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HomeMy WebLinkAbout97-1083 CriminalCOMMONWEALTH Vo MARCUS ROSE, Defendant : CHARGES: (1) CRIMINAL ATTEMPT TO : COMMIT CRIMINAL : HOMICIDE : (2) AGGRAVATED ASSAULT : (3) RECKLESSLY : ENDANGERING : ANOTHER PERSON : (4) CRIMINAL CONSPIRACY : (5) RECEIVING STOLEN : PROPERTY : : No. 97-1083 CRIMINAL TERM IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. ORDER OF COURT AND NOW, this 27th day of October, 1999, upon consideration of Defendant's petition under the Post Conviction Relief Act, following a hearing and for the reasons stated in the accompanying opinion, the petition is denied except to the extent previously granted by agreement of counsel by order of court dated May 28, 1999. BY THE COURT, ~. ~§l~y Oler, Jr.~J/] Jaime M. Keating, Esq. Chief Deputy District Attorney Darrell C. Dethlefs, Esq. 3805 Market Street P.O. Box 368 Camp Hill, PA 17001-0368 Court-appointed Counsel for Defendant COMMONWEALTH MARCUS ROSE, Defendant : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CHARGES: (1) CRIMINAL ATTEMPT TO : COMMIT CRIMINAL : HOMICIDE : (2) AGGRAVATED ASSAULT : (3) RECKLESSLY : ENDANGERING : ANOTHER PERSON : (4) CRIMINAL CONSPIRACY : (5) RECEIVING STOLEN : PROPERTY : : No. 97-1083 CRIMINAL TERM IN RE: POST CONVICTION RELIEF ACT PETITION BEFORE OLER, J. OPINION and ORDER OF COURT OLER, J., October 27, 1999. For disposition in this criminal case in which Defendant was found guilty of attempted murder, aggravated assault, recklessly endangering and other crimes is a petition filed by Defendant under the Post Conviction Relief Act. l The petition was filed following disposition of Defendant's direct appeal by the Pennsylvania Superior Court.2 Relief is requested on the grounds that (1) Defendant's trial counsel was ineffective in failing to request a limiting jury instruction following the admission of evidence tending to show an attempted stabbing on the part of Defendant prior to the l Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §§9541 etseq. 2 See Act of May 13, 1982, P.L. 417, §2, as amended, 42 Pa. C.S. §9545(b). Defendant's direct appeal was disposed of by the Pennsylvania Superior Court on November 24, 1998; no petition for allowance of appeal to the Pennsylvania Supreme Court was filed. Defendant's present petition under the Post Conviction Relief Act was filed slightly prematurely on December 14, 1998, but has been considered on the merits since the prerequisites for collateral review under the act were satisfied within a few days of the filing. offenses sub judice,s (2) Defendant's trial counsel was ineffective in failing to object to an inadequate jury instruction on attempted murder,4 (3) the maximum sentence imposed by the trial court for attempted murder was illegal in that it exceeded the statutory limit,5 and (4) the imposition of sentences by the trial court for aggravated assault and recklessly endangering was illegal by virtue of the merger doctrine.6 The relief suggested by these contentions is a new trial as a consequence of the inadequate representation, or, in the alternative, a resentencing on the charge of attempted murder and a vacation of the sentences for aggravated assault and recklessly endangering. For the reasons stated in this opinion, the relief requested will be denied. STATEMENT OF FACTS On September 24, 1997, Defendant was found guilty by a jury of an attempt to commit criminal homicide (attempted murder), two forms of aggravated assault (attempting to cause serious bodily injury and attempting to cause bodily injury with a deadly weapon), recklessly endangering another person, conspiracy to commit criminal homicide, and receiving stolen property. Defendant's co-conspirator/co-defendant was a man named Harun Leslie, and the victim was an individual named Shawn Hodge. The offenses occurred on Thursday, June 5, 1997, in Carlisle Borough, Cumberland County, Pennsylvania. The evidence at Defendant's September, 1997, trial, leading to the verdicts of guilty, was summarized by the Honorable Harold E. Sheely, who presided over the trial,7 as follows: With respect to the ... charges [of attempted murder, aggravated assault, recklessly endangering another person, and conspiracy to commit criminal homicide], the evidence adduced at trial showed that Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 3. Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 6-7. Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 8. Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 9. President Judge Sheely has since retired. P.C.R.A. Hearing N.T. 14-15. 2 earlier in the afternoon on the day of the shooting co-defendant Harun Leslie and another individual known as Little Mikey were physically attacked by [Shawn] Hodge and some others; defendant's eye was swollen shut when he was arrested later that day. The evidence further indicated that defendant, Leslie and Little Mikey originate from Brooklyn, New York and are friends. Leslie testified that a few hours after the attack on himself and Little Mikey, they were picked up by a female named Terry Swartz in a green Toyota 4Runner; defendant was also present. They proceeded to the area where Hodge was located. When Hodge saw the 4Runner with Leslie inside, he took off to a neighboring house The Commonwealth presented evidence from several witnesses that defendant and Leslie emerged from a 4Runner driven by a white female as Shawn Hodge approached the porch of the home after apparently being chased. There was testimony that defendant held and aimed a gun and gun shots were heard: Hodge was fired upon as he entered through the screen door, and he then shot back. The police located the 4Runner that evening and found defendant, Leslie and Little Mikey, at the home of Terry Swartz, the purported driver of the jeep. Leslie admitted that he hid a Sterling .25 caliber automatic handgun in a wooded area which was recovered by the police on the evening of the shooting. A spent .25 caliber bullet was found at the crime scene. Although testing of defendant's hand was not conclusive with regard to whether he had recently fired a gun, there was credible testimony presented that defendant wiped his hands on a paper towel and on his jeans when the testing procedure was explained to him. Concerning the charge of receiving stolen property, the owner of the gun testified that the gun produced by the Commonwealth as that used in the perpetration of the crimes had been stolen from her home earlier in the year.8 During the trial, the victim, Shawn Hodge, also testified that a few hours before the attempt upon his life he (H0dge) had approached Harun Leslie, Defendant's co- defendant, at 1:00 or 2:00 p.m. in a certain park in Carlisle Borough and said to Leslie, "[Y]ou know, your boy [Defendant, Marcus Rose] tried to stab me [a couple of days Opinion, Commonwealth v. Rose, No. 97-1083 Criminal Term (January 23, 1998), at 1- 3. ago].''9 Defendant's trial counsel requested a conference at sidebar,l° At sidebar, she interposed an objection to testimony concerning the alleged earlier incident involving Defendant: ... If the focus is going to be to point to the fight between [Hodge, the victim] and Harun Leslie [the co-defendant], that's fine, but now they're getting into uncharged--alleged uncharged bad conduct by [Defendant], and I'm going to object to that.~ The confrontation between the victim and the co-defendant, however, was highly relevant to the case against the co-defendant, inasmuch as it preceded by several hours the attempted murder~2 and was disputed as to its details by the co-defendant.~3 The trial 9 Trial N.T. 33, 36. l0 Trial N.T. 33. ~ Trial N.T. 34. 12 Trial N.T. 36. 13 Trial N.T. 35,250-51. Trial counsel for Defendant's co-defendant, Harun Leslie, had told the jury in his opening statement the following: Now, this day started off with Harun Leslie, and Dane Spence [Little Mikey], and they were sitting in the park minding their own business, not bothering anybody. They had no dispute with anybody. They had no ongoing feud with anybody. They had no disagreement with anybody. Just two guys sitting in the park having a good time when this fellow back here and another guy, Baishi Bailey and Shawn Hodge, sneak up on them and knock them off their seats, kick them, shove them around, and then they say to them, that's for your buddy, Marcus. You tell Marcus that's for him. You're going to see pictures that Detective Egolf has with him that shows the injuries that both Hamn Leslie and Dane Spence suffered when they were coldcocked upside the head when they weren't even looking. Then as they're walking down the street from this scene from just having been beaten up, they happen to get picked up by Terry Swartz 4 court overruled the objection to the