J-S83017-18


                                2019 PA Super 104

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 LISA ANN BEZICK                          :
                                          :
                    Appellant             :   No. 509 WDA 2018

           Appeal from the Judgment of Sentence March 13, 2018
   In the Court of Common Pleas of Allegheny County Criminal Division at
                     No(s): CP-02-CR-0007522-2017


BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.

OPINION BY SHOGAN, J.:                                   FILED April 1, 2019

      Lisa Ann Bezick (“Appellant”) appeals from the judgment of sentence

entered in the Allegheny County Court of Common Pleas following her three

convictions for driving under the influence (“DUI”) and the summary offense

of failure to stop and render aid. We affirm in part, vacate in part, and remand

for resentencing.

      Following a single criminal incident, the Commonwealth charged

Appellant as stated above. At the nonjury trial on March 13, 2018, the parties

stipulated to the Affidavit of Probable Cause, as follows:

         1. On Saturday April 8, 2017 at approximately 12[:]52 hours,
            I, Officer [Terry] Bradford was dispatched to Route 51 @
            Borough Park Drive for a report of a two vehicle accident.
            The caller reported that one of the vehicles was attempting
            to leave the accident scene.

         2. Upon arrival, I observed a black VW Tiguan bearing Michigan
            registration DNN2948 stopped in the southbound left lane
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          with minor scratches to the rear bumper. The driver was
          identified as a Jose Villarreal. He reported that the other
          vehicle involved just fled the scene northbound on Route 51.
          He showed me a picture he took on his cell phone of the
          other vehicle involved, which was a blue Pontiac G6 bearing
          PA registration JLZ8667. Mr. Villarreal described the driver
          of the vehicle as a white female in her 40’s with blonde hair.
          Mr. Villarreal stated that he was stopped at the red light on
          Route 51 @ Borough Park Drive when he was struck from
          behind by the blue Pontiac 6C [sic]. The driver failed to
          exchange information or check on the welfare of the
          occupants before fleeing the accident scene.

       3. I spoke with a witness, Peter Muszalski, who was traveling
          directly behind the blue Pontiac G6. He stated that the
          vehicle was driving erratically as it was swerving in and out
          of its travel lane, prior to it striking the victim’s vehicle. He
          stated that the blue Pontiac G6 backed into his vehicle prior
          to leaving the accident scene, but there was no damage to
          the vehicle.

       4. Sgt. Hudson located the blue Pontiac G6 bearing PA
          registration JLZ8667 traveling north on Route 51 @
          Greenlee Road and stopped [the] vehicle on Greenlee Road.
          This location is approximately 1.5 miles from the location of
          the accident. I arrived on scene and the driver was a white
          female in her 40’s with blonde hair and was identified as
          [Appellant]. [Appellant] stated that she was not injured in
          the accident and fled the scene because she was scared. As
          I was speaking with [Appellant], I observed that she was
          lethargic, had slurred speech, and her pupils were pinpoint.
          [Appellant] stated that she ingested an unknown amount of
          heroin, two alcoholic beverages, and an unknown amount of
          Clonazepam. I asked [Appellant] to perform a series of field
          sobriety tests, to which she agreed.

       5. The field sobriety tests were performed in a level, paved
          parking lot during daylight hours. I had [Appellant] perform
          the finger-to-nose, [balance], and walk-and-turn tests. I
          instructed and demonstrated the tests prior to [Appellant]
          performing them. [Appellant] did fail all three tests. Her
          ability to perform the tests and follow directions were poor.
          At this time, she was placed under arrest and transported
          to Jefferson Hospital.

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          6. [Appellant] was read and signed PennDOT form DL-26B and
             consented to a blood draw. A blood draw was performed by
             RN Angie Luckey at 13[:]50 hours. I took custody of the
             blood evidence and transported [Appellant] to Whitehall
             Police Station where she was released to a friend at 15[:]05
             hours.

N.T., 3/13/18, at 2–3; Affidavit of Probable Cause, 6/26/17, at 2.

