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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
GABRIEL CRUZ :
:
Appellant : No. 2084 EDA 2020
Appeal from the PCRA Order Entered September 24, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0011957-2010
BEFORE: BOWES, J., McCAFFERY, J., and SULLIVAN, J.
CONCURRING MEMORANDUM BY BOWES, J.: FILED FEBRUARY 15, 2023
I agree with my esteemed colleagues that, pursuant to our decision in
Commonwealth v. Barnes, 167 A.3d 110 (Pa.Super. 2017) (en banc), the
fact that the jury was not specifically asked to determine whether the
attempted murder of Felix Santos resulted in serious bodily injury renders
Appellant’s sentence illegal as violative of the Sixth Amendment. See
Apprendi v. New Jersey, 530 U.S. 466 (2000).1 However, to the extent
that Barnes held that this Apprendi error necessarily results in an illegal
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1 I also agree with my colleagues that, under the prevailing law, we need not
remand for the PCRA court to consider the claim of ineffective assistance of
counsel Appellant presents in this appeal because the issue implicates the
legality of Appellant’s sentence and is therefore properly adjudicated by this
Court in the first instance. See, e.g., Commonwealth v. Warunek, 279
A.3d 52, 54 (Pa.Super. 2022) (“An illegal sentence must be vacated. A
challenge to the legality of the sentence can never be waived and may be
raised by this Court sua sponte.” (cleaned up)).
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sentence, rather than being amenable to review pursuant to the harmless
error framework, it is at odds with federal court decisions that were
acknowledged favorably in our Supreme Court’s post-Barnes ruling in
Commonwealth v. King, 234 A.3d 549 (Pa. 2020). I am persuaded that the
harmless error review should apply in this case, and, if it did, would validate
Appellant’s sentence. Therefore, I write separately to advocate for Barnes’s
abrogation.
I begin with a brief review of the underlying legal principles. Pursuant
to Apprendi, any fact that increases the maximum penalty for a crime is an
element of the crime which must be submitted to the jury to be proved beyond
a reasonable doubt. See Apprendi, supra at 490. The Apprendi holding
implicated, and sought to vindicate, two constitutional rights: “notice as
required by due process and the right to a jury trial.” King, supra at 560.
It quickly was established that both (1) the failure to provide formal
notice of the intent to seek an enhanced penalty by including the enhancing
fact in the indictment, and (2) the failure to submit the enhancing element of
the crime to a jury, were not structural errors, but rather constitutional errors
that could be overlooked as harmless. See, e.g., United States v. Cotton,
535 U.S. 625 (2002) (due process right to notice); United States v. McCray,
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563 Fed.Appx. 705, 711 (11th Cir. 2014) (right to have elements determined
by a jury beyond a reasonable doubt).2
The U.S. Supreme Court’s extension of Apprendi in Alleyne v. United
States, 570 U.S. 99 (2013), to facts that increased the minimum punishment
for a crime resulted in a flurry of rulings that mandatory minimum sentences
based upon facts not found by a jury beyond a reasonable doubt, but upon
the trial court’s finding the enhancing facts by a preponderance of the
evidence at sentencing, were illegal. See, e.g., Commonwealth v.
Newman, 99 A.3d 86 (Pa.Super. 2014) (en banc) (vacating as illegal
sentence imposed pursuant to 42 Pa.C.S. § 9712.1, which provided a
mandatory minimum sentence for drug offenses committed with firearms,
expressly indicating that the fact of possession of a firearm was not an element
of the crime, required no notice, and was to be determined by the trial court
by a preponderance of the evidence at sentencing).
