J-A01044-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LUIS T. GAUTHIER

                            Appellant                 No. 2327 EDA 2014


             Appeal from the Judgment of Sentence July 10, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0015241-2013


BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                             FILED APRIL 11, 2016

        Luis T. Gauthier appeals from the judgment of sentence entered in the

Court of Common Pleas of Philadelphia County following a jury trial in which

he was convicted of two counts of general impairment driving under the

influence (DUI), including one count with refusal to submit to chemical

testing.1 Upon review, we vacate the judgment of sentence and remand for

resentencing.

        The trial court summarized the relevant facts as follows:

        [A]t approximately 2:15 a.m. on December 7, 2012, [Gauthier]
        recklessly operated a red Nissan Rogue [s]ports [u]tility
        [v]ehicle in West Philadelphia near the University of
        Pennsylvania school campus. His vehicle illegally turned [in the]
        northbound direction [i]nto the oncoming traffic of the clearly
____________________________________________


1
    75 Pa.C.S. §§ 3802(a), 3804(c).


*Former Justice specially assigned to the Superior Court.
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      marked one[-]way southbound busy 40th Street from Walnut
      Street. [Gauthier] inexplicably continued to drive in the wrong
      direction for at least two city blocks without making any U-turns
      or accessing available exits and obliviously ignor[ed] the blaring
      horns and bright lights from other oncoming vehicles.
      Philadelphia Police Officer Tertulien, who had been sitting in his
      marked patrol car waiting for his partner to exit from a nearby
      convenience store, watched [Gauthier] from the point of the
      illegal turn and responded immediately to stop him to prevent an
      inevitable accident.

      After Officer Tertulien managed to direct [Gauthier] to park his
      automobile, he saw [Gauthier] sitting in the driver’s seat
      appearing dazed and confused. “He looked like he didn’t know
      where he was at . . . He looked sleepy . . . His eyes were
      watery.” When [Gauthier] informed the officer that he had just
      come from Cavanaugh’s Bar located just a few blocks away, his
      speech was slurred as he used “running sentences.” Officer
      Tertulien smelled a strong odor of alcohol emanating from the
      automobile. Because the single front passenger of this vehicle
      also appeared inebriated, Officer Tertulien asked [Gauthier] to
      step out and walk in the fresh air to determine if the stench of
      alcohol emanated from [Gauthier].

      Outside the vehicle[, Gauthier] independently reeked of alcohol
      and was so “wobbly and “unstable” that he couldn’t walk. Upon
      correctly deducing that [Gauthier] was incapable of safely
      operating any vehicle, Officer Tertulien arrested Defendant Luis
      Gauthier for violating Section 3802(a)(1) of the Pennsylvania
      Motor Vehicle Code and called for a wagon to transport him.

      After being transported to the Police Administration Building[,
      b]reathalyzer technician Philadelphia Police Officer Lackman
      gave [Gauthier] all of the relevant warnings and information
      concerning his rights and responsibilities and consequences of a
      driver’s refusal to submit to chemical testing to detect alcohol
      inebriation.   [Gauthier] knowingly refused to submit to any
      chemical testing of his breath that would detect and gauge his
      alcohol absorption levels.    [Gauthier] signed the [a]ffidavit
      acknowledging his refusal and receipt of his rights and
      information concerning the consequences of his refusal.

Trial Court Opinion, 3/4/15, at 2-3.




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      On June 10, 2014, the trial court sentenced Gauthier to two concurrent

terms of 90 days to 6 months’ incarceration, to be served on weekends to

permit his continued employment. Additionally, the court ordered Gauthier

to pay fines totaling $5,000 and suspended Gauthier’s driver’s license for 18

months. Gauthier filed a timely notice of appeal and concise statement of

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal,

Gauthier raises the following issue for our review:

      Whether the trial [c]ourt, in a DUI-general impairment
      prosecution under 75 Pa.C.S. § 3802(a)(1), erred when it “ad-
      libbed” in instructing the jury for the third time on this charge by
      over-emphasizing certain factors which were the cornerstones of
      the prosecution case without mentioning any of the
      countervailing arguments presented by the defense, thereby
      directing a verdict of guilty?

Brief for Appellant, at 2.

      When reviewing a trial court’s jury instructions, we

      will look to the instructions as a whole, and not simply isolated
      portions, to determine if the instructions were improper. We
      further note that, it is an unquestionable maxim of law in this
      Commonwealth that a trial court has broad discretion in phrasing
      its instructions, and may choose its own wording so long as the
      law is clearly, adequately, and accurately presented to the jury
      for its consideration. Only where there is an abuse of discretion
      or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014)

(citations omitted).

      Instantly, the jury specifically requested that the term “general

impairment” be defined in laymen’s terms.      The court conferred with both

parties, and both agreed that the term “general impairment” was part of the


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caption of the charge and was not an element of an offense that needed to

be proven.     Thus, the court instructed the jury that “general impairment”

does not have a legal definition and is not an element of a crime. The court

proceeded to re-read the standard charge2 and supplemented it with a series

of rhetorical questions to aid the jury in considering whether Gauthier had

been incapable of driving safely.          Gauthier’s sole argument is that these

questions improperly focused the jury’s attention on the Commonwealth’s

theory of the case and amounted to a directed verdict in favor of the

Commonwealth.3 We disagree.

       The instruction included the following:

       THE COURT:     The caption of the charge is called general
       impairment. That’s not the definition of the charge.

       The definition of the charge refers to driving under the influence
       of alcohol that renders someone incapable of safe driving. I’m
       going to go over the actual elements with you.

                                           ...

       Let’s focus on those elements. I’m going to go over that with
       you. In terms of giving you examples of what it means to not
       safely drive or things of that nature, you will have to rely on
       your own common sense. What does it take to drive safely[?]


