J-S02029-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                          Appellee

                     v.

ANTONIO COULTER

                          Appellant                       No. 696 EDA 2014


                  Appeal from the PCRA Order February 7, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013151-2007


BEFORE: MUNDY, OLSON and WECHT, JJ.

MEMORANDUM BY OLSON, J.:                          FILED FEBRUARY 10, 2015

      Appellant, Antonio Coulter, appeals from the order entered on

February 7, 2014, dismissing his first petition filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.               Further, on appeal,

Appellant’s court-appointed counsel has filed a petition for leave to withdraw

as counsel.    We grant counsel’s petition to withdraw and affirm the order

dismissing Appellant’s PCRA petition.

      We   have    previously   explained   the   facts   underlying   Appellant’s

convictions:

        On the morning of September 24, 2007, Philadelphia Police
        Officer Richard DeCoatsworth was on routine patrol in West
        Philadelphia.   At about nine o’clock that morning, he
        observed Appellant driving south on 51st Street in a Buick
        LeSabre with three school-age juvenile boys inside. Officer
        DeCoatsworth [] turned his patrol car around and began
        following Appellant. After briefly losing sight of him, Officer
        DeCoatsworth [] spotted Appellant’s car parked on Farson
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        Street. Officer DeCoatsworth then got out of his patrol car,
        walked over to Appellant’s car, and notified police over the
        radio of the stop. Appellant said, “here comes this dickhead
        cop,” and told the three juveniles to get out of the car.
        Appellant [] got out of his car, pointed a sawed-off shotgun
        at Officer DeCoatsworth’s face from about four or five feet
        away, and fired at Officer DeCoatsworth, striking him in the
        lower left side of his face, and then ran away.

        Despite being severely wounded, Officer DeCoatsworth ran
        after Appellant while giving information over the police
        radio, but later sat down on the steps of a house on Paxon
        Street and radioed for help when he could run no [further].
        Other officers arrived and drove Officer DeCoatsworth to the
        hospital. Appellant eventually reached a house located at
        125 North 52nd Street, broke through the backdoor of the
        house, and tried to undo the latch on the door while yelling
        at [the owner], who was inside, to let him in. [The owner of
        the house] told Appellant to get out[. The owner then
        dialed] 9-1-1[] and ran outside to flag down a police
        officer[.] Appellant was gone by the time police arrived at
        [the] house.

        Officer Thomas Bartol later found Appellant hiding behind a
        tree on the far side of a six-foot fence in the backyard of a
        house located near the 100 block of North Paxon Street.
        Appellant resisted arrest as Officer Bartol tried to handcuff
        him and had to be subdued with pepper spray.

        The shotgun wound to Officer DeCoatsworth’s face caused
        him to lose a section of his lip, part of his tongue, and
        several teeth. He required an emergency tracheotomy and
        at least four reconstructive surgeries and [suffered]
        permanent scars to his face.

Commonwealth v. Coulter, 32 A.3d 819 (Pa. Super. 2011) (unpublished

memorandum) at 1-2 (internal corrections omitted), quoting Trial Court

Opinion, 10/5/10, at 2-3.

     On May 20, 2008, Appellant pleaded guilty to attempted murder,

aggravated assault under 18 Pa.C.S.A. § 2702(a)(2), burglary, criminal


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trespass, possessing a firearm on a public street in Philadelphia, possessing

a prohibited offensive weapon, and resisting arrest.1 See, e.g., N.T. Guilty

Plea, 5/20/10, at 8 (“[t]he second count charges you with aggravated

assault. . . . The Commonwealth is proceeding under [s]ubsection (a)(2) of

Section 2702 of the Criminal Code with regard to that charge”). On June 25,

2008, the trial court sentenced Appellant to serve a term of 20 to 40 years

in prison for the attempted murder conviction and to serve a consecutive

term of 16 to 32 years in prison for the aggravated assault conviction. We

affirmed    Appellant’s     judgment       of    sentence   on   August   1,   2011.

Commonwealth v. Coulter, 32 A.3d 819 (Pa. Super. 2011) (unpublished

memorandum) at 1.

       On January 25, 2012, Appellant filed a timely, pro se PCRA petition.

