J. S09003/08 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA, Appellee v. KENNETH COLEMAN, Appellant : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2967 EDA 2005 Appeal from the Judgment of Sentence dated October 7, 2005 In the Court of Common Pleas of Philadelphia County Criminal No. CP#0412-0276 1/1 ------------------------------------------------------------------------------------COMMONWEALTH OF PENNSYLVANIA, Appellee v. KENNETH COLEMAN, Appellant : : : : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 2988 EDA 2005 Appeal from the Judgment of Sentence dated October 7, 2005 In the Court of Common Pleas of Philadelphia County Criminal No. CP#0412-0102 1/1 BEFORE: BENDER, ALLEN, and FITZGERALD,* JJ. MEMORANDUM: * Filed: March 9, 2009 Former Justice specially assigned to Superior Court. J. S09003/08 Appellant, Kenneth Coleman, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury conviction of attempted murder,1 first-degree aggravated assault,2 seconddegree aggravated assault,3 and possession of an instrument of crime (“PIC”).4 The trial court subsequently imposed an aggregate sentence of 17 ½ to 35 years’ incarceration. Initially, two separate appeals were filed, relating to the offenses committed against two victims, Joseph Leary, and his sister, Lorraine Patterson. Appellant’s request to consolidate the appeals was granted on April 19, 2007. Counsel has now filed a petition for remand pursuant to Commonwealth v. Battle, 879 A.2d 266 (Pa. Super. 2005), and Commonwealth v. Lawrence, 596 A.2d 165 (Pa. Super. 1991). We affirm the resentencing. convictions, but vacate his sentences and remand for We further deny Appellant’s petition for remand and his petition to cease and desist unauthorized deductions. On November 5, 2004, at about 10:15 p.m., all of the parties involved were inside Victor’s Tavern in Philadelphia. Leary, Patterson, and two male friends of Patterson were together at a table near the bathrooms. Patterson 1 18 Pa.C.S. § 901; 18 Pa.C.S. § 2502(a). 2 18 Pa.C.S. § 2702(a)(1). 3 18 Pa.C.S. § 2702(a)(4). 4 18 Pa.C.S. § 907. -2- J. S09003/08 and her two male friends were admittedly gay. Appellant was sitting at a nearby table with another man and woman. Someone at Appellant’s table made remarks concerning the sexual orientation of Leary’s group. Leary testified that Appellant, while looking at him, said, “He must be gay, too.” N.T., 7/5/05, at 42. Leary replied to Appellant, “You must be gay.” Id. Patterson testified she heard her brother address someone at Appellant’s table and say, “Yeah, so what, they gay [sic]. They entitled to have a good time too [sic].” Id. at 69. Appellant testified on his own behalf that while the Leary group was dancing, his friend made a “joking comment about their dancing or nature of their character . . . . We laughed. It was just a general laugh, a little joke. At that point Mr. Leary made the statement . . . ‘[T]hey’re gay, but I’m not gay’, and said a couple other derogatory things to me directly.” Id. at 11112. Appellant described Leary’s manner as “hostile and aggressive.” Id. at 113. After this verbal exchange, Appellant left the bar for about fifteen minutes to talk to his fiancé, who worked at a Rite Aid store across the street from the bar. He told her about the verbal exchanges with Leary, then returned to the bar, expecting his fiancé to meet him shortly after she finished working, and with the understanding they would go home together. Leary testified that Appellant returned to the bar about a half-hour after the initial verbal exchange. Shortly thereafter, he and Appellant were -3- J. S09003/08 sitting in their respective seats looking at each other when Appellant jumped up and ran toward him. Appellant started stabbing him, inflicting wounds to Leary’s head, chin and shoulder. Leary lost a lot of blood, was hospitalized for six days, and required an operation to remove a portion of a broken blade from his skull. He suffered a six-inch scar on the left side of his head, above his ear, a two-and-one-half-inch scar on the right side of his chin, and a one-and-a-half-inch scar on top of his right shoulder. He testified that the attack by Appellant was unprovoked, he never put his hands on Appellant, and did not try to grab Appellant. Leary admitted that he was incarcerated