Submitted February 15, 2012.
Appeal fro the Judgment of the Superior Court entered on 12/31/2009 at No. 3193 EDA 2008 (reargument denied on 03/08/2010) vacating and remanding 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. Trial Court Judge: Linda A. Carpenter, Judge. Intermediate Court Judges: John L. Musmanno, Judge, John T.J. Kelly, Jr., Judge, Stephen J. McEwen, Jr., President Judge Emeritus.
For Commonwealth of Pennsylvania, APPELLANT: Hugh J. Burns, Jr., Esq., Philadelphia District Attorney's Office.
For Shonda Spruill, APPELLEE: Karl Baker, Esq., Mark Patrick Cichowicz, Esq., Defender Association of Philadelphia.
BEFORE: CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, and STEVENS, JJ. MR. CHIEF JUSTICE CASTILLE. Mr. Justice Stevens did not participate in the consideration or decision of this case. Messrs. Justice Saylor, Eakin and Baer, Madame Justice Todd and Mr. Justice McCaffery join the opinion. Mr. Justice Saylor files a concurring opinion.
[622 Pa. 300] MR. CASTILLE,
This appeal by the Commonwealth presents an issue concerning the proper scope of the " illegal sentence" doctrine, [622 Pa. 301] 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 the reasons 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.
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:
[622 Pa. 302] 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 recklessly under 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). 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).
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 not guilty [622 Pa. 303] 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.
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 [622 Pa. 304] 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 ...