J.S76035/13

                               2014 PA Super 186

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

BEFORE: ALLEN, LAZARUS, and FITZGERALD,* JJ.

OPINION BY FITZGERALD, J.:                           FILED AUGUST 29, 2014

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

entered in the Cumberland County Court of Common Pleas following his jury




                                                               neral impairment

with refusal,1 and related summary offenses. He avers the trial court erred

in: (1) denying his suppression motion, where the arresting officer stopped




*
    Former Justice specially assigned to the Superior Court.
1
    75 Pa.C.S. §§ 3733(a), 3802(a)(1), 3804(b)(4).
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officer had violated the Municipal Police Jurisdiction Act2

finding the evidence was sufficient for DUI-refusal;3 (3) finding the DUI-

refusal conviction was not against the weight of the evidence; and (4)

holding the sentences for his DUI and F3-fleeing convictions did not merge.4

We agree that the DUI and F3-fleeing merge for sentencing purposes but



convictions     but   vacate   the   judgment     of   sentence     and   remand   for

resentencing.

                vember 22, 2011, around 10:45 p.m., Cumberland County

Dispatch received a call from Linda Cheskey indicating that a man[,

Appellant,5] appeared very intoxicated at the Sheetz gas station in Mt. Holly

                                                                          at 3.6   She



2
    42 Pa.C.S. §§ 8951-8954.
3
    See 7
4



As we discuss in detail infra, fleeing is generally graded as a misdemeanor
                                                                    However,

committed the offense while also committing driving while under the
influence of alcohol. See 75 Pa.C.S. § 3733(a.2)(2)(i).
5
    At trial, Ms. Cheskey identified Appellant.
6
     The    Honorable   Christylee   L.   Peck    presided   over   the    suppression

suppression issue.      Trial Ct. Op., 5/3/13.      The Honorable M. L. Ebert, Jr.



                                          -2-
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described his vehicle as a blue pickup truck and provided his license plate

number.   Appellant left the Sheetz parking lot and turned right onto Mill

Street, northward to South Middleton Township.         Within thirty to forty

                          aw a police car approaching with its emergency

           Id. at 4.

     The officer in the police vehicle was Officer Jason Beltz of the Mt. Holly

Springs Borough Police Department, and he was responding to the call about

Appellant. Officer Beltz did not se

lot, but travelled in the same direction Appellant was reported to have gone.

                                       -11, 25-26. Officer Beltz continued on

Mill Street to the borough border, which was approximately 3,000 feet from

Sheetz. Id. at 27. The officer initially had his lights and sirens activated,



                  Id.   He continued another half mile in South Middleton

Township and then turned right onto Zion Road. Id. at 28. When asked at

the suppression hearing why he turned onto Zion Road, Officer Beltz replied

that in the interim, dispatch advised him of the home address of the

registered owner of the vehicle, and Officer Beltz knew that Zion Road led to

                                                     Id. at 11-

Middleton Township is patrolled by the Pennsylvania State Police, but Officer



presided over trial and authored a Pa.R.A.P. 1925(a) opinion addressing




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at 5.
                                                                            7
                                                          -                     Id.

        Eventually the truck stopped, by which time Officer Beltz had driven a

mile to a mile and a half outside h

31.

             Officer Beltz . . . conduct[ed] a traffic stop and asked
          [Appellant] to produce his license and registration, which
          [Appellant] had difficulty finding. According to Officer
          Beltz, [Appellant] had a distinct odor of alcohol on his
          breath, appeared disheveled, and spoke with slurred
          speech. When Officer Beltz asked [Appellant] to exit his
          vehicle to perform a field sobriety test, [Appellant] initially
          complied but was unstable on his feet. [Appellant] then
          told the Officer that he had done nothing wrong and . . .
          reenter[ed] and attempt[ed] to restart the engine. Officer
          Beltz removed the keys, but [Appellant] exited the vehicle
          and pushed Officer Beltz away. [Appellant] then produced
          a second set of keys, reentered the vehicle, and locked the
          door. He turned on the engine and drove away.

