Opinion
241 MDA 2022 J-S44044-22
06-28-2023
COMMONWEALTH OF PENNSYLVANIA v. ANTHONY ROY BERNARDO, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered October 19, 2021 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0000160-2019
BEFORE: PANELLA, P.J., McLAUGHLIN, J., and PELLEGRINI, J. [*]
MEMORANDUM
McLAUGHLIN, J.
Anthony Roy Bernardo, Jr. appeals from the judgment of sentence following his convictions for attempted delivery of marijuana, conspiracy to deliver marijuana, and carrying a firearm without a license. He argues the court erred in relying on an improper consideration when it imposed his sentence and in applying the deadly weapon enhancement. We affirm in part and vacate in part the judgment of sentence, and remand for resentencing.
18 Pa.C.S.A. § 901(a), 35 P.S. § 780-113(a)(30); 18 Pa.C.S.A. § 903, 35 P.S. § 780-113(a)(30); and 18 Pa.C.S.A. § 6106(a)(1), respectively.
None of the cases that the majority cites to support this general proposition is applicable because they do not address whether it is proper to exceed the guidelines as well as those cases that involve the defendant's conduct. In Commonwealth v. Bowers, 25 A.3d 349 (Pa. Super. 2011), the issue was whether he should have been sentenced as a second time offender because he had accepted ARD in a previous DUI. (For the current status of whether ARD is a second offense see Commonwealth v. Moroz, 2022 PA Super 169, 284 A.3d 227 (2022). In Commonwealth. v. Archer, 722 A.2d 203 (Pa. Super. Ct. 1998), the issue was whether an offense of which a defendant could be used in calculating the offense gravity score. In that case, the defendant participated in a robbery and the victim was shot with his gun. Even though the defendant was acquitted of the murder under the felony murder rule, because he was a direct participant in the robbery that resulted in the murder, the victim's death could be taken into consideration in determining that offense gravity score. In Commonwealth v Tisdale, 334 A.2d 722 (1975), in a case decided before the guidelines, the trial court considered in sentencing that a death had occurred even though defendant was acquitted of the charge, because the sentencing court was convinced that defendant was responsible for the death of the victim. We found no abuse of discretion, reasoning that the trial court was aware that Tisdale "was not convicted of that murder and only weighed such evidence along with other considerations (prior arrests, possibility of employment, and family life) in determining the proper sentence." Id. at 724. Tisdale was decided well before the guidelines and was only considered one of the factors in deciding the appropriate sentence, unlike here, where we are trying to determine proper factors used in exceeding the guidelines. The use of prior arrests as a factor in sentencing is now before our Supreme Court in Commonwealth v. James Berry, 16 EAP 2023. In that case, the defendant was found guilty of two counts of endangering the welfare of children and one count of sexual abuse of children. The trial court considered that he had been previously arrested for similar conduct. Our Supreme Court granted an allowance of appeal to consider "Did it not violate due process and the Sentencing Code for the trial court to consider Petitioner's bare arrest record as a factor in imposing a more severe sentence, and did not the Superior Court err in reviewing this under an abuse[ ]".
This case arose from a drug transaction. Bernardo was the seller, and with the help of another man, Cole Robinson, he arranged to sell marijuana to Issayah Fostion. Fostion, in turn, entered into a secret agreement with the victim, Wesley Burnett, to rob Bernardo, rather than buy marijuana from him. Fostion and Burnett arrived at the agreed time and place, where Bernardo was sitting in the front passenger seat of a car. Burnett ran up to the rear passenger door, behind where Bernardo was sitting, and drew his gun. Bernardo, who was armed, pulled out his own gun. Burnett fired first, and Bernardo shot back, striking Burnett, who fled and later died.
Bernardo was charged with several crimes: attempted murder (as to Fostion), homicide generally (as to Burnett), attempted delivery of marijuana, conspiracy to deliver marijuana, and carrying a firearm without a license. He proceeded to a bench trial and argued self-defense. The judge found him not guilty of homicide and attempted murder, concluding Bernardo had prevailed on his claim of self-defense. The judge found him guilty of attempted delivery of marijuana, conspiracy to deliver marijuana, and carrying a firearm without a license.
