Opinion
J. A14041/12 No. 45 WDA 2011
06-22-2012
COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEVENSON LEON ROSE, Appellant
Appeal from the Judgment of Sentence entered December 7, 2010,
in the Court of Common Pleas of Allegheny County,
Criminal Division, at No(s): CP-02-CR-0000810-2008.
BEFORE: MUSMANNO, BENDER, and STRASSBURGER, JJ. OPINION BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Stevenson Leon Rose (Appellant) appeals from the judgment of sentence entered after he was convicted of third-degree murder. Upon review, we reverse and remand for resentencing.
On July 13, 1993, Mary Mitchell (Victim) was brutally beaten by Appellant and Shawn Sadik (co-defendant). The injuries to Victim were of such a severe nature that she was left in a vegetative state after the attack. On January 26, 1994, Appellant and co-defendant were convicted of criminal attempt (homicide), aggravated assault, and other crimes arising from this attack. On March 16, 1994, Appellant was sentenced to an aggregate term of imprisonment of 15 to 30 years. Subsequently, a panel of this Court affirmed Appellant's judgment of sentence, and Appellant's petition for allowance of appeal was denied by our Supreme Court. Commonwealth v. Rose, 664 A.2d 1059 (Pa. Super. 1995) (unpublished memorandum), appeal denied, 672 A.2d 306 (Pa. 1995).
On September 17, 2007, Victim died. On October 9, 2007, Appellant and co-defendant were charged with criminal homicide. On October 13, 2010, a jury convicted Appellant of third-degree murder.
Co-defendant was tried separately. A jury convicted him of first-degree murder and he was sentenced to life imprisonment.
At the sentencing hearing, on December 7, 2010, Appellant argued that he should be sentenced under the statutory maximum penalty that was in place in 1993. At that time, the maximum sentence for third-degree murder, which was a first-degree felony, was 20 years' incarceration pursuant to 18 Pa.C.S. § 1103(1). The Commonwealth argued that from a common sense standpoint, the murder of Victim was not complete until she died on September 17, 2007. In support, the Commonwealth pointed to 42 Pa.C.S. § 5552(d), regarding statutes of limitations for crimes, which reads that "an offense is committed...when every element occurs[.]" The Commonwealth acknowledged that there is no statute of limitations for murder, but argued that the section should still apply. Thus, the Commonwealth contended that Appellant should be sentenced under the statute in effect at the time Victim died, which set the maximum penalty for third-degree murder at 40 years' incarceration pursuant to the Act of March 15, 1995, P.L. 970 No. 5 (Spec. Sess. No. 1), 18 Pa.C.S. § 1102(d).
The learned trial court agreed with the Commonwealth's arguments, applied the statute in effect at the time of Victim's death, and sentenced Appellant to 20 to 40 years' imprisonment. Appellant filed a timely notice of appeal and both Appellant and the trial court complied with Pa.R.A.P. 1925.
The trial court also credited Appellant with 6,357 days (just under 17 1/2 years) for time served.
On appeal, Appellant does not dispute that Victim died as a result of the injuries sustained during the 1993 attack. Rather, Appellant argues both that the trial court erred in applying the sentencing statute retroactively and that a sentence of 20 to 40 years' incarceration is an ex post facto application of a sentencing provision. Under this unusual set of circumstances, the answer to both questions turns on the issue of, for the purposes of sentencing, when the murder occurred - when Appellant committed the acts (1993) or when Victim died (2007). Thus, we consider this issue first.
The statute under which Appellant was convicted provides that "[a] person is guilty of criminal homicide if he intentionally, knowingly, recklessly or negligently causes the death of another human being." 18 Pa.C.S. § 2501(a). This statute, however, does not define when murder actually occurs or is completed.
The Commonwealth and the trial court rely on how certain crimes are defined for the purposes of the statute of limitations. See Commonwealth's Brief at 14; Trial Court Opinion, 7/29/2011, at 3. However, for the following reasons, we conclude that such analysis is misplaced based on the plain language of the laws regarding statutes of limitations.
The Statutory Construction Act provides that, before resorting to any other considerations in ascertaining legislative intent, we look to the words of the statute.
In all matters involving statutory interpretation, we apply the Statutory Construction Act, 1 Pa.C.S. § 1501 et seq., which provides that the object of interpretation and construction of statutes is to ascertain and effectuate the intention of the General Assembly. 1 Pa.C.S. § 1921(a). A statute's plain language generally provides the best indication of legislative intent. Only where the words of a statute are not explicit will we resort to other considerations to discern legislative intent. 1 Pa.C.S. § 1921(c)[.]Commonwealth v. McCoy, 962 A.2d 1160, 1166 (Pa. 2009) (internal citations and quotations omitted).
