J-S56020-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                         :        PENNSYLVANIA
                                         :
                v.                       :
                                         :
                                         :
 JAMEICE NASH                            :
                                         :
                     Appellant           :   No. 716 EDA 2018

        Appeal from the Judgment of Sentence September 12, 2017
 In the Court of Common Pleas of Philadelphia County Criminal Division at
                     No(s): CP-51-CR-0011415-2013


BEFORE: PANELLA, P.J., OLSON, J., and NICHOLS, J.

MEMORANDUM BY OLSON, J.:                          FILED AUGUST 03, 2020

     Appellant, Jameice Nash, appeals from the judgment of sentence

entered on September 12, 2017, as made final by the denial of Appellant’s

post-sentence motion on February 16, 2018. We vacate Appellant’s judgment

of sentence in part.     Specifically, we vacate the portion of Appellant’s

judgment of sentence, wherein Appellant received a concurrent term of ten to

20 years in prison for aggravated assault. However, since our ruling does not

disturb the trial court’s sentencing scheme, we will not remand this case for

resentencing.

     On the morning of June 12, 2013, Appellant slit his seven-year-old

daughter’s throat with a knife.   He was arrested that day and was later

charged with attempted murder, aggravated assault as a felony of the first

degree, and other crimes. Following a number of continuances – all of which
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were at Appellant’s request – Appellant proceeded to a bench trial on June 7,

2017. The following evidence was presented during Appellant’s trial.

      Philadelphia Police Officer Chad Jeter testified that, at 7:36 a.m. on June

12, 2013, he responded to the area of Clivenden and Belfield Streets in

Philadelphia for a report of a person with a weapon. He testified:

        I pulled up and I exited my vehicle when I observed
        [Appellant] holding a little girl with his left hand and a knife
        in his right hand. I then said to him to drop the knife, he
        threw it in the grass, then he let her go.

        So then she ran towards my way and I asked her did he do
        that to you, because I [saw] a large[,] . . . bleeding . . . gash
        on her neck; she said, yes.         That’s when we placed
        [Appellant] into custody.

N.T. Trial, 6/7/17, at 13 and 15.

      Philadelphia Police Officer Allen Carroll testified that he was the second

officer to arrive on scene and he witnessed Appellant restraining the crying

victim, R.G. (hereinafter “the Victim”), with the knife and yelling “this is not

my daughter.” Id. at 63 and 72. The officer described the knife as “a big

kitchen steak knife or like a long knife – like you’ll see in the movies.” Id. at

66.

      Officer Carroll testified that, after Appellant dropped the knife, he saw

that the Victim “had a lot of blood all over her” and, because “she was bleeding

so much,” the officer immediately drove her to the hospital. Id. at 64. As

the officer testified, “[y]ou could actually see [the Victim’s] windpipe” and,




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during the drive to the hospital, the Victim was “holding her own neck closed.”

Id. at 65.

      The Victim was seven years old at the time of the attack and 11 years

old at the time of Appellant’s trial.    Id. at 40.   The Victim testified that

Appellant is her father and, on the morning of attack, she and Appellant left

her grandmother’s house together, so that the Victim could go to school. The

Victim testified that, when she and Appellant were in front of the house,

Appellant “just stood there for a second and he took out the knife” and sliced

her across her neck with the knife. Id. at 55-58. During cross-examination,

the Victim testified that she “think[s] it was an accident” because Appellant

“has always been, like, a loving dad.” Id. at 58.

      Appellant’s mother and the Victim’s grandmother, M.B.H. (hereinafter

“the Grandmother”), testified as to what occurred on the morning of June 12,

2013. She testified:

        On the morning of June 12th . . . [Appellant] came [to my
        house] about, approximately seven in the morning with [the
        Victim]. They were coming around from the other house . .
        . and he came, he got her ready for school. He fixed her
        breakfast and everything. And then he went outside. He left
        to go – to take her to school and I remember – I called the
        cops, because I didn’t like the way he looked.

        He was on prescription drugs and stuff like that. He just
        wasn’t looking right, so I didn’t want him to drive her to
        school, I wanted to drive her myself.

                                        ...

        [Also, when Appellant first came into my house on the
        morning of June 12, 2013,] I saw blood on his shirt and I

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        didn’t see [the Victim]. They always come together. I didn’t
        ask any questions, because [Appellant] was mumbling to
        himself and stuff, but the blood on his shirt kind of gave me
        an alarm. So I was, like, where is [the Victim], to myself.

