J-S90009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    SAMUEL KEMP                                :
                                               :
                      Appellant                :   No. 873 EDA 2016

            Appeal from the Judgment of Sentence February 1, 2016
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0013505-2014



BEFORE: OTT, SOLANO, and JENKINS, JJ.

MEMORANDUM BY OTT, J.:                               FILED FEBRUARY 17, 2017

        Samuel Kemp appeals from the judgment of sentence imposed

February 1, 2016, in the Philadelphia County Court of Common Pleas. The

trial court sentenced Kemp to an aggregate term of nine to 18 years’

imprisonment, plus nine years’ consecutive probation, following his non-jury

conviction of aggravated assault,1 driving under the influence of alcohol or

controlled substance (“DUI”) – combined impairment,2 and related charges

after he crashed his vehicle into the complainant who was standing behind

his own disabled car. On appeal, Kemp challenges both the sufficiency and

weight of the evidence supporting his conviction of aggravated assault, and
____________________________________________


1
    See 18 Pa.C.S. § 2702.
2
    See 75 Pa.C.S. § 3802(d)(3).
J-S90009-16



the legality of his sentence on the charge of DUI-combined impairment. For

the reasons below, we reverse the judgment of sentence for aggravated

assault, vacate the sentence imposed for DUI-combined impairment, and

remand for re-sentencing.

      The facts underlying Kemp’s arrest and conviction are summarized by

the trial court as follows:

             On October 8, 2011, at approximately 4:10 p.m., [Kemp],
      driving while intoxicated and without a driver’s license, crashed
      into Jabril Townsend’s (“Complainant”) vehicle at 3900 Aramingo
      Avenue, Philadelphia. On that day, the Complainant pulled his
      car over to the breakdown lane when it ran out of gas and
      reached into his trunk for a gas tank to refill it from the closest
      gas station. At that point, [the Complainant] heard a screeching
      noise and was immediately hit by [Kemp’s] car.             [Kemp]
      admitted to hitting [the Complainant] because he was
      intoxicated with drugs and fell asleep behind the wheel. On that
      day, [Kemp] and a female friend consumed Xanax and other pills
      before driving to purchase some more drugs. [Kemp] testified
      that he did not see the Complainant and did not stop the car.
      After the Complainant was struck, he was half conscious and
      recalled lying on the ground, pinned between the cars, with
      excruciating pain. He recalled feeling a burning sensation and
      seeing [Kemp] and his female friend in handcuffs. His now
      deceased girlfriend and a police officer accompanied him while
      the ambulance came. The extent of the Complainant’s injuries
      was substantial. The Complainant was hospitalized for over five
      weeks and underwent eight surgeries, including receiving staples
      to his leg. He remained in the hospital for a couple months after
      the surgeries. The Complainant sustained emotional distress
      and cried while he struggled to use a wheelchair to receive
      physical therapy treatment for approximately five months. His
      leg is discolored and scarred, with multiple areas of visible open
      flesh. Further, he walks with a cane and can no longer play
      sports with his children or pick up heavy equipment at work.

            Officer Joseph Flynn received a radio call for an auto
      accident at that location on [October] 8, 2011. He testified that
      he saw the Complainant lying on the ground, being treated by

                                     -2-
J-S90009-16


        the medic boards. [Kemp’s] Jeep Cherokee was directly behind
        the Complainant’s car. He immediately notified the Accident
        Investigation Division (“AID”) due to the severity of the
        Complainant’s injuries. [Kemp] told Officer Flynn that he was
        the person who operated the vehicle and that his brakes failed.
        Officer Flynn testified that he did not observe any bleeding on
        [Kemp] nor a right turn signal or hazard lights on [Kemp’s]
        vehicle. Officer Gary Harrison responded to the scene as an AID
        officer. He testified that he noticed that “[Kemp’s] eyes were
        watering, staring, he was stuporous, incoherent, and when he
        spoke to [him], his speech was slurred. And when [he] saw
        [Kemp] walking, he was swaying and he was sagging as well.”
        Officer Harrison administered the Standard Field Sobriety Test
        and [Kemp] failed the “walk and turn” test.          [Kemp] also
        admitted to consuming Xanax, Seroquel, and Lithium. Based
        upon all of Officer Harrison’s observation[s], he determined that
        [Kemp] was incapable of safely operating a motor vehicle.
        Officer Jamanda Smith also testified that when she saw [Kemp]
        at the AID headquarters, [Kemp] was drowsy and responded
        slowly.