In Commonwealth v. Wolfe, 140 A.3d 651 (Pa. 2016), our Supreme
Court rejected the possibility that the errors underlying these Alleyne-
violative sentences could be harmless because each statute that provided
authority for the imposition of judicially-determined mandatory minimum
sentences was itself “irremediably unconstitutional on its face, non-severable,
and void.” Id. at 663. As such, “a finding of harmless error would sanction
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2 See also Commonwealth v. Wolfe, 140 A.3d 651, 671 (Pa. 2016) (Todd,
J. dissenting) (collecting cases).
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a residual longevity in small segments of an unseverable statute requiring
unconstitutional actions on the part of judicial officers.” Id. at 662 n.6.
Mindful of this legal landscape, I turn to the sentencing statute at issue
in this appeal. The statutory provision at issue in the case sub judice, which
was also the one at issue in Barnes, provides as follows in relevant part:
[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 not result, the person may be sentenced to a
term of imprisonment which shall be fixed by the court at not more
than 20 years.
18 Pa.C.S. § 1102(c).
Plainly, § 1102(c) suffers from no facial Apprendi- or Alleyne-based
invalidity. Rather, Apprendi is implicated where, as is the case here and was
in Barnes, the enhancing fact—that serious bodily injury resulted from the
attempted murder—was not submitted to the jury as an element of the crime
to be proven by the Commonwealth beyond a reasonable doubt. Therefore,
the basis for the rejection of harmless error review by the Wolfe Court does
not pertain to § 1102(c). Instead, pursuant to the federal case law cited
supra, sentences of more than twenty years imposed without notice of intent
to seek the enhanced penalty or a jury finding of resultant serious bodily injury
may be constitutionally valid if the error was harmless.
In Barnes, we did not address the availability of harmless error per se.
However, we implicitly rejected the notion in disposing of the Commonwealth’s
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argument that the jury’s finding of serious bodily injury in connection with
aggravated assault gave rise to the inference that it found that such injury
resulted from the attempted murder. We observed that, under Pennsylvania
law, juries are permitted to reach inconsistent verdicts.3 See Barnes, supra
at 120. As such, despite any and all evidence to the contrary, “it was perfectly
acceptable for the jury here to find serious bodily injury with respect to
aggravated assault but not attempted murder.” Id. Thus, a fair reading of
Barnes is that, because the jury might have chosen to reject serious bodily
injury as to attempted murder even though it elected to convict the defendant
of aggravated assault-serious bodily injury, this Court is not permitted to
affirm a sentence that was imposed without the jury making its intent clear.
In King, our Supreme Court granted allowance of appeal “to consider
the legality of Jimel King’s enhanced sentence for attempted murder resulting
in serious bodily injury under 18 Pa.C.S. § 1102(c) when the Commonwealth
failed to provide formal notice of its intent to seek the enhancement in the
charging documents.” King, supra at 552. In that case, King stipulated that
the victim suffered shattered bones requiring multiple surgeries followed by
intensive physical therapy and proceeded to trial upon the defense that
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3 Inconsistent verdicts are also permissible in federal prosecutions. See,
e.g., Hamling v. United States, 418 U.S. 87, 101 (1974) (“It has, of course,
long been the rule that consistency in verdicts or judgments of conviction is
not required.”). Nonetheless, as discussed above, federal courts apply
harmless error to Apprendi violations.
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someone else shot the victim. The jury convicted King of attempted murder,
specifically finding that the victim suffered serious bodily injury as a result of
the attempt, and the trial court subsequently imposed a sentence of twenty
to forty years of imprisonment for that count. On appeal to this Court, King
claimed his sentence was illegal because “the charging documents failed to
specifically allege attempted murder causing serious bodily injury or reference
[§] 1102(c)[.]” Id. at 554. This Court rejected King’s challenge, concluding
that King received sufficient notice, and our Supreme Court granted
discretionary review.
The Barnes decision and related cases were discussed in both appellate
courts in examining the requirements of Apprendi in connection with
§ 1102(c).4 Our Supreme Court detailed the Barnes-based arguments of the
parties, as well as the Commonwealth’s contention that, if there was an
Apprendi error, it was harmless because the evidence of serious bodily injury
was “overwhelming and uncontested” and the defense strategy was not
impaired by the absence of formal notice. King, supra at 559.
