J-A26016-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVE JACKSON                              :
                                               :
                       Appellant               :   No. 1669 WDA 2018

        Appeal from the Judgment of Sentence Entered October 24, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0006592-2017

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    STEVE L. JACKSON                           :
                                               :
                       Appellant               :   No. 1671 WDA 2018

        Appeal from the Judgment of Sentence Entered October 24, 2018
     In the Court of Common Pleas of Allegheny County Criminal Division at
                       No(s): CP-02-CR-0008506-2017


BEFORE: SHOGAN, J., LAZARUS, J., and OLSON, J.

MEMORANDUM BY LAZARUS, J.:                          FILED NOVEMBER 26, 2019

       Steve L. Jackson appeals from the judgments of sentence, 1 entered in

the Court of Common Pleas of Allegheny County, after he was found guilty on

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1 Jackson has complied with our Supreme Court’s holding in Commonwealth
v. Walker, 185 A.3d 969 (Pa. 2018), concluding that “the proper practice
under [Pa.R.A.P.] 341(a) is to file separate appeals from an order that resolves
issues arising on more than one docket.” Id. at 977. Jackson filed one notice
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two separate dockets2 of Driving Under the Influence (DUI)-general

impairment (1st offense and 3rd offense) and related offenses.3 After careful

review, we vacate Jackson’s conviction at Count 2 (DUI-general impairment

(3rd offense) on CC-2-17-08506 (Pittsburgh case) and affirm his convictions

and judgments of sentence in all other respects.

        The parties stipulated to the affidavit of probable case in the Pittsburgh

case, which stated:

        I observed a male urinating on Miltenberger St[reet]. I circled the
        block and got behind the vehicle as the male was entering it. I
        initiated a traffic stop of this same vehicle at Miltenberger and
        Locust St[reets]. As I approached the vehicle, I observed in the
        rear driver[’]s side a six[-]pack of Old English on a seat. I made
        contact with the driver later identified as Steve L. Jackson.
        Jackson had watery eyes and an odor of an alcoholic beverage
        coming form [sic] his person as soon as he rolled down the
        window.

Appellant’s Brief, at 14. Jackson subsequently failed field sobriety tests and

was charged with the above-stated offenses at CC-2017-08506. With regard

to the Glassport case, the parties stipulated to the following: On February 10,

2017, Glassport police officers were notified by Elizabeth Borough Officer

Garrett Kimmel that there was an unconscious male in a vehicle.

        Upon approach[, the] officers viewed several empty alcohol
        containers in the rear seat of the vehicle. [The] [o]fficers knocked
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of appeal on each docket number. On December 7, 2018, our Court
consolidated the two appeals sua sponte. See Pa.R.A.P. 513.

2   CC-2017-08506 (Pittsburgh case) and CC-2017-06592 (Glassport case).

3   75 Pa.C.S. § 3802(a)(1).


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        on the window several times and aw[akened] the male. [The]
        [o]fficers opened the driver door and could smell an[] odor of
        alcohol. [The] [o]fficers viewed the driver[,] later identified as []
        Steve Jackson, in the driver[’s] seat with a half drunk Guinness
        16 oz beer and a glass of liquor in the center console cup holder.
        . . . Jackson stated that he had been drinking earlier and just
        dropped off his friend.

Appellant’s Brief, at 15.

        In the Pittsburgh case, the Commonwealth’s bill of information charged

Jackson with the following offenses: Count 1 (DUI-.16% or higher); Count 2

(DUI- general impairment) (3rd offense); Count 3 (restrictions on alcohol);

and Count 4 (public urination and defecation).        In the Glassport case, the

Commonwealth charged Jackson with: Count 1 (DUI – general impairment

(second offense)) and Count 2 (restrictions on alcoholic beverages).4 Both

cases proceeded to a stipulated non-jury trial on October 24, 2018.5 Jackson

was convicted in the Pittsburgh case of two counts of DUI- general impairment

(3rd offense) and one count each of restrictions on alcoholic beverages6 and

public urination and defecation, a City of Pittsburgh Code violation.7          The

second DUI count merged for sentencing purposes with the first DUI count.

