Opinion
2084 EDA 2020 J-S22028-22
02-15-2023
COMMONWEALTH OF PENNSYLVANIA v. GABRIEL CRUZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
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.
MEMORANDUM
McCAFFERY, J.
Gabriel Cruz (Appellant) appeals from the order entered in the Philadelphia County Court of Common Pleas, dismissing his first, timely Post Conviction Relief Act (PCRA) petition without a hearing. Appellant was convicted by a jury of attempted murder, aggravated assault, and conspiracy to commit aggravated assault. . Appellant raises a new claim for the first time in this appeal: that PCRA counsel was ineffective for not challenging the legality of his 20 to 40-year enhanced sentence for attempted murder under Apprendi v. New Jersey, 530 U.S. 466 (2000). Rather than reviewing this claim of ineffective assistance, we sua sponte address the underlying illegal sentence issue and conclude the sentence was unlawful under Apprendi because the jury did not render any finding as to the predicate fact for an enhanced sentence - that serious bodily resulted from the attempted murder. Thus, we reverse the order denying PCRA relief, vacate the judgment of sentence, and remand for resentencing.
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)).
18 Pa.C.S. §§ 901(a), 2502(a), 2702(a), 903(a), respectively.
See also Commonwealth v. Wolfe, 140 A.3d 651, 671 (Pa. 2016) (Todd, J. dissenting) (collecting cases).
This Court may consider an issue of illegality of sentence sua sponte, so long as we have proper jurisdiction over a matter. Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014). Appellant filed a timely PCRA petition and a timely notice of appeal, and thus we have jurisdiction over this appeal.
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.
I. Facts & Procedural History
A detailed discussion of the underlying facts was presented in this Court's direct appeal memorandum. For our present disposition, we may summarize the following: on May 9, 2010, Mother's Day, two neighboring families on West Butler Street in Philadelphia were involved in a dispute over a parking space. See N.T. Trial Vol. 1, 9/20/12, at 17. There were multiple confrontations, which escalated to a "melee" on the street. See Cruz, 611 EDA 2014 at 2. Ultimately, Appellant restrained the arms of Felix Santos (the Victim) while Jose Torres (Co-Defendant) stabbed the Victim multiple times in the chest and torso. "Due to extreme blood loss and the resulting loss of oxygen to the brain, [the Victim] was put on life support, and is expected to remain in a vegetative state for the duration of his life." Id. at 1.
See Commonwealth v. Cruz, 611 EDA 2014 (unpub. memo. at 1-4) (Pa. Super. May 12, 2015), appeal denied, 89 EAL 2018 (Pa. July 3, 2018).
Those 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).
The certified record does not indicate the Victim's health status as of the March 2019 PCRA petition.
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.").
Appellant was charged with, inter alia, attempted murder, aggravated assault, and conspiracy to commit aggravated assault. This case proceeded to a joint jury trial with Co-Defendant and a third defendant, Khalief Green, on September 12, 2012. The jury found Appellant guilty of all three of the above-listed offenses.
Appellant and Co-Defendant are brothers-in-law. Cruz, 611 EDA 2014 at 2. The jury found Co-Defendant guilty of the same offenses as Appellant: attempted murder, aggravated assault, and conspiracy to commit aggravated assault. N.T. Trial Vol. 5, 9/28/15, at 139-140. Like Appellant, Co-Defendant was initially sentenced to an aggregate term of 40 to 80 years' imprisonment, but following reconsideration, received a new aggregate sentence of 30 to 60 years. This Court affirmed Co-Defendant's judgment of sentence on direct appeal in 2015, as well as the dismissal of his first, timely-filed PCRA petition in 2020. Commonwealth v. Torres, 2382 EDA 2018 (unpub. memo.) (Pa. Super. Sept. 15, 2020), appeal denied, 379 EAL 2020 (Pa. Apr. 7, 2021); Commonwealth v. Torres, 464 EDA 2014 (unpub. memo.) (Pa. Super. Mar. 24, 2015). The third co-defendant, Khalief Green, was dating the cousin of Co-Defendant. N.T. Trial Vol. 1 at 23-24. Green was found not guilty of all charges. N.T. Trial Vol. 5 at 140-41.