               Counsels stipulated that Dr. Cone’s[3] drug scan report
        indicates that [Kemp] ha[d] Cocaine, Oxycodone, and Morphine
        in his system. The drugs were taken in close time proximity to
        one another [and] in significant dosage amounts. Dr. Cone
        concluded to a reasonable degree of certainty that [Kemp] was
        impaired by psycho active oxycodone and morphine, which was
        aggravated by the cocaine and that he was unfit to operate a
        vehicle on the highway. Counsels also stipulated that [Kemp’s]
        car pushed the Complainant’s car several feet before the vehicle
        came to a final rest. [Kemp’s] car sustained damages to the
        front of the vehicle with a missing grill and headlights. The front
        bumper was dented with white paint transfer and both airbags
        were deployed.       The rear of Complainant’s car sustained
        damages to the bumpers and right rear taillight. The rear
        window was shattered and the trunk was crushed, while the right
        rear quarter panel was crushed inwards.

Trial Court Opinion, 4/20/2016, at 2-5 (record citations omitted).
____________________________________________


3
    Dr. Cone’s first name is not revealed in the trial transcript.




                                           -3-
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       Kemp was subsequently arrested and charged with the following

offenses:    aggravated assault, possessing an instrument of crime (“PIC”),

simple assault, recklessly endangering another person (“REAP”) (two

counts), conspiracy, criminal mischief, aggravated assault by vehicle while

DUI (“aggravated assault-DUI”), accidents involving death/injury, DUI –

general impairment, DUI – controlled substances (three counts), driving

without a license, and driving while operating privilege is suspended.4 The

case proceeded to a nonjury trial, and on November 6, 2015, the trial court

found Kemp guilty of all charges, save for conspiracy, criminal mischief and

driving while operating privilege is revoked, of which crimes he was

acquitted.5 Prior to sentencing, on January 14, 2016, Kemp filed a pro se

motion requesting new counsel.             The court did not consider the motion

before sentencing. Rather, on February 1, 2016, the trial court sentenced

Kemp as follows:       (1) a term of nine to 18 years’ imprisonment, plus two

years’ probation for aggravated assault; (2) a consecutive term of seven

years’ probation for aggravated assault by DUI; and (3) a concurrent term of

____________________________________________


4
 See 18 Pa.C.S. §§ 2702, 907, 2701, 2705, 903(c), and 3304(a)(2), and 75
Pa.C.S. §§ 3735.1(a), 3742.1, 3802(a)(1) and (d)(1)-(3), 1501(a), and
1543(a), respectively.
5
  The significant delay in the trial appears to have been a result of Kemp’s
mental health issues. The record indicates he was committed to a mental
health facility on several occasions during the four-year period following his
arrest and before trial.




                                           -4-
J-S90009-16



90 days to five years’ imprisonment for DUI-combined impairment.6          With

regard to the remaining counts, the court determined they either merged for

sentencing purposes or warranted no further punishment.

        Thereafter, on February 4, 2016, the trial court granted Kemp’s

motion for the appointment of new counsel, and extended the time period

for filing a post-sentence motion. On February 9, 2016, new counsel filed a

post-sentence motion challenging the sufficiency and weight of the evidence,

as well as the discretionary aspects of Kemp’s sentence. The court denied

the motion on February 19, 2016, and this timely appeal followed.7

        In his first issue on appeal, Kemp challenges the sufficiency of the

evidence supporting his conviction of aggravated assault.8

        In reviewing the sufficiency of the evidence, we consider
        whether the evidence presented at trial, and all reasonable
        inferences drawn therefrom, viewed in a light most favorable to
        the Commonwealth as the verdict winner, support the [fact
        finder’s] beyond a reasonable doubt.        Commonwealth v.
        Murray, [623] Pa. [506], 83 A.3d 137, 150–51 (2013).
        Whether sufficient evidence exists to support the verdict is a
        question of law; thus, our standard of review is de novo and our
        scope of review is plenary. Id. at 151.

