Lead Opinion
OPINION BY
Appellant, Lee Allen Kimmel, appeals from the judgment of sentence entered on December 18, 2012, in the Cumberland County Court of Common Pleas. Appellant claims that his convictions for driving under the influence of alcohol and fleeing or attempting to elude a police officer should merge for sentencing purposes. After careful review, we conclude that Appellant’s convictions arose from separate criminal acts. Therefore, the convictions do not merge for sentencing. Accordingly, we affirm.
The factual background and procedural history of this case are as follows. At approximately 10:45 p.m. on November 22, 2011, Cumberland County dispatch received a call relaying that there was a man, later identified as Appellant, who appeared to be very intoxicated at the Sheetz convenience store in Mt. Holly Springs. The caller provided a description of Appellant and the license plate number of Appellant’s pickup truck. Before police could arrive at the Sheetz, Appellant departed the property via Mill Street. Less than, a minute later, Mt. Holly Springs Police Officer Jason Beltz arrived at the Sheetz. He then proceeded on Mill Street in the same direction as Appellant.
Approximately 3,000 feet farther down Mill Street, Officer Beltz crossed into South Middletown Township and eventually turned onto Zion Road: Officer Beltz turned onto Zion Road because he had been informed of Appellant’s address, and the officer was aware that if Appellant was heading home, he would likely make that turn. Officer .Beltz activated his emergency lights when he saw Appellant drive into a posted no-trespass area.
When Officer Beltz stopped and approached Appellant, Appellant had difficulty locating his license and. registration. Appellant’s breath had an odor of alcohol, his speech was slurred, and he was unstable on his feet when he exited the truck. Appellant told Officer Beltz that he did nothing wrong, reentered his truck, and attempted to drive away. Officer Beltz reached in the truck and removed the keys from the ignition.'' Appellant then exited the truck a second time, pushed Officer Beltz, and reentered the truck with a second set ■ of keys. This time, Appellant succeeded in, driving away.
Officer Beltz briefly pursued Appellant but then changed course and proceeded toward Appellant’s residence instead of continuing in pursuit. On the way to Appellant’s residence, Officer Beltz spotted Appellant’s truck stuck on a tree stump. At that point, Officer Beltz took Appellant into custody. At the police station, Officer Beltz read Appellant the DL-26 form, which outlines the increased penalties for refusal to submit to chemical testing. When Officer Beltz asked Appellant, if he would submit to a blood test, Appellant jumped out of his seat and made a threatening move towards Officer Beltz. No chemical testing was conducted.
On February 1, 2012, Appellant was charged by criminal information with fleeing or attempting to elude a police officer (“fleeing”),
On April 13, 2012, Appellant filed a motion to suppress all evidence gathered as a result of the traffic stop.
Appellant was convicted of fleeing, DUI, careless driving, and public drunkenness. Fleeing is generally a second-degree misdemeanor (“M2”). 75 Pa.C.S. § 3733(a.2)(l). When the fleeing occurs while driving under the influence, however, it is graded as a third-degree felony (“F3”). 75 Pa.C.S. § 3733(a.2)(2)(i). Therefore, in this case, the fleeing offense was elevated to an F3. On December 18, 2012, Appellant was sentenced to eight to twenty-four months of incarceration for F3 fleeing and fourteen to forty-eight months for DUI,
A divided three-judge panel of this Court initially affirmed Appellant’s convictions but vacated his judgment of sentence and remanded for resentencing. The majority concluded that Appellant’s DUI conviction merged with his F3-flee-ing conviction. On September 12, 2014, the Commonwealth filed an application for reargument en banc, which was granted. Oral argument was held before the Court en banc, and this matter is now ripe for disposition.
Appellant presents one issue for our review:
Whether the [trial] court erred in denying [Appellant’s] post[-]sentence motion for modification of sentence when [Appellant] was sentenced to separate and consecutive sentences on [the F3 fleeing and DUI when DUI is] an essential element of [F3 fleeing?]
Appellant’s Brief at 6.