The PCRA court appointed counsel and counsel then filed an amended PCRA

petition on Appellant’s behalf.          Within the amended petition, Appellant

alleged that trial counsel was ineffective for “not ensuring that [Appellant’s]

challenge to the discretionary aspects of sentencing was preserved by

including a [Pennsylvania Rule of Appellate Procedure] 2119[(f)] statement

in [Appellant’s] appellate brief” and that the trial court “imposed an illegal

sentence when it sentenced [Appellant] consecutively on the charges of

attempted murder and aggravated assault because aggravated assault is a

____________________________________________


1
 18 Pa.C.S.A. §§ 901(a), 2702(a)(2), 3502(a), 3503(a)(1)(ii), 6106(a)(1),
6108, 908, and 5104, respectively.



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lesser included offense of attempted murder and the crimes merge for

sentencing purposes.”      Appellant’ Amended PCRA Petition, 12/24/12, at 2

(some internal capitalization omitted).

      On January 7, 2014, the PCRA court provided Appellant with notice

that it intended to dismiss Appellant’s PCRA petition, without a hearing, in

20 days.      See Pa.R.Crim.P. 907(1).      The PCRA court finally dismissed

Appellant’s PCRA petition on February 7, 2014 and Appellant filed a timely

notice of appeal to this Court.

      After Appellant filed his notice of appeal, the PCRA court ordered

Appellant to file and serve a concise statement of errors complained of on

appeal, pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant complied with the trial court’s order and raised the following claim

in his Rule 1925(b) statement:

        The [PCRA] court erred when it dismissed [Appellant’s]
        PCRA petition requesting that his consecutive sentence for
        aggravated assault be vacated where aggravated assault
        and attempted murder merged for sentencing purposes.

Appellant’s   Rule   1925(b)   Statement,   3/12/14,   at   1   (some   internal

capitalization omitted).

      Prior to submitting a brief to this Court, however, PCRA counsel

determined that the appeal had no merit. As a result, PCRA counsel notified

Appellant that he intended to withdraw from representation and PCRA

counsel filed, in this Court, both a petition to withdraw as counsel and an

accompanying “no merit” brief pursuant to Commonwealth v. Turner, 544


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A.2d 927 (Pa. 1988) and Commonwealth v. Finley, 550 A.2d 213 (Pa.

Super. 1988) (en banc). See Commonwealth v. Wrecks, 931 A.2d 717,

721 (Pa. Super. 2007) (to comply with Turner/Finley, counsel must either

“submit a ‘no-merit’ letter to the trial court[] or [a] brief on appeal to this

Court”). Appellant now raises the following claims on appeal:

        [1.] Whether [Appellant] was provided with ineffective
        assistance of counsel where direct appeal counsel failed to
        file a Rule 2119 statement with his brief thereby waiving
        Appellant’s challenge to the discretionary aspects of
        sentencing[?]

        [2.] Whether the [PCRA] court erred      when it dismissed []
        Appellant’s PCRA petition requesting     that his consecutive
        sentence for aggravated assault          be vacated where
        aggravated assault and attempted         murder merged for
        sentencing purposes[?]

Appellant’s Brief at 6 (some internal capitalization omitted).

      Before reviewing the merits of this appeal, however, this Court must

first determine whether counsel has fulfilled the necessary procedural

requirements for withdrawing as counsel. Commonwealth v. Daniels, 947

A.2d 795, 797 (Pa. Super. 2008). As we have explained:

        Counsel petitioning to withdraw from PCRA representation
        must proceed . . . under [Turner/Finley.               Under]
        Turner/Finley[,] counsel must review the case zealously.
        Turner/Finley counsel must then submit a “no-merit” letter
        to the trial court, or brief on appeal to this Court, detailing
        the nature and extent of counsel’s diligent review of the
        case, listing the issues which the petitioner wants to have
        reviewed, explaining why and how those issues lack merit,
        and requesting permission to withdraw.

        Counsel must also send to the petitioner: (1) a copy of the
        “no-merit” letter/brief; (2) a copy of counsel’s petition to

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        withdraw; and (3) a statement advising petitioner of the
        right to proceed pro se or by new counsel.

                                     ...

