Opinion
No. 1602 EDA 2004.
Filed: July 12, 2006.
Appeal from the Judgment of Sentence in the Court of Common Pleas of Lehigh County, Criminal Division, at No. 3487 of 2002.
BEFORE: JOYCE, GANTMAN and TAMILIA, JJ.
¶ 1 Michael Lane appeals his December 16, 2003, judgment of sentence of life imprisonment without possibility of parole. The sentence was imposed as a result of appellant's convictions, by a jury, of three counts of robbery, two counts of aggravated assault and one count of possessing an instrument of crime.
18 Pa.C.S.A. § 3701(a)(1)(i)-(iii).
Id., § 2702(a)(1), (4).
Id., § 907(a).
The crime underlying the present conviction occurred on June 19, 2002, less [than] two years after the defendant's release from a lengthy period of incarceration in state prison. On that afternoon, the defendant entered the Park-Mart, a small gas station and convenience store, located at 824 W. Broad Street, Bethlehem, Pennsylvania. He demanded that the victim, Bhavna Perikh, who was working alone in the store, give him money from the various registers. To that end, he had attempted, unsuccessfully, to conceal his face, and he brandished a large knife, at times thrusting it at the victim. In fact, upon entering the store and finding the victim, the defendant forcefully took the telephone that the victim was holding and stabbed the victim's left hand. The defendant then pulled Ms. Perikh by the shirt to the front of the store to the register area. Ms. Perikh anxiously attempted to comply with the defendant's demands despite the fact that she was bleeding profusely, putting as much money as she could into a plastic grocery-type bag. Nevertheless, the defendant demanded that the victim "hurry up," and ultimately cut her right hand as well, severing several tendons. The victim continued to attempt to do as instructed by the defendant, but had great difficulty. Ultimately, the defendant took the bag of money and also put additional money in his left front pants pockets.
After obtaining less than three hundred dollars ($300), the defendant fled from the store. He was observed by several alert by-standers loping down the street carrying a white plastic bag and what appeared to be a knife. The witnesses, in turn, flagged down Sergeant David Cimera, who was driving through the area in a marked police vehicle. They informed the officer of the situation and directed him to the area where the defendant had run. Sgt. Cimera chased the defendant, and ultimately, observed the defendant starting a white Chrysler vehicle, look up at him, put the vehicle in gear, make a U-turn, and drive away rapidly. Sgt. Cimera relayed the vehicle description and registration information to police dispatch, and the car was traced to the defendant. After the defendant fled the area, Sgt. Cimera noticed money covered in blood laying in the street in the area where the defendant's car had been parked, specifically, in the area near the driver's door.
Surveillance was then set up near the defendant's home located at 1342 Butler Street in Easton, Pennsylvania. He was arrested later that evening in Easton in the area of 17th and Northampton Streets.
Trial Court Opinion, Steinberg, J., 8/16/04, pp. 2-3.
¶ 2 On August 11, 2003, appellant proceeded to a jury trial during which on several occasions, he interrupted the proceedings, oftentimes screaming obscenities at the judge, jury and defense counsel. The court warned appellant that if he did not cease his behavior, he would be removed from the courtroom. Nonetheless, appellant refused to comply and, eventually, he was removed from his trial. Although given several opportunities to return to the courtroom or to observe the proceedings via video from another room, he refused to behave appropriately. Summarily, he refused to attend his trial, declined to watch the events via live video and demanded to be returned to prison. Trial Court Opinion at 8 — 10. Ultimately, appellant was convicted of all charges and the Commonwealth filed its notice of intent to seek the mandatory sentence available pursuant to the "three strikes law." 42 Pa.C.S.A. § 9714, Sentences for second and subsequent offenses (a) Mandatory sentence (2). At the sentencing hearing, appellant was informed of the potential punishment he faced, and the court, well-aware of additional criminal activity by appellant, and privy to a pre-sentence investigation report, exercised its discretion and sentenced him to life imprisonment. Timely post-sentence motions were filed on December 26, 2003, and eventually denied on May 14, 2004. Appellant filed a notice of appeal on June 6, 2004, and thereafter, as directed by the trial court, filed a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On appeal, appellant presents the following issues for our consideration:
A. Did the trial court err by preventing the appellant from exercising his fundamental right to testify during his trial?
B. Did the lower court err by unconstitutionally sentencing [appellant] to life in prison without parole?
C. Did the prosecutor commit misconduct by referring to [appellant's] Islamic faith and God?
D. Was prior counsel ineffective during their representation of [appellant]?
E. Does newly adopted Rule 720 prevent the appellant from pursuing a collateral attack in this appeal?
F. Did the lower court err by allowing testimony establishing the incarceration of [appellant]?
G. Did the lower court err by not allowing [appellant] to challenge the jury array?
H. Did the trial court err by allowing the complainant to testify through an interpreter after she had previously done so without such aid?
I. Did the lower court err and improperly exercise its discretion when it allowed irrelevant, prejudicial, and tampered evidence during the trial of [appellant]?
J. Did the trial court err by not setting aside the guilty verdict because the weight of the evidence did not support the verdict?
K. Did the trial court err by not recusing itself? Appellant's brief at 4-5.
¶ 3 Initially, we must determine which of the above eleven issues have been properly preserved for our review and consideration. In order to J. S65005/05 preserve issues for appellate review, they must first be raised to the trial court, and then included in a statement of matters complained of on appeal filed pursuant to Pa.R.A.P. 1925(b), Direction to file statement of matter complained of; Pa.R.A.P. 302, Requisites for Reviewable Issue; Commonwealth v. Lord, 553 Pa. 415, 719 A.2d 306 (1998). Recently, our Supreme Court has reaffirmed that the bright-line rule in Lord is to be strictly applied, and indicated that no discretion exists for this Court to construe otherwise, even if persuasive equitable considerations exist. Commonwealth v. Castillo, ___ Pa. ___, 888 A.2d 775 (2005), and Commonwealth v. Schofield, ___ Pa. ___, 888 A.2d 771 As to Issues A and K, appellant alleges and argues the trial court erred by preventing him from testifying and for not recusing itself. In his post-sentence motions and 1925(b) statement, however, appellant alleged trial counsel was ineffective for refusing him the opportunity to testify and for refusing to file a motion asking the trial judge to recuse. As trial court error and ineffectiveness of counsel are separate and distinct legal issues, the failure to raise the allegations of trial court error prior to raising them in the appellate brief results in waiver. Lord, supra.
