Com. v. Kimmel, L. ( 2015 )

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2015 PA Super 226COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEE ALLEN KIMMEL,
Appellant No. 126 MDA 2013
Appeal from the Judgment of Sentence December 18, 2012
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0003380-2011
BEFORE: BOWES, DONOHUE, SHOGAN, LAZARUS, MUNDY, OLSON, WECHT,
STABILE, and JENKINS, JJ.
OPINION BY SHOGAN, J.: FILED OCTOBER 29, 2015
Appellant, Lee Allen Kimmel, appeals from the judgment of sentence
entered on December 18, 2012, in the Cumberland County Court of Common
Pleas. Appellant claims that his convictions for driving under the influence of
alcohol and fleeing or attempting to elude a police officer should merge for
sentencing purposes. After careful review, we conclude that Appellant’s
convictions arose from separate criminal acts. Therefore, the convictions do
not merge for sentencing. Accordingly, we affirm.
The factual background and procedural history of this case are as
follows. At approximately 10:45 p.m. on November 22, 2011, Cumberland
County dispatch received a call relaying that there was a man, later
identified as Appellant, who appeared to be very intoxicated at the Sheetz
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convenience store in Mt. Holly Springs. The caller provided a description of
Appellant and the license plate number of Appellant’s pickup truck. Before
police could arrive at the Sheetz, Appellant departed the property via Mill
Street. Less than a minute later, Mt. Holly Springs Police Officer Jason Beltz
arrived at the Sheetz. He then proceeded on Mill Street in the same
direction as Appellant.
Approximately 3,000 feet farther down Mill Street, Officer Beltz
crossed into South Middletown Township and eventually turned onto Zion
Road. Officer Beltz turned onto Zion Road because he had been informed of
Appellant’s address, and the officer was aware that if Appellant was heading
home, he would likely make that turn. Officer Beltz activated his emergency
lights when he saw Appellant drive into a posted no-trespass area.
When Officer Beltz stopped and approached Appellant, Appellant had
difficulty locating his license and registration. Appellant’s breath had an
odor of alcohol, his speech was slurred, and he was unstable on his feet
when he exited the truck. Appellant told Officer Beltz that he did nothing
wrong, reentered his truck, and attempted to drive away. Officer Beltz
reached in the truck and removed the keys from the ignition. Appellant then
exited the truck a second time, pushed Officer Beltz, and reentered the truck
with a second set of keys. This time, Appellant succeeded in driving away.
Officer Beltz briefly pursued Appellant but then changed course and
proceeded toward Appellant’s residence instead of continuing in pursuit. On
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the way to Appellant’s residence, Officer Beltz spotted Appellant’s truck
stuck on a tree stump. At that point, Officer Beltz took Appellant into
custody. At the police station, Officer Beltz read Appellant the DL-26 form,
which outlines the increased penalties for refusal to submit to chemical
testing. When Officer Beltz asked Appellant if he would submit to a blood
test, Appellant jumped out of his seat and made a threatening move towards
Officer Beltz. No chemical testing was conducted.
On February 1, 2012, Appellant was charged by criminal information
with fleeing or attempting to elude a police officer (“fleeing”), 1 driving under
the influence – general impairment (“DUI-general impairment”),2 driving
under the influence – general impairment with refusal to submit to chemical
testing (“DUI-refusal”),3 resisting arrest,4 defiant trespass,5 careless
1
75 Pa.C.S. § 3733(a).
2
75 Pa.C.S. § 3802(a)(1).
3
Although the information filed against Appellant charged him with both
DUI-general impairment and DUI-refusal, we note that this was improper.
In Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011), this Court
held that DUI-refusal was not a separate crime from DUI-general
impairment. In so holding, this Court stated:
The trial court convicted [a]ppellant of two separate counts of
DUI—general impairment arising out of the same incident, with
one count alleging [a]ppellant refused the breath/blood test.
The refusal of a blood alcohol content (“BAC”) test is not a
separate element under 75 Pa.C.S. § 3802; rather, those who
refuse a BAC test must be charged pursuant to 75 Pa.C.S.
§ 3802(a)(1), general impairment. Since refusal of a
breath/blood test is not an element of the criminal offense that
pertains to guilt, the court should not have convicted [a]ppellant
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driving,6 public drunkenness,7 and possession of an open container in a
motor vehicle.8
On April 13, 2012, Appellant filed a motion to suppress all evidence
gathered as a result of the traffic stop.9 A suppression hearing was held on
May 25, 2012. On September 26, 2012, the suppression court issued
of the same criminal offense, DUI—general impairment, arising
out of the identical criminal episode. Instead, [a]ppellant should
have been convicted of one count of DUI—general impairment
and been subject to the sentencing enhancement provided by
statute relative to a blood or breath test refusal.
