J-S73027-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :    IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :         PENNSYLVANIA
                                               :
                                               :
                v.                             :
                                               :
                                               :
    PAMELA JEAN ROUTHIER,                      :
                                               :    No. 650 MDA 2017
                       Appellant

            Appeal from the Judgment of Sentence December 2, 2015
       In the Court of Common Pleas of Berks County Criminal Division at
                        No(s): CP-06-CR-0004740-2013


BEFORE:      OLSON, J., DUBOW, J., and STRASSBURGER, J.*

MEMORANDUM BY DUBOW, J.:                                     FILED MAY 09, 2018

        Appellant Pamela Jean Routhier appeals from the Judgment of Sentence

imposed after a jury found her guilty of, inter alia, Homicide by Vehicle While

Driving under the Influence (“DUI”).1              She challenges the discretionary

aspects of her sentence.          Based on a determination that the trial court

erroneously merged offenses for purposes of sentencing, we vacate the

Judgment of Sentence and remand for resentencing.

        The facts, as gleaned from the certified record, are as follows.        On

August 23, 2013, while driving drunk, Appellant hit Daniel Shirey who was

walking alongside the road. Mr. Shirey died from his injuries two days later.

The Commonwealth charged Appellant with Homicide by Vehicle and related

DUI offenses.
____________________________________________


1   75 Pa.C.S. § 3735(a).
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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       A jury trial commenced on September 28, 2015. On October 1, 2015,

the jury found Appellant guilty of the following offenses:

       Count 1 - Homicide by Vehicle While DUI;

       Count 2 - Homicide by Vehicle;

       Count 3 - Involuntary Manslaughter;

       Count 4 - Aggravated Assault by Vehicle While DUI;

       Count 5 - Aggravated Assault by Vehicle;

       Count 6 - DUI - General Impairment;

       Count 7 DUI - High Rate of Alcohol;

       Count 8 - Recklessly Endangering Another Person; and

       Count 10 - Careless Driving.2

       The court ordered a pre-sentence investigation report, deferred

sentencing to November 6, 2015, and permitted Appellant to remain free on

bail to get her affairs in order.

       While out on bail, Appellant crashed her vehicle on October 16, 2015,

totaling her car and causing injury only to herself. On November 5, 2015, the

Pennsylvania State Police (“PSP”) filed a Criminal Complaint charging




____________________________________________


2 75 Pa.C.S. § 3735(a); 75 Pa.C.S. § 3732(a); 18 Pa.C.S. § 2504(a); 75
Pa.C.S. § 3735.1(a); 75 Pa.C.S. § 3732.1(a); 75 Pa.C.S. § 3802(a)(1); 75
Pa.C.S. § 3802(b); 18 Pa.C.S. § 270; and 75 Pa.C.S. § 3714, respectively.
The court also imposed restitution and fines, and convicted Appellant of
related summary offenses in a separate bench trial.



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Appellant with DUI and related offenses in connection with that one-car crash.3

The Commonwealth did not receive the criminal information until November

12, 2015.

       On November 6, 2015, the court held a sentencing hearing near the end

of which defense counsel informed the court, “as a bit of housekeeping,” that

Appellant “was in a car accident a few weeks ago; not her fault.”          N.T.

Sentencing, 11/6/15, at 17. Neither defense counsel nor Appellant informed

the court of the exact circumstances of that accident, nor of the criminal

information that had been filed just the day before.

       The Commonwealth requested that the court impose the mandatory

sentence of 3 to 10 years’ incarceration on the Homicide by Vehicle While

Driving DUI, and told the court that “all charges will merge for sentencing

purposes with Count 1, that being Homicide by Vehicle While DUI, with the

exception of Counts 9 and 10.” N.T. Sentencing hearing, 11/6/15, at 4. The

Commonwealth later amended its merger comment to state that “careless

driving would merge in with [sic] the reckless driving element for homicide by

vehicle while DUI so Count 10 would also merge[.]” Id. at 13-14.



____________________________________________


3 In the Criminal Complaint, Trooper James Green alleged that when he arrived
at the scene of the accident on October 16, 2015, Appellant exhibited signs of
intoxication and admitted to drinking four beers prior to driving. A breath test
performed on the scene tested positive for the presence of alcohol.
Approximately two hours after the accident, a blood test performed at the
hospital revealed that Appellant had a blood alcohol content of .113%. See
Affidavit of Probable Cause, signed November 5, 2015.

