J-S33007-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    LAMONT N. MCDOWELL                         :
                                               :
                       Appellant               :   No. 2178 EDA 2017

                   Appeal from the PCRA Order May 26, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005742-2009,
                            CP-51-CR-0005744-2009


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                               FILED NOVEMBER 1, 2018

        Lamont N. McDowell appeals pro se1 from the order entered on May 26,

2017, in the Court of Common Pleas of Philadelphia County denying him relief,

without a hearing, on his first petition filed pursuant to the Post Conviction

Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. McDowell claims he has been

subjected to two instances of illegal sentencing.        The PCRA court denied

McDowell relief on a different claim of illegal sentencing. After a thorough

review of the submissions by the parties, relevant law, and the certified

record, we affirm the PCRA order in part, and reverse in part as to the

judgment of sentence for aggravated assault on docket number CP-51-CR-

____________________________________________


   Former Justice specially assigned to the Superior Court.

1McDowell’s appointed counsel filed a Turner/Finley no-merit letter with the
PCRA court and was allowed to withdraw from representation.
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0005742-2009, which must be vacated due to merger.             A full discussion

follows.

        We recount relevant information of the underlying case from the trial

court opinion, dated May 2, 2011.

        On February 23, 2010, [McDowell] was convicted in a bench trial
        on CP-51-CR-0005742-2009,[2] with Cequora Jones as the victim,
        of Criminal Attempt of Murder in violation of 18 [Pa.]C.S. §901(a);
        Aggravated Assault (F-1) in violation of 18 [Pa.]C.S. §2702;
        Possessing an instrument of Crime (PIC) (M-1) in violation of 18
        [Pa.]C.S §907; Recklessly Endangering Another Person (REAP) in
        violation of 18 Pa.C.S. §2705; and Possession of a Firearm without
        a license (M-1) (VUFA) in violation of 18 Pa.C.S. §6106 and
        Carrying a Firearm in public in Philadelphia (VUFA) in violation of
        [18 Pa.C.S.] §6108 and on CP-51-CR-0005744-2009,[3] with
        Kevin Rawls as the victim, of Criminal Attempt of Murder in
        violation of 18 Pa.C.S. §901(a); Aggravated Assault (F-1) in
        violation of 18 [Pa.]C.S. §2702; Possessing an Instrument of
        Crime (PIC) in violation of 18 [Pa.]C.S. §907; and Recklessly
        Endangering Another Person (REAP) in violation of 18 Pa.C.S.
        §2705.

        On April 20, 2010, the Court imposed a sentence on [5742], with
        Cequora Jones as the victim, of 10 years to 24 years[4] on Criminal
        Attempt of Murder; a concurrent term of 8 years to 16 years on
        the Aggravated Assault count; a consecutive term of 2 years to 4
        years on the PIC count; a concurrent term of 2 years to 4 years
____________________________________________


2   Referred to as 5742 hereinafter.

3   Referred to as 5744 hereinafter.

4  This is an incorrect statement. The Commonwealth has pointed out in the
Appellee’s Brief, and a review of the record confirms, that the trial court
announced a 10 to 24 year sentence from the bench, but the written order
filed with the court, which is controlling, shows a 12 to 24 year sentence
imposed.




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       on the VUFA counts; and no further penalty was imposed on the
       REAP count; for an aggregate sentence of 12 to 28 years.[5]

       On [5744] with Kevin Rawls as the victim, this Court imposed a
       sentence concurrent to those sentences imposed on [5742], that
       is 10 years to 24 years on Criminal Attempt of Murder count; a
       concurrent term of 8 years to 16 years on the Aggravated Assault
       count; a consecutive term of 2 years to 4 years on the PIC count;
       a concurrent term of 2 years to 4 year on the VUFA counts; and
       no further penalty was imposed on the REAP count; for an
       aggregate concurrent sentence of 12 years to 28 years.[6]

                                          ***
       This case concerned an attempt to execute Kevin Rawls (Rawls)
       and his companion, Cequora Jones (Jones). [McDowell] put the
       plan in place and Tyrik Nelson (Nelson), the co-defendant,
       executed the plan. [McDowell] lured Rawls to a meeting at 55th
       and Poplar Streets in the City of Philadelphia. Nelson waited, in a
       nearby alley, holding a loaded gun. Rawls arrived at the meeting
       with his companion, Jones. Upon their arrival, Nelson commenced
       shooting at Rawls and Jones.