             After a brief attempt to pursue [Appellant] as he drove

          home in an attempt to relocate [Appellant]. Officer Beltz


          wheels spinning. [Appellant] exited his vehicle and was
          taken into custody by Officer Beltz. The arrest took place
          in South Middleton Township.

             After [taking Appellant] to Cumberland County Prison
          for processing, Officer Beltz read [Appellant] the DL-26
          form verbatim. According to Officer Beltz, after reading
          the form and asking if [Appellant] would submit to a blood

7
    At the suppression hearing, Officer Beltz referred to this area as both a




                                       -4-
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                                   ed out of his seat and basically


           shown to the jury[, which] personally observed what
           [Appellant] did at the Booking Center.

Id. at 5-6 (citations to trial transcript omitted).

        Appellant was charged with fleeing, DUI, and related offenses.       On

April 13, 2012, he filed a motion to suppress all evidence obtained from the

vehicle stop, on the ground that Officer Beltz violated the Municipal Police

J

jurisdiction.   The court held a suppression hearing on May 25, 2012, and

denied the motion on September 26th. The court found that Officer Beltz

lacked the requisite probable cause to suspect Appellant had committed an

offense and thus violated Section 8953, but nevertheless found the infraction

was minimal and did not necessitate suppression of the evidence.

        A jury trial commenced on December 4, 2012.            The jury found

Appellant guilty of an F3 fleeing, DUI     third offense, DUI with refusal-third

offense.8 Furthermore, the trial court found Appellant guilty of the summary

offenses of public drunkenness and careless driving.9      On December 18th,

the court imposed sentences of imprisonment as follows: (1) DUI with

refusal fourteen months to four years; and (2) fleeing      a consecutive eight


8
    The DUI convictions were Appellant
9
    18 Pa.C.S. § 5505; 75 Pa.C.S. § 3714(a).




                                       -5-
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months to two years.10 Appellant filed a timely post-sentence motion, which

was denied. He then filed a timely notice of appeal and complied with the



appeal Appellant challenges: the denial of his suppression motion, the

sufficiency and weight of the evidence for DUI-

finding that his DUI convictions did not merge with fleeing. We agree that




suppression motion, where it had found Officer Beltz violated Section 8953

of the Municipal Police Jurisdiction Act.    Appellant avers that the officer

lacked probable cause, where he relied solely on a 911 call.          Appellant



                                         hout having any idea where . . . the




catching sight of [Appellant] could indicate a certain degree of bad faith . . .

                                                Id. at 36.    Appellant further


10
     The aggregate sentence is twenty-

sentence of ten months and fifteen days for DUI/general impairment with
refusal and an RRRI sentence of six months for fleeing. See 61 Pa.C.S. §§
4501-4512 (recidivism risk reduction incentive). Additionally, the court
imposed fines and costs.    The court found that both DUI and public
drunkenness merged with DUI with refusal.




                                     -6-
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                                                        Id. We find no relief

is due.

      We first note the standard of review of a suppression ruling:


          factual findings are supported by the record and whether
          the legal conclusions drawn therefrom are correct. We
          may consider the evidence of the witnesses offered by the
          Commonwealth, as verdict winner, and only so much of
          the evidence presented by defense that is not contradicted
          when examined in the context of the record as a whole.
          We are bound by facts supported by the record and may
          reverse only if the legal conclusions reached by the court
          were erroneous.

Commonwealth v. Hilliar, 943 A.2d 984, 989 (Pa. Super. 2008) (citation

omitted).

      Section 8953(a) of the MJPA provides in pertinent part:

          § 8953. Statewide municipal police jurisdiction.

