J-S45009-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                        IN THE SUPERIOR COURT OF
                                                           PENNSYLVANIA
                            Appellee

                       v.

LUIS NORBERTO,

                            Appellant                     No. 450 EDA 2013


                  Appeal from the PCRA Order January 18, 2013
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0004563-2009


BEFORE: BOWES, WECHT, and FITZGERALD,* JJ.

MEMORANDUM BY BOWES, J.:                            FILED SEPTEMBER 22, 2014

         Luis Norberto appeals from the January 18, 2013 order dismissing his

first petition for post-conviction relief. We vacate the order and remand to

the PCRA court for an evidentiary hearing.

         On August 10, 2009, Appellant pled guilty to aggravated assault

                                                                          -



from an incident in which Appellant, while under the influence of a controlled

substance, caused a four-vehicle crash in the streets of Philadelphia,

severely injuring Natalie Trent.         The trial court summarized the pertinent

facts:
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S45009-14


           On February 20th of 2009, at about 10:48 in the evening a
     four-vehicle crash occurred beginning at the intersection of Park
     Avenue and Somerset Street in Philadelphia, ending one half
     block west on Somerset Street. It was determined that Unit No.
     1[,] which was a 1995 Chrysler Concord being driven by the
     defendant was travelling westbound on Somerset Street and
     without any evidence of braking, crashed its front end into the
     rear end of Unit No. 2. Unit No. 2 was a 2003 Ford Taurus being
     operated by the victim, Natalie Trent.

           After the rear end of her car was hit, the impact crushed
     the rear right corner approximately 3 feet into the car and
     redirected her car southwest over to the southwest corner where

     side door. During the course of events of the initial crash, she
     was forced backwards in the vehicle and rammed her seat back
     which resulted in her traveling through the rear left window
     under the seat belt which was found secured and locked
     consistent with being in use. She was ejected through the
     window coming to rest on the sidewalk.


     Dodge Caravan that was parked there unattended.


     of Unit No. 4, a 2006 Dodge Ram, which was parked unattended
     facing westbound along the no
     redirected again and with its right rear side contacted a wooden
     fence and came to rest.

           Ms. Trent was transported from the scene by medics to
     Temple Hospital, where she was admitted directly to surgery for
     a completely degloved right arm. The skin and underlying tissue
     was completely pulled and torn from the bone from her shoulder
     to her forearm. She also suffered internal injuries and her
     condition was listed as extremely critical and life threatening.

            The Defendant was fo
     car bleeding from his hands, face, and complaining of pain. He
     was determined to be under the influence of drugs. He was
     transported to Temple Hospital, where he was treated for his
     injuries and a blood sample was taken from him.

          Accident investigation processed the scene and found that



                                   -2-
J-S45009-14


                                                         t door
      was pinned closed from damage. There was a concave
      impression on the underside of the dashboard, left of the

      impact.

            Officers returned to Temple Hospital to examine the
      Defendant for injuries and found dried blood on his mouth, two
      cuts on his left hand with large amounts of dried blood on both
      hands, and a section of skin along the lower edge of the left
      knee ripped open and bleeding.

                                                                         nd

      was that, the Defendant was incapable of operating a motor
      vehicle safely on the streets of Philadelphia.

           The victim was hospitalized for several months, had four
      surgeries and was on a ventilator.

PCRA Court Opinion, 12/2/13, at 2-4 (internal citations to the record

omitted).



guilty plea hearing, Judge Defino-Nastasi conducted an oral colloquy and

advised Appellant of the maximum sentences for the offenses.            Appellant

affirmatively acknowledged his understanding that by pleading guilty, he

was, with limited exceptions, waiving his right to appeal his convictions.

      On September 14, 2009, Appellant was sentenced as follows: eight to

sixteen years incarceration for aggravated assault; ten years consecutive

probation   for   AA-DUI;   seventy-two   hours   to    six   months   concurrent

incarceration for DUI; and seven years concurrent probation for criminal

mischief, along with restitution and fines. Id. at 1.




                                     -3-
J-S45009-14


       Appellant filed this, his first PCRA petition, on August 4, 2010.

Counsel was appointed

behalf on March 21, 2012 claiming that, due to ineffective assistance of plea

counsel:

       1.    He was serving an illegal sentence because AA-DUI
       incorporates DUI for sentencing;

       2.    He was serving an illegal sentence because Aggravated
       Assault and DUI merged with Aggravated Assault by Vehicle
       while DUI;

       3.   The specific elements of the crimes to which he pled guilty
       were not set forth;

       4.   The evidence was insufficient to support a conviction for
       aggravated assault for failing to establish the proper mens rea;
       and

       5.
       deficient.