       The shooting occurred on October 19, 2008, at 2:30 a.m., in the
       vicinity of 55th and Poplar Streets in the City of Philadelphia, when
       [McDowell] and Nelson, completed their conspiracy to shoot
       Rawls. Jones was shot because she was a witness to the events
       that took place that night. Rawls had been in contact with
       [McDowell] by cell phone late in the night of October 18, 2008
       going into the early morning hours of October 19, 2008. Rawls
       agreed to meet [McDowell] at 55th and Poplar Streets. Rawls then
       hooked up with a friend, Jones[,] at 52nd Street and Girard Avenue
       around 1:30 a.m. Rawls took Jones along with him for his
       rendezvous with [McDowell] at 55th and Poplar Streets.
____________________________________________


5 Because of the previously noted error, the aggregate sentence reported in
the trial court opinion is also in error. The actual aggregate sentence for 5742
is 14 to 28 years’ incarceration.

6 Trial court footnote here has been omitted. We note that the announced
sentence for Rawls matches the written order filed. However, due to the prior
noted inconsistency, McDowell’s actual total sentence is 14 to 28 years’
incarceration.



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        When Rawls and Jones got to the corner of 55th and Poplar Streets,
        [McDowell] flagged Rawls down. [McDowell] put his arm around
        Rawls and then they approached the opening of an alleyway.
        When they got to the alleyway, Rawls looked into the alleyway
        and saw a man holding a gun pointed at him. The man holding
        the gun pointed at Rawls was Nelson who fired five shots as he[7]
        ran out of the alley. One of his shots struck Jones in the buttocks.
        Nelson then ran to Jones and told her “just don’t look at my face
        or I’m going to kill you.” Then Nelson pulled Jones’ scarf and shirt
        over her face. Rawls dodged Nelson’s bullets and ran toward 55th
        Street and Girard Avenue. Nelson then chased Rawls and caught
        up to him at 55th Street and Girard Avenue. Rawls tripped and
        the two men began to tussle. Nelson then fired a shot at Rawls’
        head hitting Rawls in his face with the bullet exiting behind his
        ear. Rawls later identified Nelson, the co-defendant, as the
        shooter at a line-up held at Curran-Fromhold Correctional Facility
        at 8100 State Road (CFCF) on April 8, 2009. Rawls also identified
        [McDowell] as the person who lured him to 55th and Poplar
        Streets. Rawls had known [McDowell] since 2005.

        [McDowell] and Nelson were found and arrested at 617 North 55th
        Street which property is owned by [McDowell’s] grandmother,
        Jacklyn McDowell. The arrest took place about two hours after
        the shooting. The black denim Old Navy pants which Nelson was
        wearing when arrested had Rawls’ blood on them as determined
        from DNA tests to which [McDowell] and his co-defendant
        stipulated at trial.

Trial Court Opinion, 5/2/2011, at 1-4.

        McDowell    filed   a   direct   appeal   that   afforded   him   no   relief.

Commonwealth v. McDowell, 53 A.3d 937 (Pa. Super. 2012) (unpublished

memorandum). Thereafter, McDowell did not file a petition for allowance of

appeal (PAA) to the Pennsylvania Supreme Court. In 2014, McDowell filed a

PCRA petition seeking leave to file his PAA. On October 7, 2014, the PCRA

court granted McDowell’s petition. The Pennsylvania Supreme Court denied
____________________________________________


7   Rawls.

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McDowell’s PAA on February 4, 2015. Commonwealth v. McDowell, 109

A.3d 678 (Pa. 2015) (Table). Accordingly, McDowell’s judgment of sentence

did not become final until May 2015,8 when time expired for McDowell to seek

review by the United States Supreme Court. Subsequently, McDowell filed

the instant PCRA petition on June 16, 2015.

       McDowell’s     petition   was    disjointed,   however,   appointed   counsel

discerned a single issue, namely, McDowell’s claim that trial counsel was

ineffective for failing to object to an illegal sentence regarding merger of PIC

and attempted murder. Appointed counsel correctly noted that counsel could

not have been ineffective in that regard as attempted murder and PIC are

simply not subject to merger. Appointed counsel filed a Turner/Finley no

merit letter with the PCRA court and was allowed to withdraw from

representation. McDowell filed the instant appeal, pro se.