at the time of trial for an unrelated simple assault conviction, when the criminal incident occurred in August 2004, and he admitted to a previous conviction for aggravated assault in 1980. He also conceded he was “bigger” and heavier than Appellant. N.T., 7/5/05, at 55. Patterson testified that she was talking to a barmaid when the barmaid, with an expression on her face, pointed behind her. Patterson turned and saw Appellant standing over Leary, who was sitting in a chair, “stabbing him all in the neck.” Id. at 71. She ran to Appellant and knocked him off Leary by hitting him with her shoulder. They fell, and she was on top of Appellant when he reached over and stabbed her in the back, near her spine. Id. at 72. She was treated for the wound at the hospital and was discharged the next morning. She received five or six clamps in her back, -4- J. S09003/08 resulting in a three-quarter inch scar. Patterson also testified that she observed Leary bleeding, and that she bled as a result of her wound. She stated, “There was so much [blood], I kept slipping in it trying to get up.” Id. at 73. Joyce Smith, the manager of Victor’s Tavern, testified that she was on duty that night and recognized Appellant by sight. She observed Appellant speaking to a woman, whom she had seen previously and thought was Appellant’s wife. The woman left the bar, but Appellant remained. Smith was talking to some friends when she noticed Appellant “hitting” Leary, describing an overhead blow with a fist, with the bottom portion of Appellant’s hand hitting Leary in the head. After the assault, Appellant ran out of the bar, passing by Smith and enabling her to see that he was holding, in the same hand with which he had been hitting Leary, a knife by the handle, with the blade facing to his rear. She described the knife blade as about six inches in length, silver, with blood on it. She stated that there was a lot of blood at the scene, and that both victims had been bleeding. A police officer testified that, upon arriving at the scene, he observed Patterson bleeding from her back, and Leary bleeding profusely from the top of his head. He observed blood on the floor where Patterson lay and blood on the table and floor where Leary was sitting. When Appellant was apprehended the next day, Officer James Morace secured a black box-cutter with a silver screw and silver thumb level from -5- J. S09003/08 Appellant’s right jacket pocket. During his initial interaction with the police, Appellant provided a false name, date of birth, and driver’s license number. Believing that Appellant matched the description of the assailant involved in the bar assault the night before, Officer Morace ascertained that the information provided to him by Appellant was false. He again asked Appellant for his name, at which time Appellant provided his real name. Subsequently, Appellant was arrested. At trial, and prior to Officer Morace’s testimony, the box-cutter was introduced as evidence, with the extended razor blade, measuring about a half inch, exhibited to the jury. Appellant objected to introduction of the box-cutter as evidence on the grounds that its probative value was outweighed by its prejudical effect, since the defense had not been provided with any discovery indicating that the box-cutter was the weapon used in the assault. Upon representation by the Commonwealth that there would not be another weapon introduced, the trial court admitted the box-cutter into evidence. After the testimony of Joyce Smith, who described Appellant as carrying a knife, and the prosecutor’s representation that he would argue Smith’s testimony was credible, the trial court indicated that it would give the jury a cautionary instruction to disregard evidence of the box-cutter because of its prejudicial effect. Appellant asked that the trial court defer its decision until after he testified. -6- J. S09003/08 When Appellant testified, he essentially claimed self defense or a mistaken belief in the need to employ self defense. He testified that he hit Leary with the box-cutter, but that the blade was not extended, and he denied that any blood was on his knuckles, clothes, or the box-cutter. Appellant alleged that Leary initiated the physical confrontation by blocking his way to the restroom and goading him into