COMMONWEALTH of Pennsylvania, Appellee v. Rikea Dshon FARROW, Appellant
No. 1576 WDA 2015
Superior Court of Pennsylvania
July 27, 2017
2017 PA Super 246 | 168 A.3d 207
John B. Leete, Senior Judge Specially Presiding
Submitted January 3, 2017
BY THE COURT:
John B. Leete, Senior Judge Specially Presiding
Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
OPINION BY OLSON, J.:
Appellant, Rikea Dshon Farrow, appeals from the judgment of sentence entered on September 10, 2015 in the Criminal Division of the Court of Common Pleas of Allegheny County, following her convictions for three counts of driving under the influence (DUI)-general impairment and the summary offense of accidents involving an unattended vehicle. We affirm, in part, vacate, in part, and remand for resentencing consistent with the views expressed below.
The trial court prepared the following factual summary, which is undisputed on аppeal.
Shortly before 6:00 a.m. on June 22, 2014, Appellant was driving a red vehicle. While driving, she struck two parked vehicles in the 200 block of Marshall Avenue in the City of Pittsburgh, and drove away from the scene. Officers Peter Bechtold [and] Michael Douglas, and [Sergeant] Neal Marrabello[,] were dispatched to the 200 block of Marshall Avenue for “a hit and run by a red vehicle.” At the accident site, the officers
encountered two damaged vehicles: one vehicle had been struck from behind, causing it to hit the vehicle parked directly in front of it. Approximately one quarter mile from the accident scene, officers observed a red vehicle with heavy front end damage. Appellant was sitting near this vehicle with the keys in her hand. Officer Bechtold approached Appellant and asked her what happened. Appellant told Officer Bechtold that she hit a speed bump, and it caused damage to her vehicle. Shortly after this, Appellant told Sergeant Marrabello that she struck a guardrail, causing the damage to her vehicle.
During these conversations, Appellant appeared visibly intoxicated. Specifically, she had glassy, bloodshot eyes, a strong odor of alcohol emanating from her mouth, her clothes were soiled and stained, her speech was slurred, and she was unbalanced on her feet. The officers determined that she was intoxicated to the point where it was unsafe for her to operate a motor vehicle. Officer Bechtold attempted to сonduct a field sobriety test, but Appellant became combative and began yelling at Officers Bechtold and Douglas. Due to Appellant‘s belligerence and uncooperativeness, Officer Bechtold did not attempt any further field sobriety tests. Appellant was arrested and transported to the police station, where she refused to submit to an intoxilyzer test[.]
Trial Court Opinion, 6/23/16, at 4-5 (record citations and footnote omitted).
Based upon the foregoing events, the Commonwealth filed a four-count criminal information against Appellant on December 15, 2014. Count one charged Appellant with DUI-general impairment and refusing breath/blood alcohol testing in violation of
COUNT 1: DRIVING UNDER INFLUENCE OF ALCOHOL [OR] CONTROLLED SUBSTANCE
The actor drove, operated or was in actual physical control of the movement of a vehicle, upon a highway or trafficway of the Commonwealth, after imbibing a sufficient amount of alcohol such that the actor was rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle, and the actor refused testing of blоod or breath, in violation of Section 3802(a)(1) and Section 3804(c) of the Pennsylvania Vehicle Code, Act of June 17, 1976,
75 Pa.C.S.[A.] § [§] 3802(a)(1) and3804(c) , as amended.COUNT 2: DRIVING UNDER INFLUENCE OF ALCOHOL [OR] CONTROLLED SUBSTANCE
The actor drove, operated or was in actual physical control of the movement of a vehicle, upon a highway or trafficway of the Commonwealth, after imbibing a sufficient amount of alcohol such that the actor was rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle, where there was an accident resulting in bodily injury, serious bodily injury or death of another person or in damage to a vehicle or other property, in violation of Section 3802(a)(1) and
Section 3804(b) of the Pennsylvania Vehicle Code, Act of June 17, 1976; 75 Pa.C.S.[A.] § [§] 3802(a)(1) and3804(b) , as amended.COUNT 3: DRIVING UNDER INFLUENCE OF ALCOHOL [OR] CONTROLLED SUBSTANCE
The actor drove, operated or was in actual physical control of the movement of a vehicle, upon a highway or trafficway of the Commonwealth, after imbibing a sufficient amount of alcohol such that the actor was rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle, in violation of Section 3802(a)(1) of the Pennsylvania Vehicle Code, Act of June 17, 1976,
75 Pa. C.S.[A.] § 3802(a)(1) , as amended.
Criminal Information, 12/15/14.