We note that in his Opinion, Judge Steinberg indicates he did consider a recusal motion, heard the appellant's reasons therefore and denied the motion. Trial Court Opinion, Steinberg, J., 8/16/04, at 15-16.
¶ 4 Issue B, regarding the constitutionality of appellant's sentence of life imprisonment has been properly preserved and will be considered infra.
¶ 5 In Issue C, appellant alleges prosecutorial misconduct when the district attorney referred to appellant's Islamic faith and to God during his opening and closing statements to the jury. In his 1925(b) statement and amended post-sentencing motions, however, appellant asserts trial court error in allowing the Commonwealth to mention his affiliation with the Muslim religion, thereby prejudicing him; there was no such allegation that misconduct occurred when the prosecutor mentioned God. Record Nos. 55, 60. Thus, only the issue pertaining to appellant's Islamic faith is preserved.
¶ 6 Issue D, regarding trial counsel's alleged ineffectiveness, includes allegations of counsel's ineffectiveness for failing to object to the points raised in Issues F and H, which allegations of error, although not preserved outright, were included in appellant's amended post-sentence motions and concise statement of matters complained of on appeal.
¶ 7 In Commonwealth v. Grant, 572 Pa. 48, 813 A.2d 726 (2002), our Supreme Court held that "as a general rule, a petitioner should wait to raise claims of ineffective assistance of trial counsel until collateral review." Id. at 67, 813 A.2d at 738. This rule was applied retroactively to properly raise and preserve claims of ineffectiveness in all cases on direct appeal at the time Grant was decided. Id. An exception to the rule exists, however, where the issue of counsel's ineffectiveness was raised before the trial court and an evidentiary hearing was held on the issue. Commonwealth v. Bomar, 573 Pa. 426, 826 A.2d 831 (2003). In this case, appellant raised the allegations of ineffectiveness in his post-sentence motions and an evidentiary hearing was held on May 12, 2004. At that hearing, trial counsel testified regarding his stewardship. The trial court concluded the issues raised in the post-sentence motions were without merit, and addressed them in its 1925(a) Opinion. Since the issues of ineffective assistance of counsel were raised before the trial court, developed at an evidentiary hearing, and addressed by the trial court in its 1925(a) Opinion, Bomar applies and this Court is able to review the merits on direct appeal. Thus, appellant's Issue D is properly before us. Accordingly, although the issues were not preserved in that there was no objection during trial to either the testimony regarding appellant's incarceration or the victim's use of an interpreter, the underlying issues (F, regarding appellant's incarceration, and H, regarding the interpreter) will necessarily be reviewed under the ineffectiveness claims raised in Issue D.
¶ 8 Issue E is rendered moot due to our consideration of the allegations of error asserted in Issue D. Issue G, challenging the jury array, was raised in the trial court and appellant's 1925(b) statement, thus preserving it for appellate review.
¶ 9 In Issue I, appellant challenges the trial court's discretion in admitting photographs, the video surveillance tape and the photo array into evidence. While appellant's 1925(b) statement does reference the photographs and the surveillance tape, no issue related to the photographic array was contained in the statement resulting in waiver of that portion of Issue I. Similarly, Issue J, challenging the weight of the evidence, was not raised in the 1925(b) statement resulting in waiver. See Lord, supra.
¶ 10 We turn now to the issues we have determined are ripe for our review. Leaving Issue B for more detailed discussion, infra, we first turn to that portion of Issue C regarding the reference to appellant's Islamic faith. We conclude this issue was disposed of properly by the trial court in its Opinion. The court found appellant's religion to be relevant in that appellant's clothing bore a tag with a name (Mikal Lake) slightly different than the name on appellant's drivers license (Michael Lane). Further, appellant's employer had an employee with the name Michael Lane, not Mikal Lake. We agree with the trial court that because defense counsel used the discrepancy to cast doubt on ownership of the pants, the "explanation that the defendant indicated "Mikal" was his Muslim name was clearly relevant, in light of defense counsel's questions, to further establish ownership of the clothing and did not serve to prejudice the defendant." Trial Court Opinion at 24.
¶ 11 Issue D makes various assertions of trial counsel's ineffectiveness. Having previously determined Issue F is appropriate for our review as a result of the claim of ineffectiveness, we now consider Issue F regarding the passing reference to appellant's incarceration. We have reviewed the circumstances surrounding the challenged testimony and we fail to find any error which would require a new trial or a determination that the trial court abused its discretion by permitting the testimony of Deputy Warden James Bloom. Due to the refusal of appellant to enter into a stipulation that the clothing labeled with the name "Mikal" belonged to him, it was necessary for Deputy Warden Bloom to testify that the clothing was obtained from appellant at the time he initially was imprisoned. N.T. at 94 — 97. This testimony established a chain of custody for the clothing secured from appellant at the time of his incarceration. As noted by the trial court,
The testimony regarding the defendant's status was necessitated by his refusal to enter into a stipulation regarding the chain of custody of his clothing, which would not have mentioned or indicated to the jury that the defendant was or had been incarcerated. The testimony was limited and brief, certainly not the type of testimony that would serve as a "constant reminder" of the defendant's incarceration. Thus, the testimony was not improper and this Court did not err by admitting it.