42 Pa.C.S. § 5551 enumerates which offenses do not have a statute of limitations, and specifically includes murder. 42 Pa.C.S. § 5551(1). Section 5552 lists other felonies and misdemeanors and their applicable statutes of limitations. This section contains the language relied upon by the Commonwealth and the trial court to define that an offense is committed when every element occurs. 42 Pa.C.S. § 5552(d).
Based on the plain language of these statutes, we will not apply the language in section 5552(d) to murder, when murder is specifically enumerated in another statute. If our legislature intended to define homicide-related offenses the same way it has defined other offenses, then it would have put that language in both statutes. Expressio unius est exclusio alterius (the express mention of one thing causes the exclusion of another). Commonwealth v. Charles, 411 A.2d 527 (Pa. Super. 1979). Thus, we conclude that because murder is not referenced in section 5552(d), that statute is not appropriate for determining when Victim's murder occurred.
Because there exists no Pennsylvania precedent on this issue, we look to how other states have addressed murder in these novel circumstances. In State v. Detter, 260 S.E.2d 567 (N.C. 1979), the Supreme Court of North Carolina considered analogous circumstances. In that case, the defendant committed several acts which led to the death of her husband. Witnesses testified that beginning in January 1977, the defendant tampered with her husband's brakes, purchased ant killer containing a lethal dose of arsenic and poured it into his iced tea, and tried to poison him with lead. Another witness testified that in February 1977, the defendant asked someone else to kill her husband and also tried to purchase illegal drugs to kill him. The husband was hospitalized several times and died on June 9, 1977. It was determined that the husband died from arsenic poisoning. The defendant was found guilty of first-degree murder and was sentenced to death. On appeal, the defendant argued that the application of the death penalty in her case was ex post facto because the law authorizing the death penalty did not become effective until June 1, 1977, and all acts causing the husband's death occurred between January and March 1977, prior to enactment of the death penalty. Thus, the Supreme Court of North Carolina was left to determine when the murder occurred. That Court analyzed whether the murder occurred when the acts were performed (January through March 1977) or when the husband died (June 9, 1977). It opined that "for the purposes of the prohibition against ex post facto legislation, we hold that the date(s) of the murderous acts rather than the date of death is the date the murder was committed." Detter, 260 S.E.2d at 590. Thus, the Supreme Court of North Carolina vacated the death sentence because at the time the defendant committed all of the murderous acts, the maximum allowable punishment was life imprisonment.
In considering the same issue, the Supreme Court of California also reached that conclusion.
In People v. Gill, 6 Cal. 637 [(1856)], the defendant was convicted of second degree murder. But when the fatal blow was struck, there was no such crime. At that time, the defendant could have been convicted only of murder or manslaughter. After the fatal blow was struck but before the victim died, a statute was enacted dividing murder into degrees. Our Supreme Court held: "The death must be made to relate back to the unlawful act which occasioned it, and as the party died in consequence of wounds received on a particular day, the day on which the act was committed, and not the one on which the result of the actPeople v. Celis, 46 Cal. Rptr. 3d 139, 144 (Cal. Ct. App. 2006) (internal citations omitted; emphasis added).
was determined, is the day on which the murder is properly to be charged." The Supreme Court reversed the judgment and directed the trial court to retry the defendant for murder. Thus, Gill merely stands for the proposition that "the death of the victim in a murder case relates back to the unlawful act which occasioned it, and that ordinarily the law in effect at that time is controlling."
We find the reasoning of our sister states persuasive, and hold that for the purposes of sentencing, a murder occurs when the acts occur that give rise to the murder.
Because we have determined that for the purposes of sentencing, the death of Victim should relate back to the actions that occurred in 1993, we must now determine whether the trial court erred in applying the sentencing statute in effect in 2007.
"A trial court's application of a statute is a question of law, and our standard of review is plenary. Moreover, our review is limited to determining whether the trial court committed an error of law." Commonwealth v. Wall, 867 A.2d 578, 580 (Pa. Super. 2005) (internal citations and quotations omitted).
Appellant contends that application of the sentencing statute enacted after the murder occurred is an unlawful retroactive application of the statute. We agree.
The statute governing retroactivity provides that "[n]o statute shall be construed to be retroactive unless clearly and manifestly so intended by the General Assembly." 1 Pa.C.S. § 1926. Furthermore, "[t]here is a presumption against the retroactive effect of statutes." Commonwealth v. Estman, 915 A.2d 1191, 1193 (Pa. 2007). Instantly, 18 Pa.C.S. § 1102, the statute governing sentencing for murder, does not contain any language which would indicate the General Assembly intended for the statute to have retroactive effect.
Moreover, section 1922(3) of the Statutory Construction Act bids us consider that the legislature does not intend us to reach a result which will render a statute unconstitutional. 1 Pa.C.S. § 1922(3). In Commonwealth ex rel. Lyons v. Day, 110 A.2d 871 (Pa. Super. 1955), the Legislature enacted a law providing that the maximum sentence at the Camp Hill Industrial School would be six years. A current prisoner sought a writ of habeas corpus. As here, the question was whether the statute should be applied retroactively. This court held that it should not be: "[I]t is necessary to recognize the well-established canon of construction: No law shall be construed to be retroactive unless clearly and manifestly so intended by the legislature." Id. at 873 (internal quotation omitted).
