J-S69009-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LESTON ELLSWORTH DAUGHERTY, III

                            Appellant                No. 2073 MDA 2015


            Appeal from the PCRA Order Entered November 2, 2015
              In the Court of Common Pleas of Lancaster County
               Criminal Division at No: CP-36-CR-0000707-2013


BEFORE: STABILE, DUBOW, and PLATT,* JJ.

MEMORANDUM BY STABILE, J.:                       FILED DECEMBER 23, 2016

        Appellant, Leston Ellsworth Daugherty, III, appeals pro se from the

November 2, 2015 order denying his petition under the Post Conviction

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-46. We affirm.

        On September 26, 2013, Appellant pled guilty to homicide by vehicle

while DUI, aggravated assault by vehicle while DUI, accident involving death

or personal injury, homicide by vehicle, accidents involving damage to an

attended vehicle, DUI (general impairment and highest rate of alcohol),1 and

related summary offenses. The charges arose from a two-car accident that

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  75 Pa.C.S.A. §§ 3735, 3735.1, 3742, 3732, 3743, and 3802(a)(1) and (c),
respectively.
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occurred on November 3, 2012 in Mount Joy Township, Lancaster County.

The driver of the victims’ vehicle suffered several broken bones. The driver’s

wife suffered brain damage and eventually died from her injuries.        N.T.

Guilty Plea, 9/26/13, at 11-12.     On December 3, 2013, the trial court

sentenced Appellant to five to ten years of incarceration for homicide by

vehicle while DUI, a consecutive two to ten years for aggravated assault by

vehicle while DUI, and a consecutive one to five years for accident involving

death or injury. The trial court imposed a concurrent two to seven years of

incarceration for homicide by vehicle, and one year of probation for accident

involving damage to an attended vehicle.      The DUI offenses merged for

sentencing purposes.    The aggregate term of incarceration was 8 to 25

years. Appellant did not file a post-sentence motion or direct appeal.

     On April 16, 2014, Appellant filed this timely first PCRA petition. On

April 24, 2015, appointed counsel filed a no merit letter and petition for

leave to withdraw pursuant to Commonwealth v. Turner, 544 A.2d 927

(Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988)

(en banc). On September 21, 2015, the PCRA court issued a notice of intent

to dismiss the petition without a hearing, pursuant to Pa.R.Crim.P. 907. The

PCRA court dismissed the petition and permitted counsel to withdraw on

November 2, 2015. Appellant filed this timely pro se appeal on November

30, 2015.




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      Appellant argues his sentence is illegal because the sentences on

several counts should have merged.        Appellant’s argument implicates the

legality of his sentence.    Commonwealth v. Robinson, 931 A.2d 15, 24

(Pa. Super. 2007). The legality of a sentence is a non-waivable issue that is

cognizable under the PCRA. Id.; 42 Pa.C.S.A. §§ 9542 and 9543(a)(2)(vii).

We will address the merits of Appellant’s argument even though he did not

assert it in his PCRA petition or raise it at any time before the PCRA court.

Appellant’s argument presents a question of law.             Therefore we must

determine   whether    the    PCRA   court’s   order   is   free   of   legal   error.

Commonwealth v. Miner, 44 A.3d 684, 688 (Pa. Super. 2012).

      Pennsylvania’s merger statute provides:

            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.

42 Pa.C.S.A. § 9765.        The merger doctrine prevents the Commonwealth

from punishing a defendant more than once for the same criminal act.

Commonwealth v. Gatling, 807 A.2d 890, 894 (Pa. 2002).

      Appellant argues that three offenses should merge into the homicide

by vehicle while DUI (§ 3735) offense: homicide by vehicle (§ 3732) and his

two DUI offenses (§ 3802(a)(1) and (c)).        Appellant’s Brief at 10-11.        As

noted above, the sentencing court did merge the DUI offenses.                    N.T.




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Sentencing, 12/3/13, at 14.            We will therefore confine our analysis to

homicide by vehicle while DUI and homicide by vehicle.

       The Motor Vehicle Code defines homicide by vehicle while DUI as

follows:

              Any person who unintentionally causes the death of
       another person as the result of a violation of section 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).

