J-E01005-15
                           2015 PA Super 226
COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

LEE ALLEN KIMMEL,

                        Appellant                   No. 126 MDA 2013


    Appeal from the Judgment of Sentence entered December 18, 2012
           In the Court of Common Pleas of Cumberland County
           Criminal Division at No(s): CP-21-CR-0003380-2011.

BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT,
        STABILE AND JENKINS, JJ.

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

     I agree with the learned majority that Appellant’s convictions do not

merge.   I do so, however, for a different reason.       Unlike the learned

majority, in my view, Appellant was charged with committing a single

criminal act. Nonetheless, all of the statutory elements of driving under the

influence (DUI) are not included in F3-fleeing. Accordingly, I concur only in

the learned majority’s judgment.

     The majority succinctly summarized 42 Pa.C.S.A. § 9765.       Majority

Opinion at 8. I thus proceed directly to considering whether Appellant was

charged with committing a single criminal act or multiple criminal acts. As

noted by the learned majority, Commonwealth v. Jenkins, 96 A.3d 1055

(Pa. Super. 2014), appeal denied, 104 A.3d 3 (Pa. 2014), explains when a

single criminal act occurs for purposes of the merger statute.         Under
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Jenkins, this Court must “look to the elements of the crimes involved as

charged by the Commonwealth.”          Id. at 1060 (emphasis added).      In

Jenkins, a panel of this Court held that simple assault did not merge with

robbery where the criminal information set forth detailed facts and expressly

charged the defendant with assault arising from a punch that lacerated the

victim’s fact and broke his jaw, and a robbery that stemmed from a wholly

separate and distinct act of restraining the victim on the ground in order to

steal his personal belongings.    Id. at 1061.    Unlike the information in

Jenkins, the criminal information in this case, which is notably absent from

the majority’s analysis, does not set forth any facts and fails to make this

clear delineation between the alleged criminal acts. Thus, I cannot conclude

that Appellant was charged by the Commonwealth for separate criminal acts.

      In reviewing the criminal information filed against Appellant, it is

evident that the Commonwealth merely copied and pasted the text of the

relevant criminal statutes without alleging any operative facts that formed

the basis for each charge.1      There are no specific allegations in the


1
  Specifically, the criminal information filed against Appellant reads in
pertinent part as follows:

      THE DISTRICT ATTORNEY OF CUMBERLAND COUNTY, by this
      information charges that on or about Tuesday, the 22nd day of
      November, 2011, in the said County of Cumberland, LEE ALLEN
      KIMMEL, did:

      COUNT 1:
      Fleeing or Attempting to Elude Police Officer
(Footnote Continued Next Page)


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information, akin to Jenkins, which demonstrate conclusively that Appellant

was charged with separate criminal acts.            Thus, I cannot separate

Appellant’s conduct in driving while intoxicated from his choice to flee from

the police.   Recall Jenkins, in which this Court held that the defendant’s
                       _______________________
(Footnote Continued)
      (F3 -- $15,000 – 7 Years)
      while operating a motor vehicle, willfully fail or refuse to bring
      his/her vehicle to a stop, or did otherwise flee or attempt to
      elude a pursuing police vehicle with activated visual and audible
      signals; or while operating a motor vehicle, willfully fail or refuse
      to bring his/her vehicle to a stop, or did otherwise flee to
      attempt to elude a pursuing police vehicle with activated visual
      and audible signals and (i) commit a violation of Section 3802,
      (ii) cross state line; or (iii) endanger a law enforcement officer or
      member of the general public due to the driver engaging in a
      high speed chase. A violation of this section carries a mandatory
      fine of $500.00 in addition to and not in lieu of any other fines
      and costs[.]

      COUNT 2:
      Driving Under the Influence, General Impairment (3rd or
      Sub.)
      (M2 -- $500.00 – 10 Days-2 Years)
      drive, operate, or be in actual physical control of the movement
      of a vehicle after imbibing enough alcohol to render said person
      incapable of safely driving, operating, or being in actual physical
      control of the movement of the vehicle.

