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 entered December 18, 2012,
              in the Court of Common Pleas of Cumberland County,
              Criminal Division, at No(s): CP-21-CR-0003380-2011


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

CONCURRING AND DISSENTING OPINION BY ALLEN, J.:FILED AUGUST 29, 2014




                                                                 e DUI and

F3 -

at 2. I would affirm the judgment of sentence.

        Our Supreme Court has held:


        Sentencing Code, which addresses merger and provides:

           § 9765. Merger of sentences

           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 (emphasis added). []

*Former Justice specially assigned to the Superior Court.
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                                       ***

           In a majority decision, [our Supreme Court in
     Commonwealth v.] Baldwin, [985 A.2d 830 (Pa. 2009),] adopted
     the [Commonwealth v.] Jones, [912 A.2d 815 (Pa. 2006),]
     dissent's reasoning and held the plain language of Section 9765

     Commonwealth from merging sentences for two offenses that
     are based on a single criminal act unless all of the statutory
     elements of one of the offenses are included in the statutory
     elements of              Id.                          Baldwin

     Jones plurality opinion. Id.                        Instead,
     Baldwin held that when each offense contains an element the
     other does not, merger is inappropriate. Id.               t
     837.

Commonwealth v. Quintua, 56 A.3d 399, 400-401 (Pa. Super. 2012).

     Here, the trial court observed:


     fleeing charge] do not overlap and should not merge for
     sentencing purposes. The charge of Fleeing or Attempting to
     Elude a Police Officer requires, for example, the defendant to be
     given a visual and audible signal by the police to bring the
     vehicle to a stop. 75 Pa. C.S.A. § 3733(a). This element is not
     one required by the DUI - General Impairment statute. See 75
     Pa. C.S.A. § 3802(a)(1). Similarly, one of the elements of a DUI
     - General Impairment charge is that the defendant be inebriated
     to such an extent that he was incapable of safely driving. Id.
     There is no mention of inebriation in the statute regarding
     Fleeing or Attempting to Elude a Police Officer. See 75 Pa.
     C.S.A. § 3733. Therefore, the requirements under 42 Pa.C.S.A.
     § 9765 for the crimes to merge for sentencing purposes are not
     met.

Trial Court Opinion, 3/28/13, at 8. I agree.

     Appellant was convicted, inter alia, of DUI - general impairment, a

misdemeanor offense, which the Vehicle Code defines as follows:



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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 3802(a)(1) confines itself to prohibiting

the operation of a vehicle by an individual who has been rendered incapable

of safe driving after ingesting alcohol. Section 3802(a)(1) does not set forth

any elements proscribing, prohibiting, or even discussing any actions by said

individual vis á vis law enforcement.

      In contrast, 75 Pa.C.S. § 3733 provides:

      (a)     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 or audible signal to bring his vehicle to a stop,
              commits an offense as graded in subsection (a.2).

75 Pa.C.S. § 3733(a).      Section 3733(a) does not set forth any elements

related to driving while under the influence of alcohol.          The interplay

between Sections 3802 and 3733 occurs within the context of grading the

fleeing offense. Specifically, 75 Pa.C.S. § 3733(a.2) provides:

      (a.2)

      (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 the influence of alcohol or controlled substance)[.]

75 Pa.C.S. § 3733 (a.2)(2)(i).




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      Our Supreme Court has explained:

      [T]he merger                                  hether the crimes
      involved are greater and lesser included offenses; if so, the
      sentences merge, if not, merger is not required. []

                                      ***

                                                  merger analysis
      refer to the logical relationship between elements of the
      offenses, not to the grading of the offenses or the
      punishments imposable. []

                                       ***

            The purpose of the merger doctrine is to determine
      whether the legislature intends that a single sentence should
      constitute all of the punishment for offenses that arise from the
      same criminal act or transaction.       See [Commonwealth v.]
      Anderson ,                           [(Pa. 1994)].     Indeed, in
      Anderson the doctrine was characterized as a rule of statutory
      construction designed for this purpose. Id.

            The legislature designated aggravated assault under 18
      Pa.C.S. § 2702(a)(1) as a first degree felony, thus punishable by
      up to twenty years imprisonment. It would be absurd to use the
      merger doctrine to find, contrary to this explicit expression of
      intent, that the legislature intended that a lesser maximum
      sentence of ten years imprisonment should control where the
      circumstances also make out the crime of attempted murder.

Commonwealth v. Everett, 705 A.2d 837, 839 (Pa. 1998) (internal

citations omitted) (emphasis supplied).

      Instantly, applying Everett,

fleeing conviction, which the legislature specifically enhanced to a felony in

relation   to   section   3802   offenses,   was   intended   to   merge   with   a

misdemeanor DUI - general impairment conviction.          To invoke the merger

doctrine to avoid the harsher penalty under the F3 fleeing conviction, which


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the legislature intended in such a scenario, would be in derogation of the

plain language of the statutes involved. See J.C.B. v. Pennsylvania State

Police,

interpreting a statute, the court must give plain meaning to the words of the

statute. It is not a court's place to imbue the statute with a meaning other

than that dictated by the

(internal citations omitted).

      The Majority relies on Commonwealth v. Tanner, 61 A.3d 1043,

                                                                           -fleeing

convictions merge.      However, in Tanner, our Court found that the

                  - highest rate of alcohol conviction merged with his




elements of DUI are completely subsumed within the crimes of both

[HMVDUI] and [AAVDUI].           As such, for sentencing purposes, [the] DUI



Majority at 22 citing Tanner, supra, at 1047.             Instantly, I find Tanner

distinguishable   because,      as   discussed   above,    the   crimes   Appellant

committed do not share common elements and the crimes in Tanner did not

involve a grading interplay between the charged offenses. Moreover, while

Appellant is required to have committed a Section 3802 offense in order to

have his fleeing offense graded as a higher felony charge, Appellant need

not have committed a Section 3802 offense to be convicted of fleeing or vice

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versa. Our Commonwealth Court in Strawn v. Comm., Dept. of Transp.,

976 A.2d 661 (Pa. Cmwlth. 2009) expressly recognized as much:

            In both the present case and Reinhart [v. Department of
     Transportation, Bureau of Driver Licensing, 546 A.2d 167 (Pa.
     Cmwlth. 2008)] the licensees were convicted of multiple moving
     violations for which DOT imposed multiple suspensions of their
     driving privileges under Section 1532(a), (Reinhart), and Section
     1532(b) (both Reinhart and Licensee herein, Strawn). Both
     licensees were convicted of DUI, reckless driving and leaving the
     scene of an accident. In the present case, Strawn was also
     convicted of fleeing a police officer. Each of these offenses was
     separately committed with distinct elements; thus, none are a
     lesser included offense of another. A person can drive while
     under the influence without driving recklessly or without colliding
     with another vehicle. One can also drive while under the
     influence without either attempting to flee from a police
     officer or without leaving the scene of an accident.
     Therefore, because none of the offenses of which Strawn was
     convicted (reckless driving, leaving the scene of an accident and
     fleeing a police officer) merged as lesser included offenses, the
     suspensions imposed for each conviction must stand alone.

Strawn, supra, at 665 (emphasis supplied).

     Based on the foregoing, I would affirm the judgment of sentence.




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