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       The court then sentenced Appellant on Count 1, Homicide by Vehicle

While DUI, to 3 to 10 years’ incarceration.       See 75 Pa.C.S. § 3735(a)

(providing mandatory minimum of three years for a Homicide by Vehicle while

DUI conviction). The sentencing Order dated November 12, 2015, indicates

that Counts 2 – 8 and 10 merged with Count 1, Homicide by Vehicle While

DUI, for sentencing purposes.

       On November 16, 2015, the Commonwealth filed a timely Motion to

Modify Sentence, stating that on November 12, 2015, it had received the

Criminal Complaint filed by the PSP charging Appellant with another DUI in

connection with the October 16, 2015 car crash.4 The court held a hearing on

December 2, 2015, and granted the Commonwealth’s Motion based upon the

fact that neither the Commonwealth nor the court knew at the time of

sentencing that Appellant had committed another DUI violation while out on

bail, which was relevant to its sentencing decision. The court then vacated its

November 6, 2015 sentence, and imposed a sentence of 4 to 10 years’

incarceration with the same restitution and fines.

       Appellant did not appeal at that time. She subsequently filed a PCRA

Petition pro se, which she amended after the appointment of counsel, seeking

reinstatement of her post-sentence and direct appeal rights nunc pro tunc.

The court granted the relief requested on February 21, 2017.


____________________________________________


4Pursuant to Pa.R.Crim.P. 721, the Commonwealth may file a Motion to Modify
Sentence no later than 10 days after sentence.

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      Appellant filed a Post-Sentence Motion on March 1, 2017, which the trial

court denied on March 16, 2017. Appellant timely appealed. Both Appellant

and the trial court complied with Pa.R.A.P. 1925.

      Appellant raises the following issue for our review:

      Whether the Trial Court erred in denying Appellant’s Post-
      Sentence Motion where the court reconsidered and increased
      Appellant’s sentence based on facts that occurred prior to the
      imposition of the original sentence and therefore contrary to
      Pennsylvania law as set forth in Commonwealth v. Lal, 627 A.2d
      281, 285 (Pa. Cmwlth. 1993) and Commonwealth v. Moore,
      302 A.2d 396 (Pa. Super. 1973) and progeny?

Appellant’s Brief at 4.

      Appellant argues that the court acted with vindictiveness in modifying

her sentence because the second DUI did not occur after sentence was

imposed in the instant case.     See Appellant’s Brief at 14-15, 18 (citing

Commonwealth v. Lal, 627 A.2d 281, 285 (Pa. Cmwlth. 1993), and

Commonwealth v. Moore, 302 A.2d 396 (Pa. Super. 1973)). Such a claim

challenges the discretionary aspects of her sentence.        Commonwealth v.

Robinson, 931 A.2d 15, 21 (Pa. Super. 2007) (en banc). Because we must

vacate the Judgment of Sentence based on the legality of the sentence as

described below, we will not address this issue.

      Although neither party raised the issue of merger on appeal, we must

address the illegality of Appellant’s sentence. Our judicial code provides that

“[n]o 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


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included in the statutory elements of the other offense.” 42 Pa.C.S. § 9765.

“Sentencing issues relating to a court’s statutory authority to impose sentence

implicate [the] legality of sentence.” Commonwealth v. Foster, 17 A.3d

332, 342 (Pa. 2011).      This issue is not waivable and can be raised by an

appellate court sua sponte. Commonwealth v. Walker, 362 A.2d 227, 230

n. 3 (Pa. 1976).

        “The current state of merger law in Pennsylvania makes clear that there

is no merger if each offense requires proof of an element the other does not.”

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

Commonwealth v. Neupert, 684 A.2d 627, 629 (Pa. Super. 1996), this

Court held that Homicide by Vehicle and Homicide by Vehicle/DUI do not

merge because each requires proof of an element which the other does not

have.     Likewise, in Commonwealth v. Silay, 694 A.2d 1109, 1119 (Pa.

Super. 1997), we held that the offenses of Recklessly Endangering Another

Person and Homicide by Vehicle While DUI do not merge for purposes of

sentencing.

        Here, the court concluded that all of Appellant’s convictions, including

Homicide by Vehicle and Recklessly Endangering Another Person, merged with

Homicide by Vehicle While DUI for purposes of sentencing. See Sentencing

Order, dated 11/12/15; Trial Ct. Op., filed 7/20/17, at 3 n.3. While some of

the convictions may have merged with others, as the above case law indicates,




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not all of them merged with the Homicide by Vehicle While DUI conviction for

purposes of sentencing.

      Accordingly, the appropriate course of action is to vacate the sentence

imposed and remand for resentencing.       However, we do not suggest any

resentencing scheme to the trial court.

      Conviction affirmed. Judgment of Sentence vacated. Case remanded

for resentencing. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/9/2018




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