As to the conviction for attempted delivery of marijuana, Bernardo was sentenced to a prison term of 24 to 60 months. The trial court applied the deadly weapon "used" enhancement, calculating the standard range guidelines as six to 15 months, with the aggravated range of up to 18 months.
As to the conviction for conspiracy to deliver marijuana, Bernardo was sentenced to a term of 24 to 60 months. The court again applied the deadly weapon "used" enhancement, calculating the standard range guidelines to be six to 15 months, with the aggravated range of up to 18 months.
As to the weapon possession conviction, Bernardo was sentenced to 42 to 84 months' incarceration. The standard range was 24 to 36 months, with the aggravated range up to 42 months.
Bernardo filed a post-sentence motion, which the court granted in part. The court determined that the enhancement for the use of a deadly weapon should not have been applied to the conspiracy count. At resentencing, the court imposed the same sentences on the attempted delivery of marijuana and carrying a firearm without a license convictions. However, instead of applying the deadly weapon "used" enhancement on the conspiracy conviction, it applied the deadly weapon "possessed" enhancement and imposed a slightly lesser sentence of 21 to 60 months' incarceration on that count. All the sentences were to run consecutively, for an aggregate term of 87 to 204 months' incarceration.
Bernardo filed another post-sentence motion challenging the upward departures from the guidelines. The court denied the motion, explaining in an opinion that in its view, the circumstances of the case were not typical of conspiracies and attempts to deliver marijuana and were not sufficiently accounted for by the guidelines. This appeal followed. Bernardo raises the following issues:
1. Whether the [t]rial [c]ourt committed an abuse of discretion by [s]entencing [Bernardo] outside of the aggravated range guidelines on his convictions for Attempt and Conspiracy to Deliver Marijuana without proper justification and without adequate explanation?
2. Whether the [t]rial [c]ourt erred in applying a deadly weapon enhancement to [Bernardo's s]entence for Attempt to Deliver Marijuana where [Bernardo] did not use a deadly weapon during the commission of the offense, and by failing to consider that application of sentencing enhancements are improper for inchoate crimes?
3. Whether the [t]rial [c]ourt erred in applying a deadly weapon enhancement to [Bernardo's s]entence for Conspiracy to Deliver Marijuana where there was insufficient evidence that [Bernardo] possessed a deadly weapon when he committed the Conspiracy, and by failing to consider that application of sentencing enhancements are improper for inchoate crimes?Bernardo's Br. at 7.
Bernardo challenges the discretionary aspects of his sentence. "The right to appellate review of the discretionary aspects of a sentence is not absolute, and must be considered a petition for permission to appeal." Commonwealth v. Conte, 198 A.3d 1169, 1173 (Pa.Super. 2018). Before reviewing the merits of Bernardo's claim, we must determine whether:
(1) the appeal was timely; (2) the appellant has preserved his issue; (3) his brief includes a concise statement of the reasons relied upon for allowance of an appeal with respect to the discretionary aspects of his sentence; and (4) the concise statement raises a substantial question whether the sentence is inappropriate under the Sentencing Code.Commonwealth v. Green, 204 A.3d 469, 488 (Pa.Super. 2019); see also Pa.R.A.P. 2119(f) (stating that an appellant who challenges the discretionary aspects of a sentence "shall set forth in a separate section of the brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence").
Here, Bernardo has complied with the first three requirements: his appeal is timely, he preserved the issue in a post-sentence motion, and his brief includes a statement of the reasons for allowance of appeal. We now turn to whether Bernardo has raised a substantial question.