____________________________________________


6
    See 75 Pa.C.S. § 3802(d)(3).
7
  On March 21, 2016, the trial court ordered Kemp to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Kemp complied with the court’s directive, and filed a concise statement on
April 8, 2016.
8
 We note Kemp does not challenge his conviction of aggravated assault-
DUI.



                                           -5-
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Commonwealth v. Patterson, 91 A.3d 55, 66 (Pa. 2014), cert. denied,

135 S.Ct. 1400 (U.S. 2015).

      Aggravated assault is defined in the Crimes Code, in relevant part as

follows:

      A person is guilty of aggravated assault if he:

      (1) attempts to cause serious bodily injury to another, or causes
      such injury intentionally, knowingly or recklessly under
      circumstances manifesting extreme indifference to the value of
      human life[.]

18 Pa.C.S. § 2702(a)(1).

      In the context of motor vehicle accidents, and particular those

resulting from a defendant’s alcohol or drug impairment, the courts of this

Commonwealth have wrestled with the determination of whether the

impaired defendant possessed the sufficient mens rea to support a

conviction of aggravated assault. Compare Commonwealth v. O’Hanlon,

653 A.2d 616 (Pa. 1995); Commonwealth v. Comer, 716 A.2d 593 (Pa.

1998); Commonwealth v. McHale, 858 A.2d 1209 (Pa. Super. 2004); and

Commonwealth v. Dellavecchia, 725 A.2d 186 (Pa. Super. 1998) (en

banc), with Commonwealth v. Packer, 146 A.3d 1281 (Pa. Super. 2016),

appeal granted, ___ A.3d ___ (Pa. 2016); Commonwealth v. Miller, 955

A.2d 419 (Pa. Super. 2008); and Commonwealth v. Kling, 731 A.2d 145

(Pa. Super. 1999), appeal denied, 745 A.2d 1219 (Pa. 1999).

      The common thread in the case law, first announced in O’Hanlon, is

that the recklessness required for an aggravated assault conviction is a



                                     -6-
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“higher degree of culpability” than mere recklessness.        O’Hanlon, supra,

653 A.2d at 618. The O’Hanlon Court explained:

        [T]he offensive act must be performed under circumstances
        which almost assure that injury or death will ensue.            The
        recklessness must, therefore, be such that life threatening injury
        is essentially certain to occur. This state of mind is, accordingly,
        equivalent to that which seeks to cause injury. Examples of
        such behavior make the distinction clear. In Commonwealth v.
        Daniels, 467 Pa. 35, 354 A.2d 538 (1976), appellant had fired a
        gun into a crowd; in Commonwealth v. Laing, 310 Pa.Super.
        105, 456 A.2d 204 (1983), appellant drove his car into a crowd,
        after having aimed it at an individual; in [Commonwealth v.]
        Scofield, [521 A.2d 40 (Pa. Super. 1987), appeal denied, 535
        A.2d 82 (Pa. 1987),] the appellant drove at a pedestrian. See
        also, Commonwealth v. Hlatky, 426 Pa.Super. 66, 626 A.2d
        575 (1993); Commonwealth v. Rohach, 344 Pa.Super. 229,
        496 A.2d 768 (1985). In each of these instances, the defendant
        could reasonably anticipate that serious bodily injury or death
        would be the likely and logical consequence of his actions. In
        each case, the consequence was ignored.

Id. The Court further stated aggravated assault is “the functional equivalent

of murder in which, for some reason, death fails to occur.” Id.

