J.S29039/12

                               2014 PA Super 213

COMMONWEALTH OF PENNSYLVANIA,               :     IN THE SUPERIOR COURT OF
                                            :          PENNSYLVANIA
                          Appellee          :
                                            :
                    v.                      :
                                            :
ROBERT HOUCK,                               :
                                            :
                          Appellant         :     No. 2709 EDA 2011


              Appeal from the Judgment of Sentence July 28, 2011
                 In the Court of Common Pleas of Pike County
                   Criminal No(s).: CP-52-CR-0000282-2010

BEFORE: GANTMAN, J., FITZGERALD, J.* and PLATT, J.**:

DISSENTING OPINION BY FITZGERALD, J.:            FILED SEPTEMBER 26, 2014

        I respectfully dissent. The majority posits that under all three analytic

frameworks employed for determining the existence of a lesser-included

offense, 75 Pa.C.S. § 3802(b) is a lesser-included offense of 75 Pa.C.S. §




proving a Section 3802(c) offense also proves a Section 3802(b) offense.

Houck, ___ A.3d at ___ (majority slip. op. at 15-16). In my view, Section



a holding that it is a lesser-included offense.    I wish to avoid blurring the


*
    Former Justice specially assigned to the Superior Court.
**
     Retired Senior Judge assigned to the Superior Court.
J. S29039/12

distinctions between the physical actuality of a lesser amount and the legal

artifice of a lesser-included offense.

      In Commonwealth v. Sims, 591 Pa. 506, 919 A.2d 931 (2007), our

Supreme Court set forth the following:

            The question of whether an offense is a lesser-included
         offense of a greater crime arises in three separate
         contexts. First, as the question is presented here, the
         inquiry arises in situations where a defendant is convicted
         of a crime that was not actually charged. Second, the
         question arises in the context of sentencing, i.e., whether
         the crimes merge for sentencing purposes. Finally, the
         question is presented in the double jeopardy context . . . .

             Recently, in Commonwealth v. Jones, 590 Pa. 356,
         912 A.2d 815 ([ ] 2006), this Court surveyed the cases
         and clarified that the test to be applied in determining
         whether an offense is a lesser-included one for sentencing
         purposes and for double jeopardy inquiries is the same.
         Specifically, we held that courts should use the statutory
         elements approach, but with an eye to the specific
         allegations levied in the case. We noted, however, that
         this approach is broader than that required for inquiries
         concerning whether a defendant may be convicted of a
         crime with which he had not been charged, because in
         those cases, the due process concerns of notice and
         fairness are implicated. Where due process and notice are
         at issue, it is prudent to primarily focus the analysis on the
         statutory elements of a crime to determine whether crimes
         are lesser and greater included offenses because due
         process protects an accused against any unfair advantage.

Id. at 518-19, 919 A.2d at 938-39 (footnote, citations, and quotation marks

omitted). In sum, in the context of sentencing and double jeopardy, courts

employ the Jones statutory elements approach. Id.

      The Sims Court adopted the Model Penal Code approach in resolving

whether a defendant could be convicted of an uncharged crime:


                                         -2-
J. S29039/12

                                                       r-included
       offenses identifies three situations in which a defendant
       may be convicted of an offense included in the offense
       charged . . . . :

               (4)    Conviction     of   Included     Offense
               Permitted. A defendant may be convicted of
               an offense included in an offense charged in the
               indictment [or the information]. An offense is so
               included when:

                  (a) it is established by proof of the same or
                  less than all the facts required to establish
                  the commission of the offense charged; or

                  (b) it consists of an attempt or solicitation to
                  commit the offense charged or to commit an
                  offense otherwise included therein; or

                  (c) it differs from the offense charged only in
                  respect that a less serious injury or risk of
                  injury to the same person, property or public
                  interest or a lesser kind of culpability suffices
                  to establish its commission.

       MODEL PENAL CODE § 1.07(4) (alteration in original).

          Section 1.07(4)(a) reflects the statutory elements
       approach defined above and accepted by this Court in
       Jones. In this first scenario, the defendant is given notice
       of all the elements that the Commonwealth must prove to
       obtain his conviction. The Commonwealth can convict the
       defendant only of those offenses that contain all of the
       elements as the offenses with which the defendant was
       charged. The defendant does not need separate notice to
       defend against these lesser offenses because the defense
       that he prepares against the offenses charged will

       evidence of the lesser offenses.        Therefore, Section
       1.07(4)(a) satisfies the due process concerns that the
       doctrine of lesser-included offenses, properly understood,
       must take into account.

                                   *    *    *


                                       -3-
J. S29039/12




          flexible than that employed in a strictly statutory-elements
          approach.[1] It is slightly narrower than the test set forth
                                         Jones for inquiries involving
          sentencing and double jeopardy concerns, but it is a
          reasonable means of assessing lesser-included offenses in
          the charging context that does not infringe upon the
          constitutional rights of criminal defendants.

Sims, 591 Pa. at 521-24, 919 A.2d at 940-42 (citations and footnote



where a defendant is convicted

i.e.                             Id. at 518, 524, 919 A.2d at 938, 942.

Furthermore, the Jones approach is a subset of the Model Penal Code

approach and invoked as needed.       Id. at 521, 919 A.2d at 940 (stating,

    ection 1.07(4)(a) reflects the statutory elements approach defined above

and accepted by this Court in Jones

       The crimes at issue are defined by Section 3802(b) and (c):

          § 3802. Driving under            influence   of   alcohol   or
          controlled substance

                                  *    *     *

             (b) High rate of alcohol. 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 alcohol concentration in the
                                        at least 0.10% but less
          than 0.16% within two hours after the individual has

1
  The Model Penal Code approach is more flexible because it encompasses
two additional approaches: Section 1.07(4)(b) and Section 1.07(4)(c).




