Commonwealth v. RobertsonCommonwealth v. Robertson
- Reporters:
- , ,
- Before:
- Flaherty
ORDER
PER CURIAM:The Court being equally divided, the Order of the Superior Court is AFFIRMED.
Justice SAYLOR did not participate in the consideration or decision of this case. Justice CASTILLE files an opinion in support of affirmance in which Justice NIGRO and Justice NEWMAN join. Justice CAPPY files an opinion in support of reversal in which Chief Justice FLAHERTY and Justice ZAPPALA join.OPINION IN SUPPORT OF AFFIRMANCE
CASTILLE, Justice.
The issue in this appeal is whether the 1988 version of the Maryland crime of driving while intoxicated (“DWI”) as set forth in Md.Code Transp. § 21-902(a), is an “equivalent offense” to the Pennsylvania crime of driving under the influence of alcohol (“DUD,
The facts relevant to this appeal are as follows: On April 23, 1994, at approximately 2:00 a.m., Officer Edwin J. Schneider observed appellant’s vehicle weaving and crossing the center lines on Route 94 in York County. After stopping the vehicle, Officer Schneider noticed that appellant had an odor of alcohol on his breath and that his eyes were watery. The officer asked appellant if he had been consuming alcohol and appellant answered in the affirmative. Appellant failed three field sobriety tests: a finger-to-nose test, a walk-and-turn test and
Following a bench trial, appellant was found guilty of DUI and related traffic offenses. 1 At the sentencing hearing on December 4, 1995, appellant’s Maryland driving record (which included, inter alia, three convictions for DWI), was admitted into evidence. The trial court sentenced appellant as a repeat offender to a minimum of one year to two years’ imprisonment and ordered him to pay a fine of $500 on the DUI charge. 2 The Superior Court affirmed. Appellant now claims that the trial court erred in sentencing him as a recidivist because his prior Maryland offenses are not equivalent to the Pennsylvania offense.
At the time of this crime, the Pennsylvania DUI statute provided
(a) Offense defined.—A person shall not drive, operate or be in actual physical control of the movement of any vehicle: (1) while under the influence of alcohol to a degree which renders the person incapable of safe driving;
(4) while the amount of alcohol by weight in the blood of the person is 0.10% or greater;
(e) Penalty.—
(1) Any person violating any of the provisions of this section is guilty of a misdemeanor of the second degree, and the sentencing court shall order the person to pay a fine of not less than $800 and serve a minimum term of imprisonment of:
(iv) Not less than one year if the person has three times previously, been convicted of, adjudicated delinquent or granted a consent decree under the Juvenile Act based onan offense under this section or of an equivalent offense in this or other jurisdictions within the previous seven years. 3
This Court has not had occasion to set forth the criteria to be used when determining whether two offenses are equivalent for purposes of the Pennsylvania DUI statute. However, in Commonwealth v. Bolden, 367 Pa.Super. 333, 532 A.2d 1172 (1987), the Superior Court examined the issue of whether a Colorado conviction for attempted second-degree burglary was equivalent to Pennsylvania’s criminal attempt offense for purposes of calculating the defendant’s prior record score for sentencing purposes. The Superior Court noted that the fundamental inquiry in determining whether offenses were equivalent to one another is whether the elements of the offenses are equivalent. Id. 367 Pa.Super. at 341, 532 A.2d at 1177. The court stated:
[A] sentencing court (must) carefully review the elements of the foreign offense in terms of the classification of the conduct proscribed, its definition of the offense, and the requirements of culpability. Accordingly, the court may want to discern whether the crime is malum in se or malum prohibitum, or whether the crime is inchoate or specific. If it is a specific crime, the court may look to the subject matter sought to be protected by the statute, e.g., protection of the person or protection of the property. In so doing, the court should identify the requisite elements of the crime—the actus reus and mens rea—which forms the basis of liability.
Having identified these elements of the foreign offense, the court should turn to the Pennsylvania Crimes Code for thepurposes of determining the equivalent Pennsylvania offense. An equivalent offense is that which is substantially identical in nature and definition as the out-of-state or federal offense when compared to the Pennsylvania offense.