      COUNT 3:
      Driving Under the Influence, General Impairment With
      Refusal (3rd or Sub.)
      (M1 -- $2,500.00 -- $10,000.00 – 1 Year – 5 Years)
      drive, operate, or be in actual physical control of the movement
      of a vehicle after imbibing enough alcohol to render said person
      incapable of safely driving, operating or being in actual physical
      control of the movement of the vehicle and did refuse to provide
      a sample of breath or blood for chemical testing. …

Information, 2/1/12, at 1 (emphasis in original).




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convictions arose from distinct criminal acts because separate conduct

formed the basis of the charges leveled in the information.                 Here, in

contrast, Appellant was driving while intoxicated and fled from the police.

The information charged generically that Appellant committed DUI and

fleeing, without specifying when the crimes occurred.           However, it is clear

that Appellant’s post-stop actions constituted both a DUI (because Appellant

operated his vehicle while intoxicated) and fleeing (because Appellant

departed from a signaled police detention). Because of the generic nature of

the allegations set forth in the information, I cannot say with certainty, as

this Court could in Jenkins, that there were two separate criminal acts.

      The learned majority relies on the conclusion that “there was [an]

initial DUI, followed by a stop, followed by Appellant choosing to flee while

DUI,” Majority Opinion at 9, and the subsequent assertion that the

Commonwealth charged Appellant with committing DUI and a separate

felony fleeing offense that occurred after the initial traffic stop. Id. at 9-10.

In reviewing the information in this case, the total lack of facts prevents me

from concluding that Appellant was charged with a DUI, followed by a stop,

followed by a charge for fleeing while DUI. Nor can I say with certainty that

the jury necessarily found this version of the events proven beyond a

reasonable doubt. In the absence of precise allegations (similar to those in

Jenkins) asserting that Appellant’s DUI offense arose from his pre-stop

operation   of   a   motor   vehicle,   it   is   just   as   conceivable   that   the



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Commonwealth charged Appellant with DUI, and fleeing while DUI, based

entirely on his conduct following the traffic stop by Officer Beltz.   Thus, I

cannot conclude, as the learned majority would suggest, that Appellant was

charged with and convicted of DUI relating solely to events that occurred

before the traffic stop. Thus, I must conclude that Appellant’s convictions

arose from a single criminal act.

      Having determined that Appellant was charged with a single criminal

act, I turn to whether the statutory elements of DUI are included within the

statutory elements of F3-fleeing.2        In order to determine whether the

statutory elements of DUI are included in the statutory elements of F3-

fleeing, I must ascertain the meaning of “statutory elements” as used in

section 9765.   The Commonwealth contends that statutory elements are

limited to those elements listed in the definition of an offense.       Other

elements or factors, the Commonwealth maintains, such as those that solely

affect grading, are not statutory elements within the meaning of section

9765. Appellant, on the other hand, argues that all factors that are included

in a criminal statute, including factors used in determining the grading of an

offense, constitute statutory elements.

      “When interpreting a statute, [this Court is] guided by the Statutory

Construction Act,” 1 Pa.C.S.A. § 1501 et seq.      W.C.F. v. M.G., 115 A.3d


2
   The majority outlined the statutory provisions relating to DUI and F3-
fleeing. Majority Opinion at 7-8.



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323, 333 n.1 (Pa. Super. 2015). This Court’s “paramount interpretative task

is to give effect to the intent of [the] General Assembly in enacting the

particular legislation under review.” Commonwealth v. Schultz, 116 A.3d

1116, 1120 (Pa. Super. 2015) (internal quotation marks and citation

omitted). “Generally, the best indication of the General Assembly’s intent

may be found in the plain language of the statute. In this regard, it is not

for the courts to add, by interpretation, to a statute, a requirement which

the legislature did not see fit to include.” Commonwealth v. Devries, 112

A.3d 663, 670 (Pa. Super. 2015) (internal quotation marks and citations

omitted).

