Opinion
J-S52016-16 No. 2305 EDA 2015
09-19-2016
COMMONWEALTH OF PENNSYLVANIA Appellee v. MIA GROOMS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 9, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No: CP-51-CR-0007923-2014 BEFORE: FORD ELLIOTT, P.J.E., STABILE, and STRASSBURGER, JJ. MEMORANDUM BY STABILE, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant Mia Grooms appeals from the July 9, 2015 judgment of sentence entered in the Court of Common Pleas of Philadelphia County ("trial court"), following her bench conviction for driving under the influence ("DUI") in violation of 75 Pa.C.S.A. § 3802(d)(1)(iii) and (2). Upon review, we affirm.
The facts and procedural history underlying this case are undisputed. On October 16, 2011, at approximately 1:45 a.m., Inspector David Bellamy of the Philadelphia Police Department observed a traffic jam in the area of 2200 West Ontario Street in Philadelphia. At that time, he observed a white Mitsubishi Galant parked against the flow of one-way traffic. Several vehicles were honking as they attempted to get past the parked Mitsubishi on the narrow one-way street. Inspector Bellamy observed Appellant near the driver's area of the Mitsubishi. Appellant was stumbling. When Inspector Bellamy approached Appellant, she appeared hazy and her eyes glassy. The keys were in the ignition and the Mitsubishi was running. Appellant failed to fully cooperate with Inspector Bellamy. Appellant then reached inside the Mitsubishi through the open driver's side door, took a cup from the center console, and poured out its contents on the road. Inspector Bellamy called for backup. Officer Michael McCormick responded.
Unless otherwise specified, these facts come from the trial court's December 21, 2015 opinion.
Officer McCormick approached Appellant as she was sitting in the driver's seat of the Mitsubishi and asked her to step outside. Officer McCormick testified "I asked her to step out. She was basically nonverbal, could barely stand, had trouble—swaying or sagging, however you want to call it, and she was—we had to direct her to lean up against another vehicle to keep her from falling on the ground." Trial Court Opinion, 12/21/15 at 5 (record citations omitted).
Appellant eventually was charged with and convicted of the above-mentioned DUI offenses and sentenced to 12 to 24 months' imprisonment under Subsection 3802(d)(1)(iii) and 24 months' probation for Subsection 3802(d)(2).
We observe that Appellant had multiple prior DUIs. See N.T. Sentencing, 5/19/15 at 7.
On appeal, Appellant raises two issues for our review. First, Appellant argues that the evidence was insufficient to sustain her conviction under Subsection 3802(d)(1)(iii) (controlled substance) because the Commonwealth failed to establish that she operated or was in physical control of the movement of the Mitsubishi. Second, Appellant argues that her sentences under Subsections 3802(d)(1)(iii) and 3802(d)(2) should merge for sentencing purposes.
"A claim challenging the sufficiency of the evidence is a question of law." Commonwealth v. Widmer , 744 A.2d 745, 751 (Pa. 2000).
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.Commonwealth v. Antidormi , 84 A.3d 736, 756 (Pa. Super. 2014), appeal denied , 95 A.3d 275 (Pa. 2014).
With respect to Appellant's sufficiency of the evidence claim, after careful review of the record, and the relevant case law, we conclude that the trial court accurately and thoroughly addressed the issue on appeal. See Trial Court Opinion, 12/21/15, at 8-12. Accordingly, Appellant is not entitled to relief on this issue.
Appellant next argues that trial court erred in sentencing her both under Subsections 3802(d)(1)(iii) and 3802(d)(2) because her sentences should have merged. We disagree.
Appellant's merger claim implicates the legality of sentence and thus our standard of review is de novo and the scope of review is plenary. See Commonwealth v. Collins , 764 A.2d 1056, 1057 n.1 (Pa. 2001).
Section 9765 of the Sentencing Code provides:
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.A. § 9765. Merger, therefore, 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. "[T]he plain language of Section 9765 precludes courts from merging sentences when each offense contains a statutory element that the other does not." Commonwealth v. Raven , 97 A.3d 1244, 1250 (Pa. Super. 2014). This rule applies irrespective of whether the offenses are codified in different statutes or in different subsections of the same statute. See id. at 1251-52 (different statutes); Commonwealth v. Rhoades , 8 A.3d 912, 918 (Pa. Super. 2010) (different subsections of the same statute).
To the extent Appellant relies upon Commonwealth v. Williams , 871 A.2d 254 (Pa. Super. 2005) for the proposition that Subsection 3802(d)(1)(iii) and Subsection 3802(d)(2) merge for sentencing purposes, such reliance is misplaced because Williams is distinguishable from the instant case. In Williams , we concluded that Subsection 3731(a)(1) and (a)(4) of the predecessor version of the DUI statute represented an alternative basis for finding culpability for a single criminal act. Williams involved DUI charges stemming from consumption of alcohol. Here, Appellant's crime involved a controlled substance, i.e., drugs, which can vary in form and substance.
Subsection 3802(d)(1)(iii) provides:
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:
75 Pa.C.S.A. § 3802(d)(1) (footnote omitted). Subsection 3802(d)(2) provides:(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).
An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:
75 Pa.C.S.A. § 3802(d)(2).. . . .
(2) The individual is under the influence of a drug or combination of drugs to a degree which impairs the individual's ability to safely drive, operate or be in actual physical control of the movement of the vehicle.
Each of these subsections contains an element that the other does not. Subsection 3802(d)(1)(iii) requires proof that the defendant has any amount of a Schedule I, II or III controlled substance in his or her blood. Subsection 3802(d)(2) requires proof that the defendant is under the influence of a drug or combination of drugs to a degree which impairs his or her ability to safely drive, operate or be in actual physical control of the movement of his or her vehicle. Given these disparate elements, the Commonwealth can prove a violation of one subsection without proving a violation of the other. If the Commonwealth proves that the defendant has any amount of Schedule I, II or III controlled substance in his or her blood but fails to prove that he or she was under the influence, this will sustain a Subsection 3802(d)(1)(iii) violation but not a Subsection 3802(d)(2) violation. On the other hand, if the Commonwealth proves that the defendant is under the influence of a non-Schedule I, II, or III drug to a degree that impairs his or her ability to safely drive his or her vehicle, this will result in a Subsection 3802(d)(2) violation but not a Subsection 3802(d)(1)(iii) violation. Accordingly, the trial court did not err in refusing to merge Appellant's Subsection 3802(d)(1)(iii) violation with his Subsection 3802(d)(2) violation. See Raven , supra and Rhoades , supra.
In sum, we dispose of Appellant's sufficiency of evidence claim based on the reasons outlined in the trial court's December 21, 2015 opinion. We direct that a copy of the trial court's December 21, 2015 opinion be attached to any future filings in this case. We also conclude that Appellant is not entitled to relief on the merger issue.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 9/19/2016
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