Appellant proceeded to a nonjury trial that took place over the course of June 9, 2015 and July 23, 2015. At trial, the Commonwealth amended count four of the information to charge the summary offense of accidents involving unattended vehicle under
Appellant filed a timely notice of appeal on October 13, 2015.2 By order of October 27, 2015, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving an extension of time in which to obtain relevant transcripts of the triаl court proceedings, Appellant filed her concise statement on April 13, 2016. Thereafter, the trial court issued its Rule 1925(a) opinion on June 23, 2016.
Appellant raises a single issue for our consideration:
Did the trial court violate the prohibition on double jeopardy by convicting [Appellant] of three separate DUI offenses based upon a single instance of conduct, where two of those offenses were not separate crimes but, rather, merely sentencing factors?
Appellant‘s Brief at 5 (block capitalization omitted).
Appellant contends that the trial court violated the protection against double jeopardy under the United States and Pennsylvania Constitutions3 in convicting
The Commonwealth argues that Appellant waived appellate review of her sole issue because she failed to object to the criminal information, or otherwise raise her appellate claim, before the trial court. See Commonwealth Brief at 8. In support of its position, the Commonwealth submits that Appellant‘s initial inclusion of her claim in her concise statement is insufficient to preserve the issue for purposes of appeal. See id. at 8-9, quoting Commonwealth v. Melendez-Rodriguez, 856 A.2d 1278, 1288-1289 (Pa. Super. 2004) (“[a] party cannot rectify the failure to preserve an issue by proffering it in response tо a Rule 1925(b) order“). The Commonwealth also asserts that “the fact that [Appellant] raised her claims in constitutional terms does not [alter the conclusion that her claims are subject to waiver].” Commonwealth Brief at 9, quoting Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super. 2008) (“Even issues of constitutional dimension cannot be raised for the first time on appeal.“). For these reasons, the Commonwealth concludes that Appellant waived her double jeopardy challenge based upon the form of the criminal information and the verdict/sentencing disposition rendered thereon. Commonwealth Brief at 9-10.
Appellant does not dispute the Commonwealth‘s contention that she lodged no objection to the form of the information before the trial court or that she first raised her appеllate claim in her concise statement. Instead, Appellant analogizes her claim to a challenge to the sufficiency of the evidence and, alternatively, to a challenge to the legality of her sentence. With respect to the first component of her preservation argument (i.e., likening the present claim to a sufficiency challenge), Appellant accepts that the evidence was sufficient to support a finding that she committed a single DUI offense, but argues nonetheless that the record is insufficient to sustain convictions for two additional DUI offenses. See Appellant‘s Reply Brief at 1. As to the second part of her argument (i.e., analogizing the instant issue to a legality of sentencing claim), Appellant assеrts that her double jeopardy claim represents a constitutional challenge to the legality of her sentence, which is not subject to waiver even if it is raised for the first time on appeal.5 Id. at 3. Appellant maintains that since her claim represents either a sufficiency challenge or a challenge to the legality of her sentence, her failure to raise the claim before
Within the context of this appeal, we are unwilling to characterize Appellant‘s present claim as a challenge to the sufficiency of the evidence. Appellant nowhere claims that the undisputed record in this appeal is insufficient to establish that she committed a DUI offense. She does not seek wholesale discharge, but instead asks us to direct the trial court to invalidate two of her DUI convictions at resentencing. See Appellant‘s Brief at 27 (under “conclusion“). In fact, the sufficiency of the Commonwealth‘s proof that she committed a DUI offense comprises part and parcel of Appellant‘s claim that the record fails to demonstrate that she committed the two other DUI offenses for which she was convicted. Setting aside, then, the undisputed sufficiency of the Commonwealth‘s evidence that Appellant committed a DUI offense, it is the remainder of Appellant‘s “sufficiency” challenge, i.e. that the trial court erred in finding Appellant guilty without further penalty at two additional DUI counts, which forms the core of Appellant‘s claim for relief. As we explain below, this aspect of Appellant‘s “sufficiency” challenge is practically indistinguishable from her double jeopardy challenge to the validity of her sentence. Thus, for the reasons that follow, we shall undertake appellate review on grounds that Appellant‘s claim is not subject to waiver because she has come forward with a colorable double jeopardy objection to the legality of her sentence.