Trial Court Opinion at 20-21.
¶ 12 As to Issue G, challenging the jury array because of its lack of African American and/or non-white jurors, we agree with the trial court and conclude the array met the test set forth by our Supreme Court in Commonwealth v. Lopez, 559 Pa. 131, 739 A.2d 485 (1999), which, like this appeal, is a case from Lehigh Valley. Appellant has offered us no evidence of discriminatory practices in the jury selection process in Lehigh County and in any event, as posited by the trial court in its Opinion, appellant did not challenge the array five days prior to the case being listed as is required by Pa.R.Crim.P. 630 (B) Challenge to the Array. See Trial Court Opinion at 21-22.
¶ 13 Issue H is also subject to review due to the claims of ineffectiveness made in Issue D. Appellant would have us find his right to confrontation was violated due to the complainant's use of an interpreter at trial and maintains that because an interpreter was not used at the preliminary hearing, there was no need for one to be used at trial. He asserts "the interpreter allowed the Complainant to consider her answers improperly during her private discussions with the translator, thereby allowing the interpreter to coach the Complainant. This tutoring influenced her answers and denied [appellant] his right to confrontation." Appellant's brief at 29.
¶ 14 This is a matter that lies within the discretion of the trial court and, while appellant raises the possibility of coaching in his brief, it is not alleged in his 1925 statement and appellant offers no proof of any impropriety or judicial bias in permitting use of the interpreter. The fact an interpreter was not used at the preliminary hearing does not prohibit the use of one at trial if the court believes it would assist the court and jury. The non use of one at the preliminary hearing could reasonably be attributed to the limitation of time available to acquire one and, as explained by the trial court, "the interpreter secured was the only one available at the time he was needed." We conclude the use of an interpreter skilled in the obscure Indian dialect, Gujarati, was appropriate. See Trial Court Opinion at 23.
¶ 15 In Issue I appellant challenges the admission into evidence of various photographs and a "slowed down" version of the Park-Mart surveillance tape. He contends the pictures of the victim's injuries "did not assist the fact finder and were used to inflame the passions of the Jury, because the more probative evidence was the testimony of the doctor who treated the Complainant." Appellant's brief at 30. He makes this contention in boilerplate fashion without reference to or details regarding specific pictures or supporting caselaw; his main argument appears to be that because the Commonwealth's expert, the doctor who treated the victim, did not refer to the pictures, they obviously had no probative value.
¶ 16 Having viewed the photos of the victim's injuries, we conclude they were relevant to show that appellant inflicted serious bodily injuries on the victim. Initially, we note that in its Opinion the trial court comments on the fact appellant fails to explain to which of the photographs he objects and why they were irrelevant. "Multiple photographs were admitted during the three-day trial, including but not limited to photographs of the scene (inside the store, outside the store and the surrounding area from which the [appellant] fled), photographs of the victim's injuries, the photographic array of potential perpetrators that was displayed to the victim and witnesses, photographs of the defendant's car and photographs of the defendant's clothing." Trial Court Opinion at 17. Further, citing Commonwealth v. Impellizzeri, 661 A.2d at 422 (Pa.Super. 1995), the court noted "relevant evidence, that is, evidence that tends to establish facts in issue or in some degree advances the inquiry and is therefore probative, is generally admissible." Id. Having reviewed all of the photographs contained in the record, we agree with the trial court's assessment and conclude they were properly admitted. We note that in our view, the pictures of the victim's hand would lead us to believe the wounds were not as serious as the doctor's testimony would indicate. It can hardly be said, therefore, that the pictures were so inflammatory as to prejudice appellant; their probative value was not outweighed by their alleged prejudicial impact. If anything, this Court believes the pictures of the victim's hand injury would assist appellant in his defense that the wounds were not serious.
¶ 17 As to the Park-Mart surveillance tape, which depicts the events of June 19, 2002, including the robbery, appellant alleges the court erred by "allowing a slowed down version of the Park-Mart surveillance tape to be played at his trial because, allowing the Jury to view the tape in that manner improperly tampered with the evidence." Appellant's brief at 30. Initially, we point out that because the tape depicts the crime that was the subject matter of the trial, clearly, it was relevant. The relevance of the tape was not diminished in any way by the improperly working VCR which recorded the incident in a faster-than-real-time manner. The appellant and counsel were given the opportunity to view the tape as edited prior to jury selection. N.T., 8/11/03, at 13. Moreover, counsel discussed the authenticity of the tape and stipulated "that the tape is an accurate reproduction of the original. . . ." N.T., 8/12/03, at 81. The trial court explained the situation to the jury as follows. "The speed is not going to be the exact speed that it would have appeared if the original equipment was brought in, but the speed has been slowed, basically, so that you can see what appears on the tape." Id. at 82. Accordingly, we find the tape, as shown to the jury, was relevant and as accurate as possible under the circumstances. Thus, the trial court did not err by admitting the modified tape into evidence. See Trial Court Opinion at 16-17.
¶ 18 Finally, we address the most compelling challenge made by appellant to his conviction, that being Issue B. "Did the lower court err by unconstitutionally sentencing [appellant] to life in prison without parole?" Appellant's brief at 4.
¶ 19 As did the trial court in imposing such a sentence, we find there is no contradiction to the holdings of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
¶ 20 To set the stage for proper application of the holdings of Apprendi and Blakely, it is necessary to summarize the criminal history of convictions, prior to the predicate offense to this conviction, to establish the relevant application of 42 Pa.C.S.A. § 9714 to the sentence of life imprisonment without parole imposed by the trial court.