A substantial question exists when the appellant makes a colorable argument that the sentencing judge's actions were either inconsistent with a specific provision of the Sentencing Code or contrary to the fundamental norms underlying the sentencing process. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa.Super. 2010). Bernardo claims that the trial court relied on improper considerations in imposing his sentence and did not provide an adequate explanation on the record for the sentence imposed. Bernardo's Br. at 18. This presents a substantial question. See Commonwealth v. King, 182 A.3d 449, 454 (Pa.Super. 2018); Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa.Super. 1999) (en banc). Bernardo also argues the trial court abused its discretion by applying the deadly weapon enhancement. A challenge to the application of the deadly weapon enhancement presents a substantial question. See Commonwealth v. Tavarez, 174 A.3d 7, 9-10 (Pa.Super. 2017); Commonwealth v. Raybuck, 915 A.2d 125, 127 (Pa.Super. 2006). We will proceed to the merits of Bernardo's claims.
Bernardo first argues that even though the court stated it was not sentencing him for taking Burnett's life, "it provided no reason or explanation as to how [his] conduct in attempting or conspiring to deliver marijuana was any different than an ordinary attempt or conspiracy to deliver marijuana." Bernardo's Br. at 22. Bernardo also argues that the court "provided no explanation, other than the fact Mr. Burnett lost his life, to justify running the sentence at each count consecutive to one another[.]" Id. Bernardo concludes that "by considering only the fact that Mr. Burnett lost his life, and by providing no other reason to deviate from the aggravated range guidelines, the [t]rial [c]ourt abused its discretion[.]" Id. at 23 (emphasis in original).
"Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion." Commonwealth v. Edwards, 194 A.3d 625, 637 (Pa.Super. 2018) (citation omitted). An abuse of discretion occurs where "the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision." Id. (citation omitted). In imposing a sentence, the sentencing court must consider "the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b).
Where the court has the benefit of a pre-sentence investigation ("PSI") report, we presume the court was aware of all appropriate sentencing factors and considerations and consider the requirement that the court place its reasoning on the record to be satisfied. Commonwealth v. Johnson-Daniels, 167 A.3d 17, 26 (Pa.Super. 2017). In conducting appellate review, we may not reweigh the sentencing factors and impose our own judgment in place of that of the trial court. Commonwealth v. Macias, 968 A.2d 773, 778 (Pa.Super. 2009).
Here, although the court sentenced Bernardo outside the sentencing guidelines, "[i]t is well established that the [s]entencing [g]uidelines are purely advisory in nature." Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007). A "sentencing court is permitted to deviate from the sentencing guidelines; however, the court must place on the record its reasons for the deviation." Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa.Super. 2009) (citation omitted). Indeed,
the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa.Super. 2012) (citation and brackets omitted).
At sentencing, the court said that although it was not sentencing Bernardo "for taking Wesley Burnett's life," stating explicitly that it had found the shooting "justified," it was nonetheless considering the killing in sentencing Bernardo. The court reiterated, "I want to be very clear, Mr. Bernardo, that you're not being sentenced today for murdering Wesley Burnett." N.T., 10/19/21, at 7-8. However, it explained that the killing and the crimes for which it had found Bernardo guilty were connected, stating,
"[T]he fact of the matter remains with respect to the drug deal that you put in motion through the assistance of Cole Robinson then with the agreement of Wesley Burnett and Issayah Fostion, Wesley Burnett lost his life." Id. at 8. The court further opined:
Of course, the sentencing guidelines with respect to uncompleted drug delivery offenses and unlicensed possession of a firearm contemplate the potential for some danger. However, it cannot reasonably be argued that the sentencing guidelines account for the actual death of another human being as a result of a gunshot. The circumstances surrounding this case went so far beyond the nature of typical marijuana transaction cases. The most serious and irreversible type of harm possible resulted from these crimes: someone lost his life. [Bernardo] put into motion a chain of events that risked serious injury or death, even though he may not be legally responsible for the resulting death. In contrast, [Bernardo] has not offered any argument that the circumstances of this case are in any way typical of cases falling under the broad nature of conspiracy to deliver marijuana and attempt to deliver marijuana, in terms of either what transpired during their commission or the seriousness of harm to another individual.Trial Court Opinion, 1/6/22, at 30-31.
