*3 WICKERSHAM, Before HOFFMAN, OLSZEWSKI and JJ.
WICKERSHAM, Judge: 1982,
On September 4, appellant, Stephen Zaengle, John was involved a one-car accident which in the resulted deaths of three passengers in his January vehicle. On 26, 1983, appellant entered guilty pleas to one of count under driving the influence1 and three counts of homicide by 15, vehicle.2 April 1983, On as was sentenced follows: 1982(B), I,
No. Vehicle, Count Homicide Motor by 886— fine pay $1,000 undergo imprisonment and in a State Correctional Institution for a less period not than one (1) nor year (4) more than years (11) four and eleven months; the sentence was suspended period for a of four (4) (11) years eleven months on the condition that [appel- placed probation on under the supervision of the lant] County Cumberland Department Probation with intense supervision, and on the further he conditions would serve 1976, 17, 162, 81, 1, 1. Act of June P.L. No. § 75 Pa.C.S. 3731. § 1976, 17, 162, 81, 1, 2. June Act of P.L. No. § 75 Pa.C.S. 3732. § Prison, County pay in the (12) months Cumberland twelve Cumberland, County not have $1,000 to the use of the (11) (4) years for four and eleven operator’s an license period, during or a motor vehicle operate months seek and secure and from incarceration upon release full employment. retain 2, (B), Homicide Action No. 886—1982 Count
Criminal suspended period for a Motor sentence was Vehicle (5) [appellant] pay the condition that would years on five and the to the of Cumberland County the sum of $500 to No. imposed run concurrent with that sentence would (B) 1. Count 886—1982 (B), Homicide Action No. 886—1982 Count
Criminal Vehicle, period for a suspended Motor sentence was (5) pay the condition that would years [appellant] five County to the of Cumberland and the sum of $500 sentence was to be served consecutive to the sentences 1982, (B), in No. 886 of Counts imposed (A), Driving 886 of 1982 under Action No. Criminal (1) Influence, period for a of one suspended sentence was pay the sum of [appellant] $500 on the condition year and the sentence County to the use of the Cumberland to the sentence Criminal to run concurrent (B), 886 of 1982 Count Action No. added). at 5-6
Supp. op. (emphasis lower ct. Defend-: County the Cumberland Public May On to' modify pursuant filed a motion to er’s Office of the sen- challenging legality No. Pa.R.Crim.P. *4 mo- sentencing summarily The dismissed the judge tence. appeal timely filed.3 This having untimely tion as been followed. alleges following Appellant that the set of circumstances resulted in
3. filing petition modify Appellant untimely his to sentence: was attorney regarding post-sentencing mo- contacted his retained not 26, 1983, days sentencing. Appellant April eleven after told tions until challenge April attorney his on or about his of his desire to sentence 1983, 27, inability appellant’s was filed because of to but no motion County attorney’s Appellant pay his fees. informed the Cumberland challenge desire to his sentence on Public Defender’s Office of his 29, appointed repre- April was to 1983. The Public Defender’s Office issues, In us all appeal, appellant presents this with three imposed upon appellant: which deal with sentence it for the to sentencing impose Is lawful court for separate sentences counts of multiple separate where count pertains each to a death resulting from accident? one
2. Has this his appellant right challenge waived of the legality imposed by sentence his failure to raise in said issue the trial court ten after days within sentenc- ing? this May portion court vacate that of the sentence illegal
which is and leave the sentence remaining intact rather than this resentencing? remand case for Brief at 2. Appellant for willWe address these issues seriatim.
First, appellant contends involving cases a single killed, accident in which automobile more one is person only Therefore, may be imposed. appellant argues, sentencing imposition separate court’s sen- tences multiple counts of homicide by illegal. vehicle is
II]
It has
long been
law
Pennsylvania that
cases of
involuntary manslaughter
which more than one
accident,
person
single
is killed in a
may
one sentence
imposed.
Guiliano,
Commonwealth v.
Pa.Super.
(1980);
A.2d
Reynolds,
(1978);
In Guiliano, Commonwealth v. supra, defendant lost control his car and smashed pole. into a His two were passengers killed instantaneously. Chemical analysis established that had a defendant blood alcohol level was .11%. defendant found of two guilty counts manslaughter (9) was sentenced nine (18) eighteen imprisonment months on each count. This May finally May sent 1983. The motion was filed on 6, 1983, days appointed three after Public Defender’s Office represent appellant twenty-one days sentencing. after *5 illegal appellant’s only court held that sentence because have imposed. one sentence should been In supra, defendant Reynolds, Commonwealth of a car into of a steps was the which crashed operator residence, people seriously two and another. killing injuring of and on one involun- He was convicted sentenced count of endangering and one count of tary manslaughter recklessly person. contending The appealed, another defendant one could be only injury because the act. single deaths from a unlawful This court said: resulted Pennsylvania case law is well-settled that in cases of manslaughter person more than one which defendant, one act of the injured by is killed or unlawful may The courts have only imposed. one sentence if there is criminal act there is a single reasoned that single Consequently, Commonwealth. injury power courts no more Pennsylvania impose have act____ The single than one sentence unlawful that the enactment of the Crimes argues However, different Code dictates a result. has If the quite
law clear on this issue since 1928. been law, legislature desired to it should have change ____ no so Because specifically done there has been doctrine, in this contin- explicit change well-settled we will ue to apply it.