¶ 21 Appellant's relevant criminal past may be summarized as follows. In 1972, then 15-year-old appellant, Michael Lane, pled guilty to shooting and killing a 14-year-old innocent bystander to a gang shooting. N.T., 12/16/03, at 16-17. In 1977, appellant was involved in another shooting for which he was convicted of paralyzing another individual. One year later, in February 1978, he shot and killed a second man. Following a non-jury trial, appellant was convicted of third degree murder and related offenses and was sentenced, in 1980, to 10 to 20 years imprisonment. Id. at 23-24. While imprisoned, appellant was convicted of possessing an instrument of crime and an additional term of two and one-half to five years imprisonment was tacked on to his sentence. On September 28, 2000, he was released to a half-way house but less than two years later, in June, 2002, appellant committed a brutal stabbing and robbery of a female convenience store clerk (the predicate crime). The stabbing of the victim's hands left her injured to the extent that she cannot drive a car, pick things up or do her regular chores. She has remained in rehabilitative therapy for over two years and experiences pain. She also has constant memories of the terror of that robbery. Id. at 55-57.
¶ 22 The statute at issue, section 9714(a)(2), states in pertinent part, "[u]pon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole." Id. (emphasis added). This is the third violent crime of which appellant has been convicted, thereby implicating the three strikes statute. The appellant would have the court find that a jury, rather than the sentencing court, must determine whether 25 years of total confinement is insufficient to protect the public safety. We do not agree.
¶ 23 With regard to appellant's three convictions that opened the door to the three strikes sanctions, appellant availed himself of our judicial system. He had the opportunity to plead guilty, or be tried by a judge and/or a jury of his peers. Respectively, appellant traveled each road, first admitting his guilt, then choosing to put his fate in the hands of the trial judge, and lastly relying on a jury of his peers. Once this third conviction for a violent crime was of record, appellant became subject to not only the Sentencing Guidelines, but also the enhancement provisions of section 9714 which, in this case, necessarily included the possibility of a life sentence. It is at this point that the sentencing judge's discretion is implicated and the court has the opportunity, and indeed the obligation, to impose a sentence that is, "consistent with the protection of the public." 42 Pa.C.S.A. § 9721 Sentencing generally (b) General standards.
¶ 24 Such a sentencing factor has long been within the discretion of the sentencing court. Commonwealth v. Thomas, 879 A.2d 246, 262 (Pa.Super. 2005) (reiterating that "within the constraints of the Sentencing Code, the trial court has broad discretion to fashion a sentence consistent with the protection of the public, the gravity of the offense, and the rehabilitative needs of the defendant"). The wording of the three strikes statute merely provides the sentencing court with guidance in its determination of whether a life sentence is appropriate. To now find that such a determination lies with a jury is to usurp the discretion that legally and traditionally lies with the sentencing court.
¶ 25 The argument that jurisprudence requires a defendant to be made aware of the possible sentence he faces includes the averment appellant was not aware when he was accused of his crimes that he would receive a life sentence is inapposite as no defendant, when he is indicted, is aware of the exact punishment he faces. It is only after the defendant is convicted, the prior record score and offense gravity scores are calculated, and the Sentencing Guidelines are applied to the specific factual scenario that the defendant can be made aware of the exact imprisonment time he is facing. The same holds true for appellant in this case. Following his third conviction for a violent crime, the Sentencing Guidelines became applicable, as did the three strikes provision of 42 Pa.C.S.A. § 9714. That statute provides that given his criminal convictions, appellant faced 25 to 50 years imprisonment or, upon a finding by the sentencing court that any sentence less than life imprisonment would be "insufficient to protect the public safety," life imprisonment. Life imprisonment, under the particular circumstances of this case, was within the range of punishment authorized by statute due to appellant's three convictions and was within the discretion of the court.
¶ 26 In Commonwealth v. Belak, 573 Pa. 414, 825 A.2d 1252 (2003), our Supreme Court found section 9714(a)(2) "places the burden on the Commonwealth to show that the offender has been convicted of three crimes of violence" and that section 9714(a)(2) was properly applied to the defendant's sentence even though section 9714(a)(1) had been declared unconstitutional. Id. at 420-422, 825 A.2d at 1256-1257; see also Commonwealth v. Butler, 563 Pa. 324, 760 A.2d 384 (2000) (finding section 9714(a)(1) was unconstitutional since a defendant's due process rights are violated by placing the burden on him to rebut the presumption that he is a high-risk dangerous offender). Justice Castille's Concurring Opinion in Belak also speaks tellingly in stating, "the plain language of subsection (a)(2) commands that offenders who have been convicted of 'two or more' separate crimes of violence receive a minimum of 25 years of total confinement, 'notwithstanding any other provision of this title or other statute to the contrary.'" Belak, supra at 423, 825 A.2d at 1258. Further, it is vitally important to point out that our Supreme Court in Belak chose not to use the case as an opportunity to declare section 9714(a)(2) unconstitutional even though it had the benefit and guidance of Apprendi, supra, which had been decided three years prior. The Court specifically stated,
[S]ection 9714(a)(2) is clearly independent of and separable from the invalid section 9714(a)(1). Furthermore, section 9714(a)(2), standing apart from section 9714(a)(1), is both complete and capable of being executed in accordance with legislative intent. In enacting section 9714, the legislature sought to punish violent recidivists, and section 9714(a)(2) can accomplish that goal without reference to the invalid section 9714(a)(1).
Belak, supra at 422, 825 A.2d at 1257.
