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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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