Com. v. Voshall
| Citation | 387 Pa.Super. 47,563 A.2d 936 |
| Parties | COMMONWEALTH of Pennsylvania v. David W. VOSHALL, Appellant. 685 PITTS. 1988 |
| Decision Date | 01 September 1989 |
| Court | Superior Court of Pennsylvania |
Mark H. Rubenstein, Pittsburgh, for appellant.
Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
Before BROSKY, DEL SOLE and JOHNSON, JJ.
This appeal lies from the judgment of sentence following Voshall's plea of nolo contendere to two counts each of involuntary manslaughter (18 Pa.C.S.A. § 2504), homicide by vehicle (75 Pa.C.S.A. § 3732), homicide by vehicle while driving under the influence (75 Pa.C.S.A. § 3735) and driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)).
Voshall was sentenced as follows: On the charges of involuntary manslaughter and homicide by vehicle, the court assessed no further penalty; on the two counts of homicide by vehicle while driving under the influence, the court imposed two consecutive terms of incarceration of three and one-half to seven years each; finally, on the driving under the influence charge, Voshall received a sentence of one to two years' imprisonment.
On appeal, Voshall complains that his sentence was illegal and that the sentencing court abused its discretion in sentencing him. We agree with Voshall that his sentence for driving under the influence was illegal for the reasons set forth below. Therefore, we vacate that portion of the judgment of sentence relating to the charge of driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)) and affirm the judgment of sentence in all other respects.
The factual predicate for the plea is as follows: Voshall was operating a motor vehicle at a high rate of speed on Route 65 in Allegheny County. At an intersection, he collided with a station wagon which was making a left turn. The two child passengers in the struck station wagon were killed as a result. Voshall's blood alcohol was determined to be .30. Voshall had been placed in the ARD program for a previous driving under the influence violation. The second time he committed the offense, he received a sentence of probation. Thus, the present driving under the influence violation is Voshall's third.
Voshall claims that the charge of driving under the influence should have merged with the offense of homicide by vehicle while driving under the influence for the purpose of sentencing because the former is a lesser included offense of the latter. Pursuant to two recent pronouncements on the law of merger by our Supreme Court, we are constrained to agree.
In Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), our Supreme Court held that "except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated and abolished." At ---, 559 A.2d at 29; emphasis in text. Pursuant to this rule, we hold that the driving under the influence charged merged for the purpose of sentencing with the offense of homicide by vehicle while driving under the influence because the former charge is a lesser included offense of the latter. In so concluding, we are compelled to abandon the "substantially different interest" analysis which was rejected in Leon Williams as "merely a mask for the reality that there is no cohesive, complete set of rules for determining when merger should occur." At ---, 559 A.2d at 29.
In Leon Williams, the Supreme Court abandoned the two-pronged analysis set forth two years earlier in Commonwealth v. Michael Williams, 514 Pa. 124, 522 A.2d 1095 (1987). There, the Supreme Court summarized the law relating to merger as follows:
[M]erger is required only when two prerequisites are met. First, the crimes must 'necessarily involve' one another. Second, even if the two crimes necessarily involve one another, they do not merge if there are substantially different interests of the Commonwealth at stake and the defendant's act has injured each interest. To determine whether multiple offenses involve substantially different interests, or how many evils are present in a given criminal act, the sentencing court must examine both the language of the particular statutes and the context in which each statute appears in the Crimes Code.
At 135, 522 A.2d at 1101.
The Supreme Court in Leon Williams rejected as flawed the above analysis on two fronts. The first concern was the lack of precise definitional standards for the relevant Commonwealth interests at stake. Merely paraphrasing the words of the relevant statutes as indicative of the Commonwealth's interests in order to determine whether one crime merges with another was unworkable, the Court held, because no merger would ever occur as was originally intended. The second difficulty which the Supreme Court perceived was the lack of guidance in determining which Commonwealth interests were implicated. Stated another way, a sentencer must be able to ascertain "how many offenses against the Commonwealth have actually been committed" or "how many evils are present in a given criminal act." At ---, 559 A.2d at 29. The Court summarized the elusiveness of the Michael Williams analysis as follows:
[I]n other words, in order to apply our two part-merger [sic] analysis, one must, when the facts of one crime are the same facts that support the other crime charged, determine exactly how the Commonwealth has been injured. But apart from applying all applicable criminal statutes to the facts of the crime, there is no guidance on how to determine how the Commonwealth has been injured. The two-part merger analysis, therefore, is not an analysis at all, but merely a mask for the reality that there is no cohesive, complete set of rules for determining when merger should occur.
At ---, 559 A.2d at 29.
The statutory prohibition against driving under the influence, 75 Pa.C.S.A. § 3731, reads in pertinent part:
§ 3731. Driving under influence of alcohol or controlled substance
(a) Offense defined.--A person shall not drive, operate or be in actual physical control of the movement of any vehicle while:
(1) under the influence of alcohol to a degree which renders the person incapable of safe driving;
* * *
* * *
(4) the amount of alcohol by weight in the blood of the person is 0.10% or greater.
The offense of homicide by vehicle while driving under the influence, 75 Pa.C.S.A. § 3735, is defined by the Motor Vehicle Code as follows:
§ 3735. Homicide by vehicle while driving under the influence
(a) Offense defined.--Any person who unintentionally causes the death of another person as the direct result of a violation of section 3731 () and who is convicted of violating section 3731 is guilty of a felony of the third degree when the violation is the cause of death and the sentencing court shall order the person to serve a minimum term of imprisonment of not less than three years.
Since Leon Williams, a trial court need not tax itself with the burden of determining what Commonwealth interests are at stake by attempting to sort out the number of offenses actually committed against the Commonwealth or by endeavoring to compartmentalize each harm actually present in a given criminal act. Instead, a sentencer need only determine if any of the crimes necessarily involve each other, i.e., whether any are lesser included offenses of the other charge(s).
Therefore, it should be obvious to anyone reading the above provisions of the Motor Vehicle Code that the elements of the offense of driving under the influence are intrinsic to the statute regulating the conduct of one who commits the crime of homicide by vehicle while driving under the influence. The language of this latter provision makes it abundantly clear that it applies to those who have violated and have been convicted of Section 3731. The violation and conviction of Section 3731 is an element of homicide by vehicle while driving under the influence. Necessarily and logically, then, the...
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