Commonwealth v. Farrow

168 A.3d 207

COMMONWEALTH of Pennsylvania, Appellee

v.Rikea Dshon FARROW, Appellant

No. 1576 WDA 2015.

Superior Court of Pennsylvania.

Submitted January 3, 2017

Filed July 27, 2017

Stephanie M. Noel, Pittsburgh, for appellant.

Sandra Preuhs, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: OLSON, SOLANO and STRASSBURGER,^* JJ.

OPINION BY OLSON, J.:

Appellant, Rikea Dshon Farrow, appeals from the judgment of sentence entered on September 10, 2015 in the Criminal Division of the Court of Common Pleas of Allegheny County, following her convictions for three counts of driving under the influence (DUI)-general impairment and the summary offense of accidents involving an unattended vehicle. We affirm, in part, vacate, in part, and remand for resentencing consistent with the views expressed below.

The trial court prepared the following factual summary, which is undisputed on appeal.

Shortly before 6:00 a.m. on June 22, 2014, Appellant was driving a red vehicle. While driving, she struck two parked vehicles in the 200 block of Marshall Avenue in the City of Pittsburgh, and drove away from the scene. Officers Peter Bechtold [and] Michael Douglas, and [Sergeant] Neal Marrabello [,] were dispatched to the 200 block of Marshall Avenue for "a hit and run by a red vehicle." At the accident site, the officers encountered two damaged vehicles: one vehicle had been struck from behind, causing it to hit the vehicle parked directly in front of it.

Approximately one quarter mile from the accident scene, officers observed a red vehicle with heavy front end damage. Appellant was sitting near this vehicle with the keys in her hand. Officer Bechtold approached Appellant and asked her what happened. Appellant told Officer Bechtold that she hit a speed bump, and it caused damage to her vehicle. Shortly after this, Appellant told Sergeant Marrabello that she struck a guardrail, causing the damage to her vehicle.

During these conversations, Appellant appeared visibly intoxicated. Specifically, she had glassy, bloodshot eyes, a strong odor of alcohol emanating from her mouth, her clothes were soiled and stained, her speech was slurred, and she was unbalanced on her feet. The officers determined that she was intoxicated to the point where it was unsafe for her to operate a motor vehicle. Officer Bechtold attempted to conduct a field sobriety test, but Appellant became combative and began yelling at Officers Bechtold and Douglas. Due to Appellant's belligerence and uncooperativeness, Officer Bechtold did not attempt any further field sobriety tests. Appellant was arrested and transported to the police station, where she refused to submit to an intoxilyzer test[.]

Trial Court Opinion, 6/23/16, at 4–5 (record citations and footnote omitted).

Based upon the foregoing events, the Commonwealth filed a four-count criminal information against Appellant on December 15, 2014. Count one charged Appellant with DUI-general impairment and refusing breath/blood alcohol testing in violation of 75 Pa.C.S.A. § 3802(a)(1) and 75 Pa.C.S.A. § 3804(c) of the Motor Vehicle Code. Count two charged Appellant with DUI-general impairment where an accident resulting in damage to a vehicle occurred in violation of 75 Pa.C.S.A. § 3802(a)(1) and 75 Pa.C.S.A. § 3804(b). Count three charged Appellant with DUI-general impairment in violation of 75 Pa.C.S.A. § 3802(a)(1). Count four charged Appellant with accident involving damage to attended vehicle in violation of 75 Pa.C.S.A. § 3743. Relevant to counts one through three, the information states in full:

COUNT 1: DRIVING UNDER INFLUENCE OF ALCOHOL [OR] CONTROLLED SUBSTANCE

The actor drove, operated or was in actual physical control of the movement of a vehicle, upon a highway or trafficway of the Commonwealth, after imbibing a sufficient amount of alcohol such that the actor was rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle, and the actor refused testing of blood or breath, in violation of Section 3802(a)(1) and Section 3804(c) of the Pennsylvania Vehicle Code, Act of June 17, 1976, 75 Pa.C.S.[A.] §[§] 3802(a)(1) and 3804(c), as amended.

COUNT 2: DRIVING UNDER INFLUENCE OF ALCOHOL [OR] CONTROLLED SUBSTANCE

The actor drove, operated or was in actual physical control of the movement of a vehicle, upon a highway or trafficway of the Commonwealth, after imbibing a sufficient amount of alcohol such that the actor was rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle, where there was an accident resulting in bodily injury, serious bodily injury or death of another person or in damage to a vehicle or other property, in violation of Section 3802(a)(1) and Section 3804(b) of the Pennsylvania Vehicle Code, Act of June 17, 1976, 75 Pa.C.S.[A.] §[§] 3802(a)(1) and 3804(b), as amended.

