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, J., DONOHUE, J., SHOGAN, J., LAZARUS, J., MUNDY, J.,
        OLSON, J., WECHT, J., STABILE, J., and JENKINS, J.:

CONCURRING OPINION BY BOWES, J.:                 FILED OCTOBER 29, 2015

     I join the opinion of my learned colleague Judge Shogan, except as to

footnote 3.1    I write further to explain why, if this case did not involve

separate criminal acts, Appellant’s sentence for driving under the influence

(“DUI”) would merge with his sentence for fleeing while DUI.

     In order for Appellant to be found guilty of the felony fleeing charge in

question, 75 Pa.C.S. § 3733(a.2)(2)(i), the Commonwealth was required to

prove beyond a reasonable doubt that Appellant was guilty of DUI.

Accordingly, DUI is an element of the felony fleeing crime. Without proof of


1
   The procedure in Commonwealth v. Mobley, 14 A.3d 887 (Pa.Super.
2011), was commonly used to comply with Apprendi v. New Jersey, 530
U.S. 466 (2000). Mobley, however, was decided prior to our United States
Supreme Court decision in Alleyne v. United States, 133 S.Ct. 2151
(2013). In light of Alleyne, it could be proper for the Commonwealth to
include a DUI-refusal count since the refusal increases the mandatory
minimum and must be proven beyond a reasonable doubt.
                                      1
J-E01005-15
                             2015 PA Super 226
the DUI, Appellant cannot be found guilty of that statutory felony offense.

Insofar as the Commonwealth posits that the DUI aspect of the crime is a

grading enhancement, such labeling has been rendered immaterial under

current United States Supreme Court precedent. Apprendi v. New Jersey,

530 U.S. 466, 490 (2000) (“facts that increase the prescribed range of

penalties to which a criminal defendant is exposed” are elements of the

crime.) (internal quotation marks omitted); Id. at 483 n.10 (“facts that

expose a defendant to a punishment greater than that otherwise legally

prescribed were by definition ‘elements' of a separate legal offense”); Id. at

478 (“Any possible distinction between an ‘element’ of a felony offense and a

‘sentencing factor’ was unknown to the practice of criminal indictment, trial

by jury, and judgment by court as it existed during the years surrounding

our Nation's founding.”) (footnote omitted); Alleyne v. United States, 133

S.Ct. 2151, 2159 (2013) (“If a fact was by law essential to the penalty, it

was an element of the offense.”).          Moreover, such a conclusion, when

applied in other settings, leads to incongruous results.

      For example, under the Commonwealth’s scenario, a defendant

convicted of attempted murder and attempted murder causing serious

bodily, based on the same act, could be sentenced consecutively because

the serious bodily injury fact is a sentencing factor and not a statutory

element.   See 18 Pa.C.S. § 1102(c) (discussing sentencing for attempted




                                       2
J-E01005-15
                             2015 PA Super 226
murder).2 This result is inconsistent with prior precedent and would violate

our double jeopardy jurisprudence.     Similarly, such a paradigm is at odds

with the jurisprudence governing our theft statutes, which grade an offense

based on the amount stolen. No one would seriously contend that a person

can be sentenced on separate counts of theft of $50 and $500, based on the

same theft act, because the amount in question pertains to the grading of

the offense and is a sentencing enhancement.

      Indeed, in the DUI context, where a breath or blood test refusal is at

issue, a defendant cannot be sentenced to both a DUI—general impairment

and DUI—general impairment with a refusal based on the same act, despite

the refusal being a sentencing enhancement. Commonwealth v. Mobley,

14 A.3d 887 (Pa.Super. 2010). The refusal aspect of the crime is considered

a sentencing enhancement, see Mobley, and unlike the statute in question,

is actually contained in an entirely different statutory provision; but under

Apprendi and Alleyne, it does not matter what label the fact is given in

determining if it is an element of the offense. Applying the Commonwealth’s

logic, defendants found guilty of DUI general impairment for one act of DUI

can be sentenced consecutively for both that crime as well as the refusal

because the refusal is a sentencing enhancement and not a statutory




2
  The attempted murder sentencing provision, unlike the fleeing definition at
issue herein, is contained in an entirely different statute than the definition
of the crime of attempt.
                                      3
J-E01005-15
                              2015 PA Super 226
element of the crime.        But see Mobley, supra (opining that such a

sentence would be unlawful).

