J-A01044-16

*Former Justice specially assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LUIS T. GAUTHIER

Appellant No. 2327 EDA 2014

Appeal from the Judgment of Sentence July 10, 2014

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0015241-2013

BEFORE: LAZARUS, J., OTT, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.: FILED APRIL 11, 2016

Luis T. Gauthier appeals from the judgment of sentence entered in the 

Court of Common Pleas of Philadelphia County following a jury trial in which 

he was convicted of two counts of general impairment driving under the 

influence (DUI), including one count with refusal to submit to chemical 

testing.1 Upon review, we vacate the judgment of sentence and remand for 

resentencing.

The trial court summarized the relevant facts as follows:

[A]t approximately 2:15 a.m. on December 7, 2012, [Gauthier] 

recklessly operated a red Nissan Rogue [s]ports [u]tility 

[v]ehicle in West Philadelphia near the University of 

Pennsylvania school campus. His vehicle illegally turned [in the] 

northbound direction [i]nto the oncoming traffic of the clearly 

____________________________________________

1 75 Pa.C.S. §§ 3802(a), 3804(c). 
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marked one[-]way southbound busy 40th Street from Walnut 

Street. [Gauthier] inexplicably continued to drive in the wrong 

direction for at least two city blocks without making any U-turns 

or accessing available exits and obliviously ignor[ed] the blaring 

horns and bright lights from other oncoming vehicles. 

Philadelphia Police Officer Tertulien, who had been sitting in his 

marked patrol car waiting for his partner to exit from a nearby 

convenience store, watched [Gauthier] from the point of the 

illegal turn and responded immediately to stop him to prevent an 

inevitable accident.

After Officer Tertulien managed to direct [Gauthier] to park his 

automobile, he saw [Gauthier] sitting in the driver’s seat 

appearing dazed and confused. “He looked like he didn’t know 

where he was at . . . He looked sleepy . . . His eyes were 

watery.” When [Gauthier] informed the officer that he had just 

come from Cavanaugh’s Bar located just a few blocks away, his 

speech was slurred as he used “running sentences.” Officer 

Tertulien smelled a strong odor of alcohol emanating from the 

automobile. Because the single front passenger of this vehicle 

also appeared inebriated, Officer Tertulien asked [Gauthier] to 

step out and walk in the fresh air to determine if the stench of 

alcohol emanated from [Gauthier].

Outside the vehicle[, Gauthier] independently reeked of alcohol 

and was so “wobbly and “unstable” that he couldn’t walk. Upon 

correctly deducing that [Gauthier] was incapable of safely 

operating any vehicle, Officer Tertulien arrested Defendant Luis 

Gauthier for violating Section 3802(a)(1) of the Pennsylvania 

Motor Vehicle Code and called for a wagon to transport him.

After being transported to the Police Administration Building[, 

b]reathalyzer technician Philadelphia Police Officer Lackman 

gave [Gauthier] all of the relevant warnings and information 

concerning his rights and responsibilities and consequences of a 

driver’s refusal to submit to chemical testing to detect alcohol 

inebriation. [Gauthier] knowingly refused to submit to any 

chemical testing of his breath that would detect and gauge his 

alcohol absorption levels. [Gauthier] signed the [a]ffidavit 

acknowledging his refusal and receipt of his rights and 

information concerning the consequences of his refusal.

Trial Court Opinion, 3/4/15, at 2-3.
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On June 10, 2014, the trial court sentenced Gauthier to two concurrent 

terms of 90 days to 6 months’ incarceration, to be served on weekends to 

permit his continued employment. Additionally, the court ordered Gauthier 

to pay fines totaling $5,000 and suspended Gauthier’s driver’s license for 18 

months. Gauthier filed a timely notice of appeal and concise statement of 

errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, 

Gauthier raises the following issue for our review:

Whether the trial [c]ourt, in a DUI-general impairment 

prosecution under 75 Pa.C.S. § 3802(a)(1), erred when it “adlibbed” in instructing the jury for the third time on this charge by 

over-emphasizing certain factors which were the cornerstones of 

the prosecution case without mentioning any of the 

countervailing arguments presented by the defense, thereby 

directing a verdict of guilty?

