J-A34012-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
KWAME LAMAR BARNES,
Appellant No. 947 MDA 2014
Appeal from the Judgment of Sentence January 30, 2014
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0000426-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.
DISSENTING MEMORANDUM BY SHOGAN, J.: FILED MARCH 16, 2016
While the learned Majority presents a thoughtful analysis in reaching
its decision to vacate the judgment of sentence in this criminal matter, I
disagree with its conclusions. Thus, because I would affirm the judgment of
sentence which was imposed by the trial court upon remand, I am compelled
to respectfully dissent.
From my review, the facts surrounding this brutal case are as follows.
On December 19, 2010, the sixteen year-old female victim (“Victim”) was
sleeping alone at her mother’s home when she received a text message from
her ex-boyfriend, Appellant. N.T., 2/27-28/12, at 137-139. Although the
couple were no longer dating, they still had an amicable relationship. Id. at
139. Appellant indicated in the text message that he was at the back door
of the residence and Victim allowed Appellant to enter the home. Id. at
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140. Victim and Appellant went upstairs to Victim’s bedroom where they
talked, eventually had a sexual encounter, and then talked again. Id. at
140-141. The two then had an argument, Victim asked Appellant to leave,
and she escorted Appellant downstairs to the back door. Id. at 141-142.
Before leaving, Appellant threatened to hit Victim with a vacuum. Id. at
143-144. Subsequently, Appellant strangled Victim from behind by using his
arm. Id. at 144-145. Victim lost consciousness. Id. at 145. When Victim
regained consciousness, Appellant said to Victim, “you’re gonna die today,”
and proceeded to strangle Victim again until she lost consciousness a second
time. Id. at 145-147. When Victim finally regained consciousness, she was
wrapped in a blanket and lying head-first in a recycling dumpster, under the
State Street Bridge. Id. at 147-150. Victim eventually worked her way free
and managed to get to the side of a roadway, where the driver of a passing
vehicle finally stopped and took Victim to the hospital. Id. at 149. Victim
was suffering from a broken vertebra in her neck, various facial injuries, a
lacerated and swollen tongue, a large contusion to her right eye, and
hypothermia. Id. at 16-21.
On December 20, 2010, Appellant was charged with criminal attempt
to commit homicide, aggravated assault, kidnapping, recklessly endangering
another person (“REAP”), terroristic threats, and theft by unlawful taking.1
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1
The charge of theft by unlawful taking was subsequently dismissed.
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On February 28, 2012, at the conclusion of a jury trial, Appellant was found
guilty of the crimes of criminal attempt — homicide, aggravated assault,
kidnapping, and REAP. The jury found Appellant not guilty for the charge of
terroristic threats. On May 18, 2012, Appellant was sentenced to a term of
incarceration of twenty to forty years for the conviction of attempted
homicide, a consecutive term of incarceration of two and one-half to five
years for his conviction of aggravated assault, and a consecutive term of
incarceration of two and one-half to five years for his conviction of
kidnapping. The trial court imposed no sentence for the conviction of REAP.
On direct appeal, this Court determined that the convictions of
aggravated assault and attempted homicide should have merged because
the crimes arose from a single set of facts (namely, that Appellant choked
the victim to unconsciousness), vacated the judgment of sentence, and
remanded for resentencing. Commonwealth v. Barnes, 691 MDA 2013,
93 A.3d 497 (Pa. Super. filed December 3, 2013) (unpublished
memorandum). On January 30, 2014, the trial court resentenced Appellant
to a term of incarceration of twenty to forty years for the conviction of
attempted homicide and a consecutive term of incarceration of five to ten
years for the conviction of kidnapping. On February 5, 2014, Appellant filed
a post-sentence motion, which the trial court denied on May 12, 2014. This
appeal followed.
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In this direct appeal, the Majority concludes that because the jury did
not render a separate finding regarding serious bodily injury for the crime of
attempted murder, we are required to vacate the judgment of sentence
under Apprendi v. New Jersey, 530 U.S. 466 (2000), and remand for
resentencing. For the following reasons, I am compelled to dissent from the
Majority’s determination.
I begin by noting that a challenge to the legality of sentence is an
attack upon the power of a court to impose a given sentence.