        So I called the police and then [the Victim] said, grandma,
        mommy hit daddy, but daddy got her back. So that made
        me more alarm[ed]. So that’s when I called the police. I
        went to my room and I called the police.

        So then I came outside. They already left downstairs to go
        to school. They were walking towards the van when the
        police came out the other side.

                                    ...

        The police [were] coming down the street. [Appellant] was
        already almost at the van, but then, when the police lady
        came over to me, I turned to look, because I wanted to show
        them him. But when I looked, I saw [the Victim] standing by
        herself and then I saw the blood on her shirt.

                                    ...

        [The Victim] didn’t scream. She didn’t say nothing. I just
        saw her standing. What alarmed me was the blood on her
        shirt.

        So I screamed out to her and [told] her to run to grandma,
        she did.     Then when I realized she got the cut here
        (indicating). I started screaming and then everything just
        went from there.

N.T. Trial, 6/8/17, at 10-13.

      During the Grandmother’s testimony, the Commonwealth played a

recording of the 911 call she made to the police.      After listening to the

recording, the Grandmother acknowledged that she told the 911 operator:




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“my son, I think he’s high on wet.[1] He has the baby with him. He’s about

to take her to school, but he has a knife.”          See id. at 17-20 (some

capitalization omitted).

       Philadelphia Police Detective Justin Montgomery testified and read from

a statement that the Grandmother gave to him on June 12, 2013. Detective

Montgomery testified that he asked the Grandmother the questions and the

Grandmother responded by providing him with the answers:

         [Question]: Can you tell me what took place this morning?

         [Answer]: My son came home to my house with the baby.
         When he came in, he was fussing and he was mad. He said
         that she, [the Victim’s] mother, busted him in the mouth.
         And he was going to go find her and kill her. . . .

         [Question]: Was [the Victim] with [Appellant] when this was
         taking place?

         [Answer]: Yes.

         [Question]: Can you tell me what happened after he was
         making these statements?

         [Answer]: When this happened, [Appellant] was changing the
         baby’s clothes. He said that he was going to take her to
         school. He poured her some cereal and he was telling her to
         eat, because he was going to be late for work.

         I saw a knife on the table when he was saying these things.
         Like he was going to kill the mother. I called the cops,
         because I was scared.
____________________________________________


1 “‘Wet’ . . . can be used to refer both to a marijuana cigarette dipped in liquid
PCP and to the PCP component on its own, which is also used to coat ordinary
cigarettes and other substances.” What is ‘Wet?’ Dangerous Drug Cocktail,
available at https://www.livescience.com/22917-wet-pcp-marijuana.html
(last visited February 11, 2020).

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       [Question]: Can you tell me what kind of knife was on the
       table?

       [Answer]: First, I saw, like a kitchen steak knife. I took that
       away and I was hiding the knives. And then I saw a knife on
       the table that would have been the one in a set of knives,
       like, the one that you would cut meat with.

       [Question]: Can you tell me, what was [the Victim] doing
       when this was taking place?

       [Answer]: She was sitting there eating the cereal, and he was
       saying, hurry up, I have to go find your mother.

       [Question]: What did you do after you gathered up the
       knives?

       [Answer]: After gathering up the knives, I locked myself in
       my bedroom with my grandson and I called the police.

       [Question]: Can you tell me, while in the bedroom, what did
       you hear?

       [Answer]: I was hearing him say he was going to kill the
       mother.

       [Question]: What was your son’s appearance, when he
       arrived at your home?

       [Answer]: He had blood on his shirt and he said that the
       mother had busted his lip.

       [Question]: Can you tell me what caused you to come out of
       your bedroom?

       [Answer]: The baby was eating the cereal, and he was telling
       her to hurry up. I heard him start yelling at the baby. You’re
       just like your mother.

       I came outside my room to talk to him. I walked down the
       stairs to the street to look for the cops.




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        The baby and my son were behind me, following me down
        the stairs to go outside.

        [Question]: What took place, after you got outside?

        [Answer]: When we got outside and walked to the left on the
        sidewalk to look for the cops, my son and the baby walked to
        the right. And when my son and the baby got under the tree,
        I saw them stop walking.

        I saw the first cop car and I yelled at the cops for them to
        come faster. I saw blood on the baby’s shirt. And the cops
        went over to him.

        They pulled their guns out and he threw the knife in the grass.