        The Supreme Court repeated this standard in Comer, supra,

explaining the requisite state of mind is “equivalent to that which seeks to

cause injury.” Comer, supra, 716 A.2d at 596. A panel of this Court went

one step further in Kling, supra. In that case, in which the defendant was

convicted of both third degree murder and aggravated assault following a

vehicle crash, the panel stated the mens rea for both crimes involves

malice.9 Kling, supra, 731 A.2d at 147. The panel observed: “In view of
____________________________________________


9
    The Kling Court defined malice as follows:
(Footnote Continued Next Page)


                                           -7-
J-S90009-16



this heightened mens rea, motor vehicle crashes seldom give rise to proof of

the malice needed to sustain a conviction for third degree murder or

aggravated assault.” Id. at 148.

      With this background in mind, we proceed to consideration of Kemp’s

argument on appeal.           Kemp does not dispute the complainant suffered

serious bodily injury as a result of his negligent actions. See Kemp’s Brief at

22.   Rather, Kemp argues the evidence presented by the Commonwealth

was “insufficient to establish the element of recklessness necessary to

establish the crime of aggravated assault as set forth in [Section]

2702(a)(1).” Id. at 25. He further states: “Simply put, the factual record

in the case sub judice is lacking in both the quantity and the quality of facts

necessary to support a finding beyond a reasonable doubt that [] Kemp

acted with malice.” Id. at 30. For the reasons below, we are constrained to

agree.



                       _______________________
(Footnote Continued)

      Malice exists where there is a “wickedness of disposition,
      hardness of heart, cruelty, recklessness of consequences, and a
      mind regardless of social duty, although a particular person may
      not be intended to be injured.” Where malice is based on a
      reckless disregard of consequences, it is not sufficient to show
      mere recklessness; rather, it must be shown the defendant
      consciously disregarded an unjustified and extremely high risk
      that his actions might cause death or serious bodily injury.

Kling, supra, 731 A.2d at 147–148 (quotations omitted).




                                            -8-
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        The trial court found the following evidence demonstrated that Kemp

“exhibited extreme indifference to the value of human life”10 when he struck

the complainant with his motor vehicle: (1) Kemp “ingested drugs before he

went on the highway to purchase more drugs with a female friend[;]” (2)

Kemp drove “knowing that he was incapable of operating the vehicle” and

stated as much to his friend; (3) Kemp “testified that he eventually fell

asleep behind the wheels and did not hit the brakes when his car came into

contact with the Complainant[;]” (4) the responding police officer described

Kemp as “incoherent, spoke with a slurred speech, swayed and swaged,

while his eyes were watering and staring[;]” and (5) Kemp’s vehicle was

“moving at a high rate of speed” as evidenced by the 42-foot skid mark prior

to impact, as well as the severe damage to both vehicles.        Trial Court

Opinion, 4/20/2016, at 7-9. The court further summarized the following:

        The evidence of [Kemp’s] actions leading up [to] the car
        accident, along with the officers’ testimony of [their]
        observations of [Kemp] and Dr. Cone’s report that [Kemp]
        ingested a significant amount of drugs before operating his car
        to purchase more drugs, indicates that [Kemp] was in the state
        of mind of not caring whether death or serious bodily injury
        would ensue to another person.

Id. at 9.

        However, our review of the relevant case law leads to a different

result.    As noted above, this Court has found that “motor vehicle crashes


____________________________________________


10
     Trial Court Opinion, 4/20/2016, at 7.



                                           -9-
J-S90009-16



seldom give rise to proof of the malice needed to sustain a conviction for …

aggravated assault.”     Kling, supra, 731 A.2d at 148.        In both of the

leading decisions of the Pennsylvania Supreme Court, O’Hanlon and

Comer, the Court determined the evidence presented by the Commonwealth

was insufficient to support a conviction for aggravated assault.

      First, in O’Hanlon, the Court found that the defendant’s actions in

running a red light, when driving while inebriated, did not support the mens

rea for a conviction of aggravated assault. O’Hanlon, supra, 653 A.2d at

618 (stating “[s]erendipity, not intention, placed the victim in his path when

he drove through the red light.”).

