Com. v. Huckleberry

• Decision Date: 31 August 1993
• Citation: 631 A.2d 1329,429 Pa.Super. 146
• Parties: COMMONWEALTH of Pennsylvania v. John Wayne HUCKLEBERRY, Appellant.
• Court: Pennsylvania Superior Court

Page 1329

631 A.2d 1329

429 Pa.Super. 146

COMMONWEALTH of Pennsylvania v. John Wayne HUCKLEBERRY, Appellant.

Superior Court of Pennsylvania.

Submitted July 6, 1993.

Filed Aug. 31, 1993.

David P. Traux, Meadville, for appellant.

Mark D. Waitlevertch, Asst. Dist. Atty., Meadville, for Com., appellee.

Before CIRILLO, OLSZEWSKI and BROSKY, JJ.

BROSKY, Judge.

This is an appeal from the judgment of sentence entered following acceptance of appellant's pleas of guilt to the crimes of involuntary manslaughter ¹ and driving while under the influence. ²

Appellant presents three issues for our review: (1) whether the sentencing court erred in failing to place adequate reasons on the record regarding imposition of sentence within the aggravated range of the Sentencing Guidelines; (2) whether appellant's convictions for involuntary manslaughter and driving while under the influence merge for sentencing purposes; and (3) whether appellant's sentence was excessive. For the reasons set forth below, we vacate the judgment of sentence imposed on the DUI conviction arising out of the August, 1991 accident and affirm the judgment of sentence imposed with regard to the other convictions.

Before addressing appellant's claims, it is necessary to recount the relevant facts and history of this case. Appellant, John Huckleberry, was operating his vehicle in the early morning hours of August 13, 1991. Appellant was accompanied by his friend, Randall Vanderhoff. Both appellant and Mr. Vanderhoff had consumed approximately twelve beers each during the course of their ride and both were intoxicated. ³ Appellant was driving at an excessive rate of speed and caused his vehicle to exit the highway. Appellant's vehicle struck a mailbox, was then airborne for a distance of thirty-two feet and finally struck a tree, the impact of which caused Mr. Vanderhoff to be ejected from the vehicle. By the time it came to a rest, appellant's car flipped over onto Mr. Vanderhoff. Mr. Vanderhoff died as a result of the injuries sustained in the accident. Appellant also suffered severe injuries in the crash. Various charges were thereafter instituted against appellant.

While these charges were pending, appellant was involved in a second accident on May 25, 1992. Appellant had consumed approximately seven cans of beer ⁴ and was driving at an excessive speed when his vehicle left the highway, traveled onto the berm and apparently crashed. Appellant was ejected from the vehicle and again sustained serious injuries. Appellant was subsequently charged with various offenses arising out of this second incident.

Appellant entered into a plea agreement pursuant to which he would enter pleas of guilty to one count of involuntary manslaughter and two counts of driving while under the influence in exchange for the prosecutor's agreement to nol pros all remaining charges. Appellant's pleas were accepted by the court on September 18, 1992. Appellant was sentenced on October 27, 1992. With regard to the August incident, appellant received a sentence of one and one-half (1 1/2) to four (4) years' imprisonment for his involuntary manslaughter conviction. Appellant also received a concurrent sentence of thirty (30) days to twelve (12) months for his DUI conviction. A sentence of one (1) to (2) years was further imposed with respect to appellant's DUI conviction arising out of the May accident. This sentence was directed to run consecutively to appellant's other sentences. Appellant thus received an aggregate sentence of two and one-half (2 1/2) to six (6) years. Appellant filed a timely motion for reconsideration of sentence which was denied by the lower court. Appellant subsequently initiated this timely appeal.

We initially observe that appellant's first and third issues present a challenge to the discretionary aspects of sentence. Before we may proceed to consider the merits of such claims, appellant must demonstrate that there is a substantial question that his sentence is inappropriate under the Sentencing Code. 42 Pa.C.S.A. § 9781(b). In furtherance of this requirement, appellant must include in his brief a concise statement of the reasons relied upon for allowance of the appeal. See Pa.R.A.P., Rule 2119(f) and Commonwealth v. Tuladziecki, 513 Pa. 508, 511-513, 522 A.2d 17, 19 (1987). Although the table of contents makes reference to a statement of reasons relied upon for allowance of appeal, no such statement appears anywhere within appellant's brief. Appellant therefore has not complied with the directives of Rule 2119(f) and Commonwealth v. Tuladziecki. Because the Commonwealth has specifically objected to appellant's omission, we are precluded from addressing the merits of appellant's first and third claims. ⁵ Commonwealth v. Miller, 414 Pa.Super 56, 65- 66, 606 A.2d 495, 499 (1992), allocatur denied, 531 Pa. 639, 611 A.2d 711 (1992); Commonwealth v. Servich, 412 Pa.Super. 120, 133, 602 A.2d 1338, 1345 (1992); allocatur denied, 531 Pa. 646, 612 A.2d 984 (1992). Accord Commonwealth v. Martin, 416 Pa.Super. 507, 516, 611 A.2d 731, 735 (1992).

