J-S47007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

SUILAMON JEFFERSON

                          Appellant              No. 2764 EDA 2015


         Appeal from the Judgment of Sentence August 31, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0012934-2012


                                      *****

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
         Appellee

                     v.

SUILAMON JEFFERSON

         Appellant                               No. 2766 EDA 2015


         Appeal from the Judgment of Sentence August 31, 2015
          In the Court of Common Pleas of Philadelphia County
          Criminal Division at No(s): CP-51-CR-0012936-2012


BEFORE: LAZARUS, J., MOULTON, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY LAZARUS, J.:                      FILED AUGUST 24, 2017
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        In these consolidated appeals,1 Suilamon Jefferson (“Suilamon”)

appeals from the judgments of sentence, imposed in the Court of Common

Pleas of Philadelphia County, after he was found guilty of one count each of

aggravated assault2 (F2), conspiracy to commit aggravated assault3 (F2),

possession of an instrument of a crime4 (M1), simple assault5 (M2), and

recklessly endangering another person6 (M2) at each docket number.7 We

affirm in part, vacate in part and remand for resentencing.

        On September 10, 2012, police responded to a disturbance at the

home of Crystal Roame (“Roame”), located at 5122 North Fairhill Street in

Philadelphia.     The police instructed the neighbors to disperse from the

residence. Zakia Jackson and her family lived two houses away from Roame

at 5118 North Fairhill Street.         Jackson and her family have a history of

disagreements with neighbors on the 5100 block of North Fairhill Street. On

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1
  On October 1, 2015, this Court sua sponte consolidated Suilamon’s two
separately filed appeals at 2764 EDA 2015 and 2766 EDA 2015. See
Pa.R.A.P. 513.
2
    18 Pa.C.S. § 2702(a).
3
    18 Pa.C.S. § 903(c).
4
    18 Pa.C.S. § 907(a).
5
    18 Pa.C.S. § 2701(a).
6
    18 Pa.C.S. § 2705.
7
    CP-51-CT-0012934 and CP-51-CR-0012936.



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the day of the incident, Suilamon, his brother and co-defendant Jahad

Jefferson (“Jahad”), six women, and two other men were at Jackson’s

residence.

     After the neighbors dispersed and the police left the scene, Roame,

her daughters Kira Truesdale and Kaysha Roame, and other family members

congregated on Roame’s porch when they realized that something had been

thrown at the residence. At this time, Jackson and several other neighbors,

including Suilamon, approached the Roame residence shouting, “don’t cry,

don’t cry, don’t be crying after we finish with you all.”   N.T. Waiver Trial,

5/23/2013, at 110.    The altercation became physical when Jahad blocked

Truesdale’s entrance to Roame’s home and Truesdale attempted to evade

Jahad and enter the home. Suilamon struck Truesdale in the head with a

metal pipe. Suilamon then struck Roame in the head with the metal pipe.

Jahad also struck Kaysha Roame on the arm with an aluminum baseball bat.

     Philadelphia Police Officer Joseph Burke was dispatched to the scene,

where he detained Suilamon and Jahad after observing Suilamon carrying a

three-foot metal pipe and Jahad wearing a blood-stained shirt. When Officer

Burke returned with Suilamon and Jahad to the scene, Roame and Kira

Truesdale identified the co-defendants as their attackers.       The victims,

including Kaysha Roame, were then taken to Einstein Medical Center for

treatment.    Crystal Roame received eighteen stitches in her head, Kira

Truesdale received eight staples in her head, and Kaysha Roame received

treatment for a fractured arm.

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      Suilamon waived his right to a jury trial and was convicted on all

counts after a waiver trial on May 23, 2013.        When Suilamon failed to

appear for his sentencing hearing on July 15, 2013, a bench warrant was

issued for his arrest.   Suilamon was later arrested on March 15, 2015.      A

judge-only bench warrant hearing occurred on August 31, 2015, at which

time Suilamon was sentenced.

      The trial court sentenced Suilamon to five to ten years’ incarceration

for the aggravated assault and conspiracy to commit aggravated assault

charges, on each docket number.       These sentences were ordered to run

concurrently.   Suilamon was sentenced to three years’ probation for

possession of an instrument of a crime and two years’ probation for each

offense of simple assault and recklessly endangering another person on each

docket number. The probationary sentences were ordered to run concurrent

to each other, but consecutive to the periods of incarceration.

      Suilamon filed a timely notice of appeal and a court-ordered Pa.R.A.P.

1925(b) concise statement of errors complained of on appeal, followed by a

supplemental statement on March 23, 2016.        The trial court filed its Rule

1925(a) opinion on November 22, 2016.

      On appeal, Suilamon raises the following issues for our review:

      (1) Did the court illegally sentence appellant on charges that he
          was not found guilty of?

      (2) Did the court illegally sentence appellant on simple assault
          where it merged into the aggravated assault charge for
          sentencing purposes?


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       (3) Did the court illegally sentence appellant on simple assault
           M2 and REAP M2 to three years[‘] probation on each offense
           where the maximum penalty allowed is two years?

Brief of Appellant, at 3.

       We note that in his Rule 1925(b) statement Suilamon raises sufficiency

of the evidence claims. However, in his appellate brief, he has abandoned

those claims and raises three legality of sentence issues. This is not fatal to

review of his claims, however, because “[a] challenge to the legality of

sentence     .   .   .   need   not   be       preserved   and   is   never   waivable.”