     In ascertaining the General Assembly’s intent when the words of a

statute are ambiguous, this Court may consider, inter alia, the occasion and

necessity for the statute, the circumstances under which it was enacted, the

mischief to be remedied, the object to be attained, and the former law

concerning the same subject.     1 Pa.C.S.A. § 1921(c)(1-5).     This Court

presumes that in enacting statutes, “the General Assembly does not intend

to violate the Constitution of the United States or of this Commonwealth.” 1

Pa.C.S.A. § 1922(3).   This Court also presumes that in enacting statutes

“the General Assembly does not intend a result that is absurd, impossible of

execution[,] or unreasonable.” 1 Pa.C.S.A. § 1922(1).




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        The Sentencing Code (in which section 9765 is found) does not define

the term “statutory elements.”3       Although it is clear that in order to be a

statutory element, the element must be included in the Pennsylvania

Consolidated Statutes or the Pennsylvania Statutes, it is unclear exactly

where in the statute an element must appear in order to be deemed a

statutory element within the meaning of section 9765. In the absence of a

clear and precise legislative pronouncement on this point, I conclude that

3
    The Crimes Code, however, defines the term “element of an offense” as

        Such conduct or such attendant circumstances or such a result
        of conduct as:

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

        (2) establishes the required kind of culpability;

        (3) negatives an excuse or justification for such conduct;

        (4) negatives a defense under the statute of limitation; or

        (5) establishes jurisdiction or venue.

18 Pa.C.S.A. § 103. The Crimes Code also defines “material element of an
offense” as

        An element that does not relate exclusively to the statute of
        limitations, jurisdiction, venue or to any other matter similarly
        unconnected with:

        (1) the harm or evil incident to conduct, sought to be prevented
        by the law defining the offense; or

        (2) the existence of a justification or excuse for such conduct.

Id.



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the term “statutory elements” as used in section 9765 is ambiguous.        As

there is no unambiguous meaning to the term “statutory elements”, I turn to

other tools of statutory interpretation to ascertain its meaning.

        I begin with the development of Pennsylvania jurisprudence on

merger, both before and after the passage of section 9765, to illuminate my

understanding of the statute.       The legislature passed section 9765 in

December 2002 and it became effective in February 2003. See 2002 P.L.

1705.     Prior to the enactment of section 9765, the history of merger

jurisprudence in this Commonwealth was long and discordant.

        Generally, there are three approaches to merger analysis. The first of

these is the “pure statutory elements” approach.        This approach, which

began at common law, “limits a court to comparing the elements of the

crimes, without reference to how the crimes were committed in a particular

case, to determine whether in committing one offense the defendant has

also committed a lesser offense.”      Commonwealth v. Jones, 912 A.2d

815, 817 (Pa. 2006) (Castille, J. opinion announcing the judgment of the

court) (citation omitted). The pure statutory elements approach involves a

more restrictive analysis and results in the fewest instances of merger. A

second merger theory is the “cognate-pleadings” approach. This approach

“does not require that all of the elements of a lesser included offense be

subsumed within the higher offense, and instead instructs a court to assess

the relationship between crimes by looking at the pleadings in a case.” Id.



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at 817-818 (citation omitted). Finally, the “evidentiary” approach “allows a

court to analyze the actual proof submitted at trial, rather than only the

pleadings, to examine the relationship between the crimes committed.” Id.

at 818 (citation omitted).

      The doctrine of merger in this Commonwealth dates to at least 1824.

In Harman v. Commonwealth, 12 Serg. & Rawle 69 (Pa. 1824), the

Pennsylvania Supreme Court held that the crime of assault and battery with

intent to ravish merged with rape. In Harman, the Court applied what we

know today as the pure statutory elements approach, as it reasoned that the

defendant was necessarily guilty of assault and battery with intent to ravish

if he were guilty of rape. More recently, in Commonwealth v. Williams,

496 A.2d 31 (Pa. Super. 1985), this Court reviewed the state of the merger

doctrine in Pennsylvania.     By this time, Pennsylvania followed a hybrid

approach that combined the pure statutory elements approach and the

evidentiary approach. See id. at 40. A few years later, the Pennsylvania

Supreme Court issued contradictory decisions in Commonwealth v.