                                      ...

        [Question]: Can you tell me, to your knowledge, does your
        son use any narcotics?

        [Answer]: He uses drugs, but I don’t know what it is, but I
        heard from his brother, it’s called, wet.

N.T. Trial, 6/16/17, at 14-18 (some capitalization omitted).

      Finally, the Commonwealth read the following portions of the Victim’s

medical records into evidence:

        [The Victim] presented with a ten-centimeter laceration to
        her left anterior neck, stretching from the left side of her neck
        to the midline. Cut through the skin and muscle layers, as
        well as fat.

        The bleeding of the wound was controlled at the time of her
        arrival.  Upon arrival, [the Victim] reported to medical
        professional that, quote, her father kicked her mother out of
        the house then threatened to kill her, and put the knife up to
        her neck.

        She later reported that her father cut her accidentally. She
        later reported that her father told her, hurry up, you’ll be late



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         for school or I’ll kill you. Went into the kitchen to retrieve a
         knife and cut her neck.

         [The Victim] was in stable condition at [Albert Einstein
         Medical Hospital] and a 4x4 gauze dressing was applied to
         her wound. An x-ray and a CT-scan did not reveal any
         extensive vascular injury.

         Once she was stabilized, she was transported to St.
         Christopher’s Hospital for [C]hildren by ambulance for further
         treatment.

                                           ...

         [There, s]he presented with what medical professionals
         described as an acute injury, again, described as a
         ten-centimeter laceration to her neck. This required a
         surgical repair to close the sternal clinoid mastoid muscle, the
         subcutaneous fat skin.

         [The Victim] tolerated the procedure well and the wound was
         dressed.

N.T. Trial, 6/16/17, at 53-55.

       After the Commonwealth rested, Appellant testified in his own defense.

Appellant testified that he accidentally cut his daughter when, while holding a

knife, he tried to fix the Victim’s uniform collar and the Victim suddenly moved.

N.T. Trial, 7/6/17, at 30-31.

       The trial court found Appellant guilty of attempted murder, aggravated

assault as a felony of the first degree, unlawful restraint, endangering the

welfare of children, and possessing an instrument of crime (“PIC”).2 See id.

at 69. On September 12, 2017, the trial court sentenced Appellant to serve
____________________________________________


2 18 Pa.C.S.A. §§ 901(a), 2702(a)(1), 2902(a)(1), 4304(a)(1), and 907(a),
respectively.


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an aggregate term of ten to 20 years in prison, followed by ten years of

probation, for his convictions. N.T. Sentencing, 9/12/17, at 27-28. The trial

court structured Appellant’s sentence in the following manner: ten to 20 years

in prison for attempted murder; a concurrent term of ten to 20 years in prison

for aggravated assault as a felony of the first degree; a consecutive term of

ten years of probation for unlawful restraint; and, concurrent terms of five

years of probation for endangering the welfare of children and PIC. Id. at

28-30.

       On February 16, 2018, Appellant’s timely post-sentence motion was

denied by operation of law and Appellant filed a timely notice of appeal. 3,    4, 5


Within Appellant’s briefs, Appellant raises six claims on appeal:
____________________________________________


3 The trial court did not order Appellant to file a concise statement of errors
complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b).

4 The Honorable Carolyn H. Nichols was Appellant’s trial court judge and, in
January 2018, Judge Nichols left the trial court bench to become a jurist on
the Pennsylvania Superior Court. Since Appellant did not file his appeal until
March 6, 2018, Judge Nichols did not file a Pennsylvania Rule of Appellate
Procedure 1925(a) opinion in this case.

5 Appellant’s counsel initially filed a petition to withdraw and an accompanying
brief pursuant to Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) and
Anders v. California, 386 U.S. 738 (1967). On March 2, 2020, this Court
issued a Memorandum that denied counsel’s petition to withdraw and directed
counsel to file an advocate’s brief, as we discovered a non-frivolous issue on
appeal. See Memorandum, 3/2/20, at 13-14.

Before Appellant’s counsel filed his advocate’s brief in this case, Appellant filed
a “Motion to Withdraw Direct Appeal Counsel and Motion to Proceed Pro Se,”
in which Appellant requested permission to proceed pro se on appeal. Based



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         [1.] Was the sentence imposed upon [Appellant] by the [trial]
         court on the charge of aggravated assault illegal, where that
         charge is required to merge with the conviction for attempted
         murder?