Appellant contends that the trial court erred by not merging his F3-fleeing conviction with his DUI conviction for sentencing purposes. A claim that convictions merge for sentencing is a question of law; therefore, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Orie, 88 A.3d 983, 1020 (Pa.Super.2014), appeal denied,
We begin our examination of Appellant’s merger claim by reviewing the statutory provisions pertinent to his underlying convictions. Section 3802(a) of the Motor Vehicle Code provides that “[a]n individual may not drive, operate or be in actual physical control of the movement of a vehicle after imbibing a sufficient amount of alcohol such that the individual is rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle.” 75 Pa.C.S. § 3802(a)(1). Generally, a violation of section 3802(a) is an ungraded misdemeanor. 75 Pa.C.S. § 3803(a)(1). However, “[a]n individual who violates section 3802(a)(1) where the individual refused testing of blood or breath ... and who has one or more prior offenses commits a misdemean- or of the first degree.” 75 Pa.C.S. § 3803(b)(4). In this case, Appellant was subject to a one-year mandatory minimum sentence because his conviction represented his fourth offense, and he refused chemical testing. 75 Pa.C.S. § 3804(c)(3)®.
Section 3733(a) of the Motor Vehicle Code provides:
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 a pursuing police officer, when given a visual and audible signal to bring the*1276 vehicle to a stop, commits an offense as graded in subsection (a.2).
75 Pa.C.S. § 3733(a). As noted above, fleeing is generally graded as an M2, 75 Pa.C.S. § 3733(a.2)(l), but when the fleeing occurs while driving under the influence, it is graded as an F3. 75 Pa.C.S. § 3733(a.2)(2)(i). '
Appellant’s claim is that his fleeing conviction, which was graded- as an F3 because it occurred while he was driving under the influence, should have merged with his DUI conviction for. sentencing purposes. Merger in Pennsylvania is governed by section 9765 of the Sentencing Code, which provides as follows:
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.
42 Pa.C.S. § 9765 (emphasis added). “Accordingly, merger is appropriate only when two distinct, criteria are satisfied: (1) the crimes arise from a single criminal act; and (2) all of the statutory elements of one of the offenses are included within the statutory elements of the other.” Commonwealth v. Raven,
Here, the record reveals that Officer Jason Beltz conducted a traffic stop based on his suspicion that Appellant was driving while intoxicated. Appellant stopped his truck and exhibited signs of intoxication. Appellant then became combative, and the officer took Appellant’s keys. Appellant then returned to his truck, locked the door, and retrieved a second set of keys from his pocket. At this juncture, Appellant chose to. again drive the truck while intoxicated while fleeing from Officer Beltz, and Appellant was arrested at the conclusion of his drunken flight. Affidavit of Probable Cause, 11/23/11, at 1-2; N.T., 12/4/12, at 34-46. The circumstances here are straightforward: there was the initial DUI, followed by a traffic stop, followed by Appellant choosing to flee while DUI.
When determining whether .separate crimes constitute a single criminal act, this Court has stated that “we should look to the elements of the crimes' involved as charged by the Commonwealth.” Commonwealth v. Jenkins,
As charged in the information filed on July 9, 2012, the Commonwealth asserted that [the appellant] committed robbery when, with his codefendant, he “assaulted [the victim] by punching him in the face causing a facial laceration and fractured jaw. [The victim] was forced to the ground, restrained and searched for personal belongings, which were stolen from [him].” Information, 7/9/2012, at 2 (unnumbered, emphasis added). With regard to simple assault, the Commonwealth asserted that “during the course of a robbery, [the appellant] assaulted [the victim] causing a facial laceration that required stitches and a fractured left jaw.” Id. at 3.
Jenkins,
For the reasons set forth above, we conclude that the charges do not merge, and thus, there was no error in the sentence imposed. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed^
Notes
. 75 Pa.C.S. § 3733(a).
. 75 Pa.C.S. § 3802(a)(1).