Commonwealth v. Lipinski, 841 A.2d 537, 539 (Pa. Super. 2004).
Accordingly, our standard of review of Appellant’s issue is de novo, and our
scope of review is plenary. Commonwealth v. Saunders, 946 A.2d 776,
788 n.12 (Pa. Super. 2008).
First, it is my understanding that our Supreme Court precedent
requires a conclusion that the element of serious bodily injury was
determined by the fact finder when the jury found Appellant guilty of the
crime of aggravated assault. Indeed, the act of attempted murder, which
requires a substantial step toward an intentional killing, subsumes the act of
aggravated assault, which requires an attempt to inflict serious bodily injury.
As our Supreme Court stated in Commonwealth v. Anderson, 650 A.2d 20
(Pa. 1994):
It is clear that the offense of aggravated assault is necessarily
included within the offense of attempted murder; every
element of aggravated assault is subsumed in the
elements of attempted murder. The act necessary to
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establish the offense of attempted murder--a substantial step
towards an intentional killing--includes, indeed, coincides with,
the same act which was necessary to establish the offense of
aggravated assault, namely, the infliction of serious bodily
injury.
Id. at 24 (emphasis added). Accordingly, by virtue of its verdict convicting
Appellant of the crime of aggravated assault, the jury concluded that the
element of serious bodily injury was met, thereby permitting the imposition
of a maximum sentence of forty years for the conviction of attempted
murder.
Second, in reaching its conclusion, the Majority relies upon this Court’s
per curiam decision in Commonwealth v. Johnson, 910 A.2d 60 (Pa.
Super. 2006), for the proposition that the judgment of sentence must be
vacated under Apprendi because “the jury was never presented with, nor
rendered a decision on, the question of whether a serious bodily injury
resulted from the attempted murder.” Maj. slip op. at 6, citing Johnson.
However, I am constrained to conclude that Johnson is distinguishable from
the instant matter.
As the Court in Johnson explained:
Here, however, (1) [Johnson] was not charged with attempted
murder resulting in serious bodily injury, (2) [Johnson] was not
on notice that the Commonwealth sought either to prove that a
serious bodily injury resulted from the attempted murder or to
invoke the greater maximum sentence, and (3) the jury was
never presented with, nor rendered a decision on, the question
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of whether a serious bodily injury resulted from the attempted
murder.9
9
Compare: Commonwealth v. Reid, 867 A.2d
1280 (Pa.Super. 2005), appeal denied, 586 Pa. 725,
890 A.2d 1058 (2005) (affirming legality of a term of
imprisonment of up to forty years for attempted
murder, imposed following plea of nolo contendere,
where defendant was not formally charged with
attempted murder resulting in serious bodily injury,
but where the Commonwealth indicated its desire to
seek a maximum term of imprisonment of forty
years, and recited facts of substantial bodily injury,
to which defendant thereafter entered his plea of
nolo contendere to the charge of attempted murder).
Johnson, 910 A.2d at 67 (footnote and emphasis in original).
Instantly, I must observe that, prior to commencement of trial in this
matter the Commonwealth provided Appellant with a copy of the sentencing
guidelines (with a print date of January 10, 2012), describing the charge as
a “Murder Inchoate — Attempt with S.B.I. [Serious bodily Injury].”
Commonwealth’s Answer to Defendant’s Post-Sentence Motion, Attachment
“A.” (Docket Entry 70). In addition, the statutory limit section of those
sentencing guidelines indicates a maximum penalty of 480 months. Id.
Thus, I believe that any claim that Appellant was not apprised of the crime
and possible maximum sentence is unavailing.
Further, in rendering instructions to the jury the trial court stated the
following pertaining to the crime of criminal attempt to commit murder:
[Appellant] has been charged with criminal attempt,
murder. To find [Appellant] guilty of this offense you must find
that the following three elements have been proven beyond a
reasonable doubt:
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First, that [Appellant] did a certain act; that is, he
physically assaulted and strangled [Victim].
Second, that at the time of this alleged act, [Appellant]
had the specific intent to kill [Victim]; that is, he had the fully
formed intent to kill and was conscious of his intention.