¶ 27 As pointed out by this Court in Commonwealth v. McClintic, 851 A.2d 214 (Pa.Super. 2004), "the fact of a prior conviction may be found by a judge at time of sentencing, rather than by the jury, even if the prior conviction results in an enhancement that increases the statutory maximum sentence." Id. at 220-221 citing Almendarez-Torres v. United States, 523 U.S. 224, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). Further, we were not persuaded that Almendarez-Torres was overruled by Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002). As pointed out by both the McClintic Court and the Commonwealth in this case, Ring dealt only with the question of whether a defendant was entitled to have a jury, rather than a judge, decide whether aggravating circumstances existed to support the imposition of the death penalty, as opposed to the deference given to past convictions as satisfying due process requirements by virtue of a former trial. See also Jones v. United States, 526 U.S. 227, 248-249, 119 S.Ct. 1215, 1226-1227 (1999) (explaining that recidivism is constitutionally distinguishable from other considerations used to enlarge the possible penalty for an offense since "a prior conviction must itself have been established through procedures satisfying the fair notice, reasonable doubt, and jury trial guarantees"); United States v. Gilbert, 20 F.3d 94 (3d Circ. 2004) (holding that a presumption of regularity attaches to past convictions).
¶ 28 In the earlier case of Commonwealth v. Griffin, 804 A.2d 1 (Pa.Super. 2002), this Court conducted a thorough analysis of Apprendi when faced with the consideration of an appellant whose enhanced sentence for possession with intent to deliver was double that which the court otherwise could have imposed without the prior conviction. We concluded appellant was not entitled to have a jury determine whether he was a recidivist. Quoting Apprendi, we stated, "Other 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." Griffin, supra at 18, quoting Apprendi, 530 U.S. at 466, 490, 120 S.Ct. 2348, 2362-2363 (2000). Further, we specifically held, " Apprendi does not mandate a jury inquiry concerning previous convictions. Rather, the Supreme Court explicitly exempted the existence of prior convictions from the mandate of jury consideration when sentencing enhancement is an issue." Griffin, supra. We explained that, in considering the implications of Apprendi, this Court previously had determined it is appropriate to employ a multipart analysis. Griffin, supra, citing Commonwealth v. Lowery, 784 A.2d 795, 799 (Pa.Super. 2001).
First, we must ascertain whether the enhanced sentence exceeded the statutory maximum for the crime for which the defendant was convicted. If it did, the next question is whether the enhanced sentence was based upon the fact of a prior conviction. If it was, then the sentence is constitutional. If it was not, then the sentence was unconstitutional.
Id., citing Lowery, supra (citations omitted); see also McClintic, supra at 221.
¶ 29 It is beyond cavil that in every case which explores the extent and/or limitations of Apprendi, the clear bright line of demarcation between requiring a jury determination for enhancement of a sentence and a judicial determination of such an enhancement is predicated upon whether the enhancement is based on prior convictions which are presumed findings, in contrast to factual findings not predicated upon prior convictions. The latter are jury questions.
¶ 30 As previously indicated, the case now subject of our consideration falls within the parameters of 42 Pa.C.S.A. § 9714(a)(2). As to proof of prior convictions, the subsection provides:
Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.
Id. (emphasis supplied). In this case the Commonwealth presented evidence that appellant was convicted of murder in 1972 and third-degree murder in 1978. The Commonwealth properly provided the necessary records and proof of prior convictions, as well as a complete sentencing record of appellant's adjustment in and out of prison, and a victim's impact statement as to his most recent conviction. Accordingly, the court deemed the requisite quantum of proof was presented to apply the provisions of section 9714. The court also found that the existence of other acts of violence, the fact that appellant had only been paroled from a 25-year sentence for 18 months when he committed the present offense, and the excessive and unnecessary use of violence upon the victim, established that 25 years of incarceration was insufficient to protect the public. Thus, a life sentence was imposed, as authorized by section 9714(a)(2).
There was no testimony regarding the degree of the 1972 murder conviction.
¶ 31 Additionally, appellant admitted to other violent crimes which were not the basis for the third strike and, further, appellant's most recent victim appeared and described the terror, pain and handicaps she carries with her even two years after the robbery and assault. The trial judge, utilizing the inherent power of any judge at sentencing to exercise his/her discretion in fashioning an appropriate sentence, within the law and parameters imposed by the legislature, imposed the sentence most appropriate and permissible by law in appellant's case. As has been stated from time immemorial in reviewing sentences imposed by trial judges, this Court may not substitute its discretion for that of the trial court when there has been no abuse of discretion. See e.g. Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005).
As this Court did in Commonwealth v. McClintic, 851 A.2d 214, 220, n. 5 (Pa.Super. 2004), it is important to note here that even if appellant were to prevail in this matter, the sentencing court would be authorized to impose the equivalent of a life sentence on remand. Appellant was born on September 1, 1956. He was convicted of three counts of robbery, each of which carries a maximum sentence of 20 years; one count of aggravated assault with a maximum sentence of 20 years; one count of aggravated assault with a maximum of 10 years and possessing an instrument of crime with a maximum of five years, for a total possible sentence of 47½ to 95 years imprisonment. At the time of sentencing, appellant was 47 years old; this means he would be in his mid-nineties at the time of his release, if he were released at the completion of his minimum sentence.
¶ 32 We conclude Judge Robert L. Steinberg conducted a fair, comprehensive, learned and justifiable sentencing proceeding and this Court has no power on review to reverse the sentence he imposed. We have found no case that comes near a finding that the provision of section 9714(a)(2) does not meet the mandate of constitutionality, and before we would presume to usurp the powers of the Supreme Court in making such a finding, we would need to have a case far more favorable to the appellant.
¶ 33 Judgment of sentence affirmed.
¶ 34 Dissenting Opinion by Joyce, J.
¶ 1 The trial court sentenced Appellant beyond the statutory range for the crimes of which he was committed based on a fact, other than a prior conviction, which was required to be submitted to a jury and proven beyond a reasonable doubt. Since the sentence is directly contrary to Appellant's constitutional right to due process and ignores the holdings of Apprendi and Blakely, I would respectfully reverse Appellant's judgment of sentence and remand for the imposition of a new sentence. Accordingly, I dissent.