      Second, in Comer the facts presented were even more egregious. In

that case, the defendant drank beer and took “downers” at a party before

driving his car on Roosevelt Boulevard in Northeast Philadelphia.     Comer,

supra, 716 A.2d at 595.      One eyewitness estimated the defendant was

travelling in excess of 70 m.p.h. See id. The defendant’s right tire rubbed

the curb before the car left the road and hit two pedestrians waiting at a bus

stand, before finally coming to a stop when it struck a brick wall. See id.

      In concluding the evidence was insufficient to support the mens rea

required for aggravated assault, the Comer Court distinguished the Superior

Court’s decision in Commonwealth v. Scofield, 521 A.2d 40 (Pa. Super.

1987), appeal denied, 535 A.2d (Pa. 1987).       In Scofield, the defendant

repeatedly scraped his car against parked vehicles, causing sparks to fly,

drove ten more feet before striking a pedestrian, and was belligerent and

                                     - 10 -
J-S90009-16



tried to flee when a witness attempted to stop him and while the victim was

still under his car.     See Scofield, supra, 521 A.2d at 41.11   The Comer

Court explained:       “In contrast, [here the defendant] sped past another

vehicle, his car rubbed the curb of the sidewalk and the accident ensued

immediately thereafter.” Comer, supra, 716 A.2d at 597. Accordingly, the

Court concluded the Commonwealth failed to “establish that [defendant]

possessed the state of mind equivalent to that which seeks to cause injury.”

Id. at 596. See also McHale, supra, 858 A.2d at 1216-1217 (finding

evidence insufficient to establish mens rea for aggravated assault when

intoxicated defendant, without license or insurance, got in his vehicle after

leaving bar, revved the engine, sped out of the parking lot, and hit a parked

car and two pedestrians before fleeing the scene); Dellavecchia, supra,

725 A.2d at 189 (finding evidence insufficient to establish mens rea for

aggravated assault when intoxicated defendant drove “at an excessive rate

over congested city streets, weaving in and out of traffic, prior to crash,”

and did apply brakes “in an effort to avoid impact.”).




____________________________________________


11
   We note the Scofield panel also found the defendant’s ingestion of
alcohol and/or drugs before driving “alone was an act of intentional
recklessness,” a finding that was later rejected by the Supreme Court in
O’Hanlon. Scofield, supra, 521 A.2d at 43; O’Hanlon, supra, 653 A.2d
at 618 n.5 (rejecting the Dissent’s adoption of “the conclusion of the
Superior Court in Scofield that driving while in a state of voluntary
intoxication is recklessness per se.”).



                                          - 11 -
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       We now turn to the cases relied upon by the trial court, in which this

Court has found the evidence sufficient to support a conviction of aggravated

assault resulting from a motor vehicle accident, have included evidence of

the defendant’s prior knowledge and conscious disregard of the risk

associated with his reckless driving. See Kling, supra; Commonwealth v.

Miller, 955 A.2d 419 (Pa. Super. 2008).12

       In Kling, supra, the defendant was racing at speeds in excess of 75

m.p.h. for two and one-half miles on a curvy mountain road, and

disregarded five cautionary signs and a near-miss collision before the crash.

Kling, supra, 731 A.2d at 150. In distinguishing Comer, supra, the Kling

panel explained:

             Unlike Comer, the crash here did not ensue immediately
       after the driver became aware of his life-threatening conduct.
       To the contrary, [the defendant] had adequate time to
       calculate and reflect upon the consequences of his reckless
       conduct, thus rendering the choice to continue it malicious.

Kling, supra, 731 A2d at 150 (emphasis supplied).
____________________________________________


12
   While the trial court also relies upon Commonwealth v. Nicotra, 625
A.2d 1259 (Pa. Super. 1993), we note the sufficiency issue on appeal in that
case concerned whether the Commonwealth proved beyond a reasonable
doubt that the defendant’s “intoxication and reckless driving caused the
traffic accident on which the charged were based.” Id. at 1260 (emphasis
supplied). In addressing that claim, the panel focused on the charges of
homicide by vehicle and homicide by vehicle-DUI. See id. at 1263. The
panel did not address the claim raised herein, that is, whether the defendant
possessed the sufficient mens rea to support his conviction of aggravated
assault. Accordingly, we find Nicotra is factually distinguishable in our
review of the issue sub judice.