Commonwealth v. Foster, 17 A.3d 332, 334 n.1 (Pa. 2011).                      See also

Commonwealth v. Melvin, 103 A.3d 1, 52 (Pa. Super. 2014) (challenges

to legality of sentence are not waivable and may be reviewed sua sponte by

this Court).8

       Suilamon argues that the trial court judge illegally sentenced him on

charges for which he was not convicted based on confusion between docket

numbers.

       An appellate court must review the records entered by the trial court

when determining whether a defendant was sentenced on charges for which

he was not convicted.        Commonwealth ex rel. Woods v. Howard, 378

A.2d 370, 372 (Pa. Super. 1977). Typically, the text of a sentencing order


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8
  When reviewing a claim challenging the legality of a sentence, this Court’s
standard of review is de novo and our scope of review is plenary.
Commonwealth v. Baldwin, 985 A.2d 830, 833 (Pa. 2009).



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and not the statements a trial court makes about a defendant’s sentence is

determinative of the court’s sentencing intentions and the sentence

imposed. See Commonwealth v. Borrin, 12 A.3d 466 (Pa. Super. 2011)

(en banc).     Accordingly, “oral statements made by the judge in passing

sentence, but not incorporated in the written judgment signed by him, are

not part of the judgment of sentence.” Howard, supra at 372.

       Suilamon claims that the trial court judge recited co-defendant Jahad

Jefferson’s docket number,9 and not his, at the conclusion of his waiver trial,

thus resulting in an illegal sentence. Further, Suilamon claims that during

sentencing, neither the judge, the court clerk, nor his defense attorney

mentioned charges that corresponded to his docket numbers.

       At the beginning of the waiver trial, the trial court established that

Suilamon was being charged for crimes based on CP-51-CT-0012934 and

CP-51-CR-0012936, the correct docket numbers.             N.T. Waiver Trial,

5/23/2013, at 14.         The trial court’s August 31, 2015 sentencing order

indicates that Suilamon was sentenced on the correct charges under the

correct docket number for which he was convicted.        A review of the trial

court’s docket and the sentencing transcripts further establish that Suilamon


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9
  At the conclusion of the waiver trial on May 23, 2013, Judge Covington
mistakenly advised the court that she was convicting Suilamon of the
charges on docket number CP-51-CR-0012932-2012. This was co-defendant
Jahad Jefferson’s docket number.




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was correctly sentenced; any oral statements pertaining to incorrect docket

numbers not incorporated in the written judgment are not part of his

judgment of sentence. Id. Thus, we find Suilamon’s sentences legal in this

regard.

        Suilamon also claims that the trial court illegally sentenced him on his

conviction of simple assault because it should have merged with aggravated

assault for sentencing purposes. Pursuant to the merger doctrine,

        [n]o 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.

        The true test for determining whether particular crimes merge is not

whether criminal acts are successive steps in a sequence of acts, but

whether one crime necessarily involves the other.          Commonwealth v.

Cavanaugh, 420 A.2d 674, 676 (Pa. Super. 1980).           It is well established

that the elements of simple assault are necessarily included in the crime of

aggravated assault.10 Id.

        Instantly, Suilamon was convicted and sentenced for aggravated and

simple assault at each docket number11 for his striking Truesdale and Crystal
____________________________________________


10
     See 18 Pa.C.S. § 2701(a); 2702(a).
11
     CP-51-CT-0012934 and CP-51-CR-0012936.




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Roame in the head with a metal pipe. Similarly, in Cavanaugh, supra, the

defendant struck the victim on an arm, both legs, and the head with a tire

iron.   The victim sustained lacerations of the head, requiring nine stiches.

Id. at 675. The defendant was sentenced to 11 ½ and 23 months for simple

assault and aggravated assault.          Id.   On appeal, the defendant raised the

issue of merger.      Our Court found that the trial court erred in sentencing

defendant on the lesser included offense, simple assault, where the criminal

conduct arose from a single act. Id. at 676.

        Similarly, here Suilamon’s conduct arose from a single criminal act

committed on each victim; thus, the one crime necessarily included the

other. Accordingly, Suilamon’s convictions of aggravated and simple assault

should merge for sentencing purposes.

        Finally, Suilamon claims that his probationary sentences for simple

assault and recklessly endangering another person were illegal because they

exceed the statutory maximum set forth in 18 Pa.C.S. § 106(b)(7).

Instantly, the sentencing order clearly shows that Suilamon was sentenced

to two years’ probation for each of these offenses.12 Therefore, this claim is

meritless.
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12
  Moreover, section 106(b)(7)(classes of offenses) refers to crimes where a
sentence of death or imprisonment is authorized. It does not mention
probation. In this case, a person convicted of simple assault and REAP
convictions, as second-degree misdemeanors, may not be sentenced to a
term of imprisonment of more than two years.            See 18 Pa.C.S. §
106(b)(7).



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       Convictions affirmed.         Judgment of sentence for simple assault

vacated. Case remanded for resentencing.13 Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/24/2017




____________________________________________


13
   Because the court ordered Suliamon’s probationary sentence for simple
assault to run consecutive to his period of incarceration for aggravated
assault, the sentencing scheme is upset and we must remand for
resentencing. Cf. Commonwealth v. Murphy, 462 A.2d 853 (Pa. Super.
1983) (remand for resentencing not necessary where court’s simple assault
probationary sentence ran concurrent to term of imprisonment for
aggravated assault).



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