. Although the information filed against Appellant charged him with both DUI-general impairment and DUI-refusal, we note that this was improper. In Commonwealth v. Mobley,
The trial court convicted [alppellant of two separate counts of DUI — general impairment arising out of the same incident, with one count alleging [alppellant refused the breath/blood test. 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 to 75 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 convicted [alppellant of the same criminal offense, DUI-general impairment, arising out of the identical criminal episode. Instead, [alp-pellant 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.
Id. at 891 (footnotes and citations omitted). Neither party raises this as an issue. Moreover, there is no concern with respect to sentencing since the Commonwealth conceded at the time of sentencing that the two counts merged because Appellant was not charged with two separate DUI crimes, and the trial court imposed a legal sentence under 75 Pa.C.S, § 3804. See footnote 11 below. Thus, we need not address this issue further.
.18 Pa.C.S. § 5104.
. 18 Pa.C.S. § 3503(b)(l)(ii).
. 75 Pa.C.S. § 3714(a).
. 18 Pa.C.S. § 5505.
. 75 Pa.C.S. § 3809(a).
. Appellant's motion argued that Officer Beltz violated the Municipal Police Jurisdiction Act, 42 Pa.C.S. § 8951 et seq., because South Mid-dletown Township is outside of his primary jurisdiction and is patrolled by the Pennsylvania State Police,
. The jury adjudicated the misdemeanor and felony counts while the trial court adjudicated the summary offenses.
. Appellant was subject to a mandatory one-year minimum sentence for his DUI conviction because this was his fourth offense, and he refused chemical testing. See 75 Pa.C.S. § 3804(c)(3)(i) (an individual who violates section 3802(a)(1), refuses testing of blood or breath, and has committed a third or subsequent offense shall be sentenced to prison for not less than one year).
. On January 16, 2013, the trial court ordered Appellant to file a concise statement of errors complained of on appeal ("concise statement”). See Pa.R.A.P. 1925(b). On February 6, 2013, Appellant filed his concise statement. On March 28, 2013, the judge who presided over Appellant’s jury trial issued a Rule 1925(a) opinion. On May 3, 2013, the judge who presided over Appellant's suppression hearing issued a Rule 1925(a) opinion. See Pa.R.A.P. 1925(a)(1) (permitting the trial court to request that the suppression court issue an opinion dealing with issues decided by the suppression court). Appellant’s lone issue in this appeal was included in his concise statement.
. On reargument, Appellant pursued only his merger claim.
Concurrence Opinion
CONCURRING OPINION BY
I join the opinion of my learned colleague Judge Shogan, except as to footnote 3.
In order for Appellant to be found guilty of the felony fléeing charge in question, 75 Pa.C.S. § 3733(a.2)(2)(i), the Commonwealth was required to prove beyond a reasonable doubt that Appellant was guilty of DUI. Accordingly, DUI is an element of the felony fleeing crime. Without proof of the DÚI, Appellant cannot be found guilty of that statutory felony offense. Insofar as the Commonwealth posits that the DUI aspect of the crime is a grading enhancement, such labeling has been rendered immaterial under current United States Supreme Court precedent. Apprendi v. New Jersey,
Indeed, in the DUI context, where a breath or blood test refusal is at issue, a defendant cannot be sentenced to both a DUI — general impairment and DUI — general impairment with a refusal based on the same act, despite the refusal being a sentencing enhancement. Commonwealth v. Mobley,
Further, our legislature regularly defines a crime by beginning its definition by stating, “A person commits a felony of the [first, second, or third] degree when the person engages in....”