       Homicide by vehicle occurs where the defendant commits a motor

vehicle code violation other than DUI:

             Any person who recklessly or with gross negligence causes
       the death of another person while engaged in the violation of
       any law of this Commonwealth or municipal ordinance applying
       to the operation or use of a vehicle or to the regulation of traffic
       except section 3802 (relating to driving under influence of
       alcohol or controlled substance) is guilty of homicide by vehicle,
       a felony of the third degree, when the violation is the cause of
       death.

75 Pa.C.S.A. § 3732(a).2


____________________________________________


2
   Section 3732 was amended on November 4, 2016, effective in 60 days.
The amendments post-date Appellant’s offense and do not affect subsection
(a). The same is true for § 3732.1, aggravated assault by motor vehicle, an
offense we discuss infra.



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       In Commonwealth v. Neupert, 684 A.2d 627 (Pa. Super. 1996), this

Court held that homicide by vehicle while DUI and homicide by vehicle do

not merge:

             The elements of Homicide by Vehicle are not included in
       the elements of Homicide by Vehicle/DUI. In fact, the crimes
       require proof of different elements.       Homicide by Vehicle
       requires the cause of death to be the result of a violation of a
       motor vehicle law or ordinance other than a DUI violation; for
       example in this case, racing on highway and failure to yield. On
       the other hand, Homicide by Vehicle/DUI explicitly requires a
       DUI conviction as an element of the crime.

Id. at 629. In Neupert, the defendant pled guilty to DUI and other vehicle

code violations including racing on highways, and failure to yield.      Id. at

628. Thus, homicide by vehicle while DUI and homicide by vehicle did not

merge. Similarly, in the instant case, Appellant pled guilty to disregarding a

traffic lane, failure to drive at a safe speed, and reckless driving in addition

to DUI.3 Neupert is therefore directly on point and controlling.4 The PCRA

court did not err in rejecting Appellant’s argument.

       Next, Appellant argues that three of his offenses merge with

aggravated assault by vehicle (§ 3732.1):        accidents involving death or

personal injury (§ 3742) and the two DUI offenses (§ 3802(a)(1) and (c)).


____________________________________________


3
    75 Pa.C.S.A. §§ 3309, 3361, and 3736, respectively.
4
   Section 9765 was enacted after Neupert, but the Neupert Court’s
analysis is consistent with § 9765. Clearly, neither offense includes all of the
elements of the other.



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Again, we will limit our analysis to § 3732.1 and § 3742 because the

sentencing court properly merged the DUI offenses.

      The Motor Vehicle Code defines aggravated assault by vehicle as

follows:

             Any person who recklessly or with gross negligence causes
      serious bodily injury to another person while engaged in the
      violation of any law of this Commonwealth or municipal
      ordinance applying to the operation or use of a vehicle or to the
      regulation of traffic, except section 3802 (relating to driving
      under influence of alcohol or controlled substance), is guilty of
      aggravated assault by vehicle, a felony of the third degree when
      the violation is the cause of the injury.

75 Pa.C.S.A. § 3732.1(a).

      Section 3742(a), governing accidents involving death or personal

injury, requires an involved driver to stop at the scene:

             The driver of any vehicle involved in an accident resulting
      in injury or death of any person shall immediately stop the
      vehicle at the scene of the accident or as close thereto as
      possible but shall then forthwith return to and in every event
      shall remain at the scene of the accident until he has fulfilled the
      requirements of section 3744 (relating to duty to give
      information and render aid). Every stop shall be made without
      obstructing traffic more than is necessary.

75 Pa.C.S.A. § 3742(a).

      These offenses obviously contain different elements.          Aggravated

assault by vehicle occurs when the perpetrator acts with recklessness or

gross negligence in violating the Motor Vehicle Code and causes serious

bodily injury to another. Failure to stop at the scene is not an element of

that offense. A violation of § 3742(a) occurs where the driver of a vehicle



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involved in an accident resulting in death or personal injury fails to stop at

the scene. It does not matter whether the driver acted with recklessness or

gross negligence and caused the injury. Thus, neither offense contains all of

the elements of the other. Aggravated assault by vehicle and failure to stop

at the scene of an accident do not merge under § 9765. The PCRA court did

not err in denying relief.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/23/2016




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