       Here, McDowell raises two new claims of illegal sentencing. First, he

claims he was subjected to mandatory minimum sentencing pursuant to 42

Pa.C.S. § 9712(a), and, second, his sentences for attempted murder and

aggravated assault should have merged.

       McDowell’s first issue is easily addressed. Our review of the certified

record demonstrates McDowell was not subjected to sentencing pursuant to




____________________________________________


8 The exact date is unimportant in this instance as there is no question
regarding the timeliness of the instant petition.


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Section 9712(a). Accordingly, the issue is without merit and McDowell is not

entitled to relief on this claim.

      However, McDowell is correct that, regarding the charges at 5742, with

Jones as the victim, the sentences for attempted murder and aggravated

assault should have merged. A claim the trial court failed to merge sentences

is a claim of illegal sentencing, and cannot be waived. See Commonwealth

v. Green, 149 A.3d 43, 52 (Pa. Super. 2016) (citation omitted) (a claim of an

illegal sentence based on merger of the underlying convictions cannot be

waived). Further, we note an “illegal sentence is subject to sua sponte review

and correction, assuming proper jurisdiction.” Commonwealth v. Moriarty,

180 A.3d 1279, 1288 n.5 (Pa. Super. 2018) (citation omitted).

      In 1994, in Commonwealth v. Anderson, 650 A.2d 20 (Pa. 1994), our

Supreme Court ruled that aggravated assault was a lesser included offense to

attempted murder and sentence for the two crimes must merge provided the

same act was the underlying basis for both charges. Specifically, the Supreme

Court held:

      It is clear that the offense of aggravated assault is necessarily
      included within the offense of attempted murder; every element
      of aggravated assault is subsumed in the elements of attempted
      murder. The act necessary to establish the offense of attempted
      murder-a substantial step towards an intentional killing-includes,
      indeed, coincides with, the same act which was necessary to
      establish the offense of aggravated assault, namely, the infliction
      of serious bodily injury. Likewise, the intent necessary to establish
      the offense of attempted murder-specific intent to kill-is greater
      than and necessarily includes the intentional, knowing, or reckless
      infliction of serious bodily injury, the intent required for
      aggravated assault. It is tautologous that one cannot kill without


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       inflicting serious bodily injury. 18 Pa.C.S. § 2301. Inasmuch as
       aggravated assault, the lesser offense, contains some, but not all
       the elements of the greater offense, attempted murder, the two
       offenses merge for purposes of sentencing. The sentence for
       aggravated assault must therefore be vacated.

Id. at 24.

       We recognize that Anderson was decided prior to the enactment of 42

Pa.C.S. § 9765, which sets forth the current statutory requirements for merger

and which states:

       No crimes shall merge for sentencing purposes unless the crimes
       arise from a single criminal act and all of the statutory elements
       of one offense are included in the statutory elements of the other
       offense. Where crimes merge for sentencing purposes, the court
       may sentence the defendant only on the higher graded offense.

42 Pa.C.S. § 9765.

       Anderson addressed one element of merger.            It remains to be

determined whether the instant crimes arose from a single criminal act. We

have reviewed the certified record which clearly demonstrates that the

attempted murder and aggravated assault charges regarding victim Jones

arose from the single criminal act of firing multiple shots at Jones and Rawls

resulting in shooting her once in the buttocks.9 Accordingly, the sentence for

aggravated assault must merge into the sentence for attempted murder with


____________________________________________


9We note the bullet travelled though her body and caused damage to internal
organs. Jones remained hospitalized for several months and required several
surgeries. N.T. Trial, 2/18/2010, at 13-14.




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respect to Jones as the victim. 10 However, McDowell’s sentences for the two

crimes are concurrent to each other, so there is no practical effect upon the

12 to 24 year sentence he is currently serving for the two crimes, nor on the

14 to 28 year aggregate sentence McDowell is serving.

       Order affirmed in part, and reversed in part. Judgment of sentence for

aggravated assault on docket number CP-51-CR-0005742-2009 is vacated.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/1/18




____________________________________________


10 The sentences for attempted murder and aggravated assault do not merge
regarding victim Rawls as those charges arose from two criminal acts. The
aggravated assault occurred when Nelson shot at Rawls in the alleyway and
the attempted murder occurred when Nelson chased Rawls out of the alley,
caught up with him a few blocks from the initial shooting, and then shot Rawls
in the face.



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