Appeal from the Judgment of Sentence entered April 5, 1988 in the Court of Common Pleas of Allegheny County, Criminal Division, at No. CC8709852A, 8709855A and 8710079A, No. B1132983 and B6153733.
Mark H. Rubenstein, Pittsburgh, for appellant.
Scott A. Bradley, Asst. Dist. Atty., Pittsburgh, for Com., appellee.
Brosky, Del Sole and Johnson, JJ. Del Sole, J., files a dissenting opinion.
[ 387 Pa. Super. Page 49]
This appeal lies from the judgment of sentence following Voshall's plea of nolo contendere to two counts each of involuntary manslaughter (18 Pa.C.S.A. § 2504), homicide by vehicle (75 Pa.C.S.A. § 3732), homicide by vehicle while driving under the influence (75 Pa.C.S.A. § 3735) and driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)).
Voshall was sentenced as follows: On the charges of involuntary manslaughter and homicide by vehicle, the court assessed no further penalty; on the two counts of homicide by vehicle while driving under the influence, the court imposed two consecutive terms of incarceration of three and one-half to seven years each; finally, on the driving under the influence charge, Voshall received a sentence of one to two years' imprisonment.
On appeal, Voshall complains that his sentence was illegal and that the sentencing court abused its discretion in sentencing him. We agree with Voshall that his sentence for driving under the influence was illegal for the reasons set forth below. Therefore, we vacate that portion of the judgment of sentence relating to the charge of driving under the influence (75 Pa.C.S.A. § 3731(a)(1) and (a)(4)) and affirm the judgment of sentence in all other respects.
The factual predicate for the plea is as follows: Voshall was operating a motor vehicle at a high rate of speed on Route 65 in Allegheny County. At an intersection, he
[ 387 Pa. Super. Page 50]
collided with a station wagon which was making a left turn. The two child passengers in the struck station wagon were killed as a result. Voshall's blood alcohol was determined to be .30. Voshall had been placed in the ARD program for a previous driving under the influence violation. The second time he committed the offense, he received a sentence of probation. Thus, the present driving under the influence violation is Voshall's third.
Voshall claims that the charge of driving under the influence should have merged with the offense of homicide by vehicle while driving under the influence for the purpose of sentencing because the former is a lesser included offense of the latter. Pursuant to two recent pronouncements on the law of merger by our Supreme Court, we are constrained to agree.
In Commonwealth v. Leon Williams, 521 Pa. 556, 559 A.2d 25 (1989), our Supreme Court held that " except for lesser included offenses, the doctrine of merger based on whether the Commonwealth has an interest in prosecuting a criminal defendant for more than one crime is hereby abrogated and abolished." 521 Pa. at 564, 559 A.2d at 29; emphasis in text. Pursuant to this rule, we hold that the driving under the influence charged merged for the purpose of sentencing with the offense of homicide by vehicle while driving under the influence because the former charge is a lesser included offense of the latter. In so concluding, we are compelled to abandon the "substantially different interest" analysis which was ...