fighting, then grabbing Appellant’s jacket, pulling Appellant toward him. Appellant asserted he grabbed Leary in return, at which point they exchanged punches. Appellant averred that Leary, who was larger and heavier, overpowered him, and so fearing that Leary was about to “hurt” him, Appellant produced the box cutter with the blade unexposed and hit Leary with the box cutter. Appellant testified, “We’re going blow for blow. . . . Now I’m just hitting him with the box cutter in my hand, hoping that this box cutter, seeing this box cutter in my hand, would be as a deterrent as if to say I have a weapon, leave me the hell alone. He doesn’t stop. . . . I was tremendously overpowered by this guy. This guy is really strong.” N.T., 7/5/05, at 116-17. Appellant further testified that during the exchange, someone grabbed him from behind in a choke hold and: I still had the box cutter in my hand. I reached back trying to get this person off me. We both fall backwards. She hits the ground. I fall on top of her. We’re front to back. I get up. I see it’s her. I just immediately leave. . . I don’t know if there are other people that are going to get in this situation. . . . I thought in my mind the best thing to do is just to get the hell out of here . . . because that was a very hostile situation, and I felt in danger. -7- J. S09003/08 Id. at 117-19. Following the jury’s finding of guilt of the above crimes, in October 2005, the trial court imposed a sentence of 5 to 10 years’ imprisonment for the aggravated assault of Patterson, 10 to 20 years’ imprisonment for the attempted murder of Leary, 2.5 to 5 years’ imprisonment for PIC pertaining to Leary, and 5 to 10 years’ imprisonment for the aggravated assault of Leary. The docket indicates that the aggravated assault conviction related to Patterson ran concurrently with the aggravated assault conviction related to Leary, while the attempted murder and PIC convictions related to Leary were to run consecutively with the aggravated assault conviction related to Leary. Compare Trial Ct. Docket, CP-51-CR-1201021-2004, at 3 (noting aggravated assault sentence related to Patterson is “concurrent with any other sentence given), and id. at 13 (noting that aggravated assault sentence related to Leary is “concurrent with other charge(s) within another MC/CP/SU case”), with Trial Ct. Docket, CP-51-CR-1202761-2004, at 3 (noting that PIC and attempted murder convictions are each “consecutive to Seq. 1 [(18 Pa.C.S. § 2702, aggravated assault)]”).5 Counsel filed a notice 5 Appellant states that he received “an aggregate of 12 ½-25 years on [the convictions] as to Joseph Leary and a consecutive sentence of 5 – 10 years on the aggravated assault as to Lorraine Patterson.” Appellant’s Brief at 6. The Commonwealth notes only that Appellant received an aggregate sentence of 17.5 to 35 years. The trial court notes only that Appellant received a five- to ten-year sentence for the Patterson aggravated assault, and erroneously states that he received a “10 ½ to 20 year sentence” for the (continued…) -8- J. S09003/08 of appeal on October 25, 2005, but Appellant filed a pro se post-sentence motion on November 2, 2005, seeking a modification of or reduced sentence.6 The trial court did not address the pro se motion, resulting in its denial by operation of law on March 3, 2006. Trial Ct. Op., filed 4/11/07, at 2. Counsel filed a Pa.R.A.P. 1925(b) statement, followed by amended Rule 1925(b) statements. The trial court filed responsive opinions. On May 24, 2007, Appellant filed a pro se petition with this Court, requesting remand for an evidentiary hearing and ostensibly alleging ineffectiveness of trial counsel, who continues to represent him on appeal. On June 13, 2007, this Court filed an order denying Appellant’s petition, but directing counsel to file a petition for remand pursuant to Battle, supra, and Lawrence, supra.7 Counsel filed the petition for remand on June 18, (…continued) Leary convictions. The notes of testimony from sentencing were not included in the record. Based on the dockets, however, it appears that while the aggregate sentence is 17.5 to 35 years’ imprisonment, that sentence is comprised of each of the Leary convictions running consecutively to each other. 