                                          - 12 -
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       In Miller, supra, a police officer heard screeching tires and observed

the defendant “fishtailing out of control” before motioning the driver to pull

over. Miller, supra 955 A.2d at 420. Although the intoxicated defendant

initially stopped his car, he then “‘gunned’ the engine … and fled the scene

at a high rate of speed” as the officer was about to approach.        Id.    The

defendant never slowed down as he drove through a traffic light and stop

sign before colliding with two vehicles. See id. at 421. He then ran from

the scene and hid while his car erupted into flames. See id. In holding the

evidence was sufficient to support an aggravated assault conviction, the

Miller panel summarized:

       The fact that [defendant] was under the influence of marijuana
       while driving at a high rate of speed, ignored traffic signals,
       “fishtailed” around corners, disregarded the requests of a police
       officer to pull over, and accelerated through the intersection just
       before the crash all combine to prove the malicious nature of his
       actions.

Miller, supra, 955 A.2d at 423.

       Although not cited by the trial court, this Court’s recent decision in

Commonwealth v. Packer, 146 A.3d 1281 (Pa. Super. 2016),13 is also
____________________________________________


13
   We note the Commonwealth sought allowance of appeal from this decision
in the Pennsylvania Supreme Court. The Court granted the petition on
December 5, 2016, on the following issue, as stated by the Commonwealth:

       Did the prosecution prove beyond a reasonable doubt that Ms.
       Packer acted with sufficient malice when she became involved in
       a fatal motor vehicle accident after she “huffed” Dust-Off to
       support her convictions for [t]hird [d]egree [m]urder and
       [a]ggravated [a]ssault?
(Footnote Continued Next Page)


                                          - 13 -
J-S90009-16



instructive. In that case, the defendant and her fiancé “huffed” aerosol dust

remover while sitting in her car parked in a Walmart lot.                 Id. at 1283.

Before driving away, the defendant asked her fiancé, “Do you trust me?” to

which he replied, “Am I going to die tonight?”                Id.   The defendant then

drove to a nearby convenience store, and “huffed” again while stopped at a

red light.   Id.   Approximately five minutes after leaving the store parking

lot, and while in a “zombielike state,” the defendant drove her car into the

incoming lane of traffic, narrowly missing one vehicle before striking the

victim’s vehicle head on and killing the victim. Id. at 1284. The defendant

remained at the scene and called 911, but later lied to police regarding the

cause of the accident. See id. She also claimed to have used the aerosol

duster to clean the vehicle’s air vents.            See id.    At trial, the defendant’s

fiancé testified that they had “huffed” before that night on several occasions,

and the defendant admitted in her statement to police that she had “blacked

out” in the past after “huffing.” Id.

      In finding the evidence was sufficient to support the defendant’s

convictions of third-degree murder and aggravated assault, the panel

focused on the defendant’s admitted “awareness of her impaired condition

and the harm she might cause.” Id. at 1286. Specifically, the panel noted
                       _______________________
(Footnote Continued)

Commonwealth v. Packer, ___ A.3d ___, 533 MAL 2016 (Pa. 2016).
Accordingly, it appears the Supreme Court will once again consider the
degree of recklessness required to convict an impaired driver of aggravated
assault.



                                           - 14 -
J-S90009-16



the defendant asked her fiancé if he trusted her after she “huffed” the dust

remover, but before she drove out of the parking lot.    See id. Moreover,

the panel emphasized that the defendant admitted to police she was aware

of the effect “huffing” had on her, and she acknowledged she had “blacked

out” after “huffing” on prior occasions. Id. The panel opined:

           We believe there is a qualitative difference between
     knowingly driving while impaired and knowingly driving when
     one is aware of a strong likelihood of becoming
     unconscious. While impairment denotes a diminished capacity
     for proper functioning, unconsciousness renders a person
     incapable of functioning, thereby ensuring a person has no
     opportunity to avoid a collision, and virtually guaranteeing some
     manner of accident.