             (a)     General rule. Any duly employed municipal
          police officer who is within this Commonwealth, but
          beyond the territorial limits of his primary jurisdiction,
          shall have the power and authority to enforce the laws of
          this Commonwealth or otherwise perform the functions of
          that office as if enforcing those laws or performing those
          functions within the territorial limits of his primary
          jurisdiction in the following cases:

                                  *    *    *

               (2) Where the officer is in hot pursuit of any person
            for any offense which was committed, or which he has
            probable cause to believe was committed, within his
            primary jurisdiction and for which offense the officer
            continues in fresh pursuit of the person after the
            commission of the offense.


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42 Pa.C.S. § 8953(a)(2). This Court has summarized:

          Under subsection two, if a police officer possesses probable
          cause that an offense has been committed in his or her
          primary jurisdiction, and is in hot and fresh pursuit of the
          perpetrator of the offense, the officer is vested with the
          same powers of law enforcement when the officer crosses
          out of his or her primary jurisdiction.

Hilliar, 943 A.2d at 989. In reviewing

          whether a violation of the MPJA has occurred, and if so,
          whether suppression of the evidence is warranted[, w]e
          have taken a case by case approach, noting that the MPJA

          promote     public    safety    while     maintaining   police
          accountability to local authority; it is not intended to erect
          impenetrable jurisdictional walls benefit[ing] only criminals


Id. at 990-91 (citation omitted).

        In Commonwealth v. Peters, 915 A.2d 1213 (Pa. Super. 2007), this

Court

          held that suppression of the evidence was not warranted
          even if there had been a violation of the MPJA.[ ] . . .

             One of the principal purposes of the MPJA is to
             promote public safety while placing a general
             limitation on extraterritorial police patrols. It is in
             the interest of promoting public safety, therefore,
             that the MPJA exceptions contemplate and condone
             extra-territorial activity in response to specifically
             identified criminal behavior that occur[s] within the
             primary jurisdiction of the police.

             Because of this purpose, our Supreme Court has
             explained that suppression of evidence is not always
             an appropriate remedy when there has been a
             violation of the MPJA. [The Supreme Court has]
             stated:


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               In Commonwealth v. Mason, . . . 490 A.2d
               421 (1985), we held that suppression of
               evidence was an inappropriate remedy for a
               violation of the Rules of Criminal Procedure
               relating to the issuance and execution of a

               primary jurisdiction where said violation did
               not implicate fundamental, constitutional
               concerns, was not conducted in bad faith or did
               not substantially prejudice the accused in the
               sense that the search would not otherwise
               have occurred or would not have been as
               intrusive.   Automatic exclusion of evidence
               obtained    by   searches      accompanied   by
               relatively minor infractions of the rules of
               criminal procedure would be a remedy out of
               all proportion to the violation, or to the
               benefits gained to the end of obtaining justice
               while preserving individual liberties.

Hilliar, 943 A.2d at 991-92 (some citations omitted).

     In the case sub judice, Appellant emphasizes that at the time Officer




court considered.   While the court found that Officer Beltz did not have




        minimal. Officer Beltz received information of a potentially
        intoxicated driver in his jurisdiction who posed a risk to
        public safety.    In response, Officer Beltz immediately
        sought out to trail the intoxicated driver, who had just left
        a business located within his jurisdiction, and soon
        thereafter found [Appellant] not far outside of his
        jurisdiction. He responded to no other calls during the
        pursuit of the intoxicated driver and did not engage in any
        other police business. This deviation from the letter and


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           spirit of the MPJA was minimal and intended to protect the
           public.

Trial Ct. Op., 5/3/13, at 3.