       Based upon these events, the Commonwealth filed a four-count criminal

information against Appellant on August 17, 2017.         Count one charged

Appellant with DUI Highest Rate of Alcohol (BAC .16% or Higher), second

offense, in violation of 75 Pa.C.S. § 3802(c), 75 Pa.C.S. § 3803(b)(4), and 75

Pa.C.S. § 3804(c)(2).          Count two charged Appellant with DUI-general

impairment, second offense, where an accident resulting in damage to a

vehicle occurred in violation of 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S.

§ 3804(b)(2). Count three charged Appellant with DUI-general impairment,

second offense, in violation of 75 Pa.C.S. § 3802(a)(1) and 75 Pa.C.S.

§ 3804(a)(2).     Count four charged Appellant with the summary offense of

failure to stop and render aid, 75 Pa.C.S. § 3744(a).1

       The trial court convicted Appellant of all three DUI counts and the

summary offense. Appellant waived a presentence investigation. The trial

court sentenced Appellant to ninety days of house arrest and a concurrent


____________________________________________


1  In its Pa.R.A.P. 1925(a) opinion, the trial court erroneously stated that it
found Appellant guilty of 75 Pa.C.S. § 3742 rather than § 3744. Trial Court
Opinion, 6/7/18, at 2; Order of Sentence, 3/13/18, at Count 4. As Appellant
raises no challenge regarding the convictions at counts one and four, those
convictions are affirmed without further discussion.

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two-year probationary period on count one, determined that counts two and

three merged with count one for sentencing purposes, and imposed no further

penalty for the summary offense.               Appellant did not file a post-sentence

motion. Appellant filed a timely notice of appeal.2 Both Appellant and the

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

       Appellant raises the following single issue for our review:

       Were [Appellant’s] rights under the Double Jeopardy Clause of the
       Fifth Amendment of the U.S. Constitution and Article 1, § 10 of
       the Pennsylvania Constitution violated because she was charged
       and convicted of two identical DUI offenses, even though there
       was only one incident?

Appellant’s Brief at 5 (unnecessary capitalization removed).

       Thus, Appellant argues that her double jeopardy rights were violated

when she was convicted on separate DUI counts arising out of the same

incident, based on this Court’s decision in Commonwealth v. Farrow, 168

A.3d 207 (Pa. Super. 2017). Appellant’s Brief at 5. Appellant argues:

       In Farrow, this Honorable Court found that where a single DUI
       offense is subject to enhancements (such as for an accident or a
       refusal), the Commonwealth must file a criminal information that
       sets forth a single count under 75 Pa.C.S.A. § 3802, and include
____________________________________________


2 While Appellant did not file a post-sentence motion, because the issue herein
involves the legality of the sentence imposed, there is no waiver.
Commonwealth v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (issues
related to the legality of sentence cannot be waived). Indeed, “this Court is
endowed with the ability to consider an issue of legality of sentence sua
sponte.” Commonwealth v. Orellana, 86 A.3d 877, 882–883 n.7 (Pa.
Super. 2014). See also Commonwealth v. Farrow, 168 A.3d 207, 212 (Pa.
Super. 2017) (Although the appellant’s issue was raised for the first time on
appeal, it was not subject to waiver because it was “a colorable double
jeopardy objection to the legality of her sentence.”).

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       enhancements under 75 Pa.C.S.A. § 3804 as subparts of that
       single count. 168 A.3d at 218-19. This Honorable Court explained
       that the Commonwealth must charge in this manner rather than
       charging multiple counts of DUI under § 3802 when there is only
       one incident of DUI. Id. Accordingly, in Farrow, this Honorable
       Court vacated all but one DUI conviction that arose from a single
       incident, and remanded so that the enhancements could be placed
       under the single DUI count. Id. at 219.

Appellant’s Brief at 11.         Appellant avers that this Court “must vacate

[Appellant’s] DUI conviction at Count 2, 75 Pa.C.S.A. § 3802(a)(1), and

remand for resentencing on the DUI conviction at Count 3, also 75 Pa.C.S.A.

§ 3802(a)(1).” Id.

