NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. HAKIM LEWIS, Appellant No. 696 EDA 2012 Appeal from the PCRA Order January 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0707771-1998 COMMONWEALTH OF PENNSYLVANIA, Appellee IN THE SUPERIOR COURT OF PENNSYLVANIA v. BRAHEEM LEWIS, Appellant No. 716 EDA 2012 Appeal from the PCRA Order January 27, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0911091-1997 BEFORE: STEVENS, P.J., BOWES, and FITZGERALD, * JJ. MEMORANDUM BY BOWES, J.: FILED JULY 22, 2013 * Former Justice specially assigned to the Superior Court.

Appellants, Hakeem and Braheem Lewis, jointly appeal from the orders denying their first counseled PCRA petitions. After careful review, we affirm, albeit on different grounds than that supplied by the PCRA court. Appellants, who are brothers, were jointly tried along with their additional co-defendant Ricky Mallory. 1 Appellants, Ricky Mallory, and another individual opened fire on the victim, Dante Hunter, while he was driving on 43 rd Street in West Philadelphia. The shooting was the result of a dispute over the parties shared illegal drug business. The men fired over thirty shots at the victim, striking him once in the face and grazing him twice in the abdomen. As a result of the attack, the victim lost all of his teeth when a bullet struck him in the right cheek, and that bullet remained lodged in his body. The Commonwealth charged Appellants with attempted murder, 2 conspiracy to commit assault, aggravated assault, possession of an instrument of crime (PIC), carrying firearms on public streets or property in Philadelphia, recklessly endangering another person (REAP), and simple 1 An additional co-conspirator pled guilty. 2 The Commonwealth in its criminal information incorrectly included both attempt to commit third degree murder and attempt to commit second degree murder. However, no such crimes exist. See Commonwealth v. Spells, 612 A.2d 458, 460 n.5 (Pa.Super. 1992); Commonwealth v. Griffin, 456 A.2d 171, 177 (Pa.Super. 1983); see also Commonwealth v. Roebuck, 32 A.3d 613, 622 (Pa. 2011). As this case was a non-jury trial, and the court stated it found Appellants guilty of attempted murder generally, we presume that it was aware of the law and did not convict Appellants of a non-existent crime. Further, Appellants have never asserted that they were improperly convicted of attempted third degree murder. - 2 -

assault. 3 Appellants and Mallory appeared for a joint trial on September 15, 1998. Appellants, with the aid of counsel, signed a standard jury trial waiver form and completed a thirty-nine question written jury trial waiver colloquy. Appellants signed and initialed each page of the colloquy. The trial court did not conduct an oral colloquy with Appellants or Mallory, nor did counsel for Appellants or Mallory request one. The matter then proceeded to a non-jury trial. The trial court found Appellants guilty of the aforementioned charges and sentenced each to forty-five to ninety years incarceration. Appellants filed motions for reconsideration, which the court granted in part, reducing their sentences to thirty-five to seventy years incarceration. Specifically, the court sentenced Appellants to twenty to forty years for attempted murder to be served consecutively with a term of imprisonment of ten to twenty years for conspiracy to commit assault, and two and onehalf to five years each for PIC and carrying a firearms on a public street. The court denied Appellants motion for reconsideration based on afterdiscovered evidence. Timely direct appeals ensued, where Appellants were jointly represented by new counsel. This Court affirmed in each case and the Pennsylvania Supreme Court denied allowance of appeal. 3 A charge of carrying firearms without a license was nolle prossed during trial. - 3 -