On September 26, 2013, the trial court initially imposed sentences on each of Appellant's three convictions, all to run consecutively, for an aggregate term of 40 to 80 years' imprisonment. Upon Appellant's motion for reconsideration, however, the trial court agreed that the sentences for attempted murder and aggravated assault should have merged. Thus, at a resentencing hearing on January 13, 2014, the court vacated the sentence for aggravated assault, and re-imposed the same sentences of 20 to 40 years for attempted murder and a consecutive 10 to 20 years for conspiracy. Appellant's new aggregate sentence was thus 30 to 60 years.
Appellant filed a new post-sentence motion, which was denied, and then a timely direct appeal. This Court affirmed the judgment of sentence on May 12, 2015. Following the reinstatement of Appellant's right to file a petition for allowance of appeal, our Supreme Court denied allowance of appeal on July 3, 2018.
On March 5, 2019, Appellant filed a pro se timely, first PCRA petition with an accompanying brief. The trial court appointed Thomas Coleman, Esquire (PCRA Counsel), to represent Appellant. PCRA Counsel then filed a Turner/Finley no-merit letter and petition to withdraw from representation, arguing Appellant's PCRA issues lacked merit. On July 9, 2020, the PCRA court issued Pa.R.Crim.P. 907 notice of intent to dismiss Appellant's petition without a hearing. The court also permitted PCRA Counsel to withdraw from representation, and appointed new counsel, James Berardinelli, Esquire.
For PCRA filing purposes, Appellant's judgment of sentence became final on October 1, 2018, when the 90-day period to seek certiorari with the United States Supreme Court expired. See 42 Pa.C.S. § 9545(b)(3); Sup.Ct.R.13. Appellant then generally had one year, or until October 1, 2019, to file a PCRA petition. See 42 Pa.C.S. § 9545(b)(1). The instant pro se petition was timely filed on March 5, 2019.
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
Appellant did not file any response to the Rule 907 notice, and the PCRA court entered the underlying order on September 24, 2020, formally dismissing the PCRA petition. Attorney Berardinelli filed a timely notice of appeal on Appellant's behalf. Ultimately, Matthew Sullivan, Esquire, was appointed to represent Appellant. He filed a Rule 1925(b) statement, which raised one of Appellant's pro se PCRA petition issues - that trial counsel was ineffective for not calling his wife and mother-in-law as alibi witnesses.
We note that on October 27, 2020, the PCRA court directed Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on appeal within 21 days, and there were no extensions of time granted. Attorney Sullivan was not appointed until December 9th, and he filed a Rule 1925(b) statement on June 13, 2021 - almost seven months after the 21-day deadline. Nevertheless, we decline to find waiver for an untimely Rule 1925(b) statement, where our Supreme Court has held a criminal defense attorney's failure to file a timely Rule 1925(b) statement is per se ineffectiveness, for which the defendant is entitled to immediate relief. See Commonwealth v. Parrish, 224 A.3d 682, 701-02 (Pa. 2020).
II. Preservation of Issue
On appeal, Appellant abandons the Rule 1925(b) statement claim and presents a new issue for the first time:
Did PCRA counsel provide ineffective assistance for not filing an amended PCRA petition alleging trial counsel's ineffectiveness for failing to object to [Appellant's] sentence for attempted murder, which violated Apprendi v. New Jersey, 530 U.S. 466 (2000)?See Appellant's Brief at 5.
With respect to the preservation of this issue, Appellant relies on the Pennsylvania Supreme Court's October 20, 2021, decision in Commonwealth v. Bradley, 261 A.3d 381 (Pa. 2021), which held "that a PCRA petitioner may, after a PCRA court denies relief, and after obtaining new counsel or acting pro se, raise claims of PCRA counsel's ineffectiveness at the first opportunity to do so, even if on appeal.[ ]" See id. at 401. The Commonwealth agrees that Bradley applies, and it does not oppose a limited remand for reconsideration of the ineffectiveness claim raised on appeal. Commonwealth's Brief at 7.