____________________________________________


2
  The jury was provided the standard charge for general impairment DUI
three separate times during the proceedings.
3
   Following oral argument on this matter, Gauthier filed a motion for leave to
file a post-argument submission pursuant to Pa.R.A.P. 2501. However,
because the proposed submission merely reiterates the arguments made in
Gauthier’s brief, we deny the motion.



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     Let me first tell you what the charge is. The defendant is
     charged with violating section 3802(a)(1) of the Pennsylvania
     Motor Vehicle Code. It makes it a crime to drive, operate or be
     in actual physical control of the movement of a vehicle after
     imbibing a sufficient amount of alcohol. Such as the individual is
     rendered incapable of safe driving, operating or being in actual
     physical control of the movement of that car or vehicle.

     To find the defendant guilty of that offense, you have to be
     satisfied two elements have been proven beyond a reasonable
     doubt.

     One, the defendant drove or operated or was in physical control
     of the vehicle on a highway or traffic way.

     Two, Commonwealth must prove that while the defendant drove,
     operated or was in physical control of the vehicle, he imbibed a
     sufficient amount of alcohol such that he was incapable [of]
     safely driving, operating or being in control of the movement of
     that vehicle.

     Pennsylvania law states that the meaning of incapable of safe
     driving, it has a meaning. Frankly, it means the ordinary term
     you would think it would mean. The defendant doesn’t have to
     be drunk or severely intoxicated or driving wildly or erratically to
     commit this crime. It’s enough if the alcohol had substantially
     impaired the defendant’s normal, mental or physical faculties
     that were essential to safe operation of a vehicle.

     Now, you have to use your common sense to determine what
     normal, mental or physical capabilities are necessary to operate
     a car.

     What do you need to operate a care safely? Do you need good
     judgment? Do you need to be able to be balanced?

     MR. KELLY: Objection.

     THE COURT: Noted.

     Do you need to see clearly?

     MR. KELLY: Objection.

     THE COURT:      I’m not saying this defendant.        I’m not
     commenting on this case. I’m saying these are some things that
     you may wish to consider in terms of what do you need to be


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      rendered incapable of safe driving. What mental and physical
      faculties do you need to operate a car safely on the streets of
      Philadelphia?

      That’s what [is] at issue. In doing so, consider all the relevant
      evidence when deciding whether or not the defendant was under
      the influence to a degree that makes him incapable of safe
      driving. Among that evidence in this case, the Commonwealth
      contends the defendant refused to give a sample of his breath
      for testing.

                                      ...

      Understand, the Commonwealth is not required to prove beyond
      a reasonable doubt that the defendant was drunk or severely
      intoxicated.   Rather the Commonwealth must show the
      defendant was under the influence of alcohol to a degree which
      rendered him unfit to drive safely. Mental or physical condition
      which substantially impaired his judgment, clearness of intellect
      and any of the normal faculties essential to safe operation of an
      automobile.

      Hopefully that helped you. Please understand you have to rely
      on your own common sense to be able to determine whether or
      not this defendant was rendered incapable of safe[ly] driving an
      automobile that early morning hour and whether or not alcohol
      was the root of the issue. The elements are what’s important
      not the caption called general impairment.

N.T. Trial, 5/14/14, Vol. 2, 21-26.

      Upon considering the trial court’s full instructions to the jury in

context, we agree with the trial court that the

      questions posed and comments made were completely in accord
      with the Pennsylvania Suggested Standard Criminal Jury
      Instructions which direct[] the jury to consider “What were the
      defendant’s thinking, judgment, physical skills, ability to
      perceive and react to changes in the situation, or other faculties
      impaired?” [Pennsylvania Suggested Standard Criminal Jury
      Instructions § [ 17.3802(h).]

                                      ...


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      The[] hypothetical questions were neutral and did not include
      any comment concerning the opinion of the [c]ourt regarding the
      evidence of the defendant’s guilt.

Trial Court Opinion, 3/4/15, at 8-9.         Considering the entirety of the

foregoing, we discern no error on the part of the trial court in providing

additional instructions to the jury.

      Though we decline to grant Gauthier the relief he requests, we note

that he was erroneously sentenced based upon two counts of general

impairment DUI.     The two counts Gauthier was charged with were based

upon the same conduct, with one count including refusal to submit to

chemical testing. In this circumstance, the two counts should have merged

for sentencing purposes.     See Commonwealth v. Mobley, 14 A.3d 887,

894 (Pa. Super. 2011) (stating in reference to DUI offenses that “[c]harging

the identical criminal offense twice in the criminal information to indicate

that one count is alleging that a breath test/blood test refusal transpired

constitutes duplication of counts and creates possible double jeopardy

implications if the individual is sentenced on each count.”)   Here, the trial

court sentenced Gauthier based upon both counts, making the sentence

illegal and requiring us to correct it. See Commonwealth v. Kozrad, 499

A.2d 1096, 1097-98 (Pa. Super. 1985) (Superior Court required to correct

illegal sentence sua sponte).

      Instantly, the trial court ordered Gauthier to serve his terms of

incarceration for each count concurrently. However, it is unclear from the

record whether the court fined Gauthier based upon one or both counts.


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Thus, we vacate and remand for resentencing in accordance with this

memorandum. See Commonwealth v. Williams, 871 A.2d 254, 266 (Pa.

Super. 2005) (where ruling of this Court disturbed overall sentencing

scheme, matter remanded to trial court for resentencing).

      Judgment     of   sentence   vacated.   Remanded      for   resentencing.

Jurisdiction relinquished.



      OTT, J., Joins the memorandum.

      STEVENS, P.J.E., Files a concurring statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




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