Id. at 891 (footnotes and citations omitted). Neither party raises this as an
issue. Moreover, there is no concern with respect to sentencing since the
Commonwealth conceded at the time of sentencing that the two counts
merged because Appellant was not charged with two separate DUI crimes,
and the trial court imposed a legal sentence under 75 Pa.C.S. § 3804. See
footnote 11 below. Thus, we need not address this issue further.
4
18 Pa.C.S. § 5104.
5
18 Pa.C.S. § 3503(b)(1)(ii).
6
75 Pa.C.S. § 3714(a).
7
18 Pa.C.S. § 5505.
8
75 Pa.C.S. § 3809(a).
9
Appellant’s motion argued that Officer Beltz violated the Municipal Police
Jurisdiction Act, 42 Pa.C.S. § 8951, et seq., because South Middletown
Township is outside of his primary jurisdiction and is patrolled by the
Pennsylvania State Police.
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findings of fact and conclusions of law and denied Appellant’s motion to
suppress. On December 4, 2012, the case proceeded to a jury trial.10
Appellant was convicted of fleeing, DUI, careless driving, and public
drunkenness. Fleeing is generally a second-degree misdemeanor (“M2”).
75 Pa.C.S. § 3733(a.2)(1). When the fleeing occurs while driving under the
influence, however, it is graded as a third-degree felony (“F3”). 75 Pa.C.S.
§ 3733(a.2)(2)(i). Therefore, in this case, the fleeing offense was elevated
to an F3. On December 18, 2012, Appellant was sentenced to eight to
twenty-four months of incarceration for F3 fleeing and fourteen to forty-
eight months for DUI,11 resulting in an aggregate sentence of twenty-two to
seventy-two months. On December 28, 2012, Appellant filed a post-
sentence motion arguing, inter alia, that his DUI conviction merged with his
F3-fleeing conviction. On January 4, 2013, the trial court denied Appellant’s
post-sentence motion. This timely appeal followed.12
10
The jury adjudicated the misdemeanor and felony counts while the trial
court adjudicated the summary offenses.
11
Appellant was subject to a mandatory one-year minimum sentence for his
DUI conviction because this was his fourth offense, and he refused chemical
testing. See 75 Pa.C.S. § 3804(c)(3)(i) (an individual who violates section
3802(a)(1), refuses testing of blood or breath, and has committed a third or
subsequent offense shall be sentenced to prison for not less than one year).
12
On January 16, 2013, the trial court ordered Appellant to file a concise
statement of errors complained of on appeal (“concise statement”). See
Pa.R.A.P. 1925(b). On February 6, 2013, Appellant filed his concise
statement. On March 28, 2013, the judge who presided over Appellant’s
jury trial issued a Rule 1925(a) opinion. On May 3, 2013, the judge who
presided over Appellant’s suppression hearing issued a Rule 1925(a) opinion.
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A divided three-judge panel of this Court initially affirmed Appellant’s
convictions but vacated his judgment of sentence and remanded for
resentencing. The majority concluded that Appellant’s DUI conviction
merged with his F3-fleeing conviction. On September 12, 2014, the
Commonwealth filed an application for reargument en banc, which was
granted. Oral argument was held before the Court en banc, and this matter
is now ripe for disposition.
Appellant presents one issue for our review:
Whether the [trial] court erred in denying [Appellant’s]
post[-]sentence motion for modification of sentence when
[Appellant] was sentenced to separate and consecutive
sentences on [the F3 fleeing and DUI when DUI is] an essential
element of [F3 fleeing?]
Appellant’s Brief at 6.13
Appellant contends that the trial court erred by not merging his F3-
fleeing conviction with his DUI conviction for sentencing purposes. A claim
that convictions merge for sentencing is a question of law; therefore, our
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa. Super. 2014), appeal
denied, 99 A.3d 925 (Pa. 2014).
See Pa.R.A.P. 1925(a)(1) (permitting the trial court to request that the
suppression court issue an opinion dealing with issues decided by the
suppression court). Appellant’s lone issue in this appeal was included in his
concise statement.
13
On reargument, Appellant pursued only his merger claim.
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We begin our examination of Appellant’s merger claim by reviewing
the statutory provisions pertinent to his underlying convictions. Section
3802(a) of the Motor Vehicle Code provides that “[a]n 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).