           Accordingly, when Packer drove her vehicle immediately
     after “huffing” at least three times, knowing the likelihood that
     she could black out and become unconscious, she “disregarded
     an unjustified and extremely high risk” that her actions “might
     cause death or serious bodily injury.” Kling, supra. Therefore,
     the evidence presented to the jury was sufficient to prove she
     displayed the malice needed to support the conviction of third
     degree murder.

Id. (emphasis supplied).

     Upon our review of the present matter, we find the facts in this case

more closely align with those in Comer, McHale and Dellavecchia, than

those in Kling, Miller, and Packer. First, the evidence demonstrated there

was very little time between Kemp’s acknowledged awareness of his

impaired condition and the accident. Kemp admitted he took drugs before

getting behind the wheel of a car. See N.T., 11/6/2015, at 43. He testified

that as he was proceeding on the exit ramp from Interstate 95 at Aramingo

Avenue, he realized he could not operate the car due to the effects of the

                                   - 15 -
J-S90009-16



drugs. See id. at 44. He explained that just a “couple of minutes before”

the accident, he told his friend:

       I said I cannot operate the vehicle. I was try[ing] to put on the
       hazards and then I turned the signal on to make a right turn off
       of Aramingo, and then I stopped the car with the break. And
       then I tried to look for the hazards and then I rolled again, and
       then I stopped again, and then two or three seconds later, [the
       complainant] was on the highway.

Id. at 44-45.      Therefore, according to Kemp, the accident occurred very

shortly after he became aware of his impaired condition.14      We note that

unlike in Kling and Miller, Kemp did not disregard repeated warnings to

stop or slow down. See Kling, supra, 731 A.2d at 150 (defendant ignored

five cautionary signs and a near-miss collision); Miller, supra, 955 A.2d at

420 (defendant first acknowledged, and then ignored police officer’s signal to

stop). Nor did he acknowledge a past history of “blacking out” when he took

similar drugs, or make a statement, prior to getting behind the wheel,

indicating he knew he might be too impaired to drive, as did the defendant

in Packer. See Packer, supra, 146 A.3d at 1283, 1284 (defendant asked

____________________________________________


14
    The Commonwealth asserts we are precluded from considering any
defense evidence when reviewing Kemp’s sufficiency claim, and, in
particular, Kemp’s own testimony in which he disputed he acted with malice.
See Commonwealth’s Brief at 8-9.           However, the Commonwealth also
encourages us to consider Kemp’s testimony that he was aware of his
impairment before the accident. See id. at 9. As we will discuss infra, our
ruling herein does not hinge on Kemp’s testimony concerning his state of
mind. Rather, we find the facts and circumstances surrounding the accident
insufficient to support a finding of malice.




                                          - 16 -
J-S90009-16



passenger “Do you trust me?” after “huffing” behind the wheel, and

admitted she had “blacked out” from “huffing” in the past).

       Moreover,     here,     unlike    in    Miller   or   Packer,   the   evidence

demonstrates Kemp attempted to brake before striking the complainant.

Indeed, the complainant testified he heard a “screeching noise” immediately

before he was hit, and the parties stipulated that there was “about 42 feet of

skid mark” from Kemp’s vehicle prior to impact.15 N.T., 11/6/2015, at 10,

32. Compare with Miller, supra, 955 A.2d at 423 (finding the evidence

demonstrated the defendant “accelerated through the intersection just

before the crash”); Packer, supra, 146 A.3d at 1286 (finding the evidence

demonstrated the defendant “took no evasive action prior to impact, rather

she drove directly into [the victim] after narrowly missing the car in front of

him.”).

       Therefore, while it is evident Kemp was too impaired by drugs to safely

operate a vehicle, we conclude the evidence does not support a finding that

Kemp acted with malice or sought to “cause injury.”              Comer, supra, 716

A.2d at 596; Kling, supra, 731 A.3d at 147.                  As a panel of this Court

observed in McHale:
____________________________________________


15
   We note Kemp’s testimony on this issue was conflicting. Indeed, when
asked if he “ever hit the [brake]” before impact, Kemp relied, “No, [] my
foot was lightly on the propeller at the time.” N.T., 11/6/2015, at 47.
However, according to the responding police officers, Kemp told them that
he tried to apply the brakes before the accident, but the brakes failed. See
id. at 22, 27.