Commonwealth v. Lewis, 758 A.2d 722 (Pa.Super. 2000), allowance of appeal denied, 761 A.2d 548 (Pa. 2000). Appellants timely filed counseled petitions pursuant to the PCRA on November 28, 2001. Therein, Appellants alleged that their trial counsel was ineffective in failing to challenge whether the jury trial waiver was knowing, intelligent and voluntary. Additionally, since this case pre-dated Commonwealth v. Grant, 813 A.2d 726 (Pa. 2002), they alleged that appellate counsel was ineffective in declining to allege the ineffectiveness of trial counsel in this regard during direct appeal. Appellants also asserted that appellate counsel was ineffective in litigating the effectiveness of trial counsel for failing to call various alibi witnesses, including neglecting to obtain affidavits or verified statements that trial counsel knew of the alibi witnesses. Appellants subsequently filed joint applications to amend their petitions on August 29, 2002, contending that they were illegally sentenced for both attempted murder and conspiracy to commit assault. On October 11, 2002, Appellants also sought to amend their petitions on the basis of after-discovered evidence in the form of a newly-discovered witness. The PCRA court, with a different judge than that who presided at trial, conducted evidentiary hearings on November 24, 2003 and December 4, 2003. Thereafter, the court ruled that Appellants were entitled to relief on - 4 -

the jury trial waiver issue, and deemed the remaining issues moot. But see Pa.R.Crim.P. 908. 4 The Commonwealth appealed. This Court, in a published decision, reversed based on the belief that Appellants had to demonstrate that there was a reasonable probability that the outcome of their trial would have been different. See Commonwealth v. Mallory, 888 A.2d 854 (Pa.Super. 2005), reversed, 941 A.2d 686 (Pa. 2008). Our Supreme Court reversed this Court, holding that the proper prejudice analysis in the matter was whether the outcome of the jury trial waiver proceeding would have been different. Commonwealth v. Mallory, 941 A.2d 686, 704 (Pa. 2008). In addition, the Pennsylvania Supreme Court determined that the PCRA court failed to adequately consider the totality of the circumstances surrounding the waiver, focusing too heavily on counsels failure to object to an oral colloquy. The Commonwealth s petition for writ of certiorari to the Supreme Court of the United States was denied. Pennsylvania v. Mallory, 555 U.S. 884 (2008). 4 Pa.R.Crim.P. 908 requires a PCRA court to dispose of all material issues raised in a petition. The only exception for this is when a PCRA court awards relief in the nature of reinstating a petitioner s direct appeal rights, in which case it would be premature to reach any additional ineffectiveness claims. See Commonwealth v. Bronaugh, 670 A.2d 147 (Pa.Super. 1995); Commonwealth v. Hoyman, 561 A.2d 756 (Pa.Super. 1989). The PCRA court, thus, should have addressed all of Appellants claims. The failure to do so, in no small part, contributed to the procedural complexity that this matter has now achieved. - 5 -

Upon remand, the PCRA court again afforded Appellants relief on the jury trial waiver issue without examining the remaining claims. The Commonwealth appealed. This Court reversed, finding that appellate counsel was not ineffective for neglecting to raise trial counsel s alleged ineffectiveness on direct appeal. Commonwealth v. Lewis, 6 A.3d 551 (Pa.Super. 2010) (unpublished memorandums). Our Supreme Court denied allowance of appeal. Commonwealth v. Lewis, 23 A.3d 540 (Pa. 2011). The matter then continued before the PCRA court, this time with the original trial judge presiding. Appellants filed an application to amend their petitions on October 27, 2011, renewing their previous illegal sentencing issue and raising an additional purported legality of sentence claim. Specifically, Appellants argued that their sentence of twenty to forty years for attempted murder was unlawful because the Commonwealth did not prove that they caused serious bodily injury. The Commonwealth responded by arguing that Appellants requests to amend their petitions, which never were fully resolved, were untimely serial petitions. Following a hearing, the PCRA court accepted the Commonwealth s position and dismissed Appellants petitions. This timely appeal ensued. The PCRA court directed Appellants to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. Appellants complied. The sole issue raised on appeal is [d]id the PCRA Court commit - 6 -