testimony.TM The victim proceeded to describe the incident as follows: A I went to him and I confronted him. I said, your boy, Marcus [the Defendant], tried to stab me a couple days ago. Where is he at? And he started laughing. And he was like, yeah, I know, I heard about it. And I said where is he at? And he was like, I don't know. I said, so you think that shit's funny, and he was laughing. I said to him, I should fuck you up for him because you think it's funny. So he was like, no, you ain't going to fuck nobody up. So he got up off the bench, and me and him started fighting. Q So it wasn't a case where you let's see. How was it portrayed earlier? Snuck up on him from behind and beat him up when he wasn't looking? A No, that's not true.~5 The co-defendant's version of this incident was that he was attacked without provocation by the victim and two of the victim's friends.~6 He suffered two separate beatings during the incident, according to his testimony. ~? In instructing the jury with regard to the charge of attempted criminal homicide, President Judge Sheely stated as follows, inter alia: The attempt to commit criminal homicide or attempt to commit murder, as I'm going to call it, starts out under Section 901 of our crimes code, and this defines what an attempt is. And the statute says, a person commits an attempt when with the intent to commit a specific crime he does any act which constitutes a substantial step towards the commission of that crime. Let me read that to you again. A person commits an attempt when with the intent to commit a specific crime he does any act which constitutes a substantial step towards the commission of that crime. and [Defendant] Marcus Rose. Within a couple minutes of having been picked up is when they see [the victim] Shawn Hodge. In re: Opening Statement of Mark Thomas, N.T. 3. 14 Trial N.T. 34. t5 Trial N.T. 35. 16 Trial N.T. 250-55. 17 Trial N.T. 254. So for the purposes of this particular statute and the crime charged, an attempt to commit murder, which the defendant is charged with having attempted, may be defined as follows: A criminal homicide, the attempt to commit a homicide, a criminal homicide constitutes murder when it is. committed by an intentional killing. That would be the actual act. Murder must be a killing that was committed by intent to commit the killing, and that's the definition really in Pennsylvania of first degree murder. There are other degrees of murder. You can't be charged with attempt to commit second degree murder or third degree murder. It has to be first degree murder. Again, a criminal homicide--which the defendant is charged with attempting to commit. A criminal homicide constitutes murder when it is committed by an intentional act. Now, what does the Commonwealth have to prove to find Defendant Rose guilty beyond a reasonable doubt of attempted murder? First of all they would have to prove in this case that he actually fired and shot that weapon at Shawn Hodge. Secondly, they would have to prove that he shot at Shawn Hodge with the intent to commit the crime of murder. And, thirdly, they would have to prove that what he did constituted a substantial step, that is the shooting constituted a substantial step towards the commission of the crime. A person cannot be guilty of an attempt to commit a crime unless he has a firm intent to commit that crime. If he has not definitely made up his mind or if his purpose would be uncertain or wavering, then he would lack the kind of intent which is required for an attempt. The law says an act is a substantial step if it is a major step towards the commission of the crime, and also strongly corroborates the jury's belief that the person, in this case Mr. Rose, at the time he did the act had a firm intent to commit the crime of murder. The elements, again, of attempt to commit murder. One, they have to prove Mr. Rose did a certain act. That is he shot at Shawn Hodge. Secondly, they have to prove that he did this with the intent to commit the crime of murder. That is an intentional killing .... ~8 18 Trial N.T. 319-21. 6 Following the jury's verdicts of guilty of the crimes charged, Defendant was sentenced by President Judge Sheely on November 12, 1997. He received concurrent prison sentences of five-to-fifteen years on the attempted murder charge, two-to-five years on the aggravated assault charge, five-to-ten years on the conspiracy to commit criminal homicide charge, and six-to-twenty-four months on the receiving stolen property charge.