“Element of an offense.” Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense;
Included in the description of the forbidden conduct of a felony of the third degree fleeing offense is a DUI. That this portion of the statute falls within the portion of the statute labeled “Grading” is immaterial. It is a distinction without any legal difference that the legislature chose to place the definition of the felony offense under a grading heading. The Commonwealth’s argument distinguishing Alleyne and Ap-prendi elements from statutory elements rests almost exclusively on the fact that the legislature elected to include a heading for 75 Pa.C.S. § 3733(a.2). The legislature
Further, in Pennsylvania, the legislature has defined the merger test and our Supreme Court has stated, that it is consistent with the Blockburger v. United States,
Furthermore, although not discussed by the Commonwealth, I also note that reference to capital cases is inapt. Whenever a murder occurs and there is an aggravating separate felony, that felony constitutes a different criminal act. See 42 Pa.C.S. § 9765 (“No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act[.])” Phrased differently, that, felony is .not subsumed into the acts necessary to prove the defendant guilty of first-degree murder. Such is not the case here. More analogous is the felony-murder merger rule that prohibits multiple sentences for the felony murder and the underlying felony offense. See Commonwealth v. Tarver,
In sum, it is my view, that if this case involved a single criminal act,-Appellant’s DUI offense would merge with his fleeing while DUI charge. Judges Donohue and Wecht join this Concurring Opinion.
. The procedure in Commonwealth v. Mobley,
. The attempted murder sentencing provision, unlike the fleeing definition at issue herein, is contained in an entirely different statute than the definition of the crime of attempt.
. A sampling of those statutes includes: 18 Pa.C.S. § 3011; 18 Pa.C.S. § 3012; 18 Pa. C.S. § 3013; 18 Pa.C.S. § 3014; 18 Pa.C.S. § 3121; 18 Pa.C.S. § 3121(c); 18 Pa.C.S. § 3121(d); 18 Pa.C.S. §3123; 18 Pa.C.S. § 3124.1; 18 Pa.C.S. § 3301; 18 Pa.C.S. § 3301(a.l); 18 Pa.C.S. § 3301(a.2); 18 Pa. C.S. § 3702; 18 Pa.C.S. § 4909. In addition, the definition of certain theft offenses comes under the heading of "Grading of theft offenses[.]” See 18 Pa.C.S. § 3903(a); 18 Pa. C.S. § 3903(a.l); 18 Pa.C.S. § 3903(a.2); 18 Pa.C.S. § 3903(b).
Concurrence Opinion
CONCURRING OPINION BY
I agree with the learned majority that Appellant’s convictions do not merge. I do so, however, for a different reason. Unlike the learned majority, in my view, Appellant was charged with committing a single criminal act. Nonetheless, all of the statutory elements of driving under the influence (DUI) are not included in F3-fleeing. Accordingly, I concur only in the learned majority’s judgment.
The majority succinctly summarized 42 Pa.C.S.A. § 9765. Majority Opinion at 1276. I thus proceed directly to considering whether Appellant was charged with committing a single criminal act or multiple criminal acts. As noted by the learned majority, Commonwealth v. Jenkins,
In reviewing the criminal information filed against Appellant, it is evident that the Commonwealth merely copied and pasted the text of the relevant criminal statutes without alleging any operative facts that formed the basis for each charge.
Having determined that Appellant was charged with a single criminal act, I turn to whether the statutory elements of DÜI are included within the statutory elements of F3-fleeing.
“When interpreting a statute, [this Court is] guided by the Statutory Con--structidn Act,” 1 Pa.C.S.A. § 1501 et seq. W.C.F. v. M.G.,
In ascertaining the General Assembly’s intent when the words of a statute are ambiguous, this Court may consider, inter alia, the occasion and necessity for the statute, the circumstances under which it was enacted, the mischief to be remedied, the object to be attained, and the former law concerning the' same subject. 1 Pa. C.S.A. § 1921(c)(l-5). This Court presumes that in enacting statutes, “the General .Assembly does not intend to violate the Constitution of the United States or of this , Commonwealth.” . 1 Pa.G.S.A. § 1922(3). This Court also presumes that
The Sentencing Code (in which section 9765 is found) does not define the term “statutory elements.”
I begin with the development of Pennsylvania jurisprudence on merger, both before and after the passage of section 9765, to illuminate my understanding of the statute. The legislature passed section 9765 in December 2002 and it became effective in February 2008. See 2002 P.L. 1705. Prior to the enactment of section 9765, the history of merger jurisprudence in this Commonwealth was long and discordant.