Id. 367 Pa.Super. at 338-39, 532 A.2d at 1175-76. In Commonwealth v. Whisnant, 390 Pa.Super. 192, 568 A.2d 259 (1990), using the approach articulated in Bolden, the Superior Court determined that a defendant’s prior New Jersey DUI convictions were equivalent offenses for purposes of sentencing the defendant as a repeat offender in Pennsylvania because the elements of the Pennsylvania and New Jersey offenses were substantially identical. In addition to finding that the elements were similar, the court reasoned that:
The prohibited conduct, as well as the underlying public policy, of the . . . criminal statutes at issue in this case are the same. Consequently, the trial court did not err in treating them as equivalent offenses for the purposes of sentencing the appellant. To do otherwise would result in the precise unfairness the legislature sought to remedy when it enacted75 Pa.C.S. § 3731(e)(1) . Namely, the appellant would be treated as a first offender only because he had committed his previous crimes in another jurisdiction.
Id., 390 Pa.Super. at 195, 568 A.2d at 260-61. We endorse the Superior Court’s approach of comparing not only the elements of the crimes, but also comparing the conduct to be prohibited and the underlying public policy of the two statutes. Consequently, we hereby adopt that approach as the method to be used when determining whether a defendant was properly sentenced as a recidivist offender under the Pennsylvania DUI statute.
At the time of appellant’s Maryland convictions, Section 21-902 of the Transportation Article of the Maryland Vehicle Law read, in pertinent part:
§ 21-902. Driving while intoxicated, under the influence of alcohol, or under the influence of a drug, a combination of alcohol and a drug, or a controlled dangerous substance.
(a) Driving while intoxicated.—A person may not drive or attempt to drive any vehicle while intoxicated. 4
(b) Driving while under the influence of alcohol.—A person may not drive or attempt to drive any vehicle while under the influence of alcohol.
(c) Driving while under influence of drugs or drugs and alcohol.—(1) A person may not drive or attempt to drive any vehicle while he is so far under the influence of any drug, any combination of drugs, or a combination of one or more drugs and alcohol that he cannot drive a vehicle safely.
Here, appellant was convicted of driving while intoxicated pursuant to section 21-902(a). A comparison of the elements of the two statutes as they existed at the time of appellant’s offenses reveals that, in 1994, a person was guilty of DUI in Pennsylvania,
inter alia,
if he drove, operated or was in physical control of the movement of any vehicle: (1) while under the influence of alcohol to a degree which rendered him incapable of safe driving; or (2) while the amount of alcohol by weight in the blood of the person was 0.10% or greater.
The Commonwealth Court specifically noted, however, that: “Pennsylvania’s DUI statute is more akin to the Maryland offense of driving while intoxicated (DWI), Md.Code Transp. § 21-902(a).”
Id.
at 745 (emphasis added). Al
First, the elements of Maryland’s 1988 DWI law and Pennsylvania’s 1994 DUI law, although not identical, are substantially similar, as the prohibited conduct, drunk driving, was the same in Maryland as in Pennsylvania. Both statutes required the defendant to have been in actual or physical control of the vehicle. Both statutes required the consumption of alcohol. Further, although to a different degree, both required an impairment in physical condition as a result of the consumption of alcohol.
The two statutes are not divergent simply because a showing that the person was incapable of unsafe operation of a motor vehicle was not a necessary element of proof in a prosecution under section 21-902(a) in 1988.
See
68 Op. Att’y Gen. 441, 445 (1983) (explaining the necessary elements of proof under section 21-902). While
Further, to hold that appellant was improperly sentenced as a repeat offender would be to ignore the underlying public policy behind the criminal statutes. Both the Maryland and Pennsylvania statutes sought to protect the public from individuals who drank to the point of substantial impairment and
Appellant further argues that Pennsylvania’s 1994 DUI statute required a showing of a blood alcohol level of 0.10% or greater as an element of proof of the offense of DUI. He reasons that, because Maryland’s 1988 statute had no such requirement, the two statutes cannot be held to be equivalent. This argument is not persuasive. In 1994, a blood alcohol content of 0.10% or - greater was a
per se
violation of the Pennsylvania DUI statute. In 1988, at the time of appellant’s Maryland convictions, an alcohol concentration of 0.10% or more, as determined by an analysis of the person’s blood or breath, was
prima facie
evidence of intoxication.
Accordingly, appellant was properly sentenced as a repeat offender and the decision of the Superior Court should be affirmed.
This opinion in support of affirmance is joined by Justice NIGRO and Justice NEWMAN.OPINION IN SUPPORT OF REVERSAL
CAPPY, Justice.
