Commonwealth v. Kimmel
125 A.3d 1272
| Pa. Super. Ct. | 2015Background
- On Nov. 22, 2011 police were alerted to an intoxicated man (Kimmel) at a convenience store; Kimmel left in his pickup before officers arrived.
- Officer Beltz followed Kimmel, activated lights after observing Kimmel enter a no-trespass area, and stopped him; Kimmel displayed signs of intoxication.
- After the stop, Kimmel pushed the officer, reclaimed a second set of keys, drove away (fled), was briefly pursued, later found stuck and arrested; no chemical test was taken (Kimmel made a threatening move when asked to submit).
- Kimmel was charged with, inter alia, DUI (general impairment and refusal) and fleeing/attempting to elude; the fleeing count was graded a third-degree felony because it occurred while DUI.
- A jury convicted Kimmel of DUI, felony fleeing, careless driving, and public drunkenness; the court sentenced him consecutively on DUI and F3-fleeing, producing an aggregate term.
- Kimmel appealed arguing the DUI and F3-fleeing convictions should merge for sentencing because DUI is an essential element of the felony fleeing offense; the Superior Court (en banc) affirmed.
Issues
| Issue | Plaintiff's Argument (Kimmel) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Whether DUI and F3-fleeing must merge for sentencing because DUI is an element of F3-fleeing | DUI is an essential element of the F3-fleeing offense (fleeing while driving under the influence), so the convictions arise from a single act and must merge under 42 Pa.C.S. § 9765 | The offenses arose from separate criminal acts (initial DUI, then a separate decision to flee after the stop); merger requires both a single act and that all statutory elements of one offense be included in the other, which is not satisfied here | Convictions do not merge: the court found separate criminal acts (DUI then post-stop fleeing) so § 9765’s single-act requirement is not met; sentencing affirmed |
Key Cases Cited
- Commonwealth v. Orie, 88 A.3d 983 (Pa. Super. 2014) (standard of review for merger is de novo)
- Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011) (refusal is a sentencing enhancement, not a separate DUI offense under § 3802)
- Commonwealth v. Jenkins, 96 A.3d 1055 (Pa. Super. 2014) (look to the pleadings/elements charged to determine whether crimes arose from a single act)
- Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009) (§ 9765 embodies a pure statutory-elements approach to merger)
- Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994) (adopting pure statutory-elements merger test)
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (facts increasing prescribed penalty are elements for Sixth Amendment jury-trial purposes)
- Alleyne v. United States, 570 U.S. 99 (2013) (factual findings that raise mandatory minimums are elements)
- Blockburger v. United States, 284 U.S. 299 (1932) (test whether two offenses are the same for double jeopardy/multiple punishments)
- Lewis v. Colorado, 261 P.3d 480 (Colo. 2011) (holding that a grading-based reference to another offense does not necessarily compel merger)