~9 No term of imprisonment, or fine, was imposed on the recklessly endangering charge? A direct appeal to the Pennsylvania Superior Court by the Defendant through his trial counsel followed.2~ The issue presented on appeal was whether the evidence was sufficient to sustain the various convictions? On November 24, 1999, the Superior Court vacated the judgment of sentence as it related to receiving stolen property, on the basis of insufficiency of the evidence, and otherwise affirmed the judgment of sentence.23 No petition for allowance of appeal was filed in the Pennsylvania Supreme Court. On Defendant's Post Conviction Relief Act petition subjudice, counsel stipulated at the outset that Defendant's conviction for conspiracy to commit criminal homicide should be vacated in light of his conviction for attempted murder, pursuant to Section 906 of the Crimes Code.24 This provision bars multiple convictions for inchoate offenses intended to result in the same crime. In accordance with the stipulation, the court issued 19 Order of Court, November 12, 1997. 2o Order of Court, November 12, 1997. 2~ Notice of Appeal, filed December 11, 1997. 22 Defendant's Concise Statement of Matters Complained of on Appeal, filed December 23, 1997. 23 Judgment (with memorandum opinion), Commonwealth v. Rose, No. 1171 Harrisburg 1997 (Pennsylvania Superior Court, November 24, 1997). 24 Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §906; see P.C.R.A Hearing, N.T. 4-7, 12-13; Order of Court, May 28, 1999. 7 an order vacating Defendant's guilty verdict and judgment of sentence with respect to conspiracy to commit criminal homicide? At the Post Conviction Relief Act hearing, Defendant's trial counsel was called as a witness.26 She testified that she had received her college degree from Emory University in Atlanta, Georgia, and that in 1990 she had received a law degree from the American University Law School in Washington, D.C.27 She had joined the Cumberland County Public Defender's Office in 1991, and had participated as defense counsel in more than fifty trials prior to her representation of Defendant in his 1997 trial.28 With respect to the issue involving testimony as to a prior attempted stabbing on the part of Defendant, Defendant's trial counsel stated that her concern in objecting was to prevent the incident from becoming a focus of attention by virtue of elaboration upon its details? As it developed, she testified, this did not happen: Q Do you recall why you wouldn't have requested a limiting instruction? A As it turned out, when my objection was overruled and Judge Sheely permitted the testimony, the majority of that line of questioning did not deal with the attempted stabbing that Mr. Hodge says happened at the hands of Mr. Rose. The majority of the line of questioning dealt with the physical altercation between Mr. Leslie and Mr. Hodge.3° Implicit in the testimony of Defendant's trial counsel at the Post Conviction Relief Act hearing, and explicit in the trial record,3~ was her recognition that the details of the confrontation between the victim and the co-defendant shortly before the attempted 25 Order of Court, May 28, 1999. 26 P.C.R.A. Hearing N.T. 8. 27 P.C.R.A. Hearing N.T. 14. 28 P.C.R.A. Hearing N.T. 13-14. 29 P.C.R.A. Hearing N.T. 9-10; see also P.C.R.A. Hearing N.T. 22. 30 P.C.R.A. Hearing N.T. 10. 3~ See text accompanying note 11 supra. murder were highly probative and admissible in the case against the co-defendant. When the focus of the trial did not shift to the alleged prior incident involving Defendant, she concluded that a request for a limiting jury instruction on the issue would have been counterproductive from Defendant's standpoint: ... [The prior incident involving Defendant] was mentioned at the beginning of the testimony, and then it was--the remainder of the testimony didn't even deal with that. They didn't get into details about what they say happened at the ... alleged attempted stabbing. I thought it would have just unnecessarily highlighted the incident for the jury [to request a limiting instruction]. The majority of that testimony dealt with Mr. Hodge and Mr. Leslie's fight.32 In its capacity as fact-finder, this court found the testimony of Defendant's trial counsel to have been entirely credible and