Williams, 559 A.2d 25 (Pa. 1989), and Commonwealth v. Weakland, 555

A.2d 1228 (Pa. 1989).        In Williams, the Pennsylvania Supreme Court

applied the pure statutory elements approach. Williams, 559 A.2d at 29.

On the other hand, in Weakland, the Court applied a hybrid approach

combining the pure statutory elements approach and the evidentiary

approach. Weakland, 555 A.2d at 1233.



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     The Pennsylvania Supreme Court later acknowledged that Williams

and Weakland could not be reconciled. In Commonwealth v. Anderson,

650 A.2d 20 (Pa. 1994), the Pennsylvania Supreme Court overruled

Weakland and adopted the pure statutory elements approach advanced in

Williams.     See id. at 22-23.     Anderson remained the law of this

Commonwealth with respect to merger until the passage of section 9765 by

the General Assembly.

     In 2006, the Pennsylvania Supreme Court addressed the issue of

merger for the first time following the passage of section 9765. In Jones,

Chief Justice Cappy and Justices Castille and Baer construed section 9765 as

employing a hybrid approach that blended the pure statutory elements

approach with the cognate-pleadings approach.     Jones, 912 A.2d at 822-

824. Justices Saylor, Newman, and Eakin disagreed and construed section

9765 to require a pure statutory elements approach. Id. at 825 (Saylor, J.

concurring); id. at 826 (Newman, J. dissenting). Because no construction of

section 9765 garnered a majority of the Jones Court, the decision lacked

precedential force beyond the parties to that dispute. See Commonwealth

v. Holmes, 79 A.3d 562, 575 n.8 (Pa. 2013) (“A decision of th[e

Pennsylvania Supreme] Court has binding effect [only] if a majority of the

participating Justices joined the opinion.”).   Subsequently, however, in

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

Supreme Court rejected the hybrid approach followed in Jones and instead



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interpreted section 9765 as a pure statutory elements approach to merger.

Id. at 835.    In so holding, the Court noted that the General Assembly’s

adoption of section 9765 was a codification of the approach taken in

Anderson.4 See id.

     Baldwin’s construction of section 9765 as a pure statutory elements

approach to merger, together with its declaration that section 9765 codified

Anderson, are instructive in construing the term “statutory elements” in

this case.    As a preliminary matter, the Pennsylvania Supreme Court in

Anderson held that the pure statutory elements approach to merger

“ultimately[] is identical to the inquiry as to whether the double jeopardy

protection of the Fifth Amendment has been violated.” Anderson, 650 A.2d

at 23.   The seminal case on double jeopardy (as it relates to multiple

punishments arising from a single criminal act) is Blockburger v. United

States, 284 U.S. 299 (1932). In Blockburger, the Supreme Court of the

United States explained that “where the same act or transaction constitutes


4
  Anderson not only adopted and applied the pure statutory elements test
for merger, the decision also discussed the underlying purpose of a narrow
merger rule. The Pennsylvania Supreme Court explained that a narrow
approach to merger prevented criminals from obtaining a volume discount
on crime. Anderson, 650 A.2d at 22. In the absence of a narrow merger
rule, the Court reasoned that there would be no deterrent against a robber’s
violent assault upon a victim during a robbery because the aggravated
assault conviction would merge with the robbery conviction. See id. Since
the Pennsylvania Supreme Court in Baldwin determined that section 9765
represented a codification of the approach used in Anderson, we infer that
the General Assembly also sought to advance the goal of preventing volume
discounts on crime through its adoption of the merger statute.



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a violation of two distinct statutory provisions, the test to be applied to

determine whether there are two offenses or only one, is whether each

provision requires proof of a fact which the other does not.” Id. at 302. It

later clarified, however, “that the Blockburger test applies only in the

multiple punishment context as a rule of statutory construction, to be

utilized only when the legislature has not indicated whether punishment for

separate offenses is cumulative.” Baldwin, 985 A.2d at 836, citing Whalen

v. United States, 445 U.S. 684, 691-692 (1980).          In other words, “the

question of what punishments are constitutionally permissible is not different

from the question of what punishments the [General Assembly] intended to

be imposed.”    Albernaz v. United States, 450 U.S. 333, 344 (1981).