an error of law in dismissing the Appellants unresolved PCRA claims as untimely? Appellants brief at 3. We have explained the applicable standard and scope of review in analyzing a PCRA matter as follows. We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. Commonwealth v. Burkett, 5 A.3d 1260, 1267 (Pa.Super. 2010). This review is limited to the findings of the PCRA court and the evidence of record. Id. We will not disturb a PCRA court's ruling if it is supported by evidence of record and is free of legal error. Id. This Court may affirm a PCRA court's decision on any grounds if the record supports it. Id. We grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. Commonwealth v. Carter, 21 A.3d 680, 682 (Pa.Super. 2011). However, we afford no such deference to its legal conclusions. Commonwealth v. Paddy, 609 Pa. 272, 15 A.3d 431, 442 (2011); Commonwealth v. Reaves, 592 Pa. 134, 923 A.2d 1119, 1124 (2007). Further, where the petitioner raises questions of law, our standard of review is de novo and our scope of review is plenary. Commonwealth v. Colavita, 606 Pa. 1, 993 A.2d 874, 886 (2010). Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa.Super. 2012). The question here involves a pure question of law. Appellants argue that the only issue resolved in the prior PCRA proceedings and appeals was the jury trial waiver claim. Thus, when this Court relinquished jurisdiction, the PCRA court regained jurisdiction to dispose of the remaining concerns raised in Appellants PCRA petitions. Appellants point to the criminal procedural rules governing PCRA matters permitting a judge to grant leave to amend a PCRA petition. In addition, Appellants submit that [b]oth the Supreme Court and this Court have rejected the argument that the contents - 7 -

of PCRA amendments must substantially align with a Petitioner s initial PCRA [p]etition in order to avoid the time bar. Appellants brief at 16 (citing Commonwealth v. Flanagan, 854 A.2d 489, 500 (Pa. 2004); Commonwealth v. Padden, 783 A.2d 299, 308 (Pa.Super. 2001); Pa.R.Crim.P. 905(A)). Appellants continue that where the PCRA court does not deny or dismiss all of a petitioner s claims, the remaining allegations must be reviewed after remand. In this respect, Appellants rely on Commonwealth v. Sneed, 45 A.3d 1096 (Pa. 2012), and Commonwealth v. Fletcher, 896 A.2d 508 (Pa. 2006). In Sneed, our Supreme Court found that it was proper for the PCRA court to address various claims that the court had not disposed of prior to an earlier appeal. Similarly, the Fletcher Court remanded for the PCRA court to address claims not resolved by the PCRA court. 5 We agree with Appellants to the extent that they argue that the PCRA court erred in concluding that it lacked jurisdiction and that their requests to file amended PCRA petitions filed on October 27, 2011, were untimely second petitions. This Court recently discussed the meaning of the second 5 The Commonwealth s brief in this matter was filed in an untimely manner. Although we declined Appellant s petition to strike the brief, we do not set forth the arguments contained therein. See Commonwealth v. Stokes, 38 A.3d 846, 858 n.7 (Pa.Super. 2011) (citing Commonwealth v. Beasley, 741 A.2d 1258, 1261 n.8 (Pa. 1999) and declining to consider untimely Commonwealth brief). - 8 -

or subsequent petition language of the PCRA statute in Commonwealth v. Rykard, 55 A.3d 1177 (Pa.Super. 2012). Therein, the issue was whether a response to a notice of intent to dismiss raising allegations of PCRA counsel ineffectiveness should be construed as a serial petition. In Rykard, we discussed each mention of the phrase second or subsequent petition in both the PCRA statute and the applicable criminal rules of procedure and their comments. See Rykard, supra at 1187-1188. We noted that the comment to Rule 901 states that the terms petition for post-conviction collateral relief and petition include amended petitions, unless the context indicates differently. Hence, amended petitions do not fall under the ambit of a second or subsequent petition. Id. at 1188 (citing Commonwealth v. Tedford, 566 Pa. 457, 781 A.2d 1167 (2001); Commonwealth v. Williams, 573 Pa. 613, 828 A.2d 981 (2003)). While recognizing that Rule 905, relating to amended petitions, is not self-authorizing, the Rykard Court found that [b]oth the criminal rules of procedure and the [Commonwealth v.] Lawson[, 549 A.2d 107 (Pa. 1988)] decision primarily reflect a concern over serial PCRA proceedings instituted by second or subsequent petitions. Id. at 1189. Here, the PCRA proceedings were not instituted by the 2011 petition. Rather, the PCRA court, in derogation of Rule 908, had not resolved all of Appellants claims, causing the case to be remanded once the issue that the PCRA court did resolve was fully litigated. The purpose of the PCRA statute is to provide - 9 -