       On September 13, 2012, the PCRA court held a hearing to address the

merger of AA-DUI and DUI, as well as the merger of AA with AA-DUI.1 The

PCRA court agreed that, for purposes of sentencing, the AA-DUI and DUI

merged, but concluded that vacating the sentencing order would not affect

the overall sentencing scheme.2 The PCRA court did not rule at that time as

____________________________________________


1
    No evidence was taken at the hearing; only argument was presented.
2
   All elements of 75 Pa.C.S. § 3802 (DUI) are included within 75 Pa.C.S.
§ 3735 (AA-DUI).     Pursuant to 42 Pa.C.S. § 9765, crimes merge for
sentencing where they arise from a single criminal act and all the elements
of one offense are included in the statutory elements of the other offense.
Where crimes merge, the court may sentence the defendant only for the
(Footnote Continued Next Page)


                                           -4-
J-S45009-14


to whether AA merged with AA-DUI. The PCRA court issued Rule 907 notice

of its intent to dismiss, and on January 18, 2013, it dismissed the petition.

While the PCRA court agreed on the record to vacate the DUI sentence, no

formal order was entered.

      On February 5, 2013, Appellant filed a notice of appeal to this Court.

Judge DeFino-Nastasi issued her Rule 1925(a) opinion on December 2,

2013.3 Appellant presents the following issue for our review:

      The PCRA court erred by denying appellant post-conviction relief
      because trial couns
      plea was not knowing and voluntary and appellant pled guilty
      pursuant to an open guilty plea to an illegal sentence.
                          4




                       _______________________
(Footnote Continued)

higher-graded offense. See 42 Pa.C.S. § 9765; see also Commonwealth
v. Tanner, 61 A.3d 1043 (Pa.Super. 2013), Commonwealth v. Baldwin,
985 A.2d 830 (Pa. 2009), and Commonwealth v. Jones, 629 A.2d 133
(Pa.Super. 1993).
3
   Appellant was not ordered to file a Pa.R.A.P. § 1925(b) concise statement
of errors complained of on appeal.
4
    Appellant raised below, but abandons on appeal, the issue of whether
aggravated assault merges with AA-DUI for sentencing purposes. Since this
is a legality of sentence question, it may be raised here sua sponte.
Aggravated assault and AA-DUI do not merge for sentencing purposes
because 18 Pa.C.S. § 2702(a)(1) (aggravated assault) includes an
intentional, knowing, or reckless mens rea, which is not contained within 75
Pa.C.S. § 3735.1 (AA-DUI requiring negligent mens rea).



                                            -5-
J-S45009-14


                      Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa. 2014).



evidence of record, viewed in the light most favorable to the prevailing party

                  Id.

      Appellant claims that plea counsel was ineffective. Obtaining relief on

a claim of ineffective counsel requires the petitioner to establish: (1) the

underlying claim has arguable me

objective reasonable basis; and (3) the petitioner was prejudiced by

                             Commonwealth v. Elliot, 80 A.3d 415, 427 (Pa.

2013), citing Commonwealth v. Pierce, 527 A.2d 973, 975 (Pa. 1987).

The appellant must prove that the aforementioned claims have merit and

that, had previous counsel pursued them, a more favorable outcome would

be probable. Spotz, supra.

      In connection with a guilty plea, counsel ineffectiveness can provide a

basis for relief only if the ineffectiveness caused an involuntary or unknowing

plea. Commonwealth v. Barndt, 74 A.3d 185, 192 (Pa.Super. 2013). An

appellant need not be pleased with the outcome after the plea is entered as

long as his decision to plead guilty was knowingly, voluntarily, and

intelligently made.    Id.   It must be demonstrated that counsel misled or

misinformed appellant and that the appellant acted under misguided

influence when entering the guilty plea. Commonwealth v. Flanagan, 854

A.2d 489, 502 (Pa. 2004).


                                     -6-
J-S45009-14




for DUI and AA-DUI merged for sentencing purposes, and that the sentence



concurrently with his sentence for aggravated assault and had expired by

the time of appeal.       As there are no civil or criminal consequences

remaining, no relief can be granted and the issue is moot. Commonwealth

v. King, 786 A.2d 993, 996 (Pa.Super. 2001).

      Next, Appellant asserts that counsel was ineffective in advising him to

plead guilty to aggravated assault where the alleged conduct did not supply

the mens rea required to support a conviction. Appellant contends that his

actions, though negligent and perhaps reckless, did not rise to the level of

malice, citing Commonwealth v. McHale, 858 A.2d 1209 (Pa.Super.

2004).   Thus, Appellant contends, since there is arguable merit in his

underlying claim, genuine issues of fact exist as to whether he was properly

advised of this deficiency prior to pleading guilty to AA.