Generally, there are three approaches to merger analysis; The first of these is the “pure statutory elements” approach. This approach, which began at common law, “limits a court to comparing the elements of the crimes, without reference to how the crimes were committed in a particular case, to determine whether in committing one offense the defendant has also committed a lesser offense.” Commonwealth v. Jones,
The doctrine of merger in this Commonwealth dates to at least 1824. In Harman v. Commonwealth, 12 Serg. & Rawle 69 (Pa.1824), the Pennsylvania Supreme Court held that the crime of assault and battery with intent to ravish merged with rape. In Harman, the Court applied what we know today as the pure statutory ele-
The Pennsylvania Supreme Court later acknowledged that Williams and Weak-land could not be reconciled. In Commonwealth v. Anderson,
In 2006, the Pennsylvania Supreme Court addressed the issue of merger for the first time following the passage of section 9765. In Jones, Chief Justice Cap-py and Justices Castille and Baer construed section 9765 as employing a hybrid approach that blended the pure statutory elements approach with the cognate-pleadings approach. Jones,
Baldwin’s construction of section 9765 as a pure statutory elements approach to merger, together with its declaration that section 9765 codified Anderson, are instructive in construing the term “statutory elements” in this case. As a preliminary matter, the Pennsylvania Supreme
Applying these principles to the case sub judice, I conclude that the relevant statutory provisions authorize separate punishments for DUI and F3~fléeing. In formulating' the statutory prohibition against fleeing, the General Assembly referred to DUI only in the grading section of the fleeing statute, not in the definition portion of the statute. The location of the reference to a DUI offense reflects the legislature’s intent to create a single offense of fleeing, which is then graded, and punished, more.harshly based upon the circumstances surrounding the fleeing. This, in turn, reflects a legislative choice to impose cumulative punishment for DUI and F3-fleeing. To hold otherwise, and conclude that the offenses merge because a reference to DUI appears in the grading provision of the fleeing statute, would ñus-trate the legislature’s intent to enhance punishment for fleeing where the fleeing occurs at the same time as a DUI offense. Indeed, to treat, for purposes of merger^ grading factors
Appellant’s merger claim rejects the foregoing analysis based upon recent decisions involving the right to a trial by jury
Although I have been unable to locate any Pennsylvania cases that address the merits of Appellant’s claim, I have uncovered persuasive authority emanating from a sister state that discusses, merger.in a situation nearly identical, to this case. Like Appellant, the defendant in that case relied upon Apprendi to assert that a reference to one offense in. the grading provision of another offense required merger of the two crimes at sentencing. In Lewis v. Colorado,
It'is far from clear that the functional equivalence of elements [of a crime] and [grading] factors for purposes of a criminal defendant’s right to a jury trial should apply equally to the constitutional presumption against multiple simultaneous punishments for the same offense. Even if it did, however, that functional equivalence could not alter the fact that the constitutional presumption is overcome by specific legislative authorization or that the .question of legislative intent must remain a function of existing drafting" conventions and rules of construction. Nothing in the Supreme Court [of the United States’] recent Fifth or Sixth*1286 Amendment interpretations, therefore, undermines our prior determination that legislative reliance on a distinction between elements [of a crime] and [grading] factors evidences an intent to avoid the creation of a new offense of second degree kidnapping involving sexual assault, into which the lesser offense of sexual assault could then merge.