one meaningful opportunity to have a petitioner s underlying issues determined. See also Comment to Pa.R.Crim.P. 901 ( the Chapter 9 Rules are intended to require that, in a single proceeding, the defendant must raise and the judge must dispose of all grounds for relief available after conviction and exhaustion of the appellate process[.] ). Since Appellants issues from their original PCRA proceeding were never completely resolved, their original PCRA matter was not complete and remained pending. Sneed, supra at 1104 ( As noted in our 2006 decision, the PCRA court did not pass on the other claims raised... the parties agree that the PCRA court never issued an order dismissing or denying the remaining claims. Since these remaining allegations of error were never resolved, review by the PCRA court at the present stage was appropriate. ) (internal citation omitted); Fletcher, supra at 523. Pursuant to Rule 905, Appellants were permitted to seek court approval to amend their earlier petitions. See also Flanagan, supra at 499-500 ( PCRA courts are invested with discretion to permit the amendment of a pending, timely-filed post-conviction petition, and this Court has not endorsed the Commonwealth's position that the content of amendments must substantively align with the initial filing. Accord id. Rather, the prevailing rule remains simply that amendment is to be freely allowed to achieve substantial justice. ). Since all of the issues in the original petition were never decided in the first instance by the PCRA court, - 10 -

the October 2011 filing should have been treated as a request to amend a timely petition and not a serial petition instituting new PCRA proceedings. Compare Commonwealth v. Porter, 35 A.3d 4, 12 (Pa. 2012) (Brady petition filed after an Atkins petition was a separate untimely petition and not an amended petition and the PCRA court order disposing of the Brady petition was not an interlocutory order). Having concluded that the PCRA court erred in determining that it lacked jurisdiction to decide Appellants underlying legality of sentence questions, we proceed to analyze those issues as they each raise pure questions of law for which we would afford no deference to any conclusions reached by the PCRA court. 6 Simply put, it would be a waste of valuable judicial resources to remand this matter to the PCRA court to decide the legality of sentence questions when we could merely review the issues de novo. Appellants maintain, based on 18 Pa.C.S. 906, that they were sentenced illegally since they were sentenced on both their attempted murder and conspiracy to commit assault convictions. Under the statute, A person may not be convicted of more than one of the inchoate crimes of 6 Appellants agreed to waive all issues raised below other than their illegal sentence claims. See Appellants brief at 13. ( Petitioners, having decided to forego all the other claims previously filed in multiple amended PCRA petition which were not ruled upon by the lower [c]ourt, sought a resolution of the undecided issue of their illegal sentences[.] ). Accordingly, no remand is necessary to address any outstanding ineffectiveness issues. - 11 -