We discern no abuse of discretion. To the extent the court's statement that Bernardo was not being sentenced for the death is in tension with its statement that it was considering the death when sentencing Bernardo for attempt and conspiracy, that is no reason to vacate the sentence. The court was obviously acknowledging that it had acquitted Bernardo for the killing, while simultaneously informing Bernardo that it was nonetheless considering the death as a circumstance that Bernardo's criminal activity had brought about.
Further, pursuant to precedent, the court permissibly considered the death, notwithstanding the acquittal. A court may consider "even arrests that result in acquittals, if the judge is aware of the acquittal." Commonwealth v. Bowers, 25 A.3d 349, 356 (Pa.Super. 2011); see also Commonwealth v. Archer, 722 A.2d 203, 212 (Pa.Super. 1998) (en banc); Commonwealth v. Tisdale, 334 A.2d 722, 724 (Pa.Super. 1975), abrogated on other grounds, Commonwealth v. Kelly, 78 A.3d 1136, 1145 n.8 (Pa.Super. 2013). This case easily meets that test. The judge here was obviously aware that she had just acquitted him. If that were not enough, as just stated, she also made her awareness of the acquittal apparent on the record at sentencing. In addition, the court had the benefit of a PSI report. We therefore presume it weighed all relevant factors. Johnson-Daniel s, 167 A.3d at 26.
See also United States v. Watts, 519 U.S. 148, 157 (1997) ("a jury's verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as the conduct has been proved by a preponderance"); Commonwealth v. Long, Nos. 757 & 758 EDA 2019, 2020 WL 7075310, at **5 (Pa.Super. 2020) (unpublished mem.).
The dissent would grant relief based on Commonwealth v. Ali, 149 A.3d 29 (Pa. 2016). Its reliance on Ali is misplaced. The question before the Court in Ali was, according to the Supreme Court's opinion in that case, "Does a sentencing judge have discretion to consider victim impact evidence where the offense is not a 'crime against a person?'" Id. at 34. The Court there did not purport to render a decision on the issue we confront: the sentencing court's consideration of a death that gave rise to charges for which the defendant was acquitted. The other cases the dissent cites are similarly not dispositive on this issue. The cases either did not address this issue, or if they somehow touched on it, the portion cited is dicta. Nonetheless, statements in Ali are arguably in tension with the cases cited above, which have never been overruled. But we need not decide the effect of Ali on this issue to render a decision here. Even if the dissent is correct and Ali put a gloss on the cases permitting sentencing judges to consider conduct underlying acquitted charges, Ali's "logical impact" test is satisfied. See id. at 38 n.6. The trial court explained the logical connection it found between the crime and the death: Bernardo's conspiratorial conduct with Robinson and Fostion to sell marijuana put into motion the circumstances that resulted in Burnett's death. See Tr. Ct. Op. and Order, 1/6/22, at 30-31. That was not an abuse of discretion.
Bernardo next argues the court erred in applying the deadly weapon "used" enhancement when it sentenced Bernardo for attempted delivery of marijuana. Bernardo's Br. at 23. It contends the crime of attempted delivery of marijuana was already completed before Burnett fired a shot at Bernardo. Id. at 24. Bernardo therefore concludes that the enhancement should not have been applied because he did not use a deadly weapon when he committed the offense of attempted delivery. We agree.
The deadly weapon "used" enhancement provisions of the sentencing guidelines require that an enhancement shall apply "when the court determines that the offender used a deadly weapon during the commission of the current conviction offense[.]" 204 Pa.Code § 303.10(a)(2) (emphasis added). "[T]o establish use of a deadly weapon under this provision, the record must show that the defendant used the weapon to threaten or injure the victim while committing the particular offense." Tavarez, 174 A.3d at 11.
Here, the record demonstrates Bernardo did not "use" a deadly weapon during the commission of the attempted delivery of marijuana, as required under 204 Pa.Code § 303.10(a)(2). Bernardo did not draw his weapon against Burnett and Fostion until after they had attacked him with deadly force, at which point Bernardo was no longer attempting to commit the offense of selling marijuana to them. The trial court therefore abused its discretion in applying the deadly weapon "used" enhancement to Bernardo's sentence.