Therefore, when the General Assembly “specifically authorizes cumulative

punishment under two statutes, regardless of whether those two statutes

proscribe the ‘same’ conduct under Blockburger, a court’s task of statutory

construction is at an end and the prosecutor may seek and the trial court []

may impose cumulative punishment under such statutes in a single trial.”

Missouri v. Hunter, 459 U.S. 359, 368–369 (1983).

      Applying these principles to the case sub judice, I conclude that the

relevant statutory provisions authorize separate punishments for DUI and

F3-fleeing.   In formulating the statutory prohibition against fleeing, the

General Assembly referred to DUI only in the grading section of the fleeing

statute, not in the definition portion of the statute.    The location of the



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reference to a DUI offense reflects the legislature’s intent to create a single

offense of fleeing, which is then graded, and punished, more harshly based

upon the circumstances surrounding the fleeing.      This, in turn, reflects a

legislative choice to impose cumulative punishment for DUI and F3-fleeing.

To hold otherwise, and conclude that the offenses merge because a

reference to DUI appears in the grading provision of the fleeing statute,

would frustrate the legislature’s intent to enhance punishment for fleeing

where the fleeing occurs at the same time as a DUI offense.         Indeed, to

treat, for purposes of merger, grading factors5 in the same manner as

factors found in the definition of an offense would deprive the legislature of

any mechanism whatsoever by which to signal its approval of multiple

punishments.   Under these circumstances, it is constitutionally permissible

to construe section 9765 narrowly so as to exclude grading factors from the

definition of statutory elements.   See also Commonwealth v. Wade, 33

A.3d 108, 121 (Pa. Super. 2011), appeal denied, 51 A.3d 839 (Pa. 2012)

(section 9765 does not violate the Pennsylvania Constitution’s prohibition

against double jeopardy).

      Appellant’s merger claim rejects the foregoing analysis based upon

recent decisions involving the right to a trial by jury under the Sixth


5
  To be clear, I employ the term “grading factor” to refer to a fact that
affects the grading of an offense but is not included in the definition of an
offense.




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Amendment to the United States Constitution and his contention as to how

those cases impact the interpretation and application of section 9765.         I

therefore clarify both the basis and scope of Appellant’s position insofar as it

relates to the merits of this appeal. Initially, I note that Appellant makes no

claim that the trial court violated his Sixth Amendment right to a jury trial on

the charges of DUI or F3-fleeing.        The record is clear that a jury of

Appellant’s peers determined beyond a reasonable doubt that Appellant

committed both DUI and fleeing and that he refused chemical testing.

Instead, Appellant’s precise claim is that, because Sixth Amendment cases

such as Apprendi v. New Jersey, 530 U.S. 466 (2000)6 and its progeny

have eroded the distinction between the concepts of elements of an offense,

which are found in the definition of a crime, and factors relevant to

sentencing or grading, the reference to DUI in the grading provision of the

fleeing statute requires merger of the two offenses.          See Appellant’s

Substitute Brief at 14 (since Apprendi holds that “an element of an offense

is any fact which the jury must find beyond a reasonable doubt in order to

convict the defendant,” there is no distinction between an element of an

offense and a grading factor).    This claim stretches the logic of Apprendi

too far.


6
  In Apprendi, the Supreme Court of the United States held that “[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt.” Apprendi, 530 U.S. at 490.



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      Although I have been unable to locate any Pennsylvania cases that

address the merits of Appellant’s claim, I have uncovered persuasive

authority emanating from a sister state that discusses merger in a situation

nearly identical to this case.    Like Appellant, the defendant in that case

relied upon Apprendi to assert that a reference to one offense in the

grading provision of another offense required merger of the two crimes at

sentencing.   In Lewis v. Colorado, 261 P.3d 480 (Colo. 2011), the

defendant was convicted of sexual assault and kidnapping.        Id. at 480.

