J-S31029-20
2020 PA Super 296
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAUN KARL GIVEN :
:
Appellant : No. 1886 MDA 2019
Appeal from the Judgment of Sentence Entered March 27, 2019
In the Court of Common Pleas of Perry County Criminal Division at
No(s): CP-50-CR-0000129-2018
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
CONCURRING AND DISSENTING OPINION BY BOWES, J.:
FILED DECEMBER 23, 2020
While I join in the Majority’s finding of waiver that affirms Appellant’s
convictions, I cannot concur in the sua sponte vacation of Appellant’s
sentences at 75 Pa.C.S. § 3802(d)(1), for driving under the influence (“DUI”).
Based upon a straightforward application of 42 Pa.C.S. § 9765, I respectfully
submit that these sentences should not merge.
In relevant part, § 9765 provides that “[n]o crimes shall merge for
sentencing purposes unless the crimes arise from a single criminal act and all
statutory elements of one offense are included in the statutory
elements of the other offense.” 42 Pa.C.S. § 9765 (emphasis added). Our
Supreme Court has interpreted this statute as leaving little room for
equivocation or exception: “The statute’s mandate is clear. It prohibits
merger unless two distinct facts are present: (1) the crimes arise from a single
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criminal act; and (2) all of the statutory elements of one of the offenses
are included in the statutory elements of the other.” Commonwealth
v. Baldwin, 985 A.2d 830, 833 (Pa. 2009) (emphasis added).
I emphasize the second prong of this statutory scheme because I believe
that the Majority’s treatment of this issue has overlooked it. I do not dispute
that Appellant’s DUI convictions stemmed from a single criminal act of driving.
Nonetheless, there is insufficient statutory parity between the statutory
language of the separate DUI subsections to permit merger under § 9765.
In pertinent part, the at-issue criminal statute provides as follows:
(d) Controlled substances.-- An individual may not drive, operate
or be in actual physical control of the movement of a vehicle under
any of the following circumstances:
(1) There is in the individual’s blood any amount of a:
(i) Schedule I controlled substance, as defined
in the act of April 14, 1972 (P.L. 233, No. 64),
known as the Controlled Substance, Drug,
Device and Cosmetic Act;
(ii) Schedule II or Schedule III controlled substance,
as defined in The Controlled Substance, Drug, Device
and Cosmetic Act, which has not been medically
prescribed for the individual; or
(iii) metabolite of a substance under
subparagraph (i) or (ii).
75 Pa.C.S. § 3802 (emphasis added).
Stated as succinctly as possible, each of these emphasized crimes
contains a statutory element that the other does not. Section 3802(d)(1)(i)
criminalizes driving with any amount of a particular controlled substance in a
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person’s blood, while § 3802(d)(1)(iii) criminalizes driving with any amount
of a metabolite of a particular controlled substance in a person’s blood. The
elements of these two crimes are simply not co-extensive. Based upon the
unchallenged evidence adduced by the Commonwealth at trial, Appellant
violated both of the above-recited subsections.1
Nonetheless, the Majority has discerned a blanket exception for DUI
charges that allegedly compels merger under § 9765. See Majority Opinion
at 5 (“[T]his Court and our Supreme Court have consistently held that a
defendant should not be subject to more than one sentence for a single
criminal act that results in multiple convictions under the same subsection of
the DUI statute.”). The lynchpin2 of the Majority’s broad proclamation is this
Court’s non-precedential holding in Commonwealth v. Burton, 220 A.3d
649 (Pa.Super. 2019) (unpublished memorandum).
Burton did not adjudicate DUI charges related to controlled substances,
but concerned two DUI convictions related to alcohol impairment at 75 Pa.C.S.
____________________________________________
1 The evidence establishing the presence of separate chemical compounds in
Appellant’s blood is also not in dispute. Kimberly Souder, a forensic scientist
employed by the Pennsylvania State Police, testified to a “reasonable degree
of medical certainty” that Appellant’s blood contained both an “active
compound” (Delta-9-THC) and a “metabolite” (Carboxy-THC) of marijuana.
See N.T. Trial, 2/8/19, at 59. Appellant conceded to the presence of these
distinct compounds in his blood. See N.T. Trial, 2/8/19, at 67.
2 The Majority’s citation to Commonwealth v. McCurdy, 735 A.2d 681, 685-
86 (Pa. 1999), is unavailing because that case predates the adoption of 42
Pa.C.S. § 9765 and, consequently, does not apply the statutory elements test.
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§§ 3802(a)(1) and 3802(a)(2) (“General impairment.”). Upon reviewing the
language of the statutes, this Court concluded that “these two provisions
proscribe the offense of DUI-general impairment but allow for proof of the
offenses by different means of evidence: observation versus BAC
measurement.”3 Id. at 4-5. Thus, we held that these DUI charges should
merge for sentencing purposes.