      In response, the Commonwealth argues the issue is waived under 42




guilty to aggravated assault where the evidence may not support the

conviction.   Commonwealth brief, at n.1.     The Commonwealth also argues

generally that the guilty plea was entered knowingly, intelligently, and




                                      -7-
J-S45009-14


voluntarily based on the validity of both the oral and written colloquies

presented and agreed to by Appellant.



ineffective assistance of counsel. The issue concerning the voluntariness of

                                           PCRA court, albeit worded as a

sufficiency of the evidence claim.       The PCRA court recognized that



sufficiency of the evidence claim and treated it as such.    See PCRA Court

Opinion, 12/2/13, at 8, n.1. Since the PCRA court addressed the issue as

one of ineffective assistance of counsel, we decline to find waiver.      Cf.

Commonwealth v. Simpson, 66 A.3d 253, 261 (Pa. 2013) (Supreme Court

                                                        eading defect where




           The Defendant claims that his trial counsel was ineffective
     for counseling him to plead guilty to Aggravated Assault, as a
     felony of the first degree, because the evidence presented by the
     Commonwealth failed to establish that the Defendant acted with
     the requisite mens rea necessary to sustain his conviction.

PCRA Court Opinion, 12/2/13, at 8. (footnote omitted).      It then concluded

that counsel was not ineffective because there was no merit to his

underlying claim that he lacked the malice to support the AA charge.

     Appellant pled guilty to aggravated assault pursuant to 18 Pa.C.S.

§ 2702(a)(1), which provides:



                                   -8-
J-S45009-14


           A person is guilty of aggravated assault, graded as a
     felony of the first degree, if he attempts to cause serious bodily
     injury to another, or causes such injury intentionally,
     knowingly or recklessly under circumstances manifesting
     extreme indifference to the value of human life.

18 Pa.C.S. § 2702(a)(1) (emphasis added).

     The level of recklessness required for aggravated assault under this

subsection rises above the ordinary recklessness needed for lesser charges.

                                , 653 A.2d 616, 618 (Pa. 1995).           Mere

recklessness does not support a conviction on aggravated assault charges

unless demonstrated to a degree constituting malice. In Commonwealth

v. Kling, 731 A.2d 145, 147-48 (Pa.Super. 1999), the court defined malice




Commonwealth v. Pigg, 581 A.2d 571 (Pa.Super. 1990).            In McHale,

supra, this Court referenced Pigg and explained malice:

     For when such a considerable risk of injury or death has been
     created and then callously disregarded, the actor demonstrates
     that he essentially cares not whether he maims or kills another,
     and when a person consciously creates such a high likelihood
     that injury or death will ensue, or continues his action after

     of disposition, hardness of hea

     anyone be injured or killed, but by continuing to act in that
     fashion the actor demonstrates that he simply does not care
     whether harm befalls another.

McHale, supra at 1214.

     While operation of a motor vehicle can easily give rise to both

negligence and recklessness, it rarely rises to the level of malice.   As we

                                   -9-
J-S45009-14


recognized in McHale

steamrolls through a crowd of pedestrians, it would seem unlikely that the

                                                              Id.

     Appellate decisions have dealt with malice in the context of motor

vehicle accidents involving intoxicated drivers in the past and have failed to

find malice outside of the most extreme circumstances.         In            ,

supra, the intoxicated appellant drove his vehicle through a red light and

collided with another vehicle.   Our Supreme Court ruled that intention to

inflict harm could not be found under these circumstances, and that while



          , supra at 618.

     In Commonwealth v. Comer, 716 A.2d 593 (Pa. 1998), the

defendant was driving erratically at high speeds under the influence of

alcohol and barbiturates when he lost control of his vehicle and crashed into

a bus stand, resulting in the death of one person and serious injury to



found that he did not possess the state of mind necessary to show malice.

Id. at 596.

     On similar facts in Commonwealth v. Dellavecchia, 725 A.2d 186

(Pa.Super. 1998) (en banc), this Court held that the evidence failed to

support a finding that the defendant possessed a malicious state of mind.

There, the intoxicated and speeding defendant drove his vehicle into a


                                    - 10 -
J-S45009-14


parked car containing a young woman and child.       This Court relied upon

Comer, supra, to overturn the aggravated assault convictions.       Id.   We

found that, despite driving at excessive speeds and weaving in and out of



thus, did not constitute malice. Id. at 189.

      Similar, too, were the circumstances in McHale, supra, relied upon by

Appellant herein.    There, the defendant had been drinking at a bar

throughout the evening. Upon leaving the bar, he attempted to drive home,



En route, he crashed into a car parked on the side of the road, collided with

two people standing near the car, and attempted to drive away. The force of

the collision was so strong that the parked car was moved eight inches and

the two victims were thrown forty-six and seventy-nine feet, respectively,

suffering severe bodily injury and memory loss. There was no evidence that

the defendant attempted to brake throughout the collision. Id. at 1211-12.