         [2.] Direct appeal counsel miscarriage of justice.

         [3.] Trial court’s subject matter jurisdiction not invoked and
         Commonwealth and trial court devoid of Tenth Amendment
         sovereign state police power.

         [4.] Unconstitutional sentences under the 6th, 8th, 10th, and
         14th Amendments.

         [5.] Insufficient evidence and lack of weight of the evidence.

         [6.] New rule of law – McCoy v. Louisiana.


____________________________________________


upon our Supreme Court’s opinion in Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998), we concluded that Appellant’s request to proceed pro se was
timely. Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (holding
that, where “appellant filed petitions to dismiss counsel and proceed pro se
before an appellate brief was filed by counsel,” the request to proceed pro se
was timely). Thus, we remanded this case to the trial court, to enable the
trial court to conduct a Grazier hearing and determine whether Appellant
knowingly, voluntarily, and intelligently waived his right to a counseled direct
appeal.

In accordance with our direction, the trial court conducted a Grazier hearing
and granted Appellant permission to proceed pro se. Appellant then filed a
motion in this Court, where he requested permission “to proceed on appeal
upon Appellant’s Brief in Opposition to Anders Brief.” See Appellant’s Motion,
7/6/20, at 1. He further requested “leave to file a supplemental brief asserting
new substantive – and procedural – functioning U.S. Supreme Court case law
buttressing claims already presented.” Id. We grant Appellant’s motion in
part and deny this motion in part. Specifically, we grant Appellant’s request
to proceed, on this appeal, on his brief in opposition to the Anders brief. We
deny Appellant’s request for supplemental briefing, as Appellant admits that
this supplemental briefing would only serve to “buttress[] claims already
presented.” See id.


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Appellant’s Brief at 4; Appellant’s Letter-Brief Objecting to Counsel’s

Anders/McClendon Brief, 10/1/19, at 1-38 (hereinafter “Appellant’s Pro Se

Brief”).

      First, Appellant claims that his sentence is illegal, as his aggravated

assault conviction should have merged with his attempted murder conviction

for sentencing purposes. We agree.

      “Whether Appellant’s convictions merge for sentencing is a question

implicating the legality of Appellant’s sentence. Consequently, our standard

of review is de novo and the scope of our review is plenary.” Commonwealth

v. Baldwin, 985 A.2d 830, 833 (Pa. 2009). Further, “challenges to an illegal

sentence can never be waived and may be raised sua sponte by this Court.”

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) (internal

quotations and citations omitted).

      Pennsylvania’s merger doctrine is codified at 42 Pa.C.S.A. § 9765. This

statute provides:

            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.A. § 9765.




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      As our Supreme Court has explained, the “mandate of [Section 9765] is

clear. It prohibits merger unless two distinct facts are present: 1) the crimes

arise from a single criminal act; and 2) all of the statutory elements of one of

the offenses are included in the statutory elements of the other.” Baldwin,

985 A.2d at 833.

      The Commonwealth charged Appellant with attempted murder and

aggravated assault.   As to the aggravated assault charge, the information

declares:

        COUNT 2:                    Aggravated Assault – (F1)

        Offense Date: 6/12/13       18 § 2702 §§ A

        (1) Attempted to cause serious bodily injury to another, or
        caused such injury, intentionally, knowingly, or recklessly
        under circumstances manifesting extreme indifference to the
        value of human life; or

        (4) Attempted to cause, or intentionally or knowingly caused
        bodily injury to another with a deadly weapon.

        Complainant: [the Victim]

Commonwealth’s Information, 9/17/13, at 1.

      At first blush, under this count, the Commonwealth purportedly charged

Appellant with aggravated assault under 18 Pa.C.S.A. § 2702(a)(1) and

(a)(4). However, the heading of the count identifies the aggravated assault

charge as a felony of the first degree – and only aggravated assault under

section 2702(a)(1) is a felony of the first degree. See 18 Pa.C.S.A. § 2702(b)

(effective 12/24/12 to 12/31/13) (“Aggravated assault under subsection



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(a)(1) and (2) is a felony of the first degree. Aggravated assault under

subsection (a)(3), (4), (5), (6) and (7) is a felony of the second degree”).