However, this portion of Burton relies upon an outmoded iteration of
Pennsylvania’s merger doctrine. Indeed, Burton explicitly disclaims
application of the statutory elements test required by § 9765. Id. at 5-6
(“‘[W]e need not engage in the traditional merger analysis of lesser and
greater included offenses. Instead we examine the rationale favoring merger
where a defendant has engaged in a single criminal act and he is found guilty
of violating more than one section of a statute.’”) (quoting Commonwealth
v. Dobbs, 682 A.2d 388, 391 (Pa.Super. 1996)); see also Commonwealth
v. Williams,
871 A.2d 254, 262-64 (Pa.Super. 2005) (same) (quoting
Dobbs,
supra at 391). This Court has explicitly disapproved of Dobbs and its
progeny in precedential writings. See Commonwealth v. Cianci,
130 A.3d
780, 783 n.2 (Pa.Super. 2015) (“Appellant’s reliance upon [Dobbs] is
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3 Specifically, 75 Pa.C.S. § 3802(a)(1) focuses on officer observations, while
75 Pa.C.S. § 3802(a)(2) requires proof related to the content of alcohol in the
defendant’s “blood or breath.” In relevant part, there is no such distinction in
the subsections at 75 Pa.C.S. §§ 3802(d)(1)(i) and 3802(d)(1)(iii), which
uniformly requires proof related to the amount of a particular chemical present
in “the individual’s blood.” This is yet another important factor that
distinguishes the holding in Commonwealth v. Burton,
220 A.3d 649
(Pa.Super. 2019) (unpublished memorandum), from the instant case.
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misplaced. Merger law has evolved substantially since that case was decided.
Instead, [§] 9765 and the “elements” approach to merger govern
Appellant’s issues.” (emphasis added)).
Undeterred, the Majority’s holding announces a new and significant
exception to sentencing merger under § 9765, namely that “where the
defendant committed a single act of driving while his blood contained a parent
compound and a metabolite of the same controlled substance, the defendant
should not be subject to separate sentences for multiple convictions arising
under [§] 3802(d)(1).” Majority Opinion at 6 (emphasis in original).
This conclusion ignores the actual language of the relevant statute,
wherein the presence of completely different chemical compounds are
required for a conviction at each of the at-issue subsections. Compare 75
Pa.C.S. § 3802(1)(i) with 75 Pa.C.S. § 3802(1)(iii). The Majority has
essentially interpolated a distinction that does not exist on the face of the
statute by choosing to treat “parent compounds” and “metabolites” as co-
extensive as a matter of law. To the contrary, the General Assembly’s drafting
of 75 Pa.C.S. §§ 3802(d)(1)(i) and 3802(d)(1)(iii) manifests an intent to cast
a wide net in separately criminalizing driving with either a controlled
substance, or a metabolite thereof, in one’s blood stream. Each subsection
contains an element that the other does not and the Commonwealth can prove
a violation of one subsection without proving a violation of the other.
Additionally, the Majority’s analysis ignores the precedent of this Court
establishing that a single course of conduct can subject a defendant to multiple
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sentences under subsections of the same criminal statute. See
Commonwealth v. Rhoades, 8 A.3d 912, 917-18 (Pa.Super 2010) (holding
multiple convictions for aggravated assault stemming from a single course of
conduct but charged at separate subsections of the same statute did not
merge due to lack of similarity in the respective statutory elements); see
also, e.g., Commonwealth v. Talley,
236 A.3d 42, 52-54 (Pa.Super. 2020)
(holding that multiple convictions for stalking charged at different subsections
of the same statute did not merge under § 9765).4
I am greatly concerned that the Majority’s holding will encourage the
disparate application of § 9765 by creating one merger doctrine that applies
to Pennsylvania’s DUI statute, and a separate merger doctrine for all other
criminal statutes. Accordingly, I respectfully dissent as to the Majority’s
finding of merger. In all other respects, I concur in the Majority’s holding.
____________________________________________
4 The Majority’s argument also suggests that the different subsections of
Pennsylvania’s DUI statute “simply provide alternate means by which the
Commonwealth can establish the offense.” Majority Opinion at 6. In
Commonwealth v. Talley, 236 A.3d 42, 52-54 (Pa.Super. 2020), this Court
explicitly rejected a very similar argument that the separate subsections of
Pennsylvania’s stalking statute were merely “alternate means of proving the
same offense” for merger purposes under § 9765. Specifically, this Court
concluded that these offenses did not merge because, inter alia, “not all of the
elements of one subsection . . . are included in the other.” Id. at 54.
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