Com. v. Ede, No. 2543 EDA 2006

• Court: Superior Court of Pennsylvania
• Writing for the Court: Fitzgerald
• Citation: 2008 PA Super 84,949 A.2d 926
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Jeffrey Alan EDE, Appellant.
• Decision Date: 28 April 2008
• Docket Number: No. 2543 EDA 2006

949 A.2d 926 2008 PA Super 84 COMMONWEALTH of Pennsylvania, Appellee
v.
Jeffrey Alan EDE, Appellant. No. 2543 EDA 2006 Superior Court of Pennsylvania. Submitted January 14, 2008. Filed April 28, 2008. Reargument Denied June 30, 2008.

[949 A.2d 928]

Jeffrey A. Ede, appellant, pro se.

James B. Martin, Asst. Dist. Atty., for Com., appellee.

BEFORE: BENDER, ALLEN, and FITZGERALD,^* JJ.

OPINION BY FITZGERALD, J.:

¶ 1 Appellant, Jeffrey Alan Ede, filed this pro se appeal from the judgment of sentence entered in the Lehigh County Court of Common Pleas following his guilty plea to two counts of recklessly endangering another person (REAP),¹ one count of fleeing or attempting to elude police (Fleeing),² and a summary offense of driving while operating privilege is suspended or revoked.³ We hold 75 Pa.C.S. § 6503 mandates that a sentence of imprisonment for a second-time conviction of Fleeing may not exceed a term of six months. We further hold that the crimes of Fleeing and REAP do not merge for sentencing purposes. Finally, we deny Appellant's claim regarding credit for time served. Accordingly, we affirm in part, and vacate and remand in part.

¶ 2 Police were attempting to serve a bench warrant on Appellant when he began to flee in his vehicle, almost striking an officer in the process. After nearly colliding with a police vehicle, Appellant struck a parked vehicle, fire hydrant, fence, and utility pole. He then fled on foot, but was eventually apprehended. He entered an open guilty plea to the above crimes. The trial court sentenced Appellant to consecutive terms of twelve to twenty-four months' imprisonment for the two REAP convictions and for the Fleeing conviction, resulting in an aggregate term of three to six years' imprisonment.

¶ 3 Appellant filed a pro se motion to reconsider sentence, challenging the length of his sentences. The trial court denied his motion. Appellant subsequently filed a pro se notice of appeal. Trial counsel filed a motion to withdraw, though she also filed a notice of appeal on Appellant's behalf. This Court dismissed the pro se appeal as duplicative of his counseled appeal. After granting counsel's motion to withdraw, the trial court requested Robert Long, Esquire, to consult with Appellant to determine if he wished to proceed with counsel. Attorney Long then filed a motion to withdraw, indicating that Appellant wished to proceed pro se. This Court directed the trial court to conduct a Grazier hearing.⁴ The trial court conducted the hearing and determined that Appellant's request was knowing, intelligent, and voluntary. After several procedural issues were resolved, Appellant filed a pro se Pa.R.A.P.1925(b) statement, and the trial court filed its responsive opinion.

¶ 4 Appellant raises the following issues for our review:

1. Did the [trial] [c]ourt impose an illegal sentence, exceeding statutory limits, when it imposed a sentence of twelve to

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twenty-four months['] incarceration for Fleeing or Attempting to Elude a Police Officer, when the specific statute governing the particular penal provisions for violations of that statute state that a person convicted for violating the statute may only be sentenced "to imprisonment for not more than six months"?

2. Did the [trial] [c]ourt violate the United States and Pennsylvania Constitutional prohibition against Double Jeopardy and the `Single Act' and Merger Doctrines of Pennsylvania by imposing a consecutive sentence for the charge of Fleeing or Attempting to Elude Police Officer?

3. Did the [trial] [c]ourt fail to give Appellant all the credit he is entitled to for time spent in custody as a result of the charges for which this prison sentence is imposed?

Appellant's Brief at 2 (parentheticals deleted).

¶ 5 Initially, we note that the Commonwealth has objected to the lack of a Pa.R.A.P. 2119(f) statement in Appellant's brief.

[A] challenge to the discretionary aspects of [a] sentence . . . is not automatically reviewable as a matter of right. When making this challenge, an appellant must include in his or her brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, [571 Pa. 419] 812 A.2d 617 ([Pa.] 2002); Commonwealth v. Tuladziecki, [513 Pa. 508] 522 A.2d 17 ([Pa.] 1987); 42 Pa.C.S.A. § 9781(b); Pa.R.A.P. 2119(f). Where an appellant fails to comply with Pa.R.A.P. 2119(f) and the Commonwealth objects, the issue is waived for purposes of review. Commonwealth v. Farmer, 758 A.2d 173, 182 (Pa.Super.2000), appeal denied, [565 Pa. 637] 771 A.2d 1279 ([Pa.] 2001).