Bernardo makes a similar argument in his final issue. He contends the court erred in applying the deadly weapon "possessed" enhancement when it sentenced him for conspiracy to deliver marijuana. Bernardo's Br. at 25. Bernardo argues the crime of conspiracy "was complete the moment that the first overt act was taken in furtherance of the conspiracy, which in this case was when Mr. Robinson, at [Bernardo's] request, left to go pick up [Bernardo] at [Bernardo's] house, with knowledge that [Bernardo] had the marijuana ready to sell to Mr. Fostion." Id. at 26. According to Bernardo, the crime of conspiracy was already completed before Bernardo and Robinson travelled to the agreed upon location and "the record is wholly void of any evidence that [Bernardo] possessed a firearm during the forming of the agreement with Mr. Robinson or during the overt act in furtherance of the agreement." Id. at 27.
The deadly weapon "possessed" enhancement applies "when the court determines that the offender possessed a deadly weapon during the commission of the current conviction offense[.]" 204 Pa.Code § 303.10(a)(1) (emphasis added).
Unlike his previous claim, Bernardo's claim concerning the enhancement on the conspiracy count has no merit. There is no dispute that Bernardo agreed with Robinson to sell marijuana to Fostion at a certain location, and that Bernardo was armed at the time he arrived there. The record establishes that Bernardo was armed with a deadly weapon when he was still carrying out the conspiracy to sell marijuana. Bernardo cites no legal authority for the proposition that a conspiracy offense is completed the moment it has begun, and this Court has affirmed the application of deadly weapon enhancements to conspiracy convictions under similar circumstances. See Commonwealth v. Pennington, 751 A.2d 212, 217 (Pa.Super. 2000) (affirming application of deadly weapon enhancement as to the offense of conspiracy to commit robbery); see also Commonwealth v. Matthews, 196 A.3d 242, 252-53 (Pa.Super. 2018) (same).
Bernardo additionally argues that sentencing enhancements, in general, are not applicable to inchoate crimes, such as conspiracy. See Bernardo's Br. at 27. In support of his argument, he cites Commonwealth v. Ali, 112 A.3d 1210 (Pa.Super. 2015), vacated and remanded on other grounds, 149 A.3d 29 (Pa. 2016); Commonwealth v. Young, 922 A.2d 913 (Pa.Super. 2007); and Commonwealth v. Adams, 760 A.2d 33 (Pa.Super. 2000). However, Bernardo's reliance on these cases is misplaced. Ali and Adams addressed the school and youth enhancements - not the deadly weapon enhancement. Young also did not involve the deadly weapon enhancement, but rather a sentencing enhancement for "second or subsequent offenses" under the Controlled Substance, Drug, Device and Cosmetic Act. Moreover, section 303.10(a)(3) of the sentencing guidelines lists crimes for which the deadly weapon enhancement does not apply, and inchoate crimes are not enumerated. 204 Pa.Code § 303.10(a)(3). Thus, the court did not abuse its discretion in applying the deadly weapon "possessed" enhancement to the conspiracy conviction.
Judgment of sentence vacated in part and affirmed in part. Case remanded for resentencing. Jurisdiction relinquished.
President Judge Panella joins the memorandum.
Judge Pellegrini files a dissenting memorandum.
Judgment Entered.
DISSENTING MEMORANDUM BY PELLEGRINI, J.
This appeal involves the issue of whether time should be imposed for a crime of which the defendant was acquitted. The defendant in this case, Anthony R. Bernardo, Jr. (Bernardo) arranged to sell four ounces of marijuana for $550.00 to Issayah Fostion, who then conspired with Wesley Burnett to rob Bernardo rather than buy the marijuana. At the agreed-upon time at an isolated location, while Bernardo was sitting in the front passenger seat of a car, Burnett ran up to the rear passenger door, drew and fired his gun. Bernardo shot back, striking Burnett, who fled and later died. Bernardo was charged with homicide, attempted homicide as well as attempt to deliver marijuana, conspiracy to deliver marijuana and carrying a firearm without a license. Bernardo was found not guilty of homicide and attempted homicide but was found guilty of the drug and firearm charges.