Under Colorado law, when a victim is sexually assaulted during the course of

a kidnapping, the grading of the kidnapping is elevated to a class-two felony.

Id.   Therefore, at sentencing, the defendant was sentenced on both the

class-two felony kidnapping charge as well as the sexual assault charge. On

appeal, the defendant argued that this violated the double jeopardy clause in

light of Apprendi because the sexual assault was an element of the

class-two felony kidnapping.     The Supreme Court of Colorado rejected the

defendant’s argument and held that class-two felony kidnapping and sexual

assault did not merge for sentencing purposes.7 It reasoned:

      It is far from clear that the functional equivalence of elements
      [of a crime] and [grading] factors for purposes of a criminal
      defendant’s right to a jury trial should apply equally to the
      constitutional presumption against multiple simultaneous
      punishments for the same offense. Even if it did, however, that

7
  Like Pennsylvania, Colorado follows the pure statutory elements approach
to merger that is coextensive with the double jeopardy clause of the Fifth
Amendment. Lewis, 261 P.3d at 482.



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      functional equivalence could not alter the fact that the
      constitutional presumption is overcome by specific legislative
      authorization or that the question of legislative intent must
      remain a function of existing drafting conventions and rules of
      construction. Nothing in the Supreme Court [of the United
      States’] recent Fifth or Sixth Amendment interpretations,
      therefore, undermines our prior determination that legislative
      reliance on a distinction between elements [of a crime] and
      [grading] factors evidences an intent to avoid the creation of a
      new offense of second degree kidnapping involving sexual
      assault, into which the lesser offense of sexual assault could
      then merge.

Lewis, 261 P.3d at 485.

      I agree with the rationale set forth in Lewis. This holding illustrates a

significant point that Appellant overlooks in his effort to extend Apprendi

and its progeny beyond the Sixth Amendment context and into the Fifth

Amendment arena, where the legislature enjoys substantially greater

authority.   Whether a defendant has the right to have a jury determine a

fact beyond a reasonable doubt is a separate and distinct inquiry from

whether a grading factor compels merger. The former is determined by the

Sixth Amendment and, pursuant to recent decisions interpreting the right to

a jury trial, the General Assembly lacks authority to redefine the scope of

that right by characterizing facts as elements of the crime, grading factors,

or sentencing factors. See, e.g., Apprendi, 530 U.S. at 490. On the other

hand, the double jeopardy protection of the Fifth Amendment governs the

scope of merger and the General Assembly possesses the authority to direct

the imposition of cumulative punishments where the relevant criminal

statutes reflect that intent.   I conclude that the reference to DUI in the


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grading portion of the fleeing statute, and its exclusion from the definition

section of that provision, reflect the legislature’s intent to authorize

cumulative punishments and to foreclose merger of the offenses in this case.

Hence, Appellant’s Apprendi-based merger claim merits no relief.

     My construction of the term “statutory elements” also parallels the

Pennsylvania Supreme Court’s treatment of the doctrine of merger as it

relates to first-degree murder and second-degree murder.                When the

Commonwealth     seeks     the   death    penalty,   one    of   the   aggravating

circumstances that a jury can find is that the defendant committed the

murder during the course of another felony.          42 Pa.C.S.A. § 9711(d)(6).

The law deems this factor an element of the offense for purposes of

Apprendi    because   it   increases    the     maximum    punishment    from   life

imprisonment to death. See Ring v. Arizona, 536 U.S. 584, 607 (2002).

Despite this well-settled precedent, the Pennsylvania Supreme Court

routinely affirms judgments of sentence in which the defendant is sentenced

to a term of imprisonment consecutive to the death penalty for the same

aggravating felony that was treated as an element of the offense under

Apprendi.     E.g., Commonwealth v. Stollar, 84 A.3d 635 (Pa. 2014);

Commonwealth v. Mattison, 82 A.3d 386 (Pa. 2013); Commonwealth v.

Mitchell, 902 A.2d 430 (Pa. 2006). An aggravating underlying felony does

not merge with a conviction for first-degree murder – death penalty eligible

because the underlying felony is merely a grading factor for that offense.