6 The pro se motion contained in the certified record appears to be a copy of a “form” motion. It mischaracterizes the offenses as being burglary and theft, and it seeks a modification of sentence on the grounds that the trial court did not provide adequate reasons for deviation from the guidelines and failed to give appropriate weight to the circumstances of his background, which caused him to attempt to steal a refrigerator. 7 Battle and Lawrence require counsel to file a petition for remand once an appellant, acting pro se, alleges ineffectiveness of appellate counsel for failing to raise certain claims on appeal. See Battle, 879 A.2d at 268. In the petition for remand, counsel is required to provide this Court with an (continued…) -9- J. S09003/08 2007. On September 18, 2008, Appellant filed a pro se motion with this Court seeking an order compelling the Philadelphia Clerk of Courts to direct SCI-Somerset to “Cease and Desist The Unauthorized Deductions For Court Costs and Fines,” asserting the sentencing court failed to state on the record that he was ordered to pay court costs and fines. Initially, we address counsel’s petition for remand. The issues raised relating to this petition involve challenges to trial counsel’s effectiveness and appellate counsel’s layered effectiveness. Generally, a defendant “should wait to raise claims of ineffective assistance of trial counsel until collateral review.” Commonwealth v. Grant, 572 Pa. 48, 67, 813 A.2d 726, 738 (2002). A limited exception exists where such claims are raised before the trial court at the post-sentence phase of proceedings, an evidentiary hearing was held, and the trial court provided a full consideration of the issues. Commonwealth v. Bomar, 573 Pa. 426, 463-66, 826 A.2d 831, 853-55 (2003). Where the trial court addresses claims of trial counsel’s ineffectiveness, believing the record to be sufficient to review the questions presented, but fails to conduct an evidentiary hearing, the Bomar exception (…continued) evaluation of those claims. Id. This Court will then determine whether counsel had a legitimate basis for declining to raise those claims on appeal. Id. at 269. We do not review the pro se filing, only counsel’s analysis of the issues raised in the pro se filing. Id. - 10 - J. S09003/08 does not apply. Commonwealth v. May, 584 Pa. 640, 654-55, 887 A.2d 750, 758 (2005). Instantly, no evidentiary hearing was conducted, and the trial court did not provide a full consideration of the issues relating to the purported ineffectiveness of counsel. Our Supreme Court has reaffirmed its decision in Grant, disapproving of equitable exceptions to the Grant rule. See Commonwealth v. O’Berg, 584 Pa. 11, 20, 880 A.2d 597, 602 (2005). Therefore, we could not address Appellant’s desired claims even if new counsel were appointed or he raised the claims pro se. See Grant, supra. Accordingly, we deny Appellant’s petition for remand, without prejudice to Appellant’s ability to raise the claims on collateral review, pursuant to the Post Conviction Relief Act.8 Secondly, we address Appellant’s pro se “Cease and Desist” motion filed on September 18, 2008. Notwithstanding that this, too, is a pro se motion filed while Appellant was represented by counsel, we find that this issue is not properly before us at this time since Appellant failed to include the issue in any post-sentence motion or in a statement of matters complained of on appeal. Instead, he attempts to raise it for the first time in this appeal. This claim is therefore waived. See Pa.R.A.P. 302 (“Issues not raised in the lower court are waived and cannot be raised for the first time 8 42 Pa.C.S. §§ 9541-9546. - 11 - J. S09003/08 on appeal”); Commonwealth v. Fremd, 860 A.2d 515, 520 (Pa. Super. 