concluding that although the table of contents referred to the Rule 2119(f) statement, the statement did not appear anywhere within defendant’s (Footnote Continued Next Page
How later courts described this case
- concluding that although the table of contents referred to the Rule 2119(f) statement, the statement did not appear anywhere within defendant’s (Footnote Continued Next Page
- noting that under Pa. Stat. § 3731(e)(2), acceptance of ARD for charge of DWI is a conviction for computing whether subsequent conviction is considered second or subsequent conviction
- because the Commonwealth specifically objected to appellant’s failure to include a Tuladziecki statement in the appellate brief, Superior Court was precluded from addressing the merits of appellant’s chai lenges to the discretionary aspects of sentence
- because the Commonwealth specifically objected to appellant’s failure to include a Tuladziecki statement in Appellant’s brief, this Court was precluded from addressing the merits of appellant’s challenges to the discretionary aspects of sentence
Written by the judges who cited it.
The opinion
OLSZEWSKI, Judge,
dissenting:
Because I believe that the offense of driving under the influence of alcohol [“DUI”] does not merge with the crime of involuntary manslaughter, I must, most respectfully, dissent. While it is clear that DUI and homicide by vehicle merge for purposes of sentencing, Commonwealth v. Nicotra, 425 Pa.Super. 600 , 625 A.2d 1259 (1993) and Commonwealth v. Voshall, 387 Pa.Super. 47 , 563 A.2d 936 (1989), it simply does not follow that DUI merges with involuntary manslaughter.
According to the merger doctrine enunciated by the Pennsylvania Supreme Court,
if a person commits one act of criminal violence, and that act is the only basis upon which he may be convicted of another crime, the act will merge into the other crime. If however, the actor commits multiple criminal acts beyond that which is necessary to establish the bare elements of the additional crime, then the actor will be guilty of multiple crimes which do not merge for sentencing purposes.
Commonwealth v. Weakland, 521 Pa. 353, 364 , 555 A.2d 1228, 1233 (1989) (emphasis added). Additionally, “where the same facts are used to support convictions for crimes having different elements, the crimes do not merge for sentencing purposes unless the same facts support convictions of lesser included offenses.” Id. at 363 , 555 A.2d at 1233 . “A lesser included offense is a crime the elements of which are a necessary subcomponent but not a sufficient component of the elements of another crime, the greater offense.” Commonwealth v. Leon Williams, 521 Pa. 556, 561 , 559 A.2d 25, 28 (1989).
*157 Given this standard, I am not persuaded by my learned colleagues’ conclusion that the elements of the crime of DUI are a “necessary” subcomponent of the elements of the greater offense of involuntary manslaughter. Appellant was convicted of § 3731(a)(1) which prohibits the operation of any vehicle while “under the influence of alcohol to a degree which renders the person incapable of safe driving.” 75 Pa.C.S.A. § 3731. Proof of intoxication, a necessary element for conviction under § 3731, is not required to establish the bare elements of involuntary manslaughter.
Involuntary manslaughter is defined as a death resulting from “the doing of an unlawful act in a reckless or grossly negligent manner, or the doing of a lawful act in a reckless or grossly negligent manner.” 18 Pa.C.S.A. § 2504. Involuntary manslaughter depends upon reckless or grossly negligent conduct, not necessarily the commission of an unlawful act. See, e.g., Commonwealth v. Feinberg, 433 Pa. 558 , 253 A.2d 636 (1969) (store owner who sold canned heat containing methanol to customers known to be alcoholics and known to drink canned heat was guilty of involuntary manslaughter); Commonwealth v. Setsodi, 303 Pa.Super. 482 , 450 A.2d 29 (1982) (driver’s conduct in failing to keep eyes on road at time of accident with motorcyclist may have constituted criminal negligence or recklessness for purposes of establishing prima facie case of involuntary manslaughter).
Here, appellant’s act of driving at an excessive rate of speed as he exited the highway alone indicates the reckless and grossly negligent conduct essential for culpability under § 2504. See, e.g., Commonwealth v. Hicks, 203 Pa.Super. 307 , 201 A.2d 294 (1964) (reckless driving upon highway is such departure from prudent conduct as to evidence culpability for involuntary manslaughter). In comparison, the act of driving under the influence is the only basis upon which a defendant may be found guilty of the crime of homicide by vehicle while driving under the influence. Commonwealth v. Voshall, supra (merger appropriate where appellant “did not commit any criminal acts beyond that which was necessary to establish the *158 bare elements of homicide by vehicle while driving under the influence”).
158
Although we are not bound by the relevant federal standard for merger in construing our state criminal statutes, Commonwealth v. Burkhardt, 526 Pa. 341 , 586 A.2d 375 (1992), the test enunciated in Blockburger v. United States, 284 U.S. 299 , 52 S.Ct. 180 , 76 L.Ed. 306 (1932) provides additional guidance. There, the Supreme Court stated that “where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304 , 52 S.Ct. at 182 . In this cáse, proof of the greater offense of involuntary manslaughter does not require proof of intoxication, a necessary element for conviction under § 3731(a). Accordingly, I am not persuaded that merger occurred and would affirm the judgment of sentence.