For the Defense - Vol. 8, Issue 1 - 42

Pennsylvania DUI jurisprudence, the Superior Court held that
DUI convictions merge for sentencing because a single act of
driving under the influence of alcohol or a controlled substance
constitutes a " single harm " to the Commonwealth.5
In Williams, the trial court convicted and sentenced the
defendant to two consecutive jail sentences for DUI-one for DUI/
General Impairment and the other for DUI/BAC > .10. The Superior
Court vacated that sentence and held the trial court should have
merged the sentences because, " [t]he driving under the influence
statute proscribes a single harm to the Commonwealth-
the operation of a vehicle under the influence . . . " 6
Williams
emphasized the principle, firmly rooted in Pennsylvania law, that
DUI constitutes a single harm to the Commonwealth. It noted,
" Pennsylvania law has consistently expressed and read [the DUI
statute] as constituting a single injury to the Commonwealth. " 7
Accordingly, Williams held that the single harm doctrine negated
the need for the court to " [e]ngage in the traditional greater/
lesser included offense (merger) analysis (for DUI sentences). " 8
In sum, the Williams decision employed the single harm doctrine
to carve out DUIs from the byzantine criminal law merger analysis
that existed, and still exists, under Pennsylvania law.
More recently, the Superior Court extended the single
harm doctrine established by Williams, holding that separate
convictions for drug-related DUI offenses merge for sentencing
purposes where those convictions arise from a single act of
driving.9
In Given, the trial court found the defendant guilty of a DUI,
Schedule I offense and a DUI, Metabolite offense upon a finding
that the defendant had both active THC and THC metabolites in
his blood.10
General Merger Doctrine for non-DUI Offenses as of 2021
Non-DUI offenses (such as Fleeing and Eluding while DUI) fall
outside of the single harm doctrine. The Pennsylvania Supreme
Court most recently addressed merger of non-DUI offenses in
Commonwealth v. Edwards.14
Unfortunately, like merger decisions
before it, Edwards only muddied the waters. The Edwards majority
adopted one merger test, and the dissent adopted another. The
Edwards majority adopted an elements test. Focusing strictly
on the statute's text, the trial court applying the elements test
must determine whether the crimes charged contain different
elements of proof. If they do not, then the crimes merge. On the
contrary, the Edwards dissent adopted a fact-specific test. Rather
than focusing on the elements of the offenses involved, the trial
court applying the fact-specific test must determine whether the
actus rea and mens rea of the crimes committed are the same. If
they are, the offenses merge for sentencing.
Edwards evaluated the offenses of Aggravated Assault15
and Recklessly Endangering Another Person16 (REAP) to determine
(AA)
if they merged pursuant to 42 Pa.C.S. § 9765. The majority found
the offenses did not merge, while the dissent concluded that they
did.
In Edwards, the defendant drove a car down a residential street
in Philadelphia at a high rate of speed, hit numerous parked cars,
struck a little girl on a bike, and then fled the scene.17
judge sentenced the defendant consecutively for AA and REAP.
The trial
In upholding the trial court's decision not to merge the AA and
REAP sentences, the Edwards majority used a statutory-elements
analysis. It held:
The court then sentenced the defendant consecutively
on the two DUI counts. On appeal, the Superior Court held that
the trial court should have merged the two sentences because
" the defendant committed a single act of driving while his blood
contained a parent compound and a metabolite of the same
controlled substance. " 11
Given reaffirmed
the
single
harm
doctrine
as
follows, " [S]ection 3802(d)(1) proscribes a single harm to the
Commonwealth, DUI-Controlled Substance. Sections 3802(d)(1)(i)
and (iii) provide alternate means by which the Commonwealth
can establish the offense, but do not provide proof of different
offenses. " 12
Williams and Given establish that DUI is a single harm to
the Commonwealth and, therefore, DUI convictions merge
for sentencing. This means DUI is excepted from the merger
analysis of 42 Pa.C.S. § 9765. But, practitioners should not rest
easy. Justice Bowes filed a concurring and dissenting opinion
in Given, expressing concern that " the Majority's holding will
encourage the disparate application of § 9765 by creating one
merger doctrine that applies to Pennsylvania's DUI statute, and a
separate merger doctrine for all other criminal statutes. " 13
Thus,
it is possible our courts could one day jettison the single harm
doctrine in favor of a § 9765 merger analysis for DUIs.
42 For The Defense l Vol. 8, Issue 1
Thus, according to the Edwards majority, the statutory text
of the offenses dictated whether the offenses merged for
sentencing, resulting in no merger of AA and REAP.
Edwards Dissent Facts-Based Analysis
The Edwards dissent's employment of a facts-based analysis
drilled down to the actus rea and mens rea of the offenses
committed to see if they matched. In holding that the
sentences for AA and REAP should have merged, the dissent
noted: 1) the defendant's mens rea for REAP and AA were the
same-recklessness, and 2) the defendant's actus reus for both
offenses matched because the actus reus for REAP was placing
the victim in danger of serious bodily injury, and the actus reas
for AA was causing serious bodily injury to the victim.19
In concluding that the offenses should have merged, the
Edwards dissent reasoned that the defendant could not have
[T]he elements of REAP and the specific elements of
aggravated assault relevant herein, require different
elements of proof. . . [i]t is possible to commit one
crime without committing the other. Since all of the
statutory elements of REAP are not contained in
aggravated assault, they do not merge for sentencing
purposes pursuant to Section 9765.18
For the Defense - Vol. 8, Issue 1

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