Commonwealth v. Spruill

COMMONWEALTH OF PENNSYLVANIA Appellant v. SHONDA SPRUILL, Appellee

J-34-2012

No. 54 EAP 2011

SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

SUBMITTED: February 15, 2012

DECIDED: November 22, 2013

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and STEVENS, JJ.

Appeal from the Judgment of the Superior

Court entered on 12/31/2009 at No. 3193

EDA 2008 (reargument denied on

03/08/2010) vacating the order of the

Judgment of Sentence entered on

10/7/2008 in the Court of Common Pleas,

Philadelphia County, Criminal Division at

Nos. CP-51-CR-0012637-2007, CP-51-

CR-0012638-2007 and CP-51-CR-

0012639

OPINION

MR. CHIEF JUSTICE CASTILLE¹

This appeal by the Commonwealth presents an issue concerning the proper scope of the "illegal sentence" doctrine, which allows for review of otherwise defaulted claims. The Superior Court held that the claim at issue, which concerned the propriety of appellee's conviction for the offense of aggravated assault, implicated the legality of appellee's sentence; found that the claim was meritorious; vacated appellee's aggravated assault conviction; and then directed that the principle of double jeopardy precluded appellee from being recharged in connection with the assault. Our review here is limited to the legal question of whether the claim is subject to waiver. For thereasons set forth below, we find that appellee's claim concerning her underlying conviction for aggravated assault does not implicate the legality of the sentence for purposes of issue preservation. Accordingly, we vacate the order of the Superior Court and we remand to that court for consideration of appellee's remaining appellate claims, consistent with this Opinion.

On October 1, 2007, appellee Shonda Spruill attended a funeral service in Philadelphia. Also attending the funeral were Derrell Hawkins ("Derrell") and her daughters, Shamira Deans ("Shamira") and Shadora Deans ("Shadora"). Shamira was approximately five months pregnant. The father of Shamira's unborn child was also the father of a child of appellee. After the funeral service ended, appellee and ten other women accosted Derrell, Shamira and Shadora. Appellee began screaming at Shamira that she was going to kill Shamira's baby. The group of assailants attacked Derrell, Shamira and Shadora, macing the victims as well as punching and kicking them. Shamira was repeatedly kicked in the stomach during the assault. The assault lasted for approximately ten minutes until the pastor and other church staff were able to intercede and remove the victims.²

Appellee was charged with the aggravated assault of Derrell, Shamira, and Shadora as well as related crimes. Count 1 in each of the bills of information lodged against appellee set forth the aggravated assault charge, as follows:

COUNT 1: Aggravated Assault - (F1)

Offense Date: 10/1/2007 18 [Pa.C.S.] § 2702 §§ A

Attempted to cause serious bodily injury to another, or caused such injury intentionally, knowingly, or recklesslyunder circumstances manifesting extreme indifference to the value of human life; and/or attempted to cause, or intentionally, knowingly, or recklessly did cause bodily/serious bodily injury with a deadly weapon.

Informations filed 11/06/2007.

Although the aggravated assault charges were denominated as "F1"s -- i.e., first-degree felonies - the descriptions in the bills of information encompassed the elements of both F1 aggravated assault and second-degree felony ("F2") aggravated assault. F1 aggravated assault is established when an actor "attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly or recklessly under circumstances manifesting extreme indifference to the value of human life." 18 Pa.C.S. § 2702(a)(1).³ The less serious offense of F2 aggravated assault is established when an actor "attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon." 18 Pa.C.S. § 2702(a)(4).⁴

Appellee was tried nonjury before the Honorable Linda A. Carpenter. On May 19, 2008, the trial court found appellee guilty of F2 aggravated assault, conspiracy to commit aggravated assault, simple assault, possession of an instrument of crime, recklessly endangering another person, and terroristic threats with respect to the attack on Derrell. With respect to Shamira and Shadora, the trial court found appellee notguilty of aggravated assault, but guilty of simple assault and related crimes. Appellee did not raise an objection to the aggravated assault verdict premised upon the grading of the conviction as an F2.

Over four months later, on October 7, 2008, appellee was sentenced to an aggregate term of 6 to 23 months' house arrest to be followed by five years' probation for the crimes against Derrell. With respect to the remaining convictions for the assaults upon Shamira and Shadora, the trial court imposed concurrent sentences of 6 to 23 months' house arrest to be followed by two years' probation. Again, appellee did not object to the aggravated assault conviction premised upon its grading as an F2.