      Further, our legislature regularly defines a crime by beginning its

definition by stating, “A person commits a felony of the [first, second, or

third] degree when the person engages in . . . .” 3 Hence, the grading of an

offense is ordinarily inextricably tied into the definition of the offense.

Pointedly, under 18 Pa.C.S. § 103, which defines the elements of an offense,

DUI is a statutory element of the fleeing charge in question. That definition

provides in relevant part:

      “Element of an offense.” Such conduct or such attendant
      circumstances or such a result of conduct as:

      (1)   is included in the description of the forbidden conduct in
            the definition of the offense;

Included in the description of the forbidden conduct of a felony of the third

degree fleeing offense is a DUI. That this portion of the statute falls within

the portion of the statute labeled “Grading” is immaterial. It is a distinction

without any legal difference that the legislature chose to place the definition

of the felony offense under a grading heading.          The Commonwealth’s

argument distinguishing Alleyne and Apprendi elements from statutory

3
  A sampling of those statutes includes: 18 Pa.C.S. § 3011; 18 Pa.C.S. §
3012; 18 Pa.C.S. § 3013; 18 Pa.C.S. § 3014; 18 Pa.C.S. § 3121; 18 Pa.C.S.
§ 3121(c); 18 Pa.C.S. § 3121(d); 18 Pa.C.S. § 3123; 18 Pa.C.S. § 3124.1;
18 Pa.C.S. § 3301; 18 Pa.C.S. § 3301(a.1); 18 Pa.C.S. § 3301(a.2); 18
Pa.C.S. § 3702; 18 Pa.C.S. § 4909. In addition, the definition of certain
theft offenses comes under the heading of “Grading of theft offenses[.]”
See 18 Pa.C.S. § 3903(a); 18 Pa.C.S. § 3903(a.1); 18 Pa.C.S. § 3903(a.2);
18 Pa.C.S. § 3903(b).
                                      4
J-E01005-15
                             2015 PA Super 226
elements rests almost exclusively on the fact that the legislature elected to

include a heading for 75 Pa.C.S. § 3733(a.2).      The legislature could just

have easily included the grading sections under the preceding “offense

defined” section without working any material difference in meaning.

Accordingly, I find it incongruous, in this setting, to attribute legal

significance to the fact that the legislature provided the definition of the

felony offense under a grading heading instead of an “offense defined”

subsection.

      Further, in Pennsylvania, the legislature has defined the merger test

and our    Supreme    Court has stated that       it is consistent with the

Blockburger v. United States, 284 U.S. 2998 (1932) jurisprudence. See

Commonwealth         v.   Baldwin,   985   A.2d    830   (Pa.   2009).     In

Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994), the Court

concluded that merger and double jeopardy analysis are identical.        That

Court also held that the proper analysis “is whether the elements of the

lesser crime are all included within the elements of the greater crime, and

the greater offense includes at least one additional element which is

different, in which case the sentences merge[.]” Anderson, supra at 24.

Thus, while it is correct that the General Assembly can authorize cumulative

punishments, it is beyond cavil that Appellant could not be found guilty of a

felony fleeing absent proof that he committed a DUI. The DUI fact is

included in the felony fleeing statute and defines what constitutes the felony


                                      5
J-E01005-15
                              2015 PA Super 226
offense. Thus, under Apprendi, Alleyne, Anderson, and our legislature’s

definition of the element of a crime, the DUI is a statutory element. Hence,

the legislature did not intend to authorize multiple punishments for the same

act of DUI.

      Furthermore, although not discussed by the Commonwealth, I also

note that reference to capital cases is inapt. Whenever a murder occurs and

there is an aggravating separate felony, that felony constitutes a different

criminal act. See 42 Pa.C.S. § 9765 (“No crimes shall merge for sentencing

purposes unless the crimes arise from a single criminal act[.])”               Phrased

differently, that felony is not subsumed into the acts necessary to prove the

defendant guilty of first-degree murder. Such is not the case here. More

analogous is the felony-murder merger rule that prohibits multiple sentences

for   the   felony   murder   and   the       underlying   felony   offense.      See

Commonwealth v. Tarver, 426 A.2d 569 (Pa. 1981).

      In sum, it is my view, that if this case involved a single criminal act,

Appellant’s DUI offense would merge with his fleeing while DUI charge.

      Judges Donohue and Wecht join this Concurring Opinion.




                                          6