I believe that the Opinion in Support of Affirmance erroneously adopts a policy driven approach to determining whether
The Opinion in Support of Affirmance concludes that the requirement of equivalent offenses is satisfied if the extra-jurisdictional offense of which a defendant was previously convicted is “substantially similar”. Substantial similarity is satisfied where the statutes of the different jurisdictions proscribe the same general conduct, notwithstanding the fact that the statutes require differing degrees of culpability before criminal liability attaches. In my view, such a test alters the meaning of equivalency, and more importantly, potentially subjects a Pennsylvania offender to a harsher penalty due to the fortuitous circumstance that he had been convicted of a crime for actions in another jurisdiction which, if committed in Pennsylvania, may not have been criminal. I cannot attribute such an intent to our legislature. In my view, the provision imposing greater punishment for “equivalent” offenses must at a minimum mean convictions which required proof that would support a conviction under Pennsylvania law.
In common parlance, “equivalent” is defined as “equal in substance, degree, value, force, or meaning”, and in Mathematics as “equal” or “having identical corresponding parts”. The American Heritage Dictionary of the English Language 443 (1981 ed.). “Similar”, by contrast, is defined as “showing some resemblance; . . . alike though not identical.”
Id.
at 1206. As will be noted, equivalent implies a degree of symmetry which may be approached but not achieved by a finding of substantial similarity. In the context of the subject mandatory sentencing provision of Pennsylvania’s Vehicle Code, the Superior Court has explained that an “equivalent offense is that which is substantially identical in nature and definition as the out-of-state or federal offense.”
Commonwealth v. Whisnant,
390 Pa.Super. 192, 568 A.2d 259, 260 (Pa.Super.1990)(quoting
Commonwealth v. Bolden,
367 Pa.Super. 333, 532 A.2d 1172, 1177 (Pa.Super.1987)). The Superior
The Opinion in Support of Affirmance quotes this precise language in purporting to follow the precedents set forth in
Bolden, supra,
and
Whisnant, supra.
However, it fails to accord controlling effect to critical differences between the elements of the Maryland offenses for which Appellant was convicted and the Pennsylvania offense of Driving Under the Influence, and instead would require mere similarity, rather than equivalence between the offenses for the mandatory recidivist sentencing provisions of
The Opinion in Support of Affirmance relies upon the proposition that a determination of equivalence can be based upon the similar policy objectives of each statute. This fails to take account of the fact that different jurisdictions may disagree as to the range of conduct it is necessary to proscribe in order to achieve the same objective through the criminal law.
1
In devising a legal test to determine whether an extra-jurisdictional offense is equivalent to a Pennsylvania offense, this court must seek to ensure that the proof which is necessary to support a conviction under the foreign statute would likewise necessarily satisfy the requirements to secure a conviction under Pennsylvania law. The only test which can accomplish this goal is one of comparing the essential elements of each offense. If, as here, Pennsylvania law requires proof beyond a reasonable doubt of one or more facts in addition to those required by the other jurisdiction the offenses simply cannot be found to be equivalent under the pretense of fulfilling the legislative intent. The clearest indication of the intent of the Legislature is the minimum proof it has required to invoke the sanction of the criminal law.
Therefore, I would hold that the sine qua non of equivalence for purposes of the mandatory sentencing provisions contained in
For these reasons, I would reverse.
Chief Justice FLAHERTY and Justice ZAPPALA join in this Opinion in Support of Reversal.
Notes
. The other offenses included failure to keep right,
. Appellant was fined $50.00 for the remaining offenses.
. A 1995 amendment to subsection (e)(1) provides that a person convicted of a third or subsequent offense is guilty of a first-degree misdemeanor.
. In 1995, years after appellant’s 1988 Maryland convictions,
(a) Driving while intoxicated.—(1) A person may not drive or attempt to drive any vehicle while intoxicated.
(2) A person may not drive or attempt to drive any vehicle while the person has an alcohol concentration of 0.10% or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath as determined at the time of testing.
At the time of appellant’s Maryland convictions, an alcohol concentration of 0.10% or more, as determined by an analysis of the person’s blood or breath, was
prima facie
evidence of intoxication.
See
. Both statutes also contain provisions relating to controlled substances; however, those provisions are not at issue in the case sub judice, as there is no proof that appellant consumed any substance other than alcohol.
. The statute had been amended to include language that “a person may not drive or attempt to drive any vehicle while the person has an alcohol concentration of 0.10 or more as measured by grams of alcohol per 100 milliliters of blood or grams of alcohol per 210 liters of breath as determined at the time of testing.”
. For instance, all American jurisdictions have sought to reduce traffic fatalities by criminalizing the operation of motor vehicles while under the influence of alcohol, yet there is no unanimous agreement as to what percentage concentration of alcohol in the bloodstream while driving should automatically carry a criminal sanction. Compare