supported by the trial record. With respect to the issue of the legality of the five-to-fi~een year sentence imposed by President Judge Sheely for attempted murder, Defendant's trial counsel acknowledged that she had not challenged the lawfulness of the sentence.33 She testified that she had regarded the sentence as a legal one.34 This view, as will be discussed hereafter, is shared by the court. DISCUSSION Ineffective Assistance of Counsel General. "It is by now axiomatic that a defendant in a criminal case is entitled to effective representation at trial." Commonwealth v. Coiling 519 Pa. 58, 63, 545 A.2d 882, 885 (1988). With respect to a claim of ineffective assistance, however, "Pennsylvania courts presume that an accused's counsel is effective and place the burden of proving ineffectiveness on the convicted defendant." Packel & Poulin, Pennsylvania Evidence 148 (2d ed. 1998). 32 P.C.R.A. Hearing N.T. 20. 33 P.C.R.A. Hearing N.T. 13. 34 P.C.R.A. Hearing N.T. 13. The Pennsylvania Supreme Court has stated a general rule for the analysis of a claim of ineffective assistance of counsel: There are three elements to a valid claim of ineffective assistance. We inquire first whether the underlying claim is of arguable merit; that is, whether the disputed action or omission by counsel was of questionable legal soundness. If so, we ask whether counsel had any reasonable basis for the questionable action or omission .... If he did, our inquiry ends. If not, the [defendant] will be granted relief if he also demonstrates that counsel's improper course of conduct worked to his prejudice .... Commonwealth v. Davis, 518 Pa. 77, 83, 541 A.2d 315, 318 (1988); see Commonwealth v. Beasley, 544 Pa. 554, 678 A.2d 773 (1996); cert. denied, 520 U.S. 1121, 117 S. Ct. 1257, 137 L. Ed. 2d 337 (1997); Commonwealth v. Hess, No. 94-1437 Criminal Term (Cumberland Co., March 11, 1997) (Sheely, P.J.). The Pennsylvania Superior Court has noted in this context that "it is not enough for [a defendant] to show that he suffered some prejudice as a result of counsel's action or inaction, but rather that counsel's action or inaction so affected the trial itself ('the truth-determining process') that the result of the trial is inherently unreliable." Commonwealth v. Weinder, 395 Pa. Super. 608, 627, 577 A.2d 1364, 1374 (1990).35 The burden upon a petitioner seeking relief under the Post Conviction Relief Act based upon ineffective assistance of counsel is thus as follows: The petitioner must .... show, by a preponderance of the evidence, ineffective assistance of counsel which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place. This requires the petitioner to show: (1) that the claim is of arguable 35 The Pennsylvania Supreme Court has held that the standard for proving ineffectiveness under the Post Conviction Relief Act is the same as the standard for proving inadequate representation on direct appeal. See Commonwealth v. Kimball, 555 Pa. 299, 724 A.2d 326 (1999). Under the Post Conviction Relief Act, a person seeking relief on the basis of ineffective assistance of counsel must prove, by a preponderance of the evidence, that the "conviction or sentence resulted from ... ineffective assistance ... which, in the circumstances of the particular case, so undermined the truth-determining process that no reliable adjudication of guilt or innocence could have taken place." Act of May 13, 1982, P.L. 417, {}2, as amended, 42 Pa. C.S. {}9543(a)(2)(ii). 10 merit; (2) that counsel had no reasonable strategic basis for his or her action or inaction; and (3) that, but for the errors and omissions of counsel, there is a reasonable probability that the outcome of the proceedings would have been different. Commonwealth v. Kimball, 555 Pa. 299, __, 724 A.2d 326, 333 (1999). It has often been stated that a "defendant is not entitled to and cannot realistically expect to receive a perfect trial but only a fair trial." Commonwealth v. Todt, 318 Pa. Super. 55, 69, 464 A.2d 1226, 1233 (1983). Failure of Defendant's trial counsel to request limiting instruction on alleged prior incident involving Defendant. With certain exceptions, evidence of bad conduct on the part of a defendant prior to the offense being tried is not admissible against him or her. See Commonwealth v. Peer, 454 Pa. Super. 109, 119, 684 A.2d 1077, 1082 (1996); Commonwealth v. Urrutia, 439 Pa. Super. 