J-S71003-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF                        :   IN THE SUPERIOR COURT OF
 PENNSYLVANIA                           :        PENNSYLVANIA
                                        :
                                        :
              v.                        :
                                        :
                                        :
 THEODORE ROBINSON                      :
                                        :   No. 3026 EDA 2016
                   Appellant

              Appeal from the PCRA Order September 8, 2016
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0008332-2007
                                        CP-51-CR-0008333-2007


BEFORE:    PANELLA, J., STABILE, J., and PLATT*, J.

MEMORANDUM BY PANELLA, J.:                      FILED FEBRUARY 20, 2018

      Appellant, Theodore Robinson, appeals from the order entered in the

Philadelphia County Court of Common Pleas, denying his first petition pursuant

to the Post-Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.

Appellant sought PCRA relief to vacate illegal sentences he asserts arose from

the trial court’s failure to merge his aggravated assault convictions with his

attempted murder convictions at sentencing. Appellant, the Commonwealth,

and the PCRA court all agree these convictions should have merged. We too

agree. Therefore, we reverse the PCRA court’s order and vacate Appellant’s

two sentences for aggravated assault, but otherwise leave the remainder of

Appellant’s judgment of sentence and all convictions intact.

      The relevant facts and procedural history of the case are as follows. On

July 30, 2008, a jury convicted Appellant of two counts each of attempted

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* Retired Senior Judge assigned to the Superior Court.
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murder, aggravated assault, and possessing an instrument of crime, as well

as a single count of terroristic threats. The trial court later sentenced Appellant

to consecutive terms of 15 to 30 years’ imprisonment for each of the

attempted murder charges, 2½ to 5 years’ imprisonment for one of the

possessing an instrument of crime convictions,1 and 1 to 5 years’

imprisonment for the terroristic threat charge. Further, the trial court imposed

sentences of 10 to 20 years’ imprisonment for each of the two aggravated

assault charges, to run concurrent to the other sentences. In total, Appellant

received an aggregate sentence of 33½ to 70 years’ imprisonment.

       On direct appeal, this Court affirmed Appellant’s sentence and the

Pennsylvania Supreme Court denied allocator. Appellant filed a timely pro se

PCRA petition. The PCRA court appointed counsel and subsequently permitted

Appellant to amend his PCRA petition multiple times over the course of several

years.

       Finally, on March 3, 2015, Appellant filed an amended PCRA petition

alleging the illegality of his sentences for aggravated assault. The PCRA court

ultimately issued notice of its intent to dismiss Appellant’s petition without a

hearing. Despite Appellant’s response, the PCRA court dismissed Appellant’s

petition without a hearing. This appeal follows.

       On appeal, Appellant seeks to vacate his sentences for aggravated

assault. In support of his argument, Appellant alleges his convictions for
____________________________________________


1
  The trial court did not impose a sentence for the second possessing an
instrument of crime conviction.

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attempted murder and aggravated assault arose from the same incident, and

therefore should have merged for sentencing purposes. Due to the imposition

of sentences for both crimes, Appellant alleges he received an illegal sentence.

Both the Commonwealth and PCRA court agree with Appellant’s argument.

See Commonwealth’s Brief, at 12; PCRA Court Opinion, 4/28/17, at 4-7.

      “On appeal from the denial of PCRA relief, our standard and scope of

review is limited to determining whether the PCRA court’s findings are

supported by the record and without legal error.” Commonwealth v.

Edmiston, 65 A.3d 339, 345 (Pa. 2013) (citation omitted). On questions of

law, our scope of review is de novo. See id.

      Claims asserting the illegality of a sentence are cognizable under the

PCRA provided, as here, the petitioner raises the claim in a timely PCRA

petition. See 42 Pa.C.S.A. § 9542. Whether convictions merge for sentencing

purposes “is a question implicating the legality of Appellant’s sentence.”

Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009) (citation

omitted).

      In relation to merger, the Sentencing Code provides as follows:

      No crime 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.

      “[T]he offense of aggravated assault is necessarily included within the

offense of attempted murder; every element of aggravated assault is

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subsumed in the elements of attempted murder.” Commonwealth v.

Anderson, 650 A.2d 20, 24 (Pa. 1994). Thus, merger in this case would be

appropriate as long as the crimes arose from a single criminal act.

      Everyone   involved   here   agrees   that   Appellant’s   convictions   for

aggravated assault and attempted murder arose from the same criminal act.

And following our review of the record, we find no error in this conclusion. See

Commonwealth v. Robinson, No. 317 EDA 2009, at 2-3 (Pa. Super., filed

October 6, 2009) (unpublished memorandum).              Therefore, Appellant’s

convictions for aggravated assault should have merged with his convictions

for attempted murder for sentencing purposes.

      “If this Court determines that a sentence must be corrected, we are

empowered to either amend the sentence directly or to remand the case to

the trial court for resentencing.” Commonwealth v. Benchoff, 700 A.2d

1289, 1294 (Pa. Super. 1997) (citations omitted). If our disposition upsets

the sentencing scheme, we should remand. See id. That is not the case here.

      As noted, the trial court ordered Appellant’s sentences of 10 to 20 years’

imprisonment for aggravated assault to run concurrent to Appellant’s

aggregate sentence of 33½ to 70 years’ imprisonment. Thus, our finding of

illegality does not affect Appellant’s aggregate sentence.

      Accordingly, we reverse the PCRA court’s order and vacate the judgment

of sentence for both counts of aggravated assault.




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      Order reversed. Judgment of sentence vacated in part and affirmed in

part. Convictions affirmed. Jurisdiction relinquished.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/20/2018




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