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4The Glassport DUI conviction was Jackson’s second DUI conviction as he had
entered a guilty plea to DUI on March 29, 2018, in Crawford County.

5Prior to trial, the parties stipulated to the preliminary hearing testimony as
well as the affidavit of probable cause.

6   75 Pa.C.S § 3809.

7   Title 6 § 601.16(b)(1)(a).




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In the Glassport case, Jackson was convicted of one count each of DUI-general

impairment and restrictions on alcoholic beverages. In the Pittsburgh case,

Jackson was sentenced to 10 days of incarceration, with credit for time served,

followed by 6 months of probation.             In the Glassport case, Jackson was

sentenced to 5 days of incarceration, with credit for time served, followed by

6 months of probation.          The sentences on the two cases were to run

concurrently.8

       On November 21, 2018, Jackson filed a timely notice of appeal and

court-ordered Pa.R.A.P. 1925(b) concise statement of errors complained of on

appeal.    On January 31, 2019, the trial judge, the Honorable Donna Jo

McDaniel, retired from the Allegheny County bench.              Thereafter, Judge

McDaniel’s cases were reassigned to the Honorable Jeffrey A. Manning, who

prepared a Rule 1925(a) opinion. On March 5, 2019, Jackson filed a petition

to remand in this Court seeking the following relief: filing of post-sentence

motions nunc pro tunc and an evidentiary hearing on a claim of trial counsel’s

ineffectiveness. Counsel also sought to withdraw on appeal due to a conflict

of interest and to have new appellate counsel appointed. On March 13, 2019,

this Court denied counsel’s motion seeking to withdraw, without prejudice to

first seek relief in the trial court.      Our Court’s order also denied Jackson’s

request to pursue a claim of trial counsel’s ineffectiveness, without prejudice

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8Jackson was also sentenced to pay $1,000 in DUI fines in each case and
undergo a drug and alcohol evaluation, a drug screening, comply with Justice
Related Services, and attend safe driving school.

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to raise the issue in a future PCRA petition, “if appropriate.” Order, 3/13/19.

On March 14, 2019, Jackson filed a motion for reconsideration of our Court’s

order, pursuant to Pa.R.A.P. 123(e), which we denied on March 18, 2018.

      Jackson raises the following issues for our consideration:

      (1)   Whether this Honorable Court erred in denying [] Jackson’s
            [p]etition for [r]emand, and subsequent [m]otion for
            [r]econsideration, when he had cognizable claims to raise
            on direct appeal and sought, additionally, to raise claims of
            ineffectiveness of trial counsel on direct appeal because the
            short nature of his sentence would preclude him from
            seeking relief in a future PCRA proceeding.

      (2)   Whether the evidence was sufficient to sustain [] Jackson’s
            conviction for DUI at CC 2017-06592[, the Glassport Case,]
            because the Commonwealth failed to prove, beyond a
            reasonable doubt, that [] Jackson was in actual physical
            control of a parked vehicle.

      (3)   Whether [] Jackson’s sentence at CC 2017-08506[, the
            Pittsburgh Case,] was illegal when [] Jackson was convicted
            of two counts of DUI for one criminal act.

Appellant’s Brief, at 8.

      With regard to Jackson’s first issue, we decline to revisit, for the third

time, his request for remand, where our Court has already entered an order

disposing of his claims. See Commonwealth v. Starr, 664 A.2d 1326, 1332

(Pa. 1995) citing Commonwealth v. Brown, 402 A.2d 1007, 1008 (Pa.

1979) (“[W]here the evidence is substantially the same as that originally ruled

upon by the first judge, a second judge commits a per se abuse of discretion

in overruling or vacating the prior order.”)