2004). We therefore proceed to address the claims Appellant raises in his appellate brief. Appellant asks: 1. Whether the evidence was sufficient to convict Appellant of attempted murder as to Joseph Leary since: A) The Commonwealth failed to introduce any medical records/expert testimony to support the fact that Mr. Leary suffered a serious bodily injury to a vital part of his body to support the attempted murder conviction? [ ] B) Whether the Commonwealth failed to prove that Appellant had the requisite mens rea/specific intent to commit attempted murder since the incident was nothing more than a barroom fight and at the most aggravated assault? Appellant’s Brief at 4. Appellant argues that the evidence, at most, would support only a conviction for aggravated assault as to victim Leary. He asserts that the evidence supports the finding that he was acting in “hot blood,” that the stabbing was provoked and spontaneous, or that he acted under an “unreasonable belief” in the need to defend himself, and therefore there was no established premeditation on his part. He concludes that the evidence is insufficient to support his conviction for attempted murder. We disagree. Our standard of review of a sufficiency of the evidence claim is wellsettled. Evidence is sufficient to sustain a conviction when it establishes beyond a reasonable doubt each material element of the offense charged - 12 - J. S09003/08 and the accused as the perpetrator of the crime. Commonwealth v. Widmer, 560 Pa. 308, 319, 744 A.2d 745, 751 (2000). A reviewing court is required to view the evidence in the light most favorable to the Commonwealth as verdict winner, giving the prosecution the benefit of all reasonable inferences to be drawn from the evidence. Id. All of the evidence actually admitted at trial must be considered. Commonwealth v. Foreman, 797 A.2d 1005, 1011 (Pa. Super. 2002) (quoting Commonwealth v. Dellavecchia, 725 A.2d 186, 188 (Pa. Super. 1998)). The credibility of witnesses and the weight to be accorded to the evidence are matters within the province of the trier of fact, who may believe all, some, or none of the evidence. Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa. Super. 2000). A victim’s testimony alone may be sufficient to establish each element of the crimes charged. Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa. Super. 2007). A reviewing court may not substitute its own judgment for that of the fact-finder’s, and it may not disturb a verdict if it is supported by the record. Commonwealth v. Myers, 554 Pa. 569, 575-76, 722 A.2d 649, 652 (1998). “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.” 18 Pa.C.S. § 901(a). Murder of the first degree is the only degree of murder subject to an attempt charge, since death in lesser grades of murder occur as an unintended result of otherwise criminal - 13 - J. S09003/08 conduct. See Commonwealth v. Geathers, 847 A.2d 730, 734 (Pa. Super. 2004) (quoting Commonwealth v. Griffin, 456 A.2d 171, 177-78 (Pa. Super. 1983)). Thus, “there simply is no such crime as attempted second or third degree murder.” Id. (quoting Commonwealth v. Williams, 730 A.2d 507, 511 (Pa. Super. 1999)). “A criminal homicide constitutes murder of the first degree when it is committed by an intentional killing.” 18 Pa.C.S. § 2502(a). An “intentional killing” is defined as: “Killing by means of poison, or by lying in wait, or by any other kind of willful, deliberate and premeditated killing.” 18 Pa.C.S. § 2502(d). “[A] willful, deliberate and premeditated killing is one where the actor had the specific intent to bring about the death of the victim.” Commonwealth v. Meredith, 490 Pa. 303, 309, 416 A.2d 481, 484 (1980). This Court has previously stated, in the context of discussing the elements of the offense of attempted murder: “An ‘attempted malicious killing’ is not recognized in Pennsylvania. Rather, the only way to establish attempted murder is to establish that the accused harbored a more culpable mental state than malice; namely, specific intent to kill.” A.2d at 736 (Pa. Super. 2004). Geathers, 847 “Attempted murder is defined by reading the attempt statute, 18 Pa.C.S.A. § 901(a), in conjunction with the murder statute, 18 Pa.C.S.A. 2502(a) (murder of the first degree). Accordingly, the elements of attempted murder are (1) the taking of a substantial step, (2) - 14 - J. S09003/08 towards an intentional killing.” Commonwealth v. Johnson, 874 A.2d 66, 71 (Pa. Super. 2004) (citing 18 Pa.C.S. §§ 901(a), 2502(a)). The necessary second element entails an analysis of the state of mind of the defendant. The state of mind necessary to warrant a conviction of first-degree murder requires that the actor killed another person with the specific intent to kill, that is, a “willful, deliberate or premeditated killing.” 