                                                   See

                                                                            ns were

undertaken in the interest of promoting public safety, namely, stopping an

intoxicated person from driving. See Hilliar, 943 A.2d at 991-92. Although



the total distance the officer travelled was relatively short.      Officer Beltz

testified that it was approximately 3,000 feet from Sheetz to the borough

border, and another half mile to Zion Road,11 which the officer knew led to

                                                 owner. Accordingly, we agree




           Had Officer Beltz located [Appellant] within his jurisdiction,
           Officer Beltz clearly would have had reasonable suspicion
           to initiate a valid traffic stop based on the identified
                                       See e.g. Commonwealth v.
           Anthony, 977 A.2d 1182, 1187 (Pa. Super. [ ] 2009)

           officers need not personally observe the illegal or
           suspicious conduct, but may rely upon the information of

           had Officer Beltz contacted the State Police after traveling

11
     We note that 3,000 feet is 0.568 miles.



                                      - 10 -
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         outside of his jurisdiction as required by the MJPA, the

         driving under the influence would have been identical.

Trial Ct. Op., 5/3/13, at 3.

      On appeal, Ap




                                             Id. at 36. In light of the policy of

the MJPA, we decline to grant relief on this rationale. See Hilliar, 943 A.2d

                                                     Smokey and the Bandit,

Appellant would have this Court hold that law enforcement officers should

step on the brakes at the borough line and watch the suspected criminal

drive away on safe ground.      . . .   The MPJA was not enacted to afford



                                                  that in this case, suppression

was not warranted.



the sufficiency of the evidence for DUI-refusal. He avers the Commonwealth

                                                                   a meaningful



Brief at 40.   He claims that the video played at trial showed Officer Beltz

                               -

statement to certify he was provided meaningful opportunity to the motorist



                                    - 11 -
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                    Id. at 40-41.   Appellant maintains that in the video, he



              Id. at 41. Appellant describes

enough that Ptl. Beltz should have attempted to determine if the action was

                                               Id. at 43.

      In his next issue, Appellant challenges the weight of the evidence for

DUI-refusal.12 He

                               -



           Id. at 49.    He again maintains that no evidence was presented

showing that refused chemical testing by actions or words. Id. at 50. We

hold no relief is due.

      Subsection 1547(a) of the Motor Vehicle Code, also known as the

implied consent law, sets forth a general rule that any person who operates



to determine blood alcohol content or the presence of a controlled substance



Section 3802, DUI. 75 Pa.C.S. § 1547(a); see Commonwealth v. Olsen,


12
   This issue is preserved for appeal, as Appellant raised it in his post-
sentence motion. See Pa.R.Crim.P. 607(A)(1)-(3) (requiring claim that
verdict was against weight of evidence to be raised with trial judge in motion
for new trial orally any time before sentencing, by written motion any time
before sentencing, or in post-sentence motion).




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82 A.3d 1041, 1046 (Pa. Super. 2013).

     Subsection 1547(b)(1) provides in pertinent part that if any person

arrested for a DUI violation under Section 3802 refuses to submit to




prescribed duration of time.         75 Pa.C.S. § 1547(b)(1).       Subsection

1547(b)(2) provides,

           (2) It shall be the duty of the police officer to inform the
        person that:


           upon refusal to submit to chemical testing; and

              (ii) if the person refuses to submit to chemical
           testing, upon conviction or plea for violating section
           3802(a)(1), the person will be subject to the penalties
           provided in section 3804(c) (relating to penalties).

75 Pa.C.S. § 1547(b)(2)(i)-(ii). This Court has explained:

            Thus, pursuant to the implied consent law, any person
        who drives a vehicle and refuses a request for a blood
        draw, when such request is predicated upon reasonable
        grounds to believe that the driver was driving under the
        influence of alcohol, will be sentenced to the enhanced
        penalties codified at 75 Pa.C.S. § 3804(c). That section
        states, in pertinent part, as follows:

           Incapacity; highest blood alcohol; controlled
           substances. An individual who violates section
           3802(a)(1) and refused testing of blood or breath . .
           . shall be sentenced as follows:

                                 *      *      *

               (3) for a third or subsequent offense, to:



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                  (i) undergo imprisonment of not less than one
               year;

                  (ii) pay a fine of not less than $2,500; and

                  (iii) comply with all drug and alcohol treatment
               requirements under sections 3814 and 3815.