For those three convictions, Bernardo was sentenced to an aggregate term of 87 to 204 months' incarceration. Aside from the sentences for each of those convictions to run consecutively, the length of the sentence was in part due to the trial court imposing sentences in excess of the guidelines' maximum aggravated range by six months as to all three convictions. In doing so, it acknowledged that Bernardo was not guilty of homicide and was not being sentenced for Burnett's death, but nonetheless increased the sentence above the guidelines for just that reason. Its justification for doing so was that the sentencing guidelines for the crimes of conspiracy and attempting to deliver marijuana do not take into account the death of another person because that does not normally occur as part of a typical marijuana transaction, and "but for" Bernardo selling the marijuana, Burnett would not have died.
While acknowledging the trial court's statement that Bernardo was not being sentenced for the death is in tension with its statement that it was considering the death when sentencing Bernardo for attempt and conspiracy, the majority nonetheless finds that it was not an abuse of discretion because the trial court acknowledged that it had acquitted him for the homicide, while simultaneously informing Bernardo that it was nonetheless considering the death as a circumstance that Bernardo's criminal activity had brought about.
It appears to attempt to bolster its reasoning by stating that since a sentencing court may consider even arrests that result in acquittals, it can consider Burnett's death in sentencing, not mentioning that Burnett's death was the result of Burnett trying to murder Bernardo.1
I disagree with the majority because under the Sentencing Code, a person is only to be sentenced for their conduct and the impact that their conduct caused, not the impact someone else caused. In this case, what made this transaction purportedly atypical was the person who tried to kill Bernardo and not any conduct of Bernardo. Because to sentence someone outside the guidelines, directly or indirectly, for defending yourself from someone attempting to murder you is improper as well an abuse of discretion under the Sentencing Code, I respectfully dissent. Let me explain in more detail.
I.
Trial courts have broad discretion in sentencing and the guidelines of the Sentencing Code do not require trial courts to impose any particular sentence. See Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007); Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002). The reasons for a trial court's deviation from the guidelines, however, must be stated on the record, and a sentence which exceeds the guidelines must be affirmed unless the reviewing court determines that the sentence is "unreasonable." See 42 Pa.C.S. § 9781(c)(3).
When evaluating the reasonableness of the stated reasons for a departure from the guidelines, an appellate court must review the record with regard for:
(1) the nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.42 Pa.C.S. § 9781(d).
According to our Supreme Court, these four factors are deliberately vague in that they lack "any concrete rules as to the unreasonableness inquiry for a sentence that falls outside of applicable guidelines[.]" Walls, 926 A.2d at 964; see also Commonwealth v. Holiday, 954 A.2d 6, 11-12 (Pa. Super. 2008) (same). However, the Court inferred from the vagueness of the factors that the General Assembly intended for "the concept of reasonableness to be inherently a circumstance-dependent concept that is flexible in understanding and lacking precise definition." Walls, 926 A.2d at 963.
To aid in the application of the reasonableness standard, our Supreme Court has explained that in addition to Section 9781(d), review of an above-guidelines sentence should be informed by Section 9721(b) of the Sentencing Code. This latter provision mandates consideration of "the protection of the public; the gravity of the offense in relation to the impact on the victim and the community; and the rehabilitative needs of the defendants." Walls, 926 A.2d at 964 (citing 42 Pa.C.S. § 9721(b)) (emphasis added).
"Impact," as used in Section 9721(b), is undefined in the statute and the Sentencing Code, but our Supreme Court has construed the term as meaning something narrower than any fathomable effect a defendant's conduct may have on a victim or the community at large. That much was made clear in Commonwealth v. Ali, 149 A.3d 29 (Pa. 2016), where the defendant had been convicted of selling narcotics to a person who became impaired and caused a fatal car accident because of that impairment. It acknowledged that at sentencing, a trial court can take into consideration that defendant's conduct - the sale of drugs - resulted in a fatal accident under Section 9721(b) that makes that impact or effect a relevant consideration at sentencing. The Ali Court cautioned, though, that sentencing judges "must take a measured approach to community and indirect victim effects depending upon the level of attenuation between the crime and the proffered impact." Id. at 39.