¶ 2 The constitutionality of § 9714 has been challenged before. On one occasion, such a challenge was successful. Commonwealth v. Butler, 760 A.2d 384 (Pa. 2000) (§ 9714(a)(1) presuming defendant was a high risk dangerous offender unless defendant proved otherwise was unconstitutional). However, the amended version of § 9714 has thus far withstood constitutional scrutiny. Commonwealth v. Belak, 825 A.2d 1252 (Pa. 2003) (§ 9714(a)(2) is constitutional since it is severable from § 9714(a)(1), which had been found unconstitutional in Butler); Commonwealth v. McClintic, 851 A.2d 214 (Pa.Super. 2004) (appellant's claim that § 9714 is unconstitutional because the statute increases the sentence beyond the statutory maximum and permits the sentencing judge, rather than the jury, to make the factual determination that the defendant is subject to its provisions based on prior convictions for violence fails); Commonwealth v. Forbes, 867 A.2d 1268 (Pa.Super. 2005) (rejecting defendant's argument that the two strikes law is unconstitutional because it allows the judge to find facts instead of the jury in determining the mandatory minimum sentence to be imposed). See also, Commonwealth v. Brown, 741 A.2d 726 (Pa.Super. 1999) ( en banc) (holding that § 9714 is not an ex post facto law), appeal denied, 790 A.2d 1013 (Pa. 2001). Nonetheless, the constitutionality of § 9714(a)(2), which allows the trial court to impose a life sentence without parole upon a finding that twenty-five years of total confinement is insufficient to protect the public safety, has yet to be discussed and thus presents an issue of first impression.
Because this is an issue of first impression, there is, by definition, no case law interpreting § 9714(a)(2) (life sentence portion) in Pennsylvania. This would explain why the Majority was unable to find a "case that comes near a finding that the provision of section 9714(a)(2) does not meet the mandate of constitutionality" and would require "a case far more favorable" to Appellant before reversing. Majority opinion, at 22. Simply because Pennsylvania has not yet examined this question does not render the statue valid. Moreover, the Due Process clauses, Apprendi and Blakely are in existence, and their application should not be ignored.
¶ 3 The relevant parts of the statute are set out below:
(a) Mandatory sentence. —
(2) Where the person has at the time of the commission of the current offense previously been convicted of two or more such crimes of violence arising from separate criminal transactions, the person shall be sentenced to a minimum sentence of at least 25 years total confinement, notwithstanding any other provision of this title or other statute to the contrary. Proof that the offender received notice of or otherwise knew or should have known of the penalties under this paragraph shall not be required. Upon conviction for a third or subsequent crime of violence the court may, if it determines that 25 years of total confinement is insufficient to protect the public safety, sentence the offender to life imprisonment without parole.
42 Pa.C.S.A. § 9714(a)(2). Appellant contends that § 9714(a)(2) allows the judge to impose a greater sentence than the statutory maximum based on a factual finding that twenty-five years of total confinement is insufficient to protect the public safety when such a consideration must be submitted to the jury pursuant to the Due Process clauses of the United States and Pennsylvania Constitutions and Apprendi. To appreciate the interplay between the United States Supreme Court's rulings, the Due Process clauses and § 9714(a)(2), a recitation of several key Supreme Court decision must be discussed.
¶ 4 In Apprendi, the United States Supreme Court discussed the constitutionality of a New Jersey hate crime statute. In that case, an African-American family moved into Apprendi's neighborhood. To demonstrate his dissatisfaction, Apprendi discharged a weapon into their home. He pled guilty to, inter alia, second-degree possession of a firearm for an unlawful purpose, an offense punishable by up to ten years of incarceration. However, as part of the plea bargain, the prosecution reserved the right to argue for an enhanced sentence based upon the applicability of the hate crime statute. This statue provided that upon proof by a preponderance of the evidence that the underlying offense was committed "with a purpose to intimidate an individual or group of individuals because of race . . .", N.J. Stat. Ann. § 2C:44-3(e), a person convicted of a second-degree offense could receive a greater sentence of ten to twenty years of imprisonment. Following an evidentiary hearing regarding Apprendi's purpose, the court determined "that the crime was motivated by racial bias." Apprendi, 530 U.S. at 471. Thus, the judge sentenced him to a twelve year term of incarceration, two years longer than the maximum sentence he would have received for the underlying offense to which he pled guilty without the finding.
¶ 5 On appeal, Apprendi argued "that the Due Process Clause of the United States Constitution requires that the finding of bias upon which his hate crime sentence was based must be proved to a jury beyond a reasonable doubt" citing In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Apprendi, 530 U.S. at 471. The state appeals courts affirmed finding, in part, that the legislative intent was to make the hate crime enhancement a sentencing factor. Id. 471-473.
Winship held that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." Winship, 397 U.S. at 364.
¶ 6 The United States Supreme Court granted certiorari and reversed. The Court noted that the issue at hand was rooted in the Fourteenth Amendment's declaration that no person be deprived of their liberty without the due process of the law and the Sixth Amendment's guarantee to a trial by jury. Id. at 476-477. The Court explained that historically, any distinction between an element and a sentencing factor was "unknown" since by way of practice, an accused was apprised of
'all the facts and circumstances which constitute the offence, . . . stated with such certainty and precision, that the defendant . . . may be enabled to determine the species of offence they constitute, in order that he may prepare his defense accordingly . . . and that there may be no doubt as to the judgment which should be given, if the defendant be convicted.' J. Archbold, Pleading and Evidence in Criminal Cases 44 (15th ed. 1862) (emphasis added). The defendant's ability to predict with certainty the judgment from the face of the felony indictment flowed from the invariable linkage of punishment with crime. See 4 Blackstone 369-370 (after verdict, and barring a defect in the indictment, pardon, or benefit of clergy, "the court must pronounce that judgment, which the law hath annexed to the crime " (emphasis added)).