            75 Pa.C.S. § 3804(c)(3).

Olsen, 82 A.3d at 1046-47.

      We set forth the standard of review for a sufficiency of the evidence

claim:

             We must determine whether the evidence admitted at
         trial, and all reasonable inferences drawn therefrom, when
         viewed in a light most favorable to the Commonwealth as
         verdict winner, support the conviction beyond a reasonable
         doubt. Where there is sufficient evidence to enable the
         trier of fact to find every element of the crime has been
         established beyond a reasonable doubt, the sufficiency of
         the evidence claim must fail.

            The evidence established at trial need not preclude
         every possibility of innocence and the fact-finder is free to
         believe all, part, or none of the evidence presented. It is
         not within the province of this Court to re-weigh the
         evidence and substitute our judgment for that of the fact-
         finder.   The Commonwealth's burden may be met by
         wholly circumstantial evidence and any doubt about the
         defendant's guilt is to be resolved by the fact finder unless
         the evidence is so weak and inconclusive that, as a matter
         of law, no probability of fact can be drawn from the
         combined circumstances.

Id. at 1046 (citation omitted).

      We note that in reviewing a weight of the evidence challenge:


                                                      the underlying
         question of whether the verdict is against the weight of the


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                             -finder is free to believe all, part, or
         none of the evidence; an appellate court will not make its

         tri


         refusal to award a new trial only when we find that the
         trial court abused its discretion in not concluding that the


         motion for a new trial based on a weight of the evidence


Id. at 1049 (citations omitted).

      We note that our Commonwealth Court has stated,13

             In order to sustain a suspension of operating privileges
         under section 1547 of the Code, DOT must establish that:
         (1) the licensee was arrested for drunken driving by a
         police officer who had reasonable grounds to believe that
         the motorist was operating a motor vehicle while under the
         influence of alcohol; (2) the licensee was requested to
         submit to a chemical test; (3) the licensee refused to
         submit; and (4) the licensee was warned that refusal
         would result in a license suspension. In proving whether a
         licensee refused to submit to chemical testing, DOT has
         the burden of showing that the licensee was offered
         a meaningful opportunity to comply with section
         1547 of the Code. Once DOT satisfies its burden, the
         licensee must establish that the refusal was not knowing or
         conscious or that the licensee physically was unable to
         take the test.



13

Commonwealth Court.       However, such decisions provide persuasive
authority, and we may turn to our colleagues on the Commonwealth Court
                                 Lockley v. CSX Transp., Inc., 66 A.3d
322, 326 n.5 (Pa. Super. 2013), appeal denied, 74 A.3d 127 (Pa. 2013)
(citation omitted).    Appellant relies on Broadbelt and related
                                                    -42, 44-45.



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Broadbelt v. DOT, Bureau of Driver Licensing, 903 A.2d 636, 640 (Pa.

Cmwlth. 2006) (citations omitted) (emphasis added).

     In Olsen, a police officer arrested the defendant for DUI and was

transporting her to the hospital for blood alcohol testing. Olsen, 82 A.3d at

1044. During the ride, the defendant

        began to get loud, was screaming and continued on a
        vulgar tirade about law enforcement and about [the
        officer] specifically. [The officer] described that he

        read the chemical testing warnings from the DL-26 Form,
        but it was clear that [the defendant] was not paying

        officer] did not actually read very much of the DL-26 Form,
        he read the beginning of the form and only abandoned the

        would not permit him to finish. [The officer abandoned his
        effort to take [the defendant] into the hospital for a blood
        draw, and instead [drove] towards the [p]olice
        [d]epartment in order to have [the defendant] processed
        on the DUI charge.]

Id. at 1044-45.