The Court agreed with King that he did not receive sufficient notice to
satisfy Apprendi. Id. at 562. In deciding the case on the grounds of the
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4Those cases include Commonwealth v. Reid, 867 A.2d 1280 (Pa.Super.
2005), Commonwealth v. Johnson, 910 A.2d 60, 62 (Pa.Super. 2006), and
Commonwealth v. Bickerstaff, 204 A.3d 988 (Pa.Super. 2019).
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notice required to satisfy due process, the Court expressly declined to discuss
Barnes in detail. Id. at 562-63.
The Court went on to consider “whether the absence of [the factual
allegation of serious bodily injury] from the indictment or information requires
a finding that the resulting sentence for the aggravated crime was illegal.” Id.
at 563. To answer that question, the Court distinguished § 1102(c) from the
mandatory minimum statutes struck down in the wake of Alleyne, observing
that those statutes were facially unconstitutional and not severable, while
proper notice would have constitutionally permitted King’s § 1102(c)
enhanced sentence. Id. at 565-66.
The Court also discussed and adopted the reasoning of the Cotton Court
in applying the harmless error framework to Apprendi-based due process
challenges, holding that harmless error review may be applied to “the notice
error herein.” King, supra at 564. In that vein, the Court explained:
In Commonwealth v. Story, 383 A.2d 155 (Pa. 1978), this
Court adopted a harmless error standard equally applicable to
errors involving state law as those involving federal constitutional
error. This standard provides that an error can be harmless only
if the appellate court is convinced beyond a reasonable doubt that
the error is harmless. We also found that the burden of
establishing harmlessness beyond a reasonable doubt is borne by
the Commonwealth. While cases involving harmless error
typically involve the prejudicial impact of evidence erroneously
admitted at trial, the doctrine is also implicated with other types
of error. Furthermore, we have stated that the harmless error
standard applies in the related context of variances between the
criminal information and the proof presented at trial. Indeed,
many courts have found that Apprendi errors may be harmless
if the evidence is overwhelming and uncontroverted. See e.g.,
Washington v. Recuenoco, 548 U.S. 212, 218-22 (2006)
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(finding failure to submit sentencing factor to the jury, like the
failure to submit an element to the jury, is not structural error,
and is thus subject to harmless error analysis); Cotton, 535 U.S.
at 632-34 (holding Apprendi error harmless where evidence
overwhelming and uncontroverted); Wolfe, 140 A.3d at 662
(acknowledging other courts have deemed Apprendi-based
errors harmless, but declining to engage in harmless error
analysis where “statute was itself found to be invalid and non-
severable”).
King, supra at 564 (cleaned up).
Ultimately, the King Court concluded that the notice error was harmless.
It observed that the evidence of serious bodily injury was “overwhelming and
uncontroverted,” that King had de facto notice that the Commonwealth was
seeking the enhanced sentence, and that King’s defense was not impacted by
the lack of formal notice. Accordingly, the Court held “the harmless nature of
the error precludes a finding that the sentence was illegally imposed.” Id. at
566.
Since King specifically declined to address the validity of Barnes, and
limited its adoption of harmless error review to the notice aspect of Apprendi,
I must agree with the Commonwealth that it is still the law of Pennsylvania
that harmless error analysis does not apply to the jury trial aspect of
Apprendi. See Commonwealth’s brief at 8-9 n.4. However, in my view, the
facts of this case demonstrate why the harmless error framework should
apply.