Generally, a violation of section 3802(a) is an ungraded misdemeanor. 75
Pa.C.S. § 3803(a)(1). However, “[a]n individual who violates section
3802(a)(1) where the individual refused testing of blood or breath . . . and
who has one or more prior offenses commits a misdemeanor of the first
degree.” 75 Pa.C.S. § 3803(b)(4). In this case, Appellant was subject to a
one-year mandatory minimum sentence because his conviction represented
his fourth offense, and he refused chemical testing. 75 Pa.C.S.
§ 3804(c)(3)(i).
Section 3733(a) of the Motor Vehicle Code provides:
Fleeing or attempting to elude police officer
(a) Offense defined.- 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 and audible signal to bring the vehicle to a
stop, commits an offense as graded in subsection (a.2).
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75 Pa.C.S. § 3733(a). As noted above, fleeing is generally graded as an M2,
75 Pa.C.S. § 3733(a.2)(1), but when the fleeing occurs while driving under
the influence, it is graded as an F3. 75 Pa.C.S. § 3733(a.2)(2)(i).
Appellant’s claim is that his fleeing conviction, which was graded as an
F3 because it occurred while he was driving under the influence, should have
merged with his DUI conviction for sentencing purposes. Merger in
Pennsylvania is governed by section 9765 of the Sentencing Code, which
provides as follows:
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. § 9765 (emphasis added). “Accordingly, merger is appropriate
only when two distinct criteria are satisfied: (1) the crimes arise from a
single criminal act; and (2) all of the statutory elements of one of the
offenses are included within the statutory elements of the other.”
Commonwealth v. Raven, 97 A.3d 1244, 1249 (Pa. Super. 2014), appeal
denied, 105 A.3d 736 (Pa. 2014).
Here, the record reveals that Officer Jason Beltz conducted a traffic
stop based on his suspicion that Appellant was driving while intoxicated.
Appellant stopped his truck and exhibited signs of intoxication. Appellant
then became combative, and the officer took Appellant’s keys. Appellant
then returned to his truck, locked the door, and retrieved a second set of
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keys from his pocket. At this juncture, Appellant chose to again drive the
truck while intoxicated while fleeing from Officer Beltz, and Appellant was
arrested at the conclusion of his drunken flight. Affidavit of Probable Cause,
11/23/11, at 1-2; N.T., 12/4/12, at 34-46. The circumstances here are
straightforward: there was the initial DUI, followed by a traffic stop, followed
by Appellant choosing to flee while DUI.
When determining whether separate crimes constitute a single criminal
act, this Court has stated that “we should look to the elements of the crimes
involved as charged by the Commonwealth.” Commonwealth v. Jenkins,
96 A.3d 1055, 1060 (Pa. Super. 2014), appeal denied, 104 A.3d 3 (Pa.
2014) (citing Commonwealth v. Comer, 716 A.2d 593, 599 (Pa. 1998)).
In Jenkins, the appellant struck the victim. The blow broke the victim’s jaw
and caused him to fall to the ground. Jenkins, 96 A.3d at 1059. After the
victim fell, the appellant restrained the victim on the ground and stole items
from his person. Id. The Jenkins Court explained the manner in which the
appellant therein was charged as follows:
As charged in the information filed on July 9, 2012, the
Commonwealth asserted that [the appellant] committed robbery
when, with his codefendant, he “assaulted [the victim] by
punching him in the face causing a facial laceration and fractured
jaw. [The victim] was forced to the ground, restrained and
searched for personal belongings, which were stolen from
[him].” Information, 7/9/2012, at 2 (unnumbered, emphasis
added). With regard to simple assault, the Commonwealth
asserted that “during the course of a robbery, [the appellant]
assaulted [the victim] causing a facial laceration that required
stitches and a fractured left jaw.” Id. at 3.
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Jenkins, 96 A.3d at 1061 (emphasis in original).
Similarly, in the case at bar, the affidavit of probable cause, the
criminal complaint, and the criminal information reveal that Appellant was
charged with committing DUI and charged with felony fleeing because, after
the traffic stop, he fled while in violation of the DUI statute, 75 Pa.C.S.
§ 3802. This is parallel to the information in Jenkins where it was stated
that the appellant broke the victim’s jaw and then restrained the injured
victim while committing a theft. In both this case and in Jenkins, there
were separate criminal acts. Therefore, in the case at bar, because
Appellant’s convictions arose from separate criminal acts, merger is not
implicated.
For the reasons set forth above, we conclude that the charges do not
merge, and thus, there was no error in the sentence imposed. Accordingly,
we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judges Donohue, Lazarus, Mundy, Wecht, Stabile, and Jenkins join the
Opinion.
Judge Bowes files a Concurring Opinion in which Judges Donohue and
Wecht join.
Judge Olson files a Concurring Opinion.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/29/2015
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