Appellee filed a notice of appeal, followed by a statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellee raised five issues in her Rule 1925(b) statement, the first of which challenged the sufficiency of the evidence to support the aggravated assault conviction as an F2, and the second of which is the underlying subject of this appeal:

The court erred in finding the defendant guilty of aggravated assault as an F2 when the Commonwealth specifically did not prosecute the defendant for aggravated assault as an F2, but rather prosecuted defendant for aggravated assault as an F1 and when the charge of aggravated assault as an F2 of which defendant was found guilty was not a lesser[-]included offense of aggravated assault F1, the charge on which the Commonwealth was proceeding; likewise, the court erred in finding the defendant guilty of conspiracy to commit aggravated assault as a[n] F2.

See Tr. ct. slip op at 2-3.⁵

In its Rule 1925 opinion, the trial court addressed the sufficiency of the evidence by noting that the evidence showed that appellee and her ten cohorts repeatedly punched and kicked Derrell after appellee had used mace to render Derrell defenseless.The trial court concluded that appellee had "used the mace in such a manner that it became a device which was likely to produce serious bodily injury," and that appellee's use of the mace satisfied the "deadly weapon element" of F2 aggravated assault. Id. at 7.⁶

The trial court then turned to appellee's claim that her F2 aggravated assault conviction should be vacated because she was prosecuted only for F1 aggravated assault, and F2 aggravated assault is not a lesser-included offense of F1 aggravated assault. The trial court found that F2 aggravated assault "is indeed" a lesser-included offense. In so concluding, however, the trial court did not examine and compare the elements of the two offenses. See 42 Pa.C.S. § 9765 ("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."); see also Commonwealth v. Baldwin, 985 A.2d 830 (Pa. 2009). Instead, the court simply quoted the bills which, as explained above, set forth the elements of aggravated assault as both an F1 and an F2. Tr. ct. slip op. at 8. Thus, the court's actual analysis appeared to focus on the first part of appellee's argument, concerning whether appellee was prosecuted for F2 aggravated assault, and not upon the lesser-included offense issue. While not clearly stated, the trial court apparently concluded that appellee was on notice that she was charged with F2 aggravated assault, and thus the conviction for that crime should be sustained.

On appeal to the Superior Court, appellee modified this claim, which the panel then deemed to be dispositive. Appellee no longer claimed that she had never beencharged with F2 aggravated assault, but instead asserted that, after filing the information, the Commonwealth abandoned the F2 charge. The Commonwealth countered that appellee had waived that issue by failing to object before the trial court and, in any event, it had not abandoned the F2 charge.

In an unpublished memorandum decision, a Superior Court panel summarily rejected the Commonwealth's waiver argument, finding that "a claim that the trial court improperly imposed a sentence on an offense lower than the offense charged in the criminal information goes to the legality of the sentence, and thus cannot be waived." Super. Ct. slip op. at 3 (citing Commonwealth v. Passarelli, 789 A.2d 708, 713-14 (Pa. Super. 2001),⁷ and Commonwealth v. Coto, 932 A.2d 933, 935 (Pa. Super. 2007)). The panel employed a "But see" citation to a conflicting panel decision holding that such claims are waivable, Commonwealth v. Pellecchia, 925 A.2d 848, 849 (Pa. Super. 2007), with a parenthetical making apparent the conflict. Id. The panel did not explain why it preferred the non-waiver authority, nor did it explain why a resolution of the split in authority within the court was not advisable.

The panel then examined the merits of the claim, observing that appellee had conceded that the language in the informations charging aggravated assault was "expansive." Id. at 5. The court thus found that both F1 and F2 aggravated assault were encompassed in the information charging appellee for her attack on Derrell.

The panel next turned to appellee's argument that the Commonwealth had abandoned the F2 aggravated assault charge at trial. This was a fact-driven inquiry. The panel focused on two passages in the transcript, one involving a pre-trial discussion and another conducted during the defense closing argument. The pre-trial discussion involved the trial court asking: "The aggravated assault is an F-1?," to which defense counsel responded, "Right." Id. at 6 (quoting N.T., 5/19/2008, at 4-5). The prosecutor...