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See 18 Pa.C.S.A. § 2502(a); 42 Pa.C.S.A. § 9711(d)(6). Under Appellant’s

construction of the term “statutory elements,” these unmerged sentences

would be illegal since the underlying felony is a statutory element of first-

degree murder – death penalty eligible. The Pennsylvania Supreme Court,

however, consistently affirms such sentences; therefore, these punishments

are constitutionally sound.

      This treatment stands in stark contrast to the interplay between a

second-degree murder conviction and a related, underlying felony.                In

Pennsylvania, it is well-settled in such cases that the underlying felony

merges      with    the   second-degree   murder   conviction   for   purposes   of

sentencing.        Commonwealth v. Adams, 39 A.3d 310, 325 (Pa. Super.

2012), aff’d, 104 A.3d 511 (Pa. 2014), citing Commonwealth v. Harper,

516 A.2d 319, 321 (Pa. 1986). This is so because the underlying felony is

included within the definition of second-degree murder.               18 Pa.C.S.A.

§ 2502(b) (“A criminal homicide constitutes murder of the second degree

when it is committed while defendant was engaged as a principal or an

accomplice in the perpetration of a felony.”).        The distinct treatment of

underlying felonies in the context of first- and second-degree murder cases

sheds light on how the inclusion of the underlying felony affects my merger

analysis.    The inclusion of an underlying felony within the definition of

second-degree murder permits merger because the felony constitutes a

statutory element of that offense.        Whereas, inclusion of the underlying



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felony in the grading provisions for first-degree murder negates merger

since the felony does not qualify as a statutory element of that crime.

      My assessment of other statutory construction guides, including the

mischief which legislation seeks to remedy and the preference to avoid

absurd results, also supports my conclusion that the term “statutory

elements” does not include factors that solely impact the grading of an

offense. In the case at bar, the General Assembly enacted the DUI statute

to prevent drunk drivers from terrorizing our roads.         In contrast, the

legislature passed the fleeing statute to reinforce citizen respect for the

authority of a police stop.   The respective statutes address highly distinct

forms of conduct and have little area of overlap, thereby indicating that the

General Assembly intended for DUI to be sentenced separately from F3-

fleeing.

      Furthermore, merging Appellant’s DUI conviction with his F3-fleeing

conviction, on grounds that DUI constituted a statutory element of F3-

fleeing, would bring about an absurd result. In section 9765, the General

Assembly provided that, when two offenses merge, a defendant must be

sentenced on the higher-graded offense. In this case, that would be the F3-

fleeing.   Under the circumstances of this case, however, there is no

mandatory minimum sentence for F3-fleeing while there is a mandatory

minimum sentence for DUI. It is unreasonable to presume that the General

Assembly intended to de facto eliminate an applicable mandatory minimum



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sentence for DUI when an individual is also convicted of F3-fleeing. To do so

would not only create a volume discount on crime, it would incentivize drunk

drivers to flee police in order to avoid mandatory minimum sentences that

may attach to their DUI convictions. Moreover, I repeat that if, in passing

upon the merger of two offenses, I were to treat grading factors as if they

were included in the definition section of a crime, the legislature would have

no mechanism by which to authorize multiple punishments.            This is an

unreasonable construction of section 9765.

      For the foregoing reasons, I conclude that the term “statutory

elements” as used in section 9765 excludes factors that solely impact the

grading of an offense.    The circumstances under which section 9765 was

enacted, the former law concerning the subject matter, the occasion and

necessity for the statute, the object to be attained, and the preference for

avoiding absurd results support this determination. Accordingly, Appellant’s

claim that his convictions should merge because DUI appears as a grading

factor for F3-fleeing lacks merit.