18 Pa.C.S. § 2502(a). This state of mind is not possessed where the actor acts and thinks in circumstances that reduce a homicide from first-degree murder to voluntary manslaughter because the actor acted under a sudden and intense passion resulting from serious provocation, or unreasonably believed that the killing was justifiable pursuant to general principles of justification set forth in Chapter 5 of the Crimes Code. Compare 18 Pa.C.S. § 2501, with 18 Pa.C.S. §§ 2503(a), (b). Since an actor may intentionally kill another under circumstances which do not warrant a conviction for murder of the first degree, the offense of attempted voluntary manslaughter is a recognized offense in this Commonwealth.9 Commonwealth v. Garner, 461 A.2d 302, 303 (Pa. Super. 1983) (quotation omitted). “The law infers or presumes from the use of a deadly weapon, in the absence of circumstances of explanation or mitigation, the existence of the 9 Thus, it is proper to charge and convict a defendant of attempted criminal homicide. See Commonwealth v. Whitacre, 878 A.2d 96 (Pa. Super. 2005) (affirming conviction of, inter alia, attempted criminal homicide). - 15 - J. S09003/08 mental element—intent, malice, design, premeditation, or whatever term may used to express it—which is essential to culpable homicide.” Commonwealth v. Lee, 626 A2d 1238, 1241 (Pa. Super. 1993). The intentional use of a deadly weapon upon a vital part of the body raises the permissible inference of malice, as well as a specific intent to kill. Id. (citing Commonwealth v. Caye, 465 Pa. 98, 348 A.2d 136 (1975); Commonwealth v. Toledo, 529 A.2d 480 (Pa. Super. 1987)). A specific intent to kill may also be found from a defendant’s words or conduct or from the attendant circumstances, together with all reasonable inferences therefrom. Commonwealth v. Bundy, 458 Pa. 240, 244, 328 A.2d 517, 519 (1974) (quoting Commonwealth v. Ahearn, 421 Pa. 311, 318, 218 A.2d 561, 565 (1966), overruled on other grounds by Commonwealth v. Walzack, 468 Pa. 210, 360 A.2d 914 (1976)); see also Commonwealth v. Keaton, 556 Pa. 442, 456, 729 A.2d 529, 536 (1999). Such evidence may include the number and nature of the wounds. See Commonwealth v. Duffey, 519 Pa. 348, 366, 548 A.2d 1178, 1186 (1988) (finding sufficient evidence of intent to kill based on medical testimony indicating seventeen wounds were incisional, thirteen were defensive, and victim was alive while wounds were inflicted). If a defendant claims self-defense or justification, it is the Commonwealth’s burden to disprove that defense beyond a reasonable doubt. Commonwealth v. Torres, 564 Pa. 219, 224, 766 A.2d 342, 345 - 16 - J. S09003/08 (2001). To meet its burden, the Commonwealth must establish any one of the following elements beyond a reasonable doubt: (1) that the defendant did not reasonably believe it was necessary to kill in order to protect himself against death or serious bodily harm, or that the defendant used more force than was necessary to save himself from death, great bodily harm, or the commission of a felony; (2) that the defendant provoked the use of force; or (3) that the defendant had a duty to retreat and that retreat was possible with complete safety. Commonwealth v. Burns, 765 A.2d 1144, 1149 (Pa. Super. 2000). Instantly, the trial court recognized and applied these concepts to the case. The trial court specifically charged the jury on the voluntary manslaughter “defenses” to first-degree murder, instructing the jury that the burden was upon the Commonwealth to disprove the applicability of these defenses beyond a reasonable doubt, in order to prove beyond a reasonable doubt that Appellant was guilty of the offense of attempted murder. The jury found that the evidence supported a conviction for attempted murder. Viewing the evidence in favor of the Commonwealth as verdict-winner, the evidence was sufficient to prove beyond a reasonable doubt that Appellant provoked the use of force, and initiated the use of deadly force. Specifically, Appellant produced a deadly weapon and used it on a vital part of Leary’s body, his head, after attacking him without legal provocation. Appellant’s jumping from his seat and repeatedly stabbing Leary in the head, chin, and shoulder allowed the fact-finder to find that these multiple stab wounds established the intent to kill. See Duffey, supra; Bundy, supra; Lee, - 17 - J. S09003/08 supra. Appellant’s self-serving assertions