     On appeal from her conviction of DUI, the defendant challenged the



refused chemical testing under Section 1547. Id. at 1045, 1049. This Court

                                fficer attempts to administer the warnings,



completing the recitation, the arrestee will be deemed to have refused the

               Id. at 1049 (citing Commonwealth v. Xander, 14 A.3d 174,




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                                  against the police, preventing [him] from

                               Olsen, 82 A.3d at 1048. This Court thus held



reasonable doubt that [the defendant] had knowingly refused the blood

dr      Id. With respect to the weight of the evidence, the Court reasoned




               Id. at 1049.    The jury

credible.   Id.



supported by the record. Id.

      In the instant case, Officer Beltz testified at trial that he read the DL-

Form 26 verbatim to Appellant.       N.T. Trial, 12/4/12, at 44.    The officer



testing, he jumped up out of his seat and basically made a threatening move

                  Id. at 45.   As stated above, the Commonwealth played a

video depicting the reading of DL-Form 26 to Appellant. Id. at 72.



                   see                             uires this Court to discredit




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we cannot do. See Olsen, 82 A.3d at 1049. Furthermore, we note the trial

                                                                           her in

words or by uncooperative conduct after examining all the surrounding facts



with the Pennsylvania Suggested Standard Jury Instruction.14 Appellant did

not object to this instruction at the time it was given or at the conclusion of

all the instructions. See N.T. Trial, at 100, 107. In light of all the foregoing,



not shock its conscience.     See Olsen, 82 A.3d at 1049.       We rely on the



claim.



sentences, we note the following statutory authority.       Section 3802 of the

Vehicle Code defines DUI/general impairment as follows:

14
     Suggested Standard Criminal Jury Instruction 17.6502C states:

           1. The Commonwealth contends that the defendant
           refused to give a sample of [[his] [her]] [[blood] [urine]]


           conduct. You should consider everything said and done by
           the [police] [official] and the defendant, and all the
           surrounding circumstances, at the time of the alleged
           refusal when determining whether the defendant did in
           fact refuse to give the sample. [If a person refuses, that
           initial refusal can still be regarded as a refusal even if he
           or she later offers a sample for testing.]

Pa. SSJI (Crim) 17.6502C(1).



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              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
           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).

      Section 3733(a) defines the offense of fleeing or attempting to elude a

police officer as follows:

           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).

75 Pa.C.S. § 3733(a). Subsection 3733(a.2) sets forth the grading of this

offense:

              (1) Except as provided in paragraph (2), an offense
           under subsection (a) constitutes a misdemeanor of the
           second degree. . . .

              (2) An offense under subsection (a) constitutes a felony
           of the third degree if the driver while fleeing or attempting
           to elude a police officer does any of the following:

                 (i) commits a violation of section 3802 (relating to
              driving under influence of alcohol or controlled
              substance)[.]

75 Pa.C.S. § 3733(a.2)(1), (2)(i).

      In the instant appeal, Appellant argues that the trial court erred in

holding his DUI and DUI with refusal convictions did not merge with his F3

fleeing conviction. He points out that while fleeing is generally graded as an

M2, if an individual commits fleeing while also committing DUI, fleeing is


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then graded as an F3.      See 75 Pa.C.S. § 3733(a.2)(2)(i).   Appellant thus



degree felony, [it] must find beyond a reasonable doubt that each and every




determine whether a violation of § 3802 occurred while a violation of § 3733

           Id.



               Id.    He avers instead that under Apprendi v. New Jersey,

                          an element of an offense is any fact which the jury

must find beyond a reasonable doubt in order to convict the defendant of the

           Id.       Appellant accordingly urges this Court to find that the

offenses merged. We agree.

                                     ine is codified at section 9765 of the

Sentencing Code:

        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.



[Section 9765] is clear.     It prohibits merger unless two distinct facts are

present: 1) the crimes arise from a single criminal act; and 2) all of the

statutory elements of one of the offenses are included in the statutory


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                             Commonwealth v. Tanner, 61 A.3d 1043, 1046

(Pa. Super. 2013) (cita

sentencing     is   a   question   implicating   the   legality   of   [a]   sentence.

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

              Id. at 1046.