criminal attempt, criminal solicitation or criminal conspiracy for conduct designed to commit or to culminate in the commission of the same crime. 18 Pa.C.S. 906 (emphasis added). Similarly, in Commonwealth v. Jacobs, 39 A.3d 983 (Pa. 2012), a case involving the crimes of attempted escape and conspiracy to commit escape, the Pennsylvania Supreme Court stated, a person may be convicted and sentenced for two inchoate crimes that arise out of the same incident which were not designed to culminate in the commission of the same crime. Jacobs, supra at 983 (emphasis added). Simply put, a person cannot be sentenced for the inchoate crime of attempted murder and conspiracy to commit murder or solicitation to commit murder, when the facts arise from the same incident. While true that Appellants intended to harm Mr. Hunter, the criminal objective for attempted murder is to kill, whereas the criminal objective for assault is not. Phrased differently, to commit attempted murder, one must specifically intend to kill, see Commonwealth v. Spells, 612 A.2d 458, 460 n.5 (Pa.Super. 1992); however, to commit conspiracy to commit assault one need not have any specific intent to kill. Assault and murder are different crimes. Under a plain reading of the statute and the case law, Appellants were not sentenced for inchoate crimes designed to commit or culminate in the same crime, i.e., murder. Since attempted murder and conspiracy to commit assault both include additional separate elements, and the goal in each is not to culminate in the commission of the same crime, it was entirely - 12 -

proper to sentence Appellants for the commission of the two offenses. Of course, had Appellants been convicted of conspiracy to commit murder, then, in that event, it would have been improper to sentence them on both that crime and attempted murder. Appellants next contend that the victim s loss of all of his teeth was insufficient as a matter of law to sustain a finding of serious bodily injury. Accordingly, since a defendant can only be sentenced to a twenty to forty year term of imprisonment for attempted murder if serious bodily injury is established, see 18 Pa.C.S. 1102(c), they submit that they were illegally sentenced. Appellants are not entitled to relief based on their claim that their twenty-to-forty-year sentences of incarceration for attempted murder were illegal. The criminal information charged Appellants with causing serious bodily injury as it related to the attempted murder, and, necessarily, the trial judge acting as fact-finder determined that the facts established serious bodily injury beyond a reasonable doubt. Compare Commonwealth v. Johnson, 910 A.2d 60 (Pa.Super. 2006). Appellants position is in reality a sufficiency of the evidence claim disguised as an illegal sentencing issue since their true contention is that the facts introduced into evidence before the fact-finder do not amount to serious bodily injury. Although such a sufficiency-type challenge ordinarily would be waived, as it should have been - 13 -

presented on direct appeal, to the extent it implicates legality of sentence concerns, we find that the victim did suffer serious bodily injury. 7 Serious bodily injury is defined as [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ. 18 Pa.C.S. 2301. Here, the victim lost all of his teeth due to a gunshot wound and the bullet remained in his body. These injuries constitute both serious permanent disfigurement and the protracted loss and impairment of the function of a bodily member; hence, they amount to serious bodily injury. See Commonwealth v. Nichols, 692 A.2d 181 (Pa.Super. 1997). Thus, Appellants are not entitled to relief based on this underlying claim. As Appellants underlying sentencing issues do not afford relief, we affirm. 7 The Apprendi v. New Jersey, 530 U.S. 466 (2000) line of cases involved scenarios in which a court, acting as the sentencer, increased a defendant s sentence during a sentencing proceeding based on facts that were not determined beyond a reasonable doubt by the trier-of-fact. Unlike those decisions, all of the facts relevant herein to whether the victim suffered serious bodily injury were presented during the non-jury trial and the court determined those facts established beyond a reasonable doubt that serious bodily injury occurred. Accordingly, Apprendi and its progeny are not implicated. Additionally, since Apprendi was decided after Appellant s trial and he does not argue that it applies retroactively to those on collateral review, even if that decision were pertinent, there is an argument that such a claim would be waived on this ground. See Commonwealth v. Roney, 866 A.2d 351 (Pa. 2005) (Castille, J. concurring) (discussing illegal sentencing, retroactivity and Apprendi and opining that non-retroactive constitutional decisions should not overcome waiver by being labeled as illegal sentencing claims). - 14 -

Order affirmed. Justice Fitzgerald files a Concurring and Dissenting Memorandum. Judgment Entered. Prothonotary Date: 7/22/2013-15 -