Appellant's second allegation of error requires us to ascertain whether the convictions arising out of the August, 1991 accident should have been merged for sentencing purposes. Questions of merger relate to the legality of sentence. Commonwealth v. Servich, 412 Pa.Super. at 133, 602 A.2d at 1345. The requirements of Commonwealth v. Tuladziecki and Rule 2119(f) do not apply to legality of sentencing issues. Id. See also 42 Pa.C.S.A. § 9781(a) (the defendant may appeal as of right the legality of the sentence). Consequently, we may proceed to consider the merits of appellant's merger claim.

Appellant argues that his convictions for DUI and involuntary manslaughter arising out of the August accident merged for sentencing purposes. Appellant does not refer us to any relevant authority in support of his claim. ⁶ Our own review of the pertinent decisional law nevertheless persuades us that the convictions merge.

The law regarding the merger of offenses has been explicated by our Supreme Court in Commonwealth v. Weakland, 521 Pa. 353, 555 A.2d 1228 (1989) and Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989). ⁷ Pursuant to these decisions, "where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes, unless the same facts support convictions of lesser included offenses." Commonwealth v. Weakland, 521 Pa. at 363, 555 A.2d at 1233, citing Commonwealth v. Leon Williams. "A lesser included offense is a crime the elements of which are a necessary subcomponent but not a sufficient component of elements of another crime, the greater offense." Commonwealth v. Leon Williams, 521 Pa. at 561 n. 2, 559 A.2d at 27-28 n. 2. Thus, "if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime." Commonwealth v. Weakland, 521 Pa. at 364, 555 A.2d at 1233. "If, however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes." Id. We must therefore analyze the elements of each offense to ascertain whether the crime of DUI is a lesser included offense of the crime of involuntary manslaughter.

A person is guilty of involuntary manslaughter "when as a direct result of the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner, he causes the death of another person." 18 Pa.C.S.A. § 2504(a). By way of comparison, an individual commits the crime of driving while under the influence of alcohol where it is established that he drove, operated or was in actual physical control of the movement of his vehicle while under the influence of alcohol to a degree which rendered him incapable of safe driving. See 75 Pa.C.S.A. § 3731(a)(1). Although the appellate courts have not considered the precise question of whether the crimes of involuntary manslaughter and driving while under the influence of alcohol merge, it has been recognized that the crimes of involuntary manslaughter and homicide by vehicle while driving under the influence merge for sentencing purposes. See Commonwealth v. Kozrad, 346 Pa.Super. 470, 473, 499 A.2d 1096, 1098 (1985). This court has further held that the crimes of driving while under the influence of alcohol and homicide by vehicle while DUI merge for sentencing. See, e.g., Commonwealth v. Nicotra, 425 Pa.Super. 600, ---- - ----, 625 A.2d 1259, 1265-1266 (1993); Commonwealth v. Carbaugh, 423 Pa.Super. 178, 181, 620 A.2d 1169, 1171 (1993); Commonwealth v. Voshall, 387 Pa.Super. 47, 52-53, 563 A.2d 936, 938-939 (1989), affirmed, 529 Pa. 571, 605 A.2d 1222 (1992).

Comparison of the elements of the offenses persuades us that, under the circumstances presented here, the crimes of involuntary manslaughter and driving while under the influence of alcohol to a degree which rendered appellant incapable of driving safely merge for sentencing purposes. To be guilty of involuntary manslaughter, the Commonwealth was required to demonstrate that appellant caused the death of another as a direct result of his performance of an unlawful act in a reckless and grossly negligent manner. 18 Pa.C.S.A. § 2504(a), supra. In this case, the unlawful act forming the basis of appellant's involuntary manslaughter conviction was that appellant violated 75 Pa.C.S.A. § 3731(a) by driving his vehicle at an excessive rate of speed while under the influence of alcohol to a degree which rendered him incapable of driving safely. Appellant's DUI conviction was premised on this same conduct, i.e., driving his vehicle while under the influence of alcohol to a degree which rendered him incapable of driving safely...