In Robinson, supra, this Court identified the types of claims exempt from waiver because they involve challenges to the legality of a sentence. We announced that the term “illegal sentence” referred to a class of cases that includes: “(1) claims that the sentence fell outside of the legal parameters prescribed by the applicable statute; (2) claims involving merger/double jeopardy; and (3) claims implicating the rule in Apprendi v. New Jersey, 530 U.S. 466 [120 S.Ct. 2348, 147 L.Ed.2d 435] (2000).” Robinson, 931 A.2d at 21 (citations omitted). We explained in Robinson that illegal sentencing claims challenge “the fundamental legal authority of the court to impose the sentence that it did.” Id.
We read Appellant as advancing two separate, but closely relаted, double jeopardy challenges to her judgment of sentence. Citing Ball v. United States, 470 U.S. 856, 105 S.Ct. 1668, 84 L.Ed.2d 740 (1985),6 Appellant argues that the protec-
As we stated, the thrust of Appellant‘s argument on appeal is that the trial court violated the protection against double jeopardy by convicting and sentencing her for three counts of DUI-general impairment stemming from a single episode of criminal conduct. In developing this claim, Appellant argues that the first three counts set forth in the information are virtually identical in that they all allege a DUI-general impairment offense that violated
Appellant, anticipating the Commonwealth‘s reliance on our opinion in Commonwealth v. Mobley, 14 A.3d 887 (Pa. Super. 2011), cites Ball and argues that the protection against double jeopardy precludes multiple convictions based upon the same criminal act. Appellant also argues that the trial court subjected her to multiple sentences for the same criminal act since a sentence under
The Commonwealth also argues that if sentencing enhancements are viewed as “elements” of a crime,7 then enhancements for accidents/property damage or refusal to allow blood or breath testing constitute new, aggravated offenses that can be charged as separate counts that do not merge since each enhancement contains an element that the other does not. See Commonwealth Brief at 14, citing
We employ the following principles in reviewing Appellant‘s claims in this appeal.
An appeal grounded in double jeopardy raises a question of constitutional law. This Court‘s scope of review in making a determination on a question of law is, as always, plenary. Commonwealth v. Mattis, 454 Pa. Super. 605, 686 A.2d 408, 410 (1996).
“The Double Jeopardy Clause, applicable to the States through the Fourteenth Amendment, provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.‘” Commonwealth v. Decker, 445 Pa. Super. 101, 664 A.2d 1028, 1029 (1995) (citing
In both the multiple punishment and multiple prosecution contexts, th[e United States Supreme] Court has concluded that where the two offenses for which the defendant is punished or tried cannot survive the “same-elements” test, the double jeopardy bar applies. The same-elements test, sometimes referred to as the Blockburger test, inquires whether each offense contains an element not contained in the other; if not, they are the ‘same offense’ and double jeopardy bars additional punishment and successive prosecution.
United States v. Dixon, 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556 (1993). We have long followed the “same-elements” test of Blockburger in this Commonwealth. See Jackson, 10 A.3d at 344-345]; Hill v. Randolph, 24 A.3d 866, 871 (Pa. Super. 2011) (parallel citations omitted).
Appellant‘s challenge is an unusual one. She does not rely on an application of the Blockburger test since there is no doubt that her three DUI-general impairment convictions under
Under the circumstances of this case, we are inclined to agree with Appellant‘s latter position. In Ball, the United States Supreme Court framed its analysis in terms of Congressional intent. In fact, the term “double jeopardy” appears nowhere in the majority‘s opinion. Given that Pennsylvania‘s double jeopardy jurisprudence prohibits multiple punishments, but not convictions, for the same offense, we are reluctant to incorporate and apply the holding in Ball as a component of Pennsylvania law. Nonetheless, since a court may impose “guilt without further penalty” as a sentencе under
Our discussion starts with the prior decision of this Court in Mobley, which both parties cite and which discusses many issues relevant to this appeal. In Mobley, the trial court convicted the defendant of two separate counts of DUI-general impairment arising out of the same incident, where one count alleged that the accused
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 to75 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 [twice] convicted [Mobley] of the same criminal offense, DUI-general impairment, arising out of the identical criminal episode. Instead, [Mobley] 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. See75 Pa.C.S. § 3803(b)(2)(4) ;75 Pa.C.S. § 3804(c) .