Lewis,
I agree with the rationale set forth in Lewis. This holding illustrates a significant point that Appellant overlooks in his effort to extend Apprendi and its progeny beyond the Sixth Amendment context and into the Fifth Amendment arena, wheré the legislature enjoys substantially greater authority. Whether a defendant has the right to have a jury determíne a fact beyond a reasonable doubt is a separate and distinct inquiry from whether a grading factor compels merger. The former is determined by the Sixth Amendment and, pursuant to recent decisions interpreting the right to a jury trial, the General Assembly lacks authority to redefine the scope of that right by characterizing facts as elements of the crime, grading factors, or sentencing factors. See, e.g., Apprendi,
My construction of the term “statutory elements” also parallels the Pennsylvania Supreme Court’s treatment of the doctrine of merger as it relates to first-degree murder and second-degree murder. When the Commonwealth seeks the death penalty, one of the aggravating circumstances that a jury can find is that the defendant committed the murder during the course of another felony. 42 Pa.C.S.A. § 9711(d)(6). The law deems this factor an element of the offense for purposes of Apprendi because it increases the maximum punishment from' life imprisonment to death. See Ring v. Arizona,
This treatment stands in stark contrast to the interplay between a second-degree murder conviction and a related, underlying felony.. In Pennsylvania, it is well-settled in such cases that the underlying felony merges with the second-degree
My assessment of other statutory construction guides, including the mischief which legislation seeks to remedy and the preference to avoid absurd results, also supports my conclusion that the term “statutory elements” does not include factors that solely impact the grading of an offense. In the case at bar, the General Assembly enacted the DUI statute to prevent drunk drivers from terrorizing our roads. In contrast, the legislature passed the fleeing statute to reinforce citizen respect for the authority of a police stop. The respective statutes address highly distinct forms of conduct and have little area of overlap, thereby indicating that the General Assembly intended for DUI to be sentenced separately from F3-fleeing.
Furthermore, merging Appellant’s DUI conviction with his F3-fleeing conviction, on grounds that DUI constituted a statutory element of F3-fleeing, would bring about an absurd result. In section 9765, the General Assembly provided that, when two offenses merge,- a defendant must be sentenced on the higher-graded offense. In this case, that would be the F3-fleeing. Under the circumstances of this case, however, there is no mandatory minimum sentence for F3-fleeing while there is a mandatory minimum sentence for DUI. It is unreasonable to presume that the General Assembly intended to defacto eliminate an applicable mandatory minimum sentence for DUI when an individual is'also convicted of F3-fleeing. To do so would not only create a volume discount on crime, it would incentivize drunk drivers to flee police in order to avoid mandatory minimum sentences that may attach to their DUI convictions. Moreover, I repeat that if, in passing upon the merger of two offenses, I were to treat grading factors • as if they were included in the definition section of a crime, the legislature would have no mechanism by which to authorize multiple punishments. This is an unreasonable construction of section 9765.
For the foregoing reasons, I conclude that the term “statutory elements” as used in section 9765 excludes factors that solely impact the grading of an offense. The circumstances under which section 9765 was enacted, the former law concerning the subject matter, the occasion and necessity for the statute, the object to be attained, and the preference for avoiding absurd results support this determination. Accordingly, Appellant’s claim that his convictions should merge because DUI appears as a grading factor for F3-fleeing lacks merit.
I now consider the rationale of the prior three-judge panel that initially granted relief. The majority of the three-judge panel relied upon Commonwealth v. Tanner,
Homicide by motor vehicle while DUI is defined as:
(a) Offense defined. — Any person who unintentionally causes the death , of another person as the result of a violation of [75 Pa.C.S.A. §] 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 is guilty of a felony of the second 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. A. consecutive three-year term of imprisonment shall be imposed for each victim whose death is the result of the violation of section 3802.
75 Pa.C.S.A. § 3735(a) (emphasis added).
Aggravated assault by vehicle while DUI is defined as:
(a) Offense defined. — Any person who negligently causes serious bodily injury to another person as the result of a violation of [75 Pa.C.S.A. §] 3802 (relating to driving under influence of alcohol or controlled substance) and who is convicted of violating section 3802 commits a felony of the second degree when the violation is the cause of the injury.
75 Pa.C.S.A, § 3735.1(a) (emphasis added).
Prom the foregoing provisions, it is immediately evident that DUI is included in the “offense defined” portion of the statutes that criminalize homicide by motor vehicle while DUI, and aggravated assault by vehicle while DUI. In other words, the General Assembly created separate offenses which include DUI as an element of the offense, as that term is defined in the Crimes Code. As noted by this Court in Commonwealth v. Schmohl,
For all of these reasons, I would hold that the term “statutory elements” in section 9765 means such conduct or such attendant circumstances or such a result of conduct as is included in the description of the forbidden conduct in the definition of the offense or establishes the required kind of culpability. This definition does not include grading factors. Applying this definition to the case sub judice, I conclude that DUI is not a statutory element of F3-fleeing. Instead, it is merely a factor that increases the grading of a fleeing conviction from an M2 to an F3. Although this grading factor must be found by a jury beyond a reasonable doubt, it is not a statutory element for purposes of section 9765.