      In his next issue, Jackson contends that the evidence was insufficient to

prove his conviction for DUI in the Glassport case. Specifically, he contends

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that the Commonwealth did not prove that he was in “actual control” of a

parked vehicle. 75 Pa.C.S. § 3802(a)(1). We disagree.

      In reviewing a challenge to the sufficiency of the evidence, we
      must determine whether, viewing the evidence in the light most
      favorable to the Commonwealth as verdict winner, together with
      all reasonable inferences therefrom, the trier of fact could have
      found that each and every element of the crimes charged was
      established beyond a reasonable doubt.

Commonwealth v. Randall, 758 A.2d 669, 674 (Pa. Super. 2000).

Section 3802(a)(1) provides:

      § 3802. Driving under influence of alcohol or controlled substance.

         (a) General impairment.

         (1) 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. § 3801(a)(1)(emphasis added).

      At Jackson’s preliminary hearing, Officer Michael Mihal of the Glassport

Police Department testified that at 4:50 am on February 10, 2017, he received

information from an Elizabeth Borough police officer that there was an

individual passed out in a car.    N.T. Preliminary Hearing, 5/30/17, at 4-5.

Officer Mihal arrived at the vehicle, which was parked “slightly away from the

curb, partially more towards the lane of traffic” on North Monongahela Avenue

in Glassport. Id. at 8. Officer Mihal testified that Jackson was passed out in

the driver’s side of the vehicle and that it took Officer Mihal a couple of minutes

to rouse Jackson after he tapped and knocked on the car window. Officer


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Mihal testified that he could detect an odor of alcohol emanating from the

vehicle when he opened the door. The officer also observed “numerous items

of alcohol both opened and unopened in the front and rear seat[s]” of the

vehicle. Id. at 5-6. Jackson had trouble standing when he first exited the

car; Jackson smelled of alcohol and was very disoriented. Id. at 6. Officer

Michal testified that Jackson’s eyes were glassy, and that he failed all of the

field sobriety tests. Id. The vehicle’s keys were found on Jackson’s person.

Id. at 9. According to his recollection, Office Michal did not believe the car’s

engine was running when he arrived on the scene. Id. at 8-9.

       At trial, the Commonwealth presented the testimony of Officer Kimmel

from the Elizabeth Borough Police Department. Officer Kimmel testified that

he responded to a DUI call on February 10, 2017,9 and found the subject

vehicle on the roadway with the engine running, parked eight feet from a stop

sign, slightly on the roadway. N.T. Stipulated Non-Jury Trial, 10/24/18, at 6-

7. Officer Kimmell testified that he had to reach in and push the car’s electric

starter/off button to shut off the vehicle so that Jackson would not drive away.

Id. at 8.     He further testified that “to the best of [his] recollection” the

vehicle’s lights were not on. Id.

       “[A] combination of the following factors is required in determining

whether a person had ‘actual physical control’ of an automobile: the motor

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9 Officer Kimmell was not in his primary jurisdiction when he received the call;
rather, he was passing through Glassport on his way back from taking
someone to jail. N.T. Stipulated Non-Jury Trial, 10/24/18, at 7.

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running, the location of the vehicle, and additional evidence showing that the

defendant had driven the vehicle.” Commonwealth v. Woodruff, 668 A.2d

1158, 1161 (Pa. Super. 1995). A determination of actual physical control of

a vehicle is based upon the totality of the circumstances. Commonwealth

v. Williams, 871 A.2d 254, 259 (Pa. Super. 2005). “The Commonwealth can

establish that a defendant was driving, operating or in actual physical control

of a motor vehicle” through wholly circumstantial evidence. Commonwealth

v. Brotherson, 888 A.2d 901, 905 (Pa. Super. 2005).