227, 235, 653 A.2d 706, 709-10 (1995). When evidence is admissible for a limited purpose, a limiting instruction is sometimes given with a view toward restricting the jury's use of the evidence to its proper purpose. Commonwealth v. Cavil, 474 Pa. 375, 383,378 A.2d 841,845 (1977). In the present case, evidence of prior bad conduct on the part of Defendant, in the form of an out-of-court reference to an alleged incident prior to the occurrence of the crimes being tried, was admitted in a joint trial involving the Defendant; the evidence was highly relevant to the case against the co-defendant, and to an extent thereby tended to strengthen the case against each co-conspirator, but it was not admissible to prove bad character or criminal propensity on the part of Defendant. See Commonwealth v. Peer, 454 Pa. Super. 109, 119, 684 A.2d 1077, 1082 (1996). For this reason, Defendant's position in the present collateral proceeding that a limiting instruction should have been requested by his trial counsel in connection with this evidence is of arguable merit. See Commonwealth v. Billa, 521 Pa. 168, 179, 555 A.2d 835, 841 (1989). However, it is well-settled that "trial counsel may reasonably decline to request a limiting instruction with regard to prior criminal misconduct where such an instruction might have served to emphasize what might otherwise have gone relatively unnoticed by the jury." Commonwealth v. Copenhefer, 553 Pa. 285, ,719 A.2d 242, 253 (1998); 11 see Commonwealth v. Billa, 521 Pa. 168, 183, 555 A.2d 835, 843 (1989). In the case at bar, where the evidence of prior misconduct on the part of Defendant was in the form of a reference to an out-of-court statement made neither by nor to the Defendant, where it was a minor element of the event in which it transpired, and where its import related to the co- defendant and was presented in that context by the Commonwealth, the court can not conclude that trial counsel's decision to avoid emphasizing the evidence by a limiting instruction had no reasonable basis. For this reason, relief will not be granted to Defendant upon this claim of ineffective assistance of counsel. Failure of Defendant's trial counsel to object to jury instruction on attempted murder. Defendant contends that the trial court's charge to the jury with respect to the crime of attempted murder "fail[ed] to explain the basic element that separates first degree murder from second or third degree murder, or the elements of murder.''36 Defendant argues that "[c]ounsel by failing to object to such a substantial omission could not have had a reasonable basis, because the jury charge on attempted murder contained a prejudicial misstatement of the law which was not cured.''37 Under the Crimes Code, murder in the first degree is defined as "[a] criminal homicide ... committed by an intentional killing." Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §2502(a). Malice, which distinguishes murder from other forms of criminal homicide,38 "will be found if the actor committed a killing with an intent to kill .... ,,39 Thus, the Pennsylvania Suggested Standard Criminal Jury Instruction on first degree murder states that "a killing by a person who has the specific intent to kill is a killing with malice (provided that it is also without circumstances reducing the killing to voluntary manslaughter or any lawful justification or cause)." Pennsylvania Suggested Standard Criminal Jury Instructions 15.2502A (1988); see In Interest of Smith, 396 Pa. 36 Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 7. 37 Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 8. 38 Commonwealth v. Gribble, 550 Pa. 62, 703 A.2d 426 (1997). 39 Commonwealth v. Hare, 486 Pa. 123, 129, 404 A.2d 388, 391 (1979). 12 Super. 