As we observed on Appellant’s direct appeal, the evidence adduced at
his trial established that Felix Santos was placed on life support at Temple
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University Hospital as a result of extensive bleeding and loss of oxygen to the
brain after he was stabbed in the chest and torso multiple times while
Appellant held him down. See Commonwealth v. Cruz, 122 A.3d 446
(Pa.Super. 2015) (unpublished memorandum at 1). Appellant did not contest
the nature of the injuries, but proceeded on a defense that he was not the one
who harmed Mr. Santos.5 The trial court instructed the jury that, in order to
find Appellant guilty of attempted murder, it must conclude that the
Commonwealth proved beyond a reasonable doubt that Appellant or a co-
conspirator stabbed Mr. Santos, that the stabbing was done with the specific
intent to kill Mr. Santos, and that the stabbing was a substantial step toward
committing murder. See N.T. Trial, 9/28/12, at 119-20. In turn, for the
charge of “aggravated assault, causing serious bodily injury,” the trial court
instructed the jury that guilt had to be based upon the finding beyond a
reasonable doubt that Appellant “caused serious bodily injury to Felix Santos.”
Id. at 122. The court further defined the term “serious bodily injury.” Id.
The jury found Appellant guilty of both crimes, which ultimately merged for
sentencing purposes because they were based upon the same criminal act.
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5 See, e.g., N.T. Trial, at 51 (opening statement Appellant’s counsel) (“[Y]our
heart goes out to the complainant in this matter. It has to go out to somebody
that’s on life support in the way he is right now. But you know what, that’s
not what we’re here for. We’re not here for that. We’re here to see was it
this man, my client, Mr. Cruz, or anybody else was it them, are they the ones
that did it. That’s the question. That’s what has to be decided.”).
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Plainly, the evidence that Mr. Santos suffered serious bodily injury as a
result of the attack in which Appellant participated was uncontroverted and
overwhelming and the jury concluded beyond a reasonable doubt that
Appellant caused it. It is abundantly clear to me that, had the jury been asked
whether the attempted murder resulted in serious bodily injury to Mr. Santos,
it would have said yes. Appellant thus received the benefit of the
constitutional right to a trial by jury safeguarded by Apprendi. Nonetheless,
Barnes mandates that we rule Appellant’s sentence illegal and vacate it.
I was in the Barnes majority. “Wisdom too often never comes, and so
one ought not to reject it merely because it comes late.” Henslee v. Union
Planters Nat. Bank & Tr. Co., 335 U.S. 595, 600 (1949) (Frankfurter, J.,
dissenting). Belatedly accepting the wisdom of the federal courts’ application
of the harmless error framework to cases such as the one sub judice, I ask
our Supreme Court to overturn both the Barnes decision and our ruling in the
instant case. Specifically, I implore our Supreme Court to extend King’s
application of harmless error review for violations of the notice element of
Apprendi to Apprendi’s requirements concerning the right to a jury trial,
adopting the reasoning of now-Chief Justice Todd in her Wolfe dissent:
[B]oth state and federal courts which have considered this Sixth
Amendment issue have embraced a harmless error analysis, and
I find this case easily satisfies harmless error criteria. First, there
is a strong presumption that constitutional errors permit a
harmless error analysis. . . . Indeed, certain [federal court]
decisions have embraced a broad harmless error analysis, finding
any error to be harmless where a rational jury would have found
the triggering fact in light of overwhelming evidence. Of course,
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assessment of the broadest harmless error approach is
unnecessary here, where a jury actually found beyond a
reasonable doubt the triggering fact.
Regardless, these tribunals’ approach supports a
determination that the imposition of a sentence in violation of
Alleyne does not require resentencing in all circumstances.
Indeed, the majority’s rejection of a harmless error analysis will
result in an undeserved windfall to certain defendants. This is
especially true in the matter sub judice, as here . . . [the
defendant] has received all that Alleyne requires. Accordingly,
any error in sentencing was harmless.
Wolfe, supra at 670–71 (Todd, J. dissenting) (citations omitted).
Deciding this matter on a clean slate, I would hold that Appellant is not
entitled to resentencing based upon the harmless Apprendi error in this case.
However, bound to faithfully apply the precedent that now constrains me, I
concur in the Majority’s disposition of this appeal.
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