Com. v. Bezick, L. , 207 A.3d 400 ( 2019 )

J-S83017-18
2019 Pa. Super. 104COMMONWEALTH 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
J-S83017-18
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.
-2-
J-S83017-18
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.
-3-
J-S83017-18
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.”).
-4-
J-S83017-18
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).
-5-
J-S83017-18
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.
-6-
J-S83017-18
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.
-7-
J-S83017-18
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
-8-