      I now consider the rationale of the prior three-judge panel that initially

granted relief.     The majority of the three-judge panel relied upon

Commonwealth v. Tanner, 61 A.3d 1043 (Pa. Super. 2013), to support its

conclusion that DUI and F3-fleeing merge for sentencing.8        In Tanner, a


8
  One original panel member dissented from that portion of the majority’s
opinion.



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decision that I authored, this Court held that DUI-highest rate of alcohol, 75

Pa.C.S.A.   § 3802(c)   (prohibiting    operation   of   vehicle   where   alcohol

concentration in an individual’s blood or breath is 0.16% or higher), merged

with (1) homicide by motor vehicle while DUI, and (2) aggravated assault by

vehicle while DUI. Tanner, 61 A.3d at 1047-1048. In so doing, this Court

held that DUI (a lesser included offense of DUI-highest rate of alcohol) was a

statutory element of both (1) homicide by motor vehicle while DUI, and (2)

aggravated assault by vehicle while DUI.        See id.    Tanner, however, is

distinguishable from the case at bar.

      Homicide by motor vehicle while DUI is defined as:

      (a) Offense defined.—Any person who unintentionally causes the
      death of another person as the result of a violation of [75
      Pa.C.S.A. §] 3802 (relating to driving under influence of
      alcohol or controlled substance) and who is convicted of
      violating section 3802 is guilty of a felony of the second
      degree when the violation is the cause of death and the
      sentencing court shall order the person to serve a minimum term
      of imprisonment of not less than three years. A consecutive
      three-year term of imprisonment shall be imposed for each
      victim whose death is the result of the violation of section 3802.

75 Pa.C.S.A. § 3735(a) (emphasis added).

      Aggravated assault by vehicle while DUI is defined as:

      (a) Offense defined.—Any person who negligently causes serious
      bodily injury to another person as the result of a violation of
      [75 Pa.C.S.A. §] 3802 (relating to driving under influence
      of alcohol or controlled substance) and who is convicted
      of violating section 3802 commits a felony of the second
      degree when the violation is the cause of the injury.

75 Pa.C.S.A. § 3735.1(a) (emphasis added).



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     From the foregoing provisions, it is immediately evident that DUI is

included in the “offense defined” portion of the statutes that criminalize

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

while DUI. In other words, the General Assembly created separate offenses

which include DUI as an element of the offense, as that term is defined in

the Crimes Code. As noted by this Court in Commonwealth v. Schmohl,

975 A.2d 1144 (Pa. Super. 2009), this was the reason the offenses merged.

Id. at 1150 (citation and internal alteration omitted) (“The definition of

[aggravated assault by vehicle while DUI] expressly incorporates the

commission of the offense of DUI and conviction thereof as one of its

elements.”).   The General Assembly did not merely change the grading of

homicide by motor vehicle based upon the fact that the crime was

committed while driving under the influence. The same is true with respect

to aggravated assault by vehicle while DUI.      Reading these statutes in

conjunction with the pure statutory elements approach to merger that is

incorporated into section 9765, I am persuaded that these statutes evidence

the General Assembly’s intent to avoid multiple punishments for both DUI

and either homicide by motor vehicle while DUI or aggravated assault by

vehicle while DUI, as the circumstances warrant.    By including DUI in the

definition section of the respective statutes, the General Assembly expressed

its intent that a DUI conviction should merge for sentencing purposes.




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When properly viewed, Tanner supports my conclusion that the term

“statutory elements” does not include grading factors.

      For all of these reasons, I would hold that the term “statutory

elements”   in   section   9765   means   such   conduct   or   such   attendant

circumstances or such a result of conduct as is included in the description of

the forbidden conduct in the definition of the offense or establishes the

required kind of culpability. This definition does not include grading factors.

Applying this definition to the case sub judice, I conclude that DUI is not a

statutory element of F3-fleeing. Instead, it is merely a factor that increases

the grading of a fleeing conviction from an M2 to an F3.          Although this

grading factor must be found by a jury beyond a reasonable doubt, it is not

a statutory element for purposes of section 9765.

      In sum, I would hold that Appellant committed one solitary criminal

act under Jenkins. I would further hold that the statutory elements of DUI

are not included within the statutory elements of F3-fleeing.      Therefore, I

agree with the learned majority that Appellant’s convictions do not merge

and, therefore, concur only in the learned majority’s judgment.




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