624, 579 A.2d 889 (1990), appeal denied 527 Pa. 610, 590 A.2d 296 (1991). No appreciable amount of time is required for formation of the intent to kill. See Commonwealth v. Robinson, 468 Pa. 575, 364 A.2d 665 (1976). In this case, although President Judge Sheely did not utilize the language of the suggested standard instructions in defining first degree murder for the jury, he made it clear that Defendant could not be convicted of attempted murder unless the jury concluded that he had shot at the victim on the occasion in question with the intent to kill him. The instruction conveyed the elements of attempted murder. The case was not one where a justification defense or facts suggestive of voluntary manslaughter as the crime intended4° might have raised an issue as to malice; the period of time involved in the hunt for the victim foreclosed, as a practical matter, any issue as to whether an adequate amount of time existed for premeditation; and an instruction by the court on the elements of second and third degree murder would not have furthered the jury's understanding of the law pertinent to the Defendant's circumstances. Finally, the instruction on attempted murder given by President Judge Sheely was not, it is believed, equivalent to that described in Commonwealth v. Ford-Bey, 504 Pa.284, 472 A.2d 1062 (1984), where a new trial was awarded to a defendant by the Pennsylvania Supreme Court: In this case, the [trial] court's only charge to the jury concerning the crime of attempted murder was as follows: Criminal attempt definition: a person commits an attempt when, with intent to commit a specific crime, he does any act which constitutes a substantial step toward the commission of that crime. It is clear that this charge was inadequate in that the trial court failed to identify the specific crime of murder as an element of attempted murder, and further failed to instruct the jury on any of the elements of murder. 40 Such a crime exists in Pennsylvania. Commonwealth v. Garner, 314 Pa. Super. 566, 461 A.2d 302 (1983). 13 In the case at bar, the instruction of the court identified the crime of first degree murder as an element of attempted murder, and adequately instructed the jury on the elements of first degree murder. For the foregoing reasons, relief will not be granted to Defendant on this claim of ineffective assistance of counsel. Illegality of Sentence Alleged illegality of sentence for attempted murder. In arguing that a sentence of five-to-fifteen years for attempted murder exceeded the statutory maximum, Defendant has relied upon the following version of Section 905(a) of the Crimes Code: Grading.--Except as otherwise provided in this section, attempt, solicitation and conspiracy are crimes of the same grade and degree as the most serious offense which is attempted or solicited or is an object of the conspiracy. An attempt, solicitation or conspiracy to commit murder or a felony of the first degree is a felony of the second degree. 4~ A felony of the second degree is punishable by a maximum sentence of ten years.42 It follows, according to Defendant's argument, that a sentence of fifteen years exceeded by five years the statutory maximum.43 The provision relied upon by Defendant, however, was amended prior to Defendant's 1997 crime, by Section 1 of the Act of March 9, 1995, P.L. 964 (Spec. Sess. No. 1). This act deleted the italicized portion of the Crimes Code quoted above, and added to the Code the following provision: Attempt, solicitation and conspiracy to commit murder ....-- Notwithstanding [a certain provision relating to penalties for felonies in general], a person who has been convicted of attempt, solicitation or conspiracy to commit murder ... where serious bodily injury results may be sentenced to a term of imprisonment which shall be fixed by the court at not more than 40 years. Where serious bodily injury does 41 Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 8-9 (emphasis added) see Commonwealth v. Lore, 338 Pa. Super. 42, 69-70, 487 A.2d 841,856 (1984) (quoting statute). 42 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §1103(2). 43 Marcus T. Rose's Memorandum in Support of His PRCA Petition, at 9. 14 not result, the person ma); be sentenced to a term o,f imprisonment which shall be fixed by the court at not more than 20 years. 44 In view of these amendments, the provision of the Crimes Code relied upon by Defendant to support the proposition that his sentence for attempted murder was illegal was not applicable to his offense, and the provision which was applicable authorized the sentence imposed. Consequently, this contention must be rejected. Alleged merger o,f oJ~fenses o,f recklessly endangering and aggravated assault with attempted murder .for sentencing purposes. Defendant argues that for sentencing purposes the offense of recklessly endangering merges with the offense of aggravated assault and that the offense of aggravated assault merges with the offense of' attempted murder.45 It follows, according to Defendant's argument, that