        Our review of relevant decisional authority has not revealed a

discussion on whether the crimes of fleeing-F3 and DUI merge. However,

we find guidance in Tanner. In that case, the defendant pleaded guilty to

homicide by motor vehicle while DUI, aggravated assault by vehicle while

DUI, and DUI highest rate of alcohol.15            Id. at 1045.        The trial court

imposed sentences at all three counts, to be served consecutively. Id. On

appeal, this Court sua sponte reviewed whether the DUI conviction merged

with the convictions for homicide by motor vehicle while DUI and aggravated

assault by vehicle while DUI.         Id. at 1046.     This Court considered the

following.

        The Vehicle Code defines homicide by vehicle while DUI as follows:



result of a violation of . . . section 3802 (relating to [DUI]) and who is

convicted of violating section 3802 is guilty of a felony of the second degree

                                                          Id. at 1046 (quoting 75


15
     75 Pa.C.S. §§ 3735(a), 3735.1(a), 3802(c).




                                        - 21 -
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Pa.C.S.A. § 3735(a)). Aggravated assault by vehicle while DUI is defined as



person as the result of a violation of . . . section 3802 (relating to [DUI]) and

who is convicted of violating section 3802 commits a felony of the second

                                                           Tanner, 61 A.3d at

1046 (quoting 75 Pa.C.S.A. § 3735.1(a)).

      The Tanner

from a single criminal act. Tanner, 61 A.3d at 1047. It found that



         homicide by motor vehicle while DUI and aggravated
         assault by vehicle while DUI.       Indeed, the crimes of
         homicide by motor vehicle while DUI and aggravated
         assault by vehicle while DUI require, as essential elements,


         convicted of DUI. Therefore, the statutory elements of
         DUI are completely subsumed within the crimes of both
         homicide by motor vehicle while DUI and aggravated
         assault by vehicle while DUI. As such, for sentencing
         purposes, [the] DUI conviction merged with both
         [the]homicide by motor vehicle while DUI and aggravated
         assault by vehicle while DUI convictions.

Id. (citations omitted).

      In the case sub judice, the trial court further reasoned that the

legislative intent for the fleeing-F3 subsection was to increase sentencing for

fleeing when it is committed during a DUI, and not to merge the two crimes

for sentencing purposes.     Trial Ct. Op., 3/28/13, at 8.      We respectfully




                                     - 22 -
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disagree, and instead hold that the rationale in Tanner applies.16 Fleeing-F3

includes the element of committing DUI, 75 Pa.C.S. § 3733(a.2)(2)(i),

similar to homicide by vehicle while DUI and aggravated assault while DUI.

75 Pa.C.S. §§ 3735(a), 3735.1(a).      Accordingly, we hold that DUI merges

with fleeing-

illegal. Our



                            See Olsen, 61 A.3d at 1048.

      Judgment of sentence affirmed in part and vacated in part.        Case

remanded for resentencing. Jurisdiction relinquished.

      Allen, J. files a concurring and dissenting opinion.




16

Commonwealth v. Everett, 705 A.2d 837 (Pa. 1998), applies to control
that the two offenses in the instant matter do not merge. In Everett, the
                                                                        -
felony and attempted murder conviction was a second degree-felony. Id. at
838 n.1, 839. The issue before our Supreme Court was not whether these
two offenses merged; the Court cited Commonwealth v. Anderson, 650
A.2d 20 (Pa. 1994), which held they did. Everett, 705 A.2d at 838-

                                   but see Commonwealth v. Coppedge,
984 A.2d 562, 564 (Pa. Super. 2009) (noting 2003 merger statute, 42
Pa.C.S. § 9765, superseded prior common law decisions, including
Anderson). Instead, the issue before the Everett Court was whether a
court was required to sentence on the greater offense and not the lesser
offense. Id.
rejection of such a claim
                     legislature intended that a lesser maximum sentence
                 Id. at 839.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 8/29/2014




                          - 24 -