And, third, that the act constituted a substantial step
toward the commission of the killing [Appellant] intended to
bring about.
N.T., 2/27-28/12, at 214. This exact instruction was again repeated to the
jury prior to deliberations. Id. at 235. Then again, on two occasions after
jury deliberations began, the jury asked for various instructions to be
reread, and the above instruction was repeated verbatim. Id. at 244-245,
261. Thereafter, the jury returned a verdict of guilty on the crime of
criminal attempt to commit murder. Id. at 265. Thus, by rendering such a
verdict the jury made a determination that, in committing the crime of
criminal attempt to commit murder, Appellant physically assaulted and
strangled Victim. Hence, I believe that the jury made the necessary
determinations with regard to serious bodily injury relevant to the crime of
attempted murder and the trial court properly imposed the maximum
sentence of forty years.
Moreover, I am compelled to conclude that the “law of the case”
doctrine applies in this matter. Specifically, this Court’s prior decision on
appeal precludes us from determining that the jury did not render a decision
on the particular element of serious bodily injury for the crime of attempted
murder necessary to impose the instant sentence.
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The law of the case doctrine “refers to a family of rules which embody
the concept that a court involved in the later phases of a litigated matter
should not reopen questions decided by another judge of that same court or
by a higher court in the earlier phases of the matter.” Commonwealth v.
Starr, 664 A.2d 1326, 1331 (Pa. 1995).
Among the related but distinct rules which make up the law of
the case doctrine are that: (1) upon remand for further
proceedings, a trial court may not alter the resolution of a legal
question previously decided by the appellate court in the matter;
(2) upon a second appeal, an appellate court may not alter the
resolution of a legal question previously decided by the same
appellate court; and (3) upon transfer of a matter between trial
judges of coordinate jurisdiction, the transferee trial court may
not alter the resolution of a legal question previously decided by
the transferor trial court.
The various rules which make up the law of the case doctrine
serve not only to promote the goal of judicial economy … but
also operate (1) to protect the settled expectations of the
parties; (2) to insure uniformity of decisions; (3) to maintain
consistency during the course of a single case; (4) to effectuate
the proper and streamlined administration of justice; and (5) to
bring litigation to an end.
Id. (citations omitted).
“Under the law of the case doctrine, a trial court cannot overrule the
holding of this Court upon remand proceedings.” Commonwealth v.
McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005) (en banc). “A [trial]
court is without power to modify, alter, amend, set aside or in any manner
disturb or depart from the judgment of the reviewing court as to any matter
decided on appeal.” Id. (quoting Commonwealth v. Williams, 877 A.2d
471, 475 (Pa. Super. 2005)). “[T]he law of the case doctrine might not
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apply under exceptional circumstances, including: an intervening change in
the law, a substantial change in the facts, or if the prior ruling was ‘clearly
erroneous’ and ‘would create a manifest injustice if followed.’” McCandless,
880 A.2d at 1268 (quoting Starr, 664 A.2d at 1332).
My review reflects that in Appellant’s initial direct appeal before this
Court, we stated the following:
Appellant argues that his convictions for Aggravated
Assault and Attempted Homicide arise from a single set of
facts and, therefore, these offenses merge for sentencing
purposes. Commonwealth v. Rovinski, 704 A.2d 1068, 1075
(Pa. Super. 2007). We note that the Commonwealth does not
dispute Appellant’s contention.
Upon review of the record, we are constrained to agree.
The convictions in question arise from a single set of
facts; namely, that Appellant choked the victim to
unconsciousness. As such, the sentences for these offenses
merge for sentencing purposes, and we are compelled to vacate
Appellant’s sentence.
Barnes, 691 MDA 2013, 93 A.3d 497 (unpublished memorandum at 2-3)
(emphasis added). Therefore, our previous determination that Appellant’s
convictions of aggravated assault, which included a finding of the element of
serious bodily injury, and attempted murder stemmed from the same
criminal act satisfies the requirements of a jury determination as to that
element for the crime of attempted murder. Because this Court confirmed
that the same facts found by the jury were relied upon to convict Appellant
of both attempted murder and aggravated assault, the trial court on remand
properly imposed the instant maximum sentence.
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