      In McHale, we conducted an extensive analysis of both aggravated

assault and the malicious intent requirement. Upon analyzing the foregoing

cases, this Court found that McHale did not possess the malicious state of

mind necessary to support an aggravated assault conviction. His behavior

was found to be in line with             and its progeny despite the severe

injuries sustained by the victims, his failure to brake, and his attempt to

leave the scene. Id. at 1218.


                                    - 11 -
J-S45009-14


       The PCRA court did not discuss the aforementioned cases in arriving at

its   decision   herein.    Rather,    it   relied   upon   Kling,   supra   and

Commonwealth v. Allen, 833 A.2d 800 (Pa.Super. 2003), in finding

malicious intent. In Allen, the defendant left a bar after drinking for most of

the evening and drove away.       While driving, he struck a fifteen-year-old

male pedestrian, severing his leg and impaling him on the windshield upon

impact. Post impact, the defendant continued to drive for two and one-half



defendant did not stop to render aid, but rather continued to drive for

another five miles.    The victim died shortly thereafter.     Id. at 801.   This



recklessness while directly confronted with the obvious risk of harm to the

victim. Id. at 804.

       In Kling, supra, as distinguished from the present case and all of the

other cases discussed herein, the defendant was not intoxicated at the time

of incident, but rather fully conscious and sober. Kling, supra at 146-47.

Kling was drag racing with another vehicle on dangerous mountain roads.

His vehicle reached speeds in excess of eighty miles per hour. During the

course of the race, the defendant sped around blind turns, narrowly missing

a vehicle traveling in the opposite direction, passed two trucks in front of

him in a no-passing zone, crossed the center line again heading into a sharp

curve, and struck the vehicle driven by the victim, killing her instantly and


                                      - 12 -
J-S45009-14




dangerous conditions of the road, coupled with his clear disregard for the

safety of others, culminated in a malicious state of mind in which he had to

be nearly certain his conduct would result in a serious or fatal incident. Id.

at 150.

        Most recently, in Commonwealth v. Dunphy, 20 A.3d 1215

(Pa.Super. 2011), the defendant was driving under the influence of alcohol

at a speed of fifty to sixty miles per hour in a thirty-five mile-per-hour zone

when he struck a pedestrian crossing the street. The impact sent the victim

soaring through the air and resulted in multiple blunt impact trauma injuries

and death at the scene.       Witnesses to the incident testified that the

defendant briefly braked following the impact, but then sped away. Id. at

1217.     When eventually arrested, the defendant admitted to the arresting

officer that he saw pedestrians crossing the road fifty to one hundred yards

in front of him, but that he accelerated nonetheless in order to make the

light. Id. at 1218.

        In Dunphy, we considered the totality of the circumstances and found

the defendant to possess the requisite malice to support a third-degree

murder charge, noting specifically: (1) the excessive rate of speed in the

presence of pedestrians; (2) his admission that he saw the pedestrians and



(4) the absence of any evidence of a condition that would explain the


                                    - 13 -
J-S45009-14




victim. Id. at 1219-20.

     The facts of the present case, as gleaned from the record, arguably

align with McHale and its predecessors rather than with Allen, Kling, and

Dunphy.     While Appellant clearly acted with negligence and perhaps




exhibited in the latter cases.   Furthermore, the fact that Appellant was

intoxicated may militate against a finding of the requisite malice for an

aggravated assault conviction. As opined by this Court in McHale:

            [In] focusing merely on the tragic consequences of these
     actions, there is a tremendous temptation to
     be thrown at [intoxicated drivers]. However, we cannot let out
     contempt for this irresponsible behavior and compassion for the
     victims involved supplant the legal standards upheld as a part of
     a centuries-old common law tradition and enacted by our
     legislature.

McHale, supra at 1218.

     Although the result herein was horrific, the facts do not on their face



                              Allen (traveling two and one-half miles with a

pedestrian impaled on his windshield, then continuing for five miles after he

rolled off), Kling (drag racing on dangerous roads at excessive speeds and

failing to slow down or stop when near accidents occurred), and Dunphy




                                   - 14 -
J-S45009-14


(seeing pedestrians crossing the street and, nevertheless, continuing to

speed up to make a light).



mens rea to support an aggravated assault conviction.     Thus, we deem it

prudent to conduct an evidentiary hearing to ascertain what counsel advised

Appellant regarding the wisdom of pleading to aggravated assault in order to

determine whether his plea was knowing, intelligent, and voluntary.

Therefore, we vacate the order and remand for an evidentiary hearing on

this matter.

      Order vacated.   Case remanded for proceedings consistent with this

adjudication. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/22/2014




                                    - 15 -