In sum, I would hold that Appellant committed one solitary criminal act under Jenkins. I would further hold that the statutory elements of DUI are not included within the statutory elements of F3-fleeing. Therefore, I agree with the learned majority that Appellant’s convictions do not merge and, therefore, concur only in the learned majority’s judgment.
. Specifically, the criminal information filed against Appellant reads in pertinent part as follows: ■ .
THE DISTRICT ATTORNEY OF CUMBERLAND COUNTY, by this information charges that on or about Tuesday, the 22nd day of November, 2011, in the said County of Cumberland, LEE ALLEN ■ KIMMEL, . did:
COUNT 1:
Fleeing or Attempting to Elude Police Officer
(F3 — $15,000—7 Years)
while operating a motor vehicle, willfully fail or refuse to bring his/her vehicle to a stop, or did otherwise flee or attempt to elude a pursuing police vehicle with activated visual and audible signals; or while operating a motor vehicle, willfully fail or . refuse to bring his/her vehicle to a stop, or did otherwise flee to attempt to elude a pursuing police vehicle with activated visual and audible signals and (i) commit a violation of Section 3802, (ii) cross state line; or (iii) endanger a law enforcement officer or member of the general public due to the driver engaging in a high speed chase. A violation of this section carries a mandatory fine of $500,00, in addition to and not in lieu of any other fines and costs[.]
COUNT 2:
Driving Under the Influence; General Impairment (3rd or Sub.)
(M2 — $500.00—10 Days-2 Years)
drive, operate, or be in actual physical control of the movement of a vehicle after imbibing enough alcohol to render said person incapable of safely driving, operating, or being in actual physical control of the movement of the vehicle.
COUNT 3:
Driving Under the Influence, General Impairment With Refusal (3rd or Sub.)
(Ml — $2,500.00-$ 10,000.00 — 1 Year-5 Years)
drive, operate, or be in actual physical control of the movement of a vehicle after imbibing enough alcohol to render said person incapable of safely driving, operating or being in actual physical control of the movement of the vehicle and did refuse to provide a sample of breath or blood for chemical testing....
Information, 2/1/12, at 1 (emphasis in original).
. The majority outlined the statutory provisions relating to DUI and F3-fleeing. Majority Opinion at 1275-76.
. The Crimes Code, however, defines the term “element of an offense” as
Such conduct or such attendant circumstances or such a result of conduct as:
(1) is included in the description of the forbidden conduct in the definition of the offense;
(2) establishes the required kind of culpability;
(3) negatives an excuse or justification for such conduct;
(4) negatives a defense under the statute of limitation; or
(5)establishes jurisdiction or venue.
18 Pa.C.S.A. § 103. The Crimes Code also defines "material element of an offense” as
An element that does not relate exclusively to the statute of limitations, jurisdiction, venue or to any other matter similarly unconnected with:
(1) the harm or evil incident to conduct, sought to be prevented by the law defining the offense; or
(2) the existence of a justification or excuse for such conduct.
Id.
. Anderson not only adopted and applied the pure statutory elements test for merger, the decision also discussed the underlying purpose of a narrow merger rule. The Pennsylvania Supreme Court explained that a narrow approach to merger prevented criminals from obtaining a volume discount on crime. Anderson,
. ..To be clear, I employ the term "grading factor” to refer to a fact that affects the grading of an offense but is not included in the definition of an offense.
. In Apprendi, the Supreme Court of thé United States held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi,
. Like Pennsylvania, Colorado follows the pure statutory elements approach to merger that is coextensive with the double jeopardy clause of the Fifth Amendment. Lewis,
. One original panel member dissented from that portion of the majority’s opinion.