Id., 279-80, (cita- at Pa.Superior Ct. 389 A.2d at omitted). tions
Appellant applica- contends that the decision is Reynolds to the committed but one ble case bar accident killed his compan- unlawful act—the which three ions. Consequently, appellant argues, there was therefore, and, could injury the Commonwealth the court one sentence. legally impose only held, contends, lower court are Reynolds inapplicable they and Guiliano because involved the crime of whereas involuntary manslaughter, appellant pleaded guilty homicide vehicle. The lower “nothing dealing court found section [in nor in the Vehicle which suggests Code that the vehicle] *6 Legislature operator intended of the a motor vehicle who multiple by commits homicides vehicle ... immune [to be] from punishment wrongful all but one of those deaths.” Supp. op. Thus, ct. the lower lower court refused to apply the traditional in rule involuntary manslaughter cases multiple counts of homicide by vehicle. disagree
We with the lower court’s As analysis. noted in Reynolds, the as supra, law to involuntary man slaughter quite cases has been clear since 1928. We believe that if the Legislature had intended a different result in cases, by homicide vehicle it would have so in stated clear and unambiguous language. apparent, however, It is that the homicide by vehicle statute does not change dictate a the law as sentencing it now exists.
We also note that of degree culpability re quired prove of crime homicide vehicle is less by that necessary establish involuntary manslaughter. Houtz, v. (1981). Commonwealth 496 Pa. Houtz, In supreme our court said:
Recently, Field, v. Commonwealth 490 Pa. 417 (1980), A.2d 160 this Court had occasion to comment on the relationship between crimes of homicide by ve- hicle and involuntary manslaughter. In comparing two crimes we stated:
In it our view was the legislative judgment in enacting
section [(homicide 3732 by vehicle)] to expand the scope criminal liability for violations of the Vehicle causing Code death.
Instantly, appellant find that committed we impose court to sentencing power act. The had no unlawful Thus, upon imposed more the sentences sentence. Houtz, supra v. Commonwealth appellant illegal. are the form multiple punishment can take (impermissible sentences). or consecutive concurrent his failure questions next issue whether Appellant’s in a modify motion to sentence results timely to file a opinion the trial It note that the writer this was is of interest to Houtz, involving two judge a one motor vehicle accident with case consecutively resulting originally for deaths. Houtz was sentenced proceeding A for permitted for each death. the maximum time judge such was trial reconsideration of sentence convinced legally permissible. not right challenge legality waiver of his to his sentence on It is clear that appeal. illegality a sentence cannot a raise the properly be waived failure issue Bossche, Pa.Super. the trial court. v. (1984); Mitchell, 471 A.2d (1983). Thus, A.2d 1284 did appellant not right challenge waive his of his legality sentence. final issue
Appellant’s appropriate addresses dis position this appeal. Once we have determined illegal, may sentence is this court remand resen either for vacate tencing or and amend sentence Com directly. Ford, 315 Pa.Super. monwealth (1983). Instantly, we think it advisable vacate judgment resentencing. of sentence and remand for The sentence unique and rather complicated. It is not clear what the would sentencing court have done part had it of the known sentence would be found illegal. we are certain sentencing Since not of the court’s intentions, remand for resentencing. we is
Judgment vacated case remanded resentencing. is relinquished. Jurisdiction
OLSZEWSKI, filed dissenting J. opinion. WICKERSHAM, HOFFMAN, Before OLSZEWSKI JJ.
OLSZEWSKI, Judge, dissenting: The has concluded no majority today that more than a single multiple of may be for counts arising single regardless homicide from a of the accident— fact that each count a represents separate unique life lost as a result of that accident. I dissent. respectfully conclusion,
To reach the long that relies on a line majority of that, cases which hold cases involun- of tary manslaughter where more than person is killed accident, single a only imposed. one sentence bemay E.g., Guiliano, Pa.Super. 419, Commonwealth v. 274 A.2d 418 (1980); 476 259, v. Reynolds, 256
146 (1978). which underlies the A.2d 1113 The rationale 389 in single injury a criminal results to single rule is that act a Ernesto, 93 Pa.Su- the Commonwealth. (1928). by The court notes that homicide vehicle per. that degree culpability necessary a lesser requires Common- See involuntary manslaughter, to establish Houtz, 345, (1981). A.2d wealth Apply- 496 Pa. lesser, greater includes the it finds logic ing on counts multiple multiple sentences impermissible by homicide vehicle. analysis fails because it starts with a majority’s by It assumes that homicide vehicle and
faulty premise. involuntary manslaughter degrees are but varied Court has contrary, Supreme same offense. To of the statute’s distinguished the two the basis “vehicle fatalities.” Common- reducing purpose highway distinct Hicks, 502 Pa. wealth v. 348 n. A.2d n. 5 see 75 Pa.C.S. Sec. 1532 (conviction for homicide (1983); by of a driver’s license for one vehicle results revocation involuntary manslaughter results while conviction year, conviction). in no in the Vehicle agree nothing
We lower court suggests legislative expose intent to the defendant Code multiple by prosecution commits homicides who punishment him from for all for each death —but shield case, op. one of In this Supp. but those deaths. intoxication resulted in the appellant’s involuntary untimely As people. explained deaths three the lower court its opinion, excellent life is
each of infinite value not the individual and Commonwealth, her his or but also to the family lie taking necessarily of that constitutes consequently separate injury by and distinct to all those affected death, including Pennsylvania. the Commonwealth Id. reasons,1 For these we would affirm below. judgment 15, 1982, The Vehicle the Act of Code amended December offense, driving P.L. create a new vehicle while influence, *9 prescribes under 75 Pa.C.S.Sec. 3735. statute COMMONWEALTH of ROBINSON, Appellant. Alonzo Superior Pennsylvania. Court of April 30,
Submitted Aug. Filed mandatory prison years. term of not less than three The amendment 14, 1983, January
took effect on after the occurence of the offense alleged in this case.