Although the decision in Mobley predated Alleyne, the panel astutely noted the emerging line of authority under Apprendi, supra and its progeny which held that any fact that increased a maximum penalty, except a prior conviction, required proof beyond a reasonable doubt, regardless of whether the fact is labeled as an element of the offense or a sentencing factor. See Mobley, 14 A.3d at 893. In view of these emerging requirements, the panel acknowledged the Commonwealth‘s practice of filing criminal informations with two general impairment counts to facilitate adjudiсation by trial judges and avoid running afoul of Apprendi. Such cases, the panel noted, confronted defendants with two charges of
After careful review, we arе persuaded that, pursuant to the guidance supplied in Mobley, the trial court violated Appellant‘s protection against double jeopardy. Here, the trial court imposed three separate sentences at three counts that each alleged, at bottom, a single criminal act in violation of the same criminal statute.8 As Appellant
We further conclude that we are not bound by Mobley‘s refusal to grant relief. As a preliminary matter, Mobley did not raise and litigate a double jeopardy claim in the context of his appeal. It appears that the panel offered its analysis as gratuitous guidance for use in future litigation. See In re L.J., 622 Pa. 126, 79 A.3d 1073, 1081 (2013) (observing that stare decisis applies only to issues actually raised, argued and adjudicated, and only where the decision was necessary to the determination of the case). In addition, Mobley‘s determination to withhold relief rested on two cases, Commonwealth v. McCoy, 895 A.2d 18 (Pa. Super. 2006) and Commonwealth v. Williams, 871 A.2d 254 (Pa. Super. 2005), which involved issues of merger that are not present in this case. In McCoy, the defendant was charged with violating
While we acknowledge the Commonwealth‘s newly emerged duties under Alleyne and progeny, we are not convinced that the charging instrument employed in this case, with its attendant consequences, was the only method by which the Commonwealth could discharge its obligations. In Mobley, a previous panel of this Court cautioned the Commonwealth about potential problems with its charging procedures and suggested a means to avoid those pitfalls. Moreover, the variance between the information approved in Langley and the charging document filed in this case is the very feature that led to the imposition of multiple sentences for the same offense.9 We cannot conclude, as the Commonwealth suggests, that these differences were insignificant.
In the future, where a single DUI offense is subject to enhancements, the Commonwealth should file a criminal information that sets forth a single count under § 3802.10 Enhancements under § 3804 may be added as subparts or subparagraphs, as appropriate. This will eliminate identical criminal conduct leading to multiple convictions and sentences under the same criminal statute and, simulta-
While our decision vindicates important protections against double jeopardy, it is not our intent to elevate form over substance. In this case, the Commonwealth gave Appellant notice of the § 3804 enhancements that it intended to pursue and proved their application beyond a reasonable doubt. The Commonwealth, therefore, should not be hindered by our decision herein. For these reasons, we vacate Appellant‘s convictions and sentences at counts one and two, affirm Appellant‘s conviction but vacate her sentence at count three, and remand for resentencing at count three. We also affirm Appellant‘s conviction and sentence at count four. In fixing Appellant‘s sentence at count three, the trial court shall take into account its prior findings as to the apрlication of the § 3804 enhancements made in connection with its deliberations on counts one and two. In so doing, the court should also consider the recent opinions in Birchfield v. North Dakota, — U.S. —, 136 S.Ct. 2160, 195 L.Ed.2d 560 (2016) and Commonwealth v. Giron, 155 A.3d 635 (Pa. Super. 2017), which hold that a defendant who refuses to provide a blood sample when requested by police is not subject to the enhanced penalties provided in
Convictions and judgments of sentence vacated as to counts one and two. Conviction affirmed but judgment of sentence vacated at count three. Conviction and judgment of sentence affirmed at count four. Case remanded for resentencing at count three. Jurisdiction relinquished.
Solano, J., joins this opinion.
Strassburger, J., concurs in the result.
J. OLSON
JUDGE
Notes
The sеcond conviction, whose concomitant sentence is served concurrently, does not evaporate simply because of the concurrence of the sentence. The separate conviction, apart from the concurrent sentence, has potential adverse collateral consequences that may not be ignored. For example, the presence of two convictions on the record may delay the defendant‘s eligibility for parole or result in an increased sentence under a recidivist statute for a future offense. Moreover, the second conviction may be used to impeach the defendant‘s credibility and certainly carries the societal stigma accompanying any criminal convictions. Thus, the second conviction, even if it results in no greater sentence, is an impermissible punishment.Id. at 864-865, 105 S.Ct. 1668 (emphasis omitted; internal quotations omitted). Similarly, Appellant‘s convictions for all three counts of DUI simply do not evaporate merely because the trial court deemed the counts to have merged for sentencing purposes resulting in no further penalty for the convictions at counts two and three. In this case, mere convictions that carry a sentence of “no further penalty” are an impermissible punishment.