that the incident constituted only a “barroom fight,” and at most constituted only an aggravated assault, are but an attempt to challenge the jury’s findings as to credibility and the weight it accorded to the evidence, and to substitute his own version of the event. Moreover, Leary’s testimony that he did not provoke Appellant’s attack was sufficient for the Commonwealth to disprove Appellant’s claim of self-defense. See Burns, supra. Further, we find meritless Appellant’s claim that the Commonwealth’s failure to introduce medical records or expert testimony to the effect that Leary suffered serious bodily injury renders the evidence insufficient to support his convictions. Attempted murder requires a specific intent to kill and a substantial step toward that accomplishment. See Johnson, supra. Therefore, proof of serious bodily injury, or proof of any actual injury, is not a required element of the offense, and expert testimony or other medical evidence is not required to sustain a conviction. See Commonwealth v. Dale, 836 A.2d 150, 154 (Pa. Super. 2003) (observing that because proof of actual harm is not required to prove attempted murder, expert testimony about the harm is not required); Commonwealth v. Donton, 654 A.2d 580 (Pa. Super. 1995) (confirming that attempt crimes focus on whether defendant’s acts constituted substantial step toward commission of crime, i.e. his intent, rather than what acts remained to be done). Accordingly, we affirm Appellant’s conviction of the offense of attempted murder as to Leary. - 18 - J. S09003/08 Although Appellant does not raise this issue, we address whether an illegal sentence was imposed. See Commonwealth v. Santone, 757 A.2d 963, 966 (Pa. Super. 2000) (noting that courts may address issue of illegal sentence sua sponte) (quoting Commonwealth v. Quinlan, 639 A.2d 1235, 1239 (Pa. Super. 1994)). Aggravated assault is a lesser-included offense of attempted murder; thus, for purposes of sentencing, an aggravated assault conviction should merge with an attempted murder conviction. Commonwealth v. Anderson, 538 Pa. 574, 583, 650 A.2d 20, 24 (1994). Such merger is required even when the lesser-included offense is imposed concurrently with the greater offense. See Commonwealth v. Diaz, 867 A.2d 1285, 1286 (Pa. Super. 2005) (noting that sentence for theft should have merged with concurrent burglary sentence). However, resentencing is not required when reversing a concurrent sentence. Commonwealth v. Klein, 795 A.2d 424, 430-31 (Pa. Super. 2002) (quoting Commonwealth v. Berrena, 617 A.2d 1278, 1780 (Pa. Super. 1992)). Instantly, the docket indicates that Appellant’s convictions for the crimes against Leary run consecutively to each other, while his conviction for aggravated assault against Patterson run concurrently to those crimes. Even if Appellant is correct that the Leary aggravated assault is concurrent and the Patterson aggravated assault is consecutive, the Leary aggravated assault must merge with the attempted murder conviction. See Anderson, - 19 - J. S09003/08 supra; Diaz, supra. Unlike Klein, however, we find resentencing necessary because it appears the Leary aggravated assault is consecutive to the attempted murder conviction, thus affecting the legality of the aggregate sentence. Further, if in fact the Patterson aggravated assault runs concurrently with only the Leary aggravated assault, then merger of the Leary aggravated assault sentence would affect the propriety of the Patterson aggravated assault sentence, concurrently with an unmerged conviction. as it would no longer run Because we find the current, aggregate sentence illegal regardless, we vacate the judgments of sentence in both the Leary and Patterson matters. Upon resentencing, the trial court must merge the Leary aggravated-assault conviction with the Leary attempted-murder conviction, but has the discretion to impose either a consecutive or concurrent sentence for the Patterson aggravated-assault conviction. For all these reasons, we affirm all the convictions, but vacate all the sentences and remand for resentencing. Judgments of sentence affirmed in part and vacated in part. Petition for remand denied. Petition to cease and desist unauthorized deductions denied. Case remanded for resentencing. Jurisdiction relinquished. - 20 -