        [W]here counsel submits a petition and no-merit letter that
        do satisfy the technical demands of Turner/Finley, the
        court – trial court or this Court – must then conduct its own
        review of the merits of the case. If the court agrees with
        counsel that the claims are without merit, the court will
        permit counsel to withdraw and deny relief.

Wrecks, 931 A.2d at 721 (internal citations omitted).

      Here, counsel has satisfied all of the above procedural requirements.

We will, therefore, “conduct [our] own review of the merits of the case” and

determine whether the claims are in fact meritless. Id.

      At the outset, Appellant’s first claim on appeal is waived, as Appellant

did not include the claim in his court-ordered Rule 1925(b) statement.

Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not included in the [Rule 1925(b)

s]tatement . . . are waived”); Commonwealth v. Castillo, 888 A.2d 775,

780 (Pa. 2005) (“[a]ny issues not raised in a Pa.R.A.P. 1925(b) statement

will be waived”).

      For Appellant’s second and final claim on appeal, Appellant contends

that the PCRA court erred when it dismissed Appellant’s PCRA petition, as

Appellant’s “aggravated assault and attempted murder [convictions] merged

for sentencing purposes.” Appellant’s Brief at 6 (some internal capitalization

omitted). The claim is meritless.

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

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


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

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

      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.

      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.

      In the case at bar, Appellant’s 18 Pa.C.S.A. § 2702(a)(2) aggravated

assault conviction did not merge, for sentencing purposes, with Appellant’s

attempted murder conviction because “all of the statutory elements of one of

the offenses” are not included in the statutory elements of the other.

      In relevant part, Pennsylvania’s Crimes Code defines attempted

murder and aggravated assault in the following manner:

        § 901. Criminal attempt

        (a) Definition of attempt.--A person commits an attempt
        when, with intent to commit a specific crime, he does any



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         act which constitutes a               substantial   step   toward   the
         commission of that crime.

18 Pa.C.S.A. § 901(a).

         § 2502. Murder

         (a) Murder of the first degree.--A criminal homicide
         constitutes murder of the first degree when it is committed
         by an intentional killing.

18 Pa.C.S.A. § 2502(a).

         § 2702. Aggravated assault

         (a) Offense defined.--A person is guilty of aggravated
         assault if he:

                                           ...

              (2) attempts to cause or intentionally, knowingly or
              recklessly causes serious bodily injury to any of the
              officers,  agents,     employees    or   other    persons
              enumerated in subsection (c) or to an employee of an
              agency, company or other entity engaged in public
              transportation, while in the performance of duty.

18 Pa.C.S.A. § 2702(a)(2).2

       A review of the above crimes demonstrates that aggravated assault

under 18 Pa.C.S.A. § 2702(a)(2) does not merge with attempted murder.

Indeed, as this Court has previously explained:

         Attempted murder includes an element that is not required
         to commit aggravated assault under section 2702(a)(2).
         That element is a specific intent to kill. Aggravated assault
____________________________________________


2
  Officer DeCoatsworth was a police officer and was, therefore, included in
the class of persons “enumerated in [18 Pa.C.S.A. § 2702](c).” 18 Pa.C.S.A.
§ 2702(a)(2); see 18 Pa.C.S.A. § 2702(c)(1).



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        under section 2702(a)(2) includes elements that are not
        required to commit attempted murder. Those elements are
        proof that the victim was an enumerated officer in the
        performance of duty.

        Thus, because each crime has at least one additional
        element not included in the other crime, neither can be a
        lesser-included offense of the other.     Accordingly, [the
        crimes do not] merge [] for purposes of sentencing.

Commonwealth v. Johnson, 874 A.2d 66, 71-72 (Pa. Super. 2005).

     In accordance with both the plain statutory language of the crimes and

our binding precedent in Johnson, we conclude that Appellant’s claim – that

his aggravated assault conviction under 18 Pa.C.S.A. § 2702(a)(2) merged

with his attempted murder conviction – is meritless.

     We have independently conducted our own review of this case and we

agree with appointed counsel that the current appeal has no merit. Thus,

we grant counsel’s petition to withdraw and affirm the order dismissing

Appellant’s PCRA petition.

     Petition to withdraw as counsel granted. Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/10/2015




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