Id. at 478-479. Moreover, the Court observed,
`Where a statute annexes a higher degree of punishment to a common-law felony, if committed under particular circumstances, an indictment for the offence, in order to bring the defendant within that higher degree of punishment, must expressly charge it to have been committed under those circumstances, and must state the circumstances with certainty and precision. [2 M. Hale, Pleas of the Crown *170].' Archbold, Pleading and Evidence in Criminal Cases, at 51. If, then, 'upon an indictment under the statute, the prosecutor prove the felony to have been committed, but fail in proving it to have been committed under the circumstances specified in the statute, the defendant shall be convicted of the common-law felony only.' Id., at 188.
Id. at 480. Of course, the Court added, judges were always permitted to exercise certain discretion in sentencing an offender, so long as the sentence imposed was within the statutory limits. Id. at 481. This is due to the holding in Winship, which not only pertains to the indictment and jury trial, but to the consequences as well. Id. at 484.
¶ 7 The United States Supreme Court also rejected the state appellate courts' determination that the enhancement was merely a sentencing factor. The Court noted "It was in McMillan v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986), that this Court, for the first time, coined the term "sentencing factor" to refer to a fact that was not found by a jury but that could affect the sentence imposed by the judge." Id. at 485. McMillan discussed whether due process is violated by 42 Pa.C.S.A. § 9712, which allows a judge to impose a mandatory minimum sentence of five years where a defendant commits an enumerated offense while visibly possessing a firearm. In finding that § 9712 passed constitutional muster, the Court reasoned that the protections of Winship were present, articulating a multi-factor test for determining whether the protections of Winship have been run afoul. The test's overarching factor was whether the maximum sentence changed based on the factual finding. The Court stated:
Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court's discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. . . . The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners' claim that visible possession under the Pennsylvania statute is 'really' an element of the offenses for which they are being punished — that Pennsylvania has in effect defined a new set of upgraded felonies — would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113(d) (providing separate and greater punishment for bank robberies accomplished through 'use of a dangerous weapon or device'), but it does not. Id., at 87-88, 106 S.Ct. 2411.
Apprendi, 530 U.S. at 486-487, citing McMillan. Thus, the United States Supreme Court held that a defendant's Fourteenth Amendment right to due process and Sixth Amendment right to trial by jury require that any fact, other than that of a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury and proved beyond a reasonable doubt. Id. at 490.
¶ 8 The reasoning and holding in Apprendi was subsequently applied in Ring v. Arizona, 536 U.S. 584, 122 S.Ct 2428, 153 L.Ed.2d (2002). In Ring, the Supreme Court invalidated Arizona's statute which permitted a trial judge to determine the presence of aggravating and mitigating factors in relation to the imposition of the death penalty after a defendant has been convicted of first-degree murder, otherwise punishable by life imprisonment. The State argued that the statute specified that defendants convicted of first-degree murder may be sentenced to either life imprisonment or death. Thus, the state maintained, Ring's death sentence was statutorily authorized and "within the range of punishment authorized by the jury verdict." Id. at 604. The Court disagreed with this argument, noting that it "overlooks Apprendi's instruction that 'the relevant inquiry is one not of form, but of effect.'" Id. citing Apprendi, 530 U.S. at 494. Additionally, in rejecting whether the issue could be termed as a distinction between an element and a sentencing factor, the Court stated, "as to the elevation of the maximum punishment, however, Apprendi renders the argument untenable; Apprendi repeatedly instructs in that context that the characterization of a fact or circumstance as 'an element' or a 'sentencing factor' is not determinative of the question 'who decides', judge or jury." Id. at 604-605. Since the finding of aggravating factors was one that "expose[d] [Ring] to greater punishment than that authorized by the jury's guilty verdict," id. at 604, the statute was held unconstitutional as violative of Ring's Sixth Amendment right to a jury trial.
¶ 9 In Blakely, the Supreme Court again applied Apprendi to reverse a sentence imposed upon Blakely following his guilty plea to kidnapping. The facts which supported the basis for Blakely's plea were sufficient to impose a maximum sentence of 53 months, which was in the standard range of Washington's determinate sentencing scheme. However, the judge concluded that Blakely acted with deliberate cruelty, a statutorily enumerated ground for imposing an exceptional sentence beyond the standard range. Thus, Blakely received a sentence three years in excess of what he expected. The Supreme Court reversed, reiterating the holding in Apprendi, that "other 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." Blakely, 542 U.S. at 301, citing Apprendi, supra. The finding of deliberate cruelty was in contravention of this premise. The Court further observed:
Our precedents make clear, however, that the "statutory maximum" for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.
. . .
In other words, the relevant "statutory maximum" is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings. When a judge inflicts punishment that the jury's verdict alone does not allow, the jury has not found all the facts "which the law makes essential to the punishment," Bishop, supra, § 87, at 55, and the judge exceeds his proper authority.
Id. at 303-304. Thus, Blakely's sentence was overturned. ¶ 10 In order to evaluate Appellant's Apprendi argument, the two-step inquiry articulated in United States v. Williams, 235 F.3d 858 (3d Cir. 2000) and applied in Commonwealth v. Lowery, 784 A.2d 765 (Pa.Super. 2001) is utilized. When assessing such an argument,
It has been held consistently that Blakely is otherwise not implicated in Pennsylvania because we utilize an indeterminate sentencing scheme as opposed to Washington State's determinate sentencing scheme. Commonwealth v. Bromley, 862 A.2d 598 (Pa.Super. 2004). Declaring unconstitutional § 9714(a)(2) that deals with a life sentence would not impact on those cases decided previously. Blakely is only dispositive to the case sub judice as it reiterates the premise of Apprendi that "other 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." Blakely, 542 U.S. at 301, citing Apprendi.