II.
In this case, the trial court imposed an unreasonable sentence by considering the death of Burnett as the sole reason to depart upwardly from the sentencing guidelines for several reasons.
First, Burnett's death does not qualify as the type of "victim impact" contemplated in Section 9721(b). See Ali, 149 A.3d at 37. Burnett was not a victim of any of the three offenses the trial court found Bernardo to have committed (attempted sale of marijuana, conspiracy to sell marijuana and possession of a firearm without a license). In fact, Burnett was not a victim at all but an attempted murderer.
Second, Bernardo was found not guilty of the homicide charges. "It is beyond peradventure that when a defendant has been exonerated in the legal system, either by a jury or on constitutional grounds, with respect to a criminal act, that act cannot be used to enhance a sentence." Commonwealth v. P.L.S., 894 A.2d 120, 130 (Pa. Super. 2006) (citing Commonwealth v. Calvert, 344 A.2d 797 (Pa. 1975); Commonwealth v. Smithton, 631 A.2d 1053 (Pa. Super. 1993). Bernardo's sentence was enhanced for a conduct for which he was exonerated. He was impermissibly sentenced in excess of the guidelines not for his conduct, but for Burnett's conduct who tried to murder him.
Third, the record does not establish that Burnett's death was logically connected to Bernardo's criminal acts. Bernardo was convicted for intending to sell marijuana and carrying a firearm without a license. At the time Bernardo committed those offenses, he had no reason to know that Burnett would be planning to rob him at the meeting place for the transaction. He did not even know that Burnett would be present at the location of the planned sale. The violence that ensued was instigated by Burnett, and the trial court found that Bernardo was legally justified in using lethal force to defend himself against him.
Fourth, as can be seen, the facts are too attenuated to form a "logical connection" between Bernardo's crimes and a "community impact suffered by specific individuals." Violence is a well-known effect of illicit drug sales, see Ali, 149 A.3d at 38, but none of the violence in this case was precipitated by Bernardo's attempted sale of marijuana or lack of a license to carry a weapon. Indeed, the trial court was only able to find the shooting relevant by framing Bernardo's crimes as one of the infinite "but-for" causes of Burnett's death, which is incompatible with the "measured approach" to causation required by our Supreme Court in Ali.
Finally, at sentencing and in its written opinion, the trial court justified the departure by remarking that Bernardo had "put into motion a chain of events that risked serious injury or death" and "started the ball rolling" toward the fatal shooting. The implication is that Bernardo's sentence could exceed the guidelines based on any possible link in the causal chain of events between his offenses and Burnett's death, with no apparent regard for the intervening (and far more serious) criminal acts of Burnett and Fostion. Under the trial court's "but-for" test of causation, "even the most remote and insignificant force may be considered the cause of an occurrence." Takach v. B. M. Root Co., 420 A.2d 1084, 1086-87 (Pa. Super. 1980) (quoting Prosser, Law of Torts (4th ed. 1971), p. 238-39). It is for that precise reason that but-for causation alone does not impart liability: "once events are set in motion there is, in terms of causation alone, no place to stop. [An] event without millions of causes is simply inconceivable; and [but-for] causation alone can provide no clue of any kind to single out those wh[o] are . . . legally responsible." Id.
In conclusion, the only reason given on the record by the trial court for exceeding the guidelines is Burnett's death. In doing so, the trial court relied on an improper sentencing factor, gave no proper justification on the record for exceeding the guidelines, and misapplied Ali's standard for discerning the scope of relevant community impact caused by a victimless crime.
Accordingly, I respectfully dissent.
[*] Retired Senior Judge assigned to the Superior Court.