       Appellant presents one issue for our review:

       Whether the [trial] court erred in denying [Appellant’s]
       post[-]sentence motion for modification of sentence when
       [Appellant] was sentenced to separate and consecutive
       sentences on [the F3 fleeing and DUI when DUI is] an essential
       element of [F3 fleeing?]

Appellant’s Brief at 6.13

       Appellant contends that the trial court erred by not merging his F3-

fleeing conviction with his DUI conviction for sentencing purposes. A claim

that convictions merge for sentencing is a question of law; therefore, our

standard of review is de novo and our scope of review is plenary.

Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014), appeal

denied, 99 A.3d 925 (Pa. 2014).




See Pa.R.A.P. 1925(a)(1) (permitting the trial court to request that the
suppression court issue an opinion dealing with issues decided by the
suppression court). Appellant’s lone issue in this appeal was included in his
concise statement.
13
     On reargument, Appellant pursued only his merger claim.


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       We begin our examination of Appellant’s merger claim by reviewing

the statutory provisions pertinent to his underlying convictions.         Section

3802(a) of the Motor Vehicle Code provides that “[a]n 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).

Generally, a violation of section 3802(a) is an ungraded misdemeanor. 75

Pa.C.S. § 3803(a)(1).       However, “[a]n individual who violates section

3802(a)(1) where the individual refused testing of blood or breath . . . and

who has one or more prior offenses commits a misdemeanor of the first

degree.” 75 Pa.C.S. § 3803(b)(4). In this case, Appellant was subject to a

one-year mandatory minimum sentence because his conviction represented

his   fourth   offense,   and   he   refused   chemical   testing.   75   Pa.C.S.

§ 3804(c)(3)(i).

       Section 3733(a) of the Motor Vehicle Code provides:

       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 officer,
       when given a visual and audible signal to bring the vehicle to a
       stop, commits an offense as graded in subsection (a.2).




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75 Pa.C.S. § 3733(a). As noted above, fleeing is generally graded as an M2,

75 Pa.C.S. § 3733(a.2)(1), but when the fleeing occurs while driving under

the influence, it is graded as an F3. 75 Pa.C.S. § 3733(a.2)(2)(i).

      Appellant’s claim is that his fleeing conviction, which was graded as an

F3 because it occurred while he was driving under the influence, should have

merged with his DUI conviction for sentencing purposes.                 Merger in

Pennsylvania is governed by section 9765 of the Sentencing Code, which

provides as follows:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory
      elements of one offense are included in the statutory elements of
      the other offense. Where crimes merge for sentencing purposes,
      the court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S. § 9765 (emphasis added). “Accordingly, merger is appropriate

only when two distinct criteria are satisfied: (1) the crimes arise from a

single criminal act; and (2) all of the statutory elements of one of the

offenses   are   included   within   the   statutory   elements   of   the   other.”

Commonwealth v. Raven, 97 A.3d 1244, 1249 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014).

      Here, the record reveals that Officer Jason Beltz conducted a traffic

stop based on his suspicion that Appellant was driving while intoxicated.

Appellant stopped his truck and exhibited signs of intoxication.         Appellant

then became combative, and the officer took Appellant’s keys.            Appellant

then returned to his truck, locked the door, and retrieved a second set of


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keys from his pocket. At this juncture, Appellant chose to again drive the

truck while intoxicated while fleeing from Officer Beltz, and Appellant was

arrested at the conclusion of his drunken flight. Affidavit of Probable Cause,

11/23/11, at 1-2; N.T., 12/4/12, at 34-46.       The circumstances here are

straightforward: there was the initial DUI, followed by a traffic stop, followed

by Appellant choosing to flee while DUI.

      When determining whether separate crimes constitute a single criminal

act, this Court has stated that “we should look to the elements of the crimes

involved as charged by the Commonwealth.” Commonwealth v. Jenkins,

96 A.3d 1055, 1060 (Pa. Super. 2014), appeal denied, 104 A.3d 3 (Pa.

2014) (citing Commonwealth v. Comer, 716 A.2d 593, 599 (Pa. 1998)).

In Jenkins, the appellant struck the victim. The blow broke the victim’s jaw

and caused him to fall to the ground. Jenkins, 96 A.3d at 1059. After the

victim fell, the appellant restrained the victim on the ground and stole items

from his person. Id. The Jenkins Court explained the manner in which the

appellant therein was charged as follows:

      As charged in the information filed on July 9, 2012, the
      Commonwealth asserted that [the appellant] committed robbery
      when, with his codefendant, he “assaulted [the victim] by
      punching him in the face causing a facial laceration and fractured
      jaw. [The victim] was forced to the ground, restrained and
      searched for personal belongings, which were stolen from
      [him].” Information, 7/9/2012, at 2 (unnumbered, emphasis
      added). With regard to simple assault, the Commonwealth
      asserted that “during the course of a robbery, [the appellant]
      assaulted [the victim] causing a facial laceration that required
      stitches and a fractured left jaw.” Id. at 3.



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Jenkins, 96 A.3d at 1061 (emphasis in original).

     Similarly, in the case at bar, the affidavit of probable cause, the

criminal complaint, and the criminal information reveal that Appellant was

charged with committing DUI and charged with felony fleeing because, after

the traffic stop, he fled while in violation of the DUI statute, 75 Pa.C.S.

§ 3802. This is parallel to the information in Jenkins where it was stated

that the appellant broke the victim’s jaw and then restrained the injured

victim while committing a theft.    In both this case and in Jenkins, there

were separate criminal acts.       Therefore, in the case at bar, because

Appellant’s convictions arose from separate criminal acts, merger is not

implicated.

     For the reasons set forth above, we conclude that the charges do not

merge, and thus, there was no error in the sentence imposed. Accordingly,

we affirm the judgment of sentence.

     Judgment of sentence affirmed.

     Judges Donohue, Lazarus, Mundy, Wecht, Stabile, and Jenkins join the

Opinion.

     Judge Bowes files a Concurring Opinion in which Judges Donohue and

Wecht join.

     Judge Olson files a Concurring Opinion.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 10/29/2015




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