A court must first determine the "prescribed statutory maximum" sentence for the crime of which the defendant was convicted and assess whether the defendant's ultimate sentence exceeded it. If it did, the court must consider the second-order Apprendi question: whether the enhanced sentence was based on "the fact of a prior conviction." If it was, then the sentence is constitutional. If it was not, then the sentence is unconstitutional.
Lowery, 784 A.2d at 799.
¶ 11 Presently, Appellant was convicted of three counts of robbery, two counts of aggravated assault, and one count of possessing an instrument of crime. The maximum statutory penalty for each of these offenses is twenty years for each of the robbery convictions, twenty years for the § 2702(a)(1) aggravated assault conviction, ten years for the § 2702(a)(4) aggravated assault conviction, and five years for possessing an instrument of crime. 18 Pa.C.S.A. §§ 1103 and 1104. However, the Commonwealth sought and received an enhanced sentence of life imprisonment via the application of the three strikes law due to Appellant's commission of two prior murders.
¶ 12 Again, § 9714 operates to impose a sentence of twenty-five to fifty years of incarceration upon one who has two prior crimes of violence. Under these circumstances, a life sentence may also be imposed if the court determines that twenty-five years of total confinement is insufficient to protect the public safety. The Commonwealth argues that the imposition of a life sentence did not surpass the statutorily authorized maximum since § 9714 specifically sets forth the possibility of receiving that sentence. However, this precise argument was rejected by the United States Supreme Court since it "overlooks Apprendi's instruction that 'the relevant inquiry is one not of form, but of effect.'" Ring, supra, 536 U.S. at 604-605 quoting Apprendi, 530 U.S. at 494. Additionally, the statutory maximum has been defined as the "maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant." Blakely, 542 U.S. at 303. It is the sentence the judge may impose without the finding of additional facts. Id. at 304. Clearly, Appellant's life sentence exceeded the statutory maximum sentence; thus, the next determination is whether the enhanced sentence was based upon the "fact" of two prior convictions for crimes of violence. Lowery.
¶ 13 Of course, § 9714 and its mandatory sentences is a recidivist statute. In Appellant's case, he had two prior convictions for murder, a statutorily enumerated offense qualifying as a crime of violence. Thus, under § 9714, Appellant's current convictions constitute a third strike. Such a finding is not violative of Apprendi's teachings, since Apprendi and its progeny have specifically stated that prior convictions are the exception to the rule that any fact that increases the penalty for a crime beyond the statutory maximum be submitted to a jury. Apprendi, 530 U.S. at 490. See also Belak, supra, (imposition of twenty-five to fifty year sentence pursuant to § 9714 was constitutional). Challenges to the provisions of § 9714 allowing for the imposition of a sentence of a minimum of ten years upon a finding of one prior crime of violence or of a minimum of twenty-five years when a defendant has two prior convictions for crimes of violence have been wholly unsuccessful, and it is clear that a sentence imposed under the above criteria is proper. Aponte, supra; Forbes, supra. However, the inquiry does not end here, as it did in Lowery, for Appellant did not receive a minimum sentence of twenty-five years based solely upon his prior convictions. Rather, he received a life sentence after the court determined that twenty-five years of incarceration was insufficient to protect the public safety. Thus, it must be determined whether such a finding is a "fact" that was to be submitted to a jury.
The Majority's statement that "the Supreme Court in Belak chose not to use the case as an opportunity to declare section 9714(a)(2) unconstitutional even though it had the benefit and guidance of Apprendi . . ." (Majority opinion, at 17) ignores the fact that Belak received the 25-50 year sentence instead of the life sentence imposed after a judicial determination that total confinement was warranted for the protection of public safety. Thus, the issue before this Court now was not the issue the Supreme Court addressed in Belak. Similarly, Commonwealth v. Griffin, 804 A.2d 1 (Pa.Super. 2002) offers no support as Griffin was not sentenced beyond the statutory range, but only received a sentence outside of the Sentencing Guidelines. See Majority opinion, at 19.
¶ 14 The Majority finds that twenty-five years of incarceration is insufficient to protect the public safety is not a "fact" within the meaning of Apprendi, but merely a sentencing factor always within the discretion of the trial court to consider. A "sentencing factor" is "a fact that was not found by a jury but that could affect the sentence imposed by the judge." Apprendi, 530 U.S. at 485 citing McMillan, supra. Indeed, it can hardly be disputed that a judge is typically authorized by statute to impose a sentence that is "consistent with the protection of the public." 42 Pa.C.S.A. § 9721(b). Such a sentencing factor is well within the judge's discretion. Commonwealth v. Thomas, 879 A.2d 246, 262 (Pa.Super. 2005). However, this traditional function of the court can only withstand constitutional scrutiny when a sentence is within the statutory maximum. In contrast, when such a consideration alters the maximum penalty and creates a new penalty, it can no longer be considered a mere sentencing factor, but an additional fact that falls within the guarantees of the Due Process Clause. McMillan, 477 U.S. at 87-88.
¶ 15 Appellant's sentence escalated from a twenty-five to fifty year sentence (on one count) to life imprisonment. A jury never determined that Appellant's prior history warranted the life sentence. Thus, the factual determination that twenty-five years of incarceration was insufficient to protect the public safety cannot be considered a sentencing factor. Rather, it is a fact that had to be submitted to a jury and proved beyond a reasonable doubt in order to impose a life sentence. Any other interpretation flies in the face of Apprendi and the related United States Supreme Court precedent.
¶ 16 Clearly, this result violates due process and the right to have a jury find all the facts "which the law makes essential to the punishment." Blakely. The Fourteenth and Sixth Amendments to the United States Constitution mandate that such considerations be submitted to a jury. Since it was not, and because it formed the basis of Appellant's enhanced sentence, I would vacate Appellant's sentence and remand to the trial court for the imposition of a new sentence. Accordingly, I dissent.