        Here, reviewing all of the evidence and the reasonable inferences drawn

therefrom, including the officers’ trial testimony, we conclude that there was

sufficient evidence to conclude that Jackson was in actual physical control of

his vehicle at the time he was apprehended by the officers. Officer Kimmell

unequivocally testified that he had to reach in to turn off the running engine

when he arrived on the scene. He also testified that Jackson’s car was parked

on a stretch of road that did not have parking spots and that his car was

parked in the roadway. Jackson, the sole occupant of the vehicle, told the

officer that he had just dropped off a friend. There were opened containers

of alcohol in the center console and Jackson’s breath smelled of alcohol.

Commonwealth v. Toland, 995 A.2d 1242 (Pa. Super. 2010). Thus, we find

no merit to this issue.10
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10   Moreover, during Jackson’s trial, Judge McDaniel stated:




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       In his final issue on appeal, Jackson contends that his Pittsburgh

sentence is illegal where he was convicted of two counts of DUI for one

criminal act. We agree and find that he is entitled to relief.

       Our Court has held that a single criminal act cannot result in multiple

sentences for violations of the same DUI provision; to do so constitutes a

double jeopardy violation. See Commonwealth v. Farrow, 168 A.3d 207,

217 (Pa. Super. 2017); see also Commonwealth v. Bezick, 207 A.3d 400

(Pa. Super. 2019).       The Double Jeopardy Clause protects against multiple

punishments for the same offense. Farrow, 168 A.3d at 214-15.

       Here, the Commonwealth’s bill of information charged Jackson in the

Pittsburgh case with DUI (.16% or higher) under 75 Pa.C.S. § 3802(c) (Count

1) and DUI-general impairment under 75 Pa.C.S. § 3802(a)(1) (Count 2).

Notably, it did not charge him with two counts of the same offense as is


____________________________________________


       THE COURT: Well, however, it’s not whether or not he was
       driving, it’s whether or not he was in control of the automobile.
       He was behind the driver’s seat, the car according to the
       officer was running. I know that he might not know
       whether or not the lights were on but he seemed to
       distinctly remember reaching in and pushing the car’s
       electric starter to off.

       In addition to that . . . he was confused, he couldn’t tell the officers
       where he was, he had an odor of alcohol and his eyes were glassy.
       He could not give the officers a description or address of the friend
       he alleges he had dropped off and he flunked all of the sobriety
       tests.

Id. at 11-12 (emphasis added).



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prohibited under Farrow. However, the court convicted him of, among other

things, two counts (Count 1 and Count 2) of the same offense, DUI-general

impairment (3rd offense), 75 Pa.C.S. § 3702(a)(1).11 The court merged Count

2 with Count 1 for sentencing purposes. By contrast, in Farrow the trial court

“did not merge Appellant’s sentences but instead imposed ‘guilt without

further penalty’ at counts two and three.” Farrow, 168 A.3d at 217 n.8. The

Farrow Court noted that “[u]nder Pennsylvania law, a sentence is not limited

to a term of incarceration or probation[,] but also includes a determination of

guilt without further penalty. Id. at 212 n.5; see 42 Pa.C.S. § 9721(a)(2) (in

fixing sentence, trial court may consider and impose, inter alia, determination

of guilt without further penalty). Accordingly, the Farrow Court treated the

dispositions of “guilt without further penalty” as sentences under section

9721(a)(2) for purposes of its double jeopardy analysis. Id. at 215.12
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11The Commonwealth acknowledges in its appellate brief that it “appears that
no amendment was intended for the information [in the Pittsburgh case].”
Appellee’s Brief, at 28. However, the notes of testimony at the stipulated trial
are far from clear on this issue. In fact, it appears that defense counsel agreed
to amend the charges in the Pittsburgh case to add a second DUI-general
impairment count. See N.T. Stipulated Non-Jury Trial, 10/24/18, at 2-4.
12   In Farrow, however, our Court recognized:

        ‘[P]unishment’ may be the equivalent of a criminal conviction and
        not simply the imposition of sentence. Ball [v. United States],
        470 U.S. 856[,] 861 [1985].