Appellant filed his notice of appeal two days after Bradley was issued, and thus is entitled to the benefit of Bradley's holding. But see Commonwealth v. Washington, 142 A.3d 810, 813 (Pa. 2016) (although "a new rule of constitutional law is generally retrospectively applicable . . . to cases pending on direct appellate review[,]" "a new constitutional rule of criminal procedure [generally] does not apply . . . to convictions that were final when the new rule was announced").
In any event, we observe the underlying issue in Appellant's ineffectiveness claim is the legality of his sentence, over which this Court's standard of review would be de novo and our scope of review plenary. See Commonwealth v. Barnes, 167 A.3d 110, 116 (Pa. Super. 2017). In reviewing Appellant's arguments, we conclude we may sua sponte grant relief on the underlying legality of sentence issue. See Miller, 102 A.3d at 995. Thus, we do not reach the separate question of PCRA Counsel's ineffectiveness.
III. Section 1102(c) & Case Authority
For ease of discussion, we first set forth the relevant provisions of Section 1102 of the Crimes Code, which governs sentencing for attempt to commit murder:
(c) Attempt, solicitation and conspiracy.
Notwithstanding section 1103(1) (relating to sentence of imprisonment for felony), a person who has been convicted of attempt . . . 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.See 18 Pa.C.S. § 1102(c) (paragraph break added). Accordingly, under the statute, the maximum sentence for attempted murder generally is 20 years, whereas the maximum sentence when serious bodily injury results is 40 years. Id.
"The Crimes Code defines 'serious bodily injury' as [b]odily injury which creates a substantial risk of death or which causes serious, permanent disfigurement, or protracted loss or impairment of the function of a bodily member or organ.' 18 Pa.C.S.A. § 2301." Barnes, 167 A.3d at 116 at n.5.
In Apprendi, the United States Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Barnes, 167 A.3d at 116, citing Apprendi, 530 U.S. at 490.
In the Superior Court's en banc Barnes decision, the defendant raised an Apprendi challenge to his 20 to 40 year-sentence for attempted murder, arguing there was no jury finding that serious bodily injury arose from his commission of attempted murder. Barnes, 167 A.3d at 116. The Barnes Court extensively reviewed a 2006 decision, Commonwealth v. Johnson, 910 A.2d 60 (Pa. Super. 2006). In both Barnes and Johnson: the defendants were not charged with attempted murder resulting in serious bodily injury; the juries were not presented with the question of whether serious bodily injury resulted from attempted murder; and saliently, the juries did not enter any finding that serious bodily injury resulted from the attempted murder. Barnes, 167 A.3d at 117-19. Furthermore, in Johnson, this Court rejected the trial court's reasoning "that serious bodily injury had been established because the jury found the defendant guilty of the companion offense of aggravated assault." Id. at 117, citing Johnson, 910 A.2d at 67. The Johnson Court reasoned, under an Apprendi review, it was the jury's sole responsibility "to find, beyond a reasonable doubt, whether a serious bodily injury resulted from the instant attempted murder." Id.
In Barnes, the defendant twice strangled his minor girlfriend until she lost consciousness. Barnes, 167 A.3d at 114. When the victim regained consciousness the second time, "she was wrapped in a blanket and lying headfirst in a recycling dumpster under" a bridge. Id. The victim suffered, inter alia, a broken vertebra in her neck. Id. In Johnson, the victim had testified against the defendant's brother in an unrelated first-degree murder case. Johnson, 910 A.2d at 62. Three weeks later, the defendant ambushed the victim and her sister as they were walking home. Id. "[T]he defendant pointed a handgun at the victim's head and fired but missed[,] pursued the victim and fired several more rounds at her, striking [her] in the heel of her foot." Barnes, 167 A.3d at 117.