Defendant's "sentences for aggravated assault and recklessly endangering another person are illegal .... ,,46 It has been said that the imposition of' separate punishments for merged offenses is illegal. Commonwealth v. Archer, 772 A.2d 203,209 (Pa. Super. Ct. 1998). The test for determining whether offenses merge for purposes of sentencing has been stated as follows: Our inquiry ... is whether the elements of the lesser crime are all included within the elements of the greater crime, and the greater offense includes at least one additional element which is different, in which case the sentences merge, or whether both crimes require proof of at least one element which the other does not, in which case the sentences do not merge. Commonwealth v. Anderson, 538 Pa. 574, 582, 650 A.2d 20, 24 (1994). In the present case, the question of whether the offense of' recklessly endangering merges with aggravated assault for sentencing purposes is an academic one, because President Judge Sheely did not impose a penalty or probationary period for the charge of recklessly endangering--in effect, treating the offense as merging for purposes of 44 Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §1102(c) (emphasis added). 45 Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 9. 15 sentencing.47 With respect to the question of whether the offense of aggravated assault merges with attempted murder for sentencing purposes in the present context,48 an analysis in accordance with the above test is required. A form of aggravated assault of which Defendant was convicted is described in the Crimes Code as follows: A person is guilty of aggravated assault if he ... attempts to cause or intentionally or knowingly causes bodily injury to another with a deadly weapon. Act of December 6, 1972, P.L. 1482, §1, as amended, 18 Pa. C.S. §2702(a)(4) (1999 Supp.). This form of aggravated assault is a felony of the second degree. Id., §2702(b). Attempted murder involves an attempt to commit the crime of first degree murder. First degree murder is defined in the Crimes Code as follows: A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing. Act of December 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §2502(a). The elements of the lesser offense of aggravated assault under Section 2702(a)(4) of the Crimes Code are not all included in the greater offense of attempted murder, inasmuch as the use of a deadly weapon is not an element of attempted murder; both crimes require proof of at least one element (use of a deadly weapon/intent to kill) which the other does not. Consequently, the test for merger is not satisfied with respect to these offenses. The sentence imposed upon Defendant by President Judge Sheely for 46 Marcus T. Rose's Memorandum in Support of His PCRA Petition, at 9. 47 Although Defendant was directed to pay the costs of prosecution with respect to this count, this direction was of no practical significance inasmuch as these were the same costs that were directed to be paid on other counts. This direction, in itself, would not constitute an illegal sentence. See Commonwealth v. Soudani, 193 Pa. Super. 353, 165 A.2d 709 (1960); see also Commonwealth v. Smith, 239 Pa. Super. 440, 361 A.2d 883 (1976); cf. Giaccio v. Pennsylvania, 382 U.S. 399, 86 S. Ct. 518, 15 L. Ed. 2d 447 (1966). 48 Aggravated assault can unquestionably merge with attempted murder for sentencing purposes in certain cases. See Commonwealth v. Anderson, 538 Pa. 574, 650 A.2d 20 (1994). 16 aggravated assault--i.e., not less than two years nor more than five years imprisonment, was well within the statutory limit for a felony of the second degree. For the foregoing reasons, Defendant's claim for collateral relief based upon illegal sentences as to recklessly endangering and aggravated assault can not be sustained. ORDER OF COURT AND NOW, this 27th day of October, 1999, upon consideration of Defendant's petition under the Post Conviction Relief Act, following a hearing and for the reasons stated in the accompanying opinion, the petition is denied except to the extent previously granted by agreement of counsel by order of court dated May 28, 1999. BY THE COURT, Jaime M. Keating, Esq. Chief Deputy District Attorney Darrell C. Dethlefs, Esq. 3805 Market Street P.O. Box 368 Camp Hill, PA 17001-0368 Court-appointed Counsel for Defendant /s/J. Wesley Oler, Jr. J. Wesley Oler, Jr., J. 17