                                         *     *   *

           The separate conviction, apart from the concurrent
           sentence, has potential adverse collateral consequences



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       Here, unlike the facts in Farrow, the trial court did not impose a

sentence at Count 2. Rather, it merged Jackson’s conviction with Count 1.

Similarly, in Bezick, supra, the defendant was charged with two separate

counts of DUI-general impairment, 75 Pa.C.S. § 3702(a)(1), arising out of the

same criminal conduct. The two section 3702(a)(1) counts also included two

enhancements under sections 3804(a)(2) (second section 3802(a) offense)

and 3804(b)(2) (second 3802(a) offense where accident resulted in bodily

injury, serious bodily injury or death to person or damage to vehicle or other

property).    The court merged the two section 3701(a)(1) convictions for

purposes of sentencing.        As the Bezick Court acknowledged, “violating 75



____________________________________________


          that may not be ignored. For example, the presence of two
          convictions on the record may delay the defendant’s
          eligibility for parole or result in an increased sentence under
          a recidivist statute for a future offense. Moreover, the
          second conviction may be used to impeach the defendant’s
          credibility and certainly carries the societal stigma
          accompanying any criminal conviction. Thus, the second
          conviction, even if it results in no greater sentence, is an
          impermissible punishment.

       Id. at 864-[]65 (emphasis omitted).        Similarly, Appellant’s
       convictions for all three counts of DUI simply do not evaporate
       merely because the trial court deemed the counts to have merged
       for sentencing purposes resulting in no further penalty for the
       convictions at counts two and three.        In this case, mere
       convictions that carry a sentence of “no further penalty” are an
       impermissible punishment.

168 A.3d at 217 n.8.



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Pa.C.S. § 3804(b)(2) . . . is not a separate crime, but rather, it is a penalty

enhancement.” Citing the Farrow Court, the Bezick Court pointed out that:

       [W]here a single DUI offense is subject to enhancements, the
       Commonwealth should file a criminal information that sets forth a
       single count under section 3802. Enhancements under [section]
       3802 may be added as subparts or subparagraphs, as appropriate.
       This will eliminate identical criminal conduct leading to multiple
       convictions and sentences under the same criminal statute and,
       simultaneously, supply the accused with the requisite notice
       required under Alleyne [v. United States, [] 570 U.S. 99 []
       (2013)].

168 A.3d at 218-19.

       Here, Jackson’s DUI-general impairment in the Pittsburgh case was his

second section 3702(a)(1) DUI conviction. Thus, he should only have been

convicted of one section 3702(a)(1) offense, since a second offense under

section 3804(a)(2) is not a separate crime. Bezick, supra. As the Bezick,

Court noted:

       The instant scenario constitutes a violation of the protection
       against double jeopardy despite the fact that Appellant’s DUI-
       general impairment convictions merged for sentencing purpose
       because of the “significant collateral consequences,” including
       inter alia, “unwarranted enhancement of . . . prior record score
       (or prior DUI offense history) in subsequent criminal proceedings
       and unjustified impediments to restoration of . . . driving
       privileges.”

207 A.3d at 404 (citing Farrow, 168 A.3d at 217). Accordingly, we vacate

Jackson’s conviction at Count 2 in the Pittsburgh case.13
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13 We need not remand for resentencing as our disposition does not alter the
trial court’s sentencing scheme where Jackson’s duplicate conviction at Count
2 merged with Count 1 for sentencing purposes.               See generally



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       Conviction vacated as to at Count 2 on CC-2-17-08506. Convictions

and judgments of sentence on all remaining Counts in CC-2017-06592 and CC

2017-08506 are affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/26/2019




____________________________________________


Commonwealth v. Thur, 906 A.2d 552 (Pa. Super. 2006) (explaining
remand for resentencing not required where invalid sentence does not disturb
overall sentencing scheme).



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