Brief for Appellant, at 2.

When reviewing a trial court’s jury instructions, we

will look to the instructions as a whole, and not simply isolated 

portions, to determine if the instructions were improper. We 

further note that, it is an unquestionable maxim of law in this 

Commonwealth that a trial court has broad discretion in phrasing 

its instructions, and may choose its own wording so long as the 

law is clearly, adequately, and accurately presented to the jury 

for its consideration. Only where there is an abuse of discretion 

or an inaccurate statement of the law is there reversible error.

Commonwealth v. Antidormi, 84 A.3d 736, 754 (Pa. Super. 2014) 

(citations omitted).

Instantly, the jury specifically requested that the term “general 

impairment” be defined in laymen’s terms. The court conferred with both 

parties, and both agreed that the term “general impairment” was part of the 
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caption of the charge and was not an element of an offense that needed to 

be proven. Thus, the court instructed the jury that “general impairment” 

does not have a legal definition and is not an element of a crime. The court 

proceeded to re-read the standard charge2and supplemented it with a series 

of rhetorical questions to aid the jury in considering whether Gauthier had 

been incapable of driving safely. Gauthier’s sole argument is that these 

questions improperly focused the jury’s attention on the Commonwealth’s 

theory of the case and amounted to a directed verdict in favor of the 

Commonwealth.3 We disagree.

The instruction included the following:

THE COURT: The caption of the charge is called general 

impairment. That’s not the definition of the charge.

The definition of the charge refers to driving under the influence 

of alcohol that renders someone incapable of safe driving. I’m 

going to go over the actual elements with you.

. . .

Let’s focus on those elements. I’m going to go over that with 

you. In terms of giving you examples of what it means to not 

safely drive or things of that nature, you will have to rely on 

your own common sense. What does it take to drive safely[?]

____________________________________________

2

The jury was provided the standard charge for general impairment DUI 

three separate times during the proceedings.

3

Following oral argument on this matter, Gauthier filed a motion for leave to 

file a post-argument submission pursuant to Pa.R.A.P. 2501. However, 

because the proposed submission merely reiterates the arguments made in 

Gauthier’s brief, we deny the motion.
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Let me first tell you what the charge is. The defendant is 

charged with violating section 3802(a)(1) of the Pennsylvania 

Motor Vehicle Code. It makes it a crime to drive, operate or be 

in actual physical control of the movement of a vehicle after 

imbibing a sufficient amount of alcohol. Such as the individual is 

rendered incapable of safe driving, operating or being in actual 

physical control of the movement of that car or vehicle.

To find the defendant guilty of that offense, you have to be 

satisfied two elements have been proven beyond a reasonable 

doubt.

One, the defendant drove or operated or was in physical control 

of the vehicle on a highway or traffic way.

Two, Commonwealth must prove that while the defendant drove, 

operated or was in physical control of the vehicle, he imbibed a 

sufficient amount of alcohol such that he was incapable [of] 

safely driving, operating or being in control of the movement of 

that vehicle. 

Pennsylvania law states that the meaning of incapable of safe 

driving, it has a meaning. Frankly, it means the ordinary term 

you would think it would mean. The defendant doesn’t have to 

be drunk or severely intoxicated or driving wildly or erratically to 

commit this crime. It’s enough if the alcohol had substantially 

impaired the defendant’s normal, mental or physical faculties 

that were essential to safe operation of a vehicle. 

Now, you have to use your common sense to determine what 

normal, mental or physical capabilities are necessary to operate 

a car.

What do you need to operate a care safely? Do you need good 

judgment? Do you need to be able to be balanced?