COUNT 3: DRIVING UNDER INFLUENCE OF ALCOHOL [OR] CONTROLLED SUBSTANCE

The actor drove, operated or was in actual physical control of the movement of a vehicle, upon a highway or trafficway of the Commonwealth, after imbibing a sufficient amount of alcohol such that the actor was rendered incapable of safely driving, operating or being in actual physical control of the movement of the vehicle, in violation of Section 3802(a)(1) of the Pennsylvania Vehicle Code, Act of June 17, 1976, 75 Pa.C.S.[A.] § 3802(a)(1), as amended.

Criminal Information, 12/15/14.

Appellant proceeded to a nonjury trial that took place over the course of June 9, 2015 and July 23, 2015. At trial, the Commonwealth amended count four of the information to charge the summary offense of accidents involving unattended vehicle under 75 Pa.C.S.A. § 3745. At the conclusion of trial on July 23, 2015, the court found Appellant guilty at all four counts of the information, as amended. On September 10, 2015, the trial court sentenced Appellant to three to six days' incarceration, together with a concurrent term of six months' probation, at count one.¹ At the remainder of the counts set forth in the information (counts two through four), the trial court entered a determination of "guilty without further penalty." Order of Sentence, 9/10/15. Appellant did not file a post-sentence motion.

Appellant filed a timely notice of appeal on October 13, 2015.² By order of October 27, 2015, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After receiving an extension of time in which to obtain relevant transcripts of the trial court proceedings, Appellant filed her concise statement on April 13, 2016. Thereafter, the trial court issued its Rule 1925(a) opinion on June 23, 2016.

Appellant raises a single issue for our consideration:

Did the trial court violate the prohibition on double jeopardy by convicting [Appellant] of three separate DUI offenses based upon a single instance of conduct, where two of those offenses were not separate crimes but, rather, merely sentencing factors?

Appellant's Brief at 5 (block capitalization omitted).

Appellant contends that the trial court violated the protection against double jeopardy under the United States and Pennsylvania Constitutions³ in convicting and sentencing her for three DUI offenses stemming from a single episode of criminal conduct.⁴ Before we examine the merits of this claim, we first determine whether Appellant properly preserved it for appellate review. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").

The Commonwealth argues that Appellant waived appellate review of her sole issue because she failed to object to the criminal information, or otherwise raise her appellate claim, before the trial court. See Commonwealth Brief at 8. In support of its position, the Commonwealth submits that Appellant's initial inclusion of her claim in her concise statement is insufficient to preserve the issue for purposes of appeal. See id . at 8–9, quoting Commonwealth v. Melendez-Rodriguez , 856 A.2d 1278, 1288–1289 (Pa. Super. 2004) ("[a] party cannot rectify the failure to preserve an issue by proffering it in response to a Rule 1925(b) order"). The Commonwealth also asserts that "the fact that [A]ppellant raised her claims in constitutional terms does not [alter the conclusion that her claims are subject to waiver]." Commonwealth Brief at 9, quoting Commonwealth v. Strunk , 953 A.2d 577, 579 (Pa. Super. 2008) ("Even issues of constitutional dimension cannot be raised for the first time on appeal."). For these reasons, the Commonwealth concludes that Appellant waived her double jeopardy challenge based upon the form of the criminal information and the verdict/sentencing disposition rendered thereon. Commonwealth Brief at 9–10.

Appellant does not dispute the Commonwealth's contention that she lodged no objection to the form of the information before the trial court or that she first raised her appellate claim in her concise statement. Instead, Appellant analogizes her claim to a challenge to the sufficiency of the evidence and, alternatively, to a challenge to the legality of her sentence. With respect to the first component of her preservation argument (i.e. , likening the present claim to a sufficiency challenge), Appellant accepts that the evidence was sufficient to support a finding that she committed a single DUI offense, but argues nonetheless that the record is insufficient to sustain convictions for two additional DUI offenses. See Appellant's Reply Brief at 1. As to the second part of her argument (i.e. , analogizing the instant issue to a legality of sentencing claim), Appellant asserts that her double jeopardy claim represents a constitutional challenge to the legality of her sentence, which is not subject to waiver even if it is raised for the first time on appeal.⁵ Id . at 3. Appellant maintains that since her claim represents either a sufficiency challenge or a challenge...