We went on to point out that such a construction avoided serious constitutional questions regarding legislative interference with the judicial power to sentence and the executive power to pardon. "[A] construction which is clearly constitutional is to be preferred to one that raises grave constitutional questions." Id. at 873-4.
Likewise here, by holding that, as a matter of statutory construction, 18 Pa.C.S. § 1102 should not be construed to be retroactive, we avoid considering whether the new sentencing statute is unconstitutional as applied to Appellant.
Both the United States Constitution and the Pennsylvania Constitution prohibit the enactment of ex post facto laws. See U.S. Const., Art. 1, § 10; Pa. Const., Art. 1, § 17. "A state law violates the ex post facto clause if it was adopted after the complaining party committed the criminal acts and inflicts a greater punishment than the law annexed to the crime, when committed." Commonwealth v. Fleming, 801 A.2d 1234, 1237 (Pa. Super. 2002) (internal citation and quotation omitted).
In the seminal case of Calder v. Bull, 3 U.S. 386 (1798), the United States Supreme Court provided an analysis of the retroactive effect of a law and its application to the prohibition against ex post facto laws.
Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies theId. at 391.
rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction.
"Ex post facto constitutional provisions are a limitation upon the actions of a legislature. It attempts to preserve for persons the right to fair warning that their conduct will give rise to criminal penalties. It is fundamental to our concept of constitutional belief." Commonwealth v. Hoetzel, 426 A.2d 669, 672 (Pa. Super. 1981).
Preservation of this fundamental right has been traditionally achieved in Pennsylvania through the application of a four-pronged test. Accordingly, the amended statute cannot be retroactively applied to the appellant if one of the following criteria is found to be present:Id (internal quotation omitted; emphasis added).
1. The law makes an act criminal which was not criminal when done;
2. The law aggravates a crime, or makes it greater than it was when committed;
3. The law changes a punishment, and makes it greater than it was when a punishable act was committed;
4. The law alters the rules of evidence and requires less or different testimony than the law required at the time the offense was committed in order to be convicted.
The purpose behind the prohibition on ex post facto laws is as follows:
The ex post facto prohibition forbids the Congress and the States to enact any law which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed. ThroughWeaver v. Graham, 450 U.S. 24, 28-29 (1981) (internal citations and quotation omitted; emphasis added).
this prohibition, the Framers sought to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed. The ban also restricts governmental power by restraining arbitrary and potentially vindictive legislation.
When Appellant committed these heinous acts against Victim, the maximum penalty allowable was 10 to 20 years' incarceration. Thus, Appellant was effectively on notice that his acts could result only in such a punishment. Accordingly, if we held that Appellant's punishment could be increased to that which was in effect at the time Victim died rather than when Appellant committed the acts, it would implicate an ex post facto consideration.
We recognize that when Appellant inflicted his savage beating on Victim, he was not calculating whether his maximum penalty was 20 years or 40 years' incarceration. However, if a punishment for a crime is increased from 20 days to 40 days, a defendant may be so calculating, and the principle is the same regardless of the severity of the punishment. The Supreme Judicial Court of Massachusetts eloquently explained:
Ex post facto laws are understood to be laws to punish, as criminal or penal, acts which were not criminal, or not offences at the time they were done, or which, if criminal or penal, were not subject to penalties so high, or to punishment so severe, as those affixed to them by the ex post facto law. The reason why these laws are so universally condemned is, that they overlook the great object of all criminal law, which is, to hold up the fear and certainty of punishment as a counteracting motive, to the minds of persons tempted to crime to prevent them from committing it. But a punishment prescribed after an act is done, cannot, of course, present any such motive. It is contrary to the fundamental principle of criminal justice, which is, that the person who violates a law deserves punishment, because he [willfully] breaks a law, which in theory, he knows or may know to exist. But he cannot know of the existence of a law which does not, in fact, exist at the time, but is enacted afterwards.
Our holding herein, that 18 Pa.C.S. § 1102(d) should not be applied retroactively, thus avoids the serious constitutional question of ex post facto. Wertz v. Chapman Twp., 741 A.2d 1272, 1274 (Pa. 1999) ("It is axiomatic that if an issue can be resolved on a non-constitutional basis, that is the more jurisprudentially sound path to follow.").
We reverse the judgment of sentence, and remand to the trial court for imposition of a sentence consistent with the statute for third-degree murder in effect in 1993 pursuant to 18 Pa.C.S. § 1103(1).
Judgment of sentence reversed. Case remanded for resentencing consistent with this opinion. Jurisdiction relinquished.
Jacquins v. Commonwealth, 63 Mass. 279, 281 (1852).