Therefore, the Commonwealth only charged Appellant with aggravated assault

under section 2702(a)(1). Moreover, the trial court found Appellant guilty of

aggravated assault “as charged” and then specifically declared that it was

sentencing Appellant for “aggravated assault, which is an F1.”       N.T. Trial,

7/6/17, at 69; N.T. Sentencing, 9/12/17, at 28-30.        Thus, the trial court

convicted and sentenced Appellant for aggravated assault under 18 Pa.C.S.A.

§ 2702(a)(1).

      Our Supreme Court has held that the offense of aggravated assault

under 18 Pa.C.S.A. § 2702(a)(1) merges with the offense of attempted

murder.    Commonwealth v. Anderson, 650 A.2d 20, 24 (Pa. 1994).

Further, since Appellant’s convictions for attempted murder and aggravated

assault arose out of the same criminal activity, it is undisputed that the trial

court erred in sentencing Appellant for both crimes. See 42 Pa.C.S.A. § 9765.

To be sure, the Commonwealth concedes trial court error in this case. See

Commonwealth’s Brief at 7.       Therefore, we must vacate the portion of

Appellant’s judgment of sentence, wherein the trial court sentenced Appellant

to serve a term of ten to 20 years in prison for aggravated assault.

      However, in this case, the trial court ordered that Appellant serve his

sentence for aggravated assault concurrent to his sentence for attempted

murder.   Given this fact, our disposition does not disturb the trial court’s

overall sentencing scheme.     We will, therefore, not remand this case for

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resentencing. Commonwealth v. Robinson, 817 A.2d 1153, 1163 n.14 (Pa.

Super. 2003) (holding:       “our disposition does not upset the [trial] court’s

sentencing scheme as the sentence we reverse here had been ordered to run

concurrent to the sentence imposed on [another] conviction.             Under these

circumstances, there is no need to remand for resentencing”).

      Next, Appellant claims that his direct appeal counsel was ineffective for

filing an Anders brief in this case. This claim is moot, as we denied counsel’s

request to withdraw and ordered counsel to file an advocate’s brief.

      For his third claim on appeal, Appellant contends that the trial court did

not   possess     subject   matter   jurisdiction   over   his   case   because   the

Commonwealth did not properly apprise him of the crimes charged.

Appellant’s Pro Se Brief, 10/1/19, at 8. This claim is frivolous, given that the

Commonwealth filed an information and formally charged Appellant with all

crimes for which he was convicted.           See Commonwealth’s Information,

9/17/13, at 1-3.

      Fourth, Appellant claims that his sentence is unconstitutional “under the

6th, 8th, 10th, and 14th Amendments.” Appellant’s Pro Se Brief, 10/1/19, at

16. Appellant’s argument on this point is incomprehensible and nonsensical.

The claim is thus waived. Commonwealth v. Spotz, 716 A.2d 580, 585 n.5

(Pa. 1999) (“[the Pennsylvania Supreme Court] has held that an issue will be

deemed to be waived when an appellant fails to properly explain or develop it

in his brief”).




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      Fifth, Appellant generically claims that the evidence was insufficient to

sustain his convictions. As to this claim, we note that Appellant requests that

we view the evidence in the light most favorable to him and simply accept his

testimony that “he ‘accidentally’ cut his daughter’s neck while fixing her collar”

and the Victim’s testimony that she believed her father cut her throat “by

accident.” See Appellant’s Pro Se Brief, 10/1/19, at 30-31.

      Contrary to Appellant’s claim, our standard of review requires that we

view the evidence “in the light most favorable to the Commonwealth, as the

verdict winner, and [] draw all reasonable inferences in favor of the

Commonwealth.” Commonwealth v. Brown, 52 A.3d 1139, 1164 (Pa. 2012)

(quotations and citations omitted). Although we will not repeat the wretched

and heartbreaking facts of this case, we note that, viewed in the proper light,

the evidence thoroughly supports Appellant’s convictions.         See supra at

**1-8.   Appellant’s request that we view the evidence in the light most

favorable to him necessarily and immediately fails.

      Finally, Appellant claims that he is entitled to benefit from “the

intervening change in law of McCoy v. Louisiana.” Appellant’s Pro Se Brief,

10/1/19, at 32. This argument is also incomprehensible and, thus, waived.

Spotz, 716 A.2d at 585 n.5.

      Judgment of sentence vacated in part. Appellant’s “Motion to Proceed

upon Appellant’s Opposition Brief to Anders Brief” granted in part and denied

in part. Jurisdiction relinquished.




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        Judge Nichols did not participate in the consideration or decision of this

case.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/3/20




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