       First, we do not find waiver in this case, as was found by the trial court.3

Trial Court Opinion, 6/7/18, at 6–7.           In Farrow, in addressing the same

argument as presented herein, we stated:

       Since these contentions plainly challenge the validity of [the
       a]ppellant’s judgment of sentence under double jeopardy
____________________________________________


3  The basis for the trial court’s waiver finding is unclear. It appears that it
found waiver because it determined Appellant’s Pa.R.A.P. 1925 (b) statement
mistakenly challenged three separate convictions, rather than separate
punishments, of DUI for the same offense. Trial Court Opinion, 6/7/18, at 6–
7. As the Commonwealth points out, while the Rule 1925(b) statement does
not specifically reference the sentences imposed at counts two and three, “it
does identify the penalty provisions of 75 Pa.C.S. § 3804(b)(2) (involvement
in an accident) and . . . § 3804(a)(2) (possession of one prior DUI offense)
that are set forth in [c]ounts 2 and 3 of the Criminal Information in this
matter.” Commonwealth’s Brief at 8–9. In addition, the Rule 1925(b)
statement cites to Farrow. Id. at 9; Pa.R.A.P. 1925(b), 5/16/18, at 8(b). As
the Commonwealth notes, a double jeopardy challenge concerning Appellant’s
sentences is fairly suggested in Appellant’s Rule 1925(b) statement.
Commonwealth’s Brief at 9. Appellant’s Rule 1925(b) statement sufficiently
identified the errors Appellant intended to challenge “with sufficient detail.”
Pa.R.A.P. 1925(b)(4)(ii).



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       principles, we conclude that the present claim is not subject to
       waiver and may be raised for the first time on appeal. See
       Commonwealth v. Foster, 960 A.2d 160, 164 (Pa. Super. 2008)
       (“argument premised upon double jeopardy-merger principles is
       considered to relate to the legality of sentence”).

Farrow, 168 A.3d at 213.4

       Appellant is correct in asserting the applicability of Farrow. Indeed,

the Commonwealth concedes this issue.            Commonwealth Brief at 12. 5   At

counts two and three, Appellant was convicted of two separate DUI offenses,

DUI-general impairment, second offense, 75 Pa.C.S. § 3802(a)(1), pursuant

to a single criminal act. Both counts also charged Appellant with violating 75

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

enhancement. Under these circumstances, Farrow directs as follows:

              In the future, where a single DUI offense is subject to
       enhancements, the Commonwealth should file a criminal
       information that sets forth a single count under § 3802.10
       Enhancements under § 3804 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
       [Alleyne v. United States, 570 U.S. 99 (2013)]. This method
       will also allow the factfinder to make the necessary findings with
       respect to § 3804 enhancements, as Alleyne also commands.


____________________________________________


4  We also appreciate the Commonwealth’s admission that the trial court, in
rejecting the issue herein in the alternative, erroneously analyzed Appellant’s
claim in relation to counts one and two of the Information, which charged
different offenses under the DUI statute, rather than counts two and three,
which charged the same offense and are the basis of Appellant’s claim.
Commonwealth Brief at 8.

5   We laud the Commonwealth’s candor.

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            10   To be clear, the Commonwealth may charge
            separate counts, as appropriate, where the conduct at
            issue exposes the defendant to criminal liability under
            multiple and distinct criminal provisions found in
            § 3802, such as DUI-general impairment under
            § 3802(a)(1) and DUI-highest rate under § 3802(c).
            In such cases, if the Commonwealth seeks to add
            sentencing enhancements under § 3804, such
            enhancements may be added as subparts or
            subparagraphs under each count.

Farrow, 168 A.3d at 218–219. We note that 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

purposes 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.”       Id. at 217 (citing Bell v.

Commonwealth Dep't of Transportation, 96 A.3d 1005, 1019–1020 (Pa.

2014) (PennDOT may issue multiple driver’s license suspensions for multiple

convictions regardless of whether convictions merge for sentencing purposes

and regardless of whether they arose from a single criminal episode)).

      Therefore, the convictions at counts one and four are affirmed. Pursuant

to the directive of Farrow, we are constrained to vacate Appellant’s conviction

and sentence at count two, affirm Appellant’s conviction but vacate her

sentence at count three, and remand for resentencing at count three,

consistent with Farrow, 168 A.3d at 219.




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      Judgment of sentence affirmed in part and vacated in part.   Case

remanded for resentencing in accordance with this Opinion.   Jurisdiction

relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2019




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