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       There is no doubt that drunk driving is reprehensible. Statutes
       have been enacted to punish this offense and offenders should
       be prosecuted accordingly. However, here, the Commonwealth
       seeks to blur the lines of criminal liability based upon negligence,
       ordinary recklessness and the form of recklessness encompassed
       in malice, that reflects “extreme indifference to the value of
       human life,” in order to create a sort of malice per se from the
       act of driving while under the influence. If focusing merely on
       the tragic consequences of these actions, there is a tremendous
       temptation to allow the “book” to be thrown at such offenders.
       However, we cannot let our contempt for this irresponsible
       behavior and compassion for the victims involved supplant the
       legal standards upheld as part of a centuries-old common law
       tradition and enacted by our legislature.

McHale, supra, 858 A.2d at 1218.                     Accordingly, we reverse Kemp’s

conviction for aggravated assault, and remand for resentencing.16

       Kemp also asserts his sentence for DUI-combined impairment should

have merged with his sentence for aggravated assault-DUI. Both the trial

court and the Commonwealth agree, as do we.

       Preliminarily, we note a claim that convictions should have merged for

sentencing     purposes      implicates        the   legality   of   sentencing.   See

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013).

“Consequently, our standard of review is de novo and the scope of our

review is plenary.” Id. (quotation omitted).

       Convictions merge for sentencing purposes if two criteria are met:

“the crimes arise from a single criminal act and all of the statutory elements

____________________________________________


16
   Because we conclude the evidence was insufficient to support the
aggravated assault conviction, we need not address Kemp’s second claim
that the verdict was against the weight of the evidence.



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of one offense are included in the statutory elements of the other offense.”

42 Pa.C.S. § 9765.        With regard to the specific convictions at issue, this

Court has held that all of the statutory elements of the crime of DUI are

subsumed within the statutory elements of the crime of aggravated assault-

DUI.    See Tanner, supra, 61 A.3d at 1047 (comparing 75 Pa.C.S. §§

3802(c) and 3735.1(a)).17          Accordingly, where, as here, the crimes arise

from a single criminal act, they merge for sentencing purposes.         See id.

Consequently, we vacate the sentence imposed on Kemp’s conviction of

DUI-combined impairment.

       Because we conclude (1) the evidence was insufficient to support

Kemp’s conviction of aggravated assault, and (2) the sentence imposed on

his conviction of DUI-combined impairment should have merged for

sentencing purposes, we vacate the sentence imposed by the trial court and

remand for re-sentencing.         See Commonwealth v. Laudadio, 938 A.2d
____________________________________________


17
   For purposes of a merger analysis, we detect no difference between the
subsection of the DUI statute at issue in Tanner, Section 3802(c), and the
subsection at issue herein, Section 3802(d)(3). The Tanner Court explained
the crime of aggravated assault-DUI required, as an essential element, “that
an individual caused the proscribed harm ‘as a result of’ violating the DUI
statute and that the individual be convicted of DUI.” Tanner, supra, 61
A.3d at 1047.      See also 75 Pa.C.S. § 3731.1(a) (“Any person who
negligently causes serious bodily injury to another person as the result of a
violation of section 3802 … and who is convicted of violating section 3802
commits a felony of the second degree when the violation is the cause of the
injury.”). Accordingly, for purposes of an aggravated assault-DUI conviction,
the specific subsection of the DUI statute charged is immaterial.




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1055, 1056 (Pa. Super. 2007) (remanding case for re-sentencing when

vacation of conviction “may disturb the trial court’s overall sentencing

scheme.”).

      Judgment of sentence vacated.    Case remanded for resentencing in

accordance with this Memorandum. Jurisdiction relinquished.

      Judge Jenkins did not participate in the consideration or decision of

this case.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/17/2017




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