In light of the foregoing, the Barnes Court agreed with the defendant that the trial court erred, under Apprendi, "in sentencing [him] to the maximum term of imprisonment of 40 years for attempted murder because the jury did not determine that serious bodily injury occurred relative to the attempted murder charge." Barnes, 167 A.3d at 119.
IV. Analysis
Appellant avers PCRA Counsel was ineffective for not filing an amended PCRA petition and challenging his attempted murder sentence of 20 to 40 years' imprisonment. With respect to the underlying issue, Appellant maintains the sentence was unlawful pursuant to Apprendi, Barnes, and Johnson because the jury did not return any finding of serious bodily injury with respect to attempted murder. Appellant further contends PCRA Counsel had no reasonable basis for this action, as "[t]here was no possible strategic reason for trial counsel not to object" to the sentence. Appellant's Brief at 14. Finally, Appellant maintains, he was prejudiced by PCRA Counsel's ineffectiveness, where his (Appellant's) maximum sentencing exposure for attempted murder would have been halved. We agree that the underlying issue merits relief.
This Court has stated:
To prevail on a claim alleging counsel's ineffectiveness under the PCRA, [a petitioner] must demonstrate (1) that the underlying claim is of arguable merit; (2) that counsel's course of conduct was without a reasonable basis designed to effectuate his client's interest; and (3) that he was prejudiced by counsel's ineffectiveness, i.e. there is a reasonable probability that but for the act or omission in question the outcome of the proceedings would have been different.Commonwealth v. Timchak, 69 A.3d 765, 769 (Pa. Super. 2013) (citations omitted).
At trial, the trial court did not charge the jury, with respect to the attempted murder charge, with finding whether Appellant caused the Victim serious bodily injury. See N.T. Trial Vol. 5 at 119-21 (jury charge for attempted murder). Although the trial court properly charged the jury, with respect to the aggravated assault charge, with whether Appellant caused serious bodily injury to the Victim, there was no similar charge with respect to the attempted murder charge. See id. at 122. In any event, the jury's hand-completed verdict sheet, the jury's oral reading of its verdict on the record, and the "Trial Disposition and Dismissal Form" verdict report did not include any such finding by the jury. See id. at 141. Accordingly, we deem the circumstances in this matter are analogous to those in Barnes and Johnson, and consistent with those decisions, conclude Appellant's attempted murder sentence of 20 to 40 years' imprisonment runs afoul of Apprendi.
Instead, the trial court charged the jury with finding whether: (1) Appellant, or his co-conspirator or accomplice, committed the act of stabbing the Victim; (2) Appellant or his co-conspirator or accomplice committed the act with the intent to commit murder; and (3) the act constituted a substantial step toward the commission of the crime. N.T. Trial Vol. 5 at 119-20.
V. Conclusion
We reiterate that Appellant presents this sentencing issue as a part of his ineffective assistance of counsel claim. However, as our standard of review of an illegal sentence claim is de novo and our scope of review plenary, we sua sponte grant relief on the underlying sentencing issue. See Barnes, 167 A.3d at 116; Miller, 102 A.3d at 995. Rather than remanding for the PCRA court to consider Appellant's ineffectiveness claim, we reverse the order dismissing the PCRA petition, vacate the judgment of sentence, and remand for resentencing consistent with this memorandum.
We acknowledge the devastating and permanent injuries sustained by the Victim, as well as the statements made by the Victim's wife at the September 26, 2013, sentencing hearing, as to both her husband and their three children. N.T. Sentencing, 9/26/13, at 19-21. Nevertheless, in light of Section 1102(c) and the above-discussed authority, we conclude that resentencing is required pursuant to Apprendi.
Order vacated. Judgment of sentence vacated. Case remanded for resentencing. Jurisdiction relinquished.
Judge Sullivan joins this Memorandum.
Judge Bowes files a Concurring Memorandum.
Judgment Entered.
CONCURRING MEMORANDUM
BOWES, J.
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 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, 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 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 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 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 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)
(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 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.
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,
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.