MR. KELLY: Objection.

THE COURT: Noted.

Do you need to see clearly?

MR. KELLY: Objection.

THE COURT: I’m not saying this defendant. I’m not 

commenting on this case. I’m saying these are some things that 

you may wish to consider in terms of what do you need to be 
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rendered incapable of safe driving. What mental and physical 

faculties do you need to operate a car safely on the streets of 

Philadelphia?

That’s what [is] at issue. In doing so, consider all the relevant 

evidence when deciding whether or not the defendant was under 

the influence to a degree that makes him incapable of safe 

driving. Among that evidence in this case, the Commonwealth 

contends the defendant refused to give a sample of his breath 

for testing.

. . .

Understand, the Commonwealth is not required to prove beyond 

a reasonable doubt that the defendant was drunk or severely 

intoxicated. Rather the Commonwealth must show the 

defendant was under the influence of alcohol to a degree which 

rendered him unfit to drive safely. Mental or physical condition 

which substantially impaired his judgment, clearness of intellect 

and any of the normal faculties essential to safe operation of an 

automobile.

Hopefully that helped you. Please understand you have to rely 

on your own common sense to be able to determine whether or 

not this defendant was rendered incapable of safe[ly] driving an 

automobile that early morning hour and whether or not alcohol 

was the root of the issue. The elements are what’s important 

not the caption called general impairment.

N.T. Trial, 5/14/14, Vol. 2, 21-26.

Upon considering the trial court’s full instructions to the jury in 

context, we agree with the trial court that the 

questions posed and comments made were completely in accord 

with the Pennsylvania Suggested Standard Criminal Jury 

Instructions which direct[] the jury to consider “What were the 

defendant’s thinking, judgment, physical skills, ability to 

perceive and react to changes in the situation, or other faculties 

impaired?” [Pennsylvania Suggested Standard Criminal Jury 

Instructions § [ 17.3802(h).]

. . .
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The[] hypothetical questions were neutral and did not include 

any comment concerning the opinion of the [c]ourt regarding the 

evidence of the defendant’s guilt.

Trial Court Opinion, 3/4/15, at 8-9. Considering the entirety of the 

foregoing, we discern no error on the part of the trial court in providing 

additional instructions to the jury.

Though we decline to grant Gauthier the relief he requests, we note 

that he was erroneously sentenced based upon two counts of general 

impairment DUI. The two counts Gauthier was charged with were based 

upon the same conduct, with one count including refusal to submit to 

chemical testing. In this circumstance, the two counts should have merged 

for sentencing purposes. See Commonwealth v. Mobley, 14 A.3d 887, 

894 (Pa. Super. 2011) (stating in reference to DUI offenses that “[c]harging

the identical criminal offense twice in the criminal information to indicate 

that one count is alleging that a breath test/blood test refusal transpired 

constitutes duplication of counts and creates possible double jeopardy 

implications if the individual is sentenced on each count.”) Here, the trial 

court sentenced Gauthier based upon both counts, making the sentence 

illegal and requiring us to correct it. See Commonwealth v. Kozrad, 499 

A.2d 1096, 1097-98 (Pa. Super. 1985) (Superior Court required to correct 

illegal sentence sua sponte).

Instantly, the trial court ordered Gauthier to serve his terms of 

incarceration for each count concurrently. However, it is unclear from the 

record whether the court fined Gauthier based upon one or both counts. 
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Thus, we vacate and remand for resentencing in accordance with this 

memorandum. See Commonwealth v. Williams, 871 A.2d 254, 266 (Pa. 

Super. 2005) (where ruling of this Court disturbed overall sentencing 

scheme, matter remanded to trial court for resentencing).

Judgment of sentence vacated. Remanded for resentencing. 

Jurisdiction relinquished.

OTT, J., Joins the memorandum.

STEVENS, P.J.E., Files a concurring statement.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/11/2016