Commonwealth v. Montgomery, 861 A.2d 304, 308 (Pa.Super.2004). However, Appellant has phrased his claims in the form of challenges to the legality of the sentences, claims which cannot be waived. See Commonwealth v. Thur, 906 A.2d 552, 569 (Pa.Super.2006). Accordingly, we will begin our examination of each issue with a determination of whether that challenge actually implicates the legality of his sentence. If the claim is properly a challenge to the legality of his sentence, then we will proceed to address the merits of his claim; if it is not, then we will find the claim waived for failure to file a Rule 2119(f) statement. See Montgomery, supra.

¶ 6 Appellant's first claim is that his sentence of one to two years' imprisonment for Fleeing exceeded the statutory limit for that crime. He contends that, because this conviction was his second for Fleeing, Section 6503 of the Motor Vehicle Code specifically provided that the trial court could not impose a sentence exceeding six months' imprisonment. He asserts the trial court improperly relied on the more general provision for second-degree misdemeanors, rather than the specific provision of Section 6503. We agree.

¶ 7 A claim that a sentence is outside the legal parameters prescribed by statute implicates the legality of that sentence. Commonwealth v. Vasquez, 560 Pa. 381, 744 A.2d 1280, 1284 (2000). Thus, Appellant's claim cannot be waived, and we must address its merits. See Thur, supra.

¶ 8 The relevant statutes provide:

[75 Pa.C.S.] § 3733. 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

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a pursuing police officer, when given a visual and audible signal to bring the vehicle to a stop, commits a misdemeanor of the second degree.

* * *

[75 Pa.C.S.] § 6503. Subsequent convictions of certain offenses

(a) General offenses. — Every person convicted of a second or subsequent violation of any of the following provisions shall be sentenced to ... imprisonment for not more than six months ...:

* * *

Section 3733 (relating to fleeing or attempting to elude police officer).

* * *

[18 Pa.C.S.] § 106. Classes of offenses

(b) Classification of crimes.—

(7) A crime is a misdemeanor of the second degree if it is so designated in this title or if a person convicted thereof may be sentenced to a term of imprisonment, the maximum of which is not more than two years.

75 Pa.C.S. §§ 3733(a), 6503(a) (2005);⁵ 18 Pa.C.S. § 106(b)(7).⁶

In order to determine the relationship between [ ] two provisions ... a review of the general principles of statutory construction is appropriate. When construing a statute, our objective is to ascertain and effectuate the legislative intent. 1 Pa.C.S.[ ] § 1921(a). "In pursuing that end, we are mindful that `when the words of a statute are clear and free from all ambiguity, the letter of it is not to be disregarded under the pretext of pursuing its spirit.'" Commonwealth v. Shiffler, [583 Pa. 478] 879 A.2d 185, 189 ([Pa.] 2005) (citing 1 Pa. C.S.[ ] § 1921(b)). "Indeed, `as a general rule, the best indication of legislative intent is the plain language of a statute.'" Id.[]. "Moreoever, while statutes generally should be construed liberally, penal statutes are always to be construed strictly, 1 Pa.C.S.[ ] § 1928(b)(1), and any ambiguity in a penal statute should be interpreted in favor of the defendant." Id. Additionally, when construing a statute, we must begin with a presumption that the General Assembly intends the entire statute to be effective and certain. 1 Pa.C.S.[ ] § 1922(2).

Commonwealth v. Tareila, 895 A.2d 1266, 1269 (Pa.Super.2006). Finally, Section 1933 of Pennsylvania's General Provisions addresses conflicting statutes:

§ 1933. Particular controls general

Whenever a general provision in a statute shall be in conflict with a special provision in the same or another statute, the two shall be construed, if possible, so that effect may be given to both. If the conflict between the two provisions is irreconcilable, the special provisions shall prevail and shall be construed as an exception to the general provision, unless the general provision shall be enacted later and it shall be the manifest intention of the General Assembly that such general provision shall prevail.

1 Pa.C.S. § 1933. "Statutes designed to establish proper procedures for sentencing all defendants who commit crimes are general

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provisions." Commonwealth v. Klingensmith, 437 Pa.Super. 453, 650 A.2d 444, 447 (1994).

¶ 9 Instantly, Appellant notes that the trial court was aware of his prior conviction of Fleeing. See Trial Ct. Op. at 5 ("More recently, in Bucks County, he was again convicted of ... Fleeing or Attempting to Elude Police in a second case. [These] cases happened less than two (2) weeks prior to the instant offenses."). Thus, the court should have considered the instant Fleeing conviction Appellant's second, subjecting him to the penalties prescribed in Section 6503.

¶ 10 The Commonwealth counters that Fleeing is indisputably a second-degree misdemeanor, for which Section 106(b)(7) permits a maximum sentence of two years' imprisonment. However, the Commonwealth does not...