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COMMONWEALTH PENNSYLVANIA v. RUDOLPH J. KOZRAD (10/25/85)

filed: October 25, 1985.

COMMONWEALTH OF PENNSYLVANIA
v.
RUDOLPH J. KOZRAD, APPELLANT



Appeal from the Judgment of Sentence of the Court of Common Pleas, Montgomery County, Criminal Division, at No. 3941-83.

COUNSEL

Wayne R. Cromie, Norristown, for appellant.

Ronald T. Williamson, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Wickersham, Brosky and Tamilia, JJ.

Author: Brosky

[ 346 Pa. Super. Page 471]

This is an appeal from the judgment of sentence imposed after a jury found appellant guilty of Driving a Vehicle While Under the Influence of Alcohol (two counts), Homicide by Vehicle, Homicide by Vehicle While Driving Under the Influence, Involuntary Manslaughter, and Recklessly Endangering Another Person. Appellant was sentenced to undergo imprisonment for not less than three nor more than six years for the charge of Homicide by Vehicle While Driving Under the Influence. Appellant also received a

[ 346 Pa. Super. Page 472]

    separate, concurrent sentence of 11 1/2 to 23 months for Involuntary Manslaughter. Appellant raises five issues for our determination:*fn1 whether sufficient evidence was produced to support appellant's convictions; whether the sentence imposed was unduly harsh and unconstitutional; whether 75 Pa.C.S. § 3735 is constitutional due to the strict liability it imposes; whether the trial court erred in refusing certain of appellant's objections to testimony and in denying certain of his requested jury instructions; and whether the trial court erred in failing to strike three jurors for cause.

We have carefully reviewed the record and briefs submitted by counsel, as well as the opinion of the trial court, and find each of appellant's contentions to be without merit.*fn2 However, we find that the trial court erred by imposing separate sentences for Homicide by Vehicle While Driving Under the Influence*fn3 and Involuntary Manslaughter.*fn4 Therefore, we vacate the judgment of sentence for Involuntary Manslaughter.

Although the illegality of sentence issue was not raised by appellant, it is required of this court to correct an illegal sentence sua sponte. Commonwealth v. Ruffin, 317 Pa. Super. 126, 463 A.2d 1117 (1983). We hold that for sentencing purposes the offenses of Involuntary Manslaughter and Homicide by Vehicle While Driving Under the Influence merge. The imposition of separate punishments for the merged offenses is "illegal". Commonwealth v. Tolassi, 303 Pa. Super. 177, 449 A.2d 636 (1982).

There are currently two tests for merger applied by the courts of this Commonwealth. The traditional and obvious

[ 346 Pa. Super. Page 473]

    test for merger is whether one crime necessarily involves the other; whether the essential elements of one are also the essential elements of the other. Commonwealth v. Mitchell, 319 Pa. Super. 170, 465 A.2d 1284 (1983). The second test for merger stems from the rule that "an individual can be punished only once for a single act which causes only one injury to the Commonwealth." Commonwealth v. Schilling, 288 Pa. Super. 359, 370, 431 A.2d 1088, 1093 (1981). The proper focus of the second test is on the number of injuries sustained by the Commonwealth from a given act. ...


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