                                      -4-
J. S29039/12

        driven, operated or been in actual physical control of the
        movement of the vehicle.

           (c) Highest rate of alcohol. 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 alcohol concentration in the
                                       0.16% or higher within two
        hours after the individual has driven, operated or been in
        actual physical control of the movement of the vehicle.

75 Pa.C.S. § 3802(b)-(c) (emphases added).       Consequently, I ascertain



                                                                      2
                                                                          See

Sims, 591 Pa. at 521, 919 A.2d at 940.

     Section 3802(b) has a lower and upper boundary of BAC.           Section

3802(c) encompasses any BAC exceeding the upper boundary.            That the

instant boundaries are denominated by numeric, physical amounts is

irrelevant. The boundaries could be geographic, chronologic, spatial, or any

other designation.    The crucial fact, in my view, is not that numeric

denominations designate the boundaries, but that these two Sections are

bounded.      I would hold that bounded categories are factually distinct

irrespective of the denominations, designations, or labels employed for the

boundaries.


2
  Model Penal Code § 1.07(4)(b) does not apply because the instant crimes
do not involve attempt or solicitation.   Similarly, Model Penal Code §
1.07(4)(c) does not apply because culpability is not at issue, e.g.,
negligently versus knowingly.




                                   -5-
J. S29039/12

     The critical inquiry is whether proving one bounded category can be

established with proof of the same or less than all the facts necessary to

prove another bounded category, i.e., can proving a BAC exceeds a

particular boundary, i.e., Section 3802(c), also prove a BAC lies within two

different boundaries, i.e., Section 3802(b).   I suggest the answer is no,

because when a BAC exceeds the boundary of Section 3802(c), the BAC

necessarily does not lie within the two boundaries of Section 3802(b).

     Merely because a statute references two physical amounts does not

necessarily denote that a physical, lesser amount is presumptively a lesser-

included offense   a legal construct of a statute referencing a physical,

greater amount. Whether the boundaries of one category are physically less

or smaller than the boundaries of another category is not germane to

                                                         blished by proof of



the second offense. See Sims, 591 Pa. at 521, 919 A.2d at 940. For the



quantifying ph                                                             -

included offenses. Accordingly, I suggest that Sections 3802(b) and 3802(c)



within the two boundaries of Section 3802(b), or exceeded the boundary of

Section 3802(c). See id.




                                   -6-
J. S29039/12

      I thus respectfully disagree with the majority that Commonwealth v.

Haight, 50 A.3d 137 (Pa. Super. 2012), and Commonwealth v. Sinclair,

897 A.2d 1219 (Pa. Super. 2006), are instructive.              Initially, neither case

employed the Model Penal Code approach approved by our Supreme Court in

Sims.       See Sims, 591 Pa. at 521-22, 919 A.2d at 940 (adopting Model

Penal Code framework for analyzing lesser-

where a defendant is convic

(citation    omitted)).      Regardless,      in   Sinclair,   prior    to   trial,   the

Commonwealth successfully moved to amend the information to include

Section 3802(b), in addition to Section 3802(c), on the basis that (b) was

cognate to (c).       Sinclair, 897 A.2d at 1221.        On appeal, the defendant

challenged the grant to amend the information, and our Court affirmed. Id.

at   1222.      The    instant   procedural    posture    is   unlike   Sinclair:     the

Commonwealth never moved to amend the information but the court opted

to convict Appellant of an offense not charged in the information.

      In Haight, the Commonwealth charged the defendant with violating

Section 3802(c) only, but he was convicted of violating Section 3802(b).

See Haight, 50 A.3d at 139.         On appeal, the defendant challenged, inter

alia, the sufficiency of evidence for his Section 3802(b) conviction; he did

not argue that because he was charged with Section 3802(c), he could not

have been convicted of violating Section 3802(b).                  See id. at 140

(summarizing his argument that blood test result reflected only the



                                        -7-
J. S29039/12




sample).    The Haight Court, however, citing Sinclair without further

explanation, noted that the trial court could nonetheless convict the

defendant of the uncharged offense of Section 3802(b) because it was

cognate to the charged offense of Section 3802(c).     Id. at 144.   But, as

noted above, Sinclair relied on a cognate-pleading framework not adopted

by the Sims Court.

        Because the Commonwealth never sought to amend the instant

information, which charged Appellant with violating Section 3309(1), Section

3714, and Section 3802(c) only, I am troubled by correcting the certified

record, see Houck, ___ A.3d at ___ (majority slip. op. at 1 n.1), to reflect



well-                                           sua sponte add a charge to

                     Commonwealth v. Donaldson, 399 Pa. Super. 237,

241, 488 A.2d 639, 641 (1985).         In Donaldson, the Commonwealth

charged the defendant with felony aggravated assault but the trial court

substituted a charge of misdemeanor aggravated assault. Id. at 239, 488

A.2d at 640.    This Court reversed, pointing to the requirement that the



                                                   sua sponte

                                                                      Id. at

242, 488 A.2d at 642; see



                                   -8-
J. S29039/12




instant mandate, particularly as it



Section 3802 conviction, I would not address his other issues, and I

respectfully dissent.




                                      -9-
