J-A34012-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                           Appellee

                    v.

KWAME LAMAR BARNES,

                           Appellant                 No. 947 MDA 2014


          Appeal from the Judgment of Sentence January 30, 2014
             In the Court of Common Pleas of Dauphin County
            Criminal Division at No(s): CP-22-CR-0000426-2011


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN, and STABILE, JJ.

DISSENTING MEMORANDUM BY SHOGAN, J.:                FILED MARCH 16, 2016

      While the learned Majority presents a thoughtful analysis in reaching

its decision to vacate the judgment of sentence in this criminal matter, I

disagree with its conclusions. Thus, because I would affirm the judgment of

sentence which was imposed by the trial court upon remand, I am compelled

to respectfully dissent.

      From my review, the facts surrounding this brutal case are as follows.

On December 19, 2010, the sixteen year-old female victim (“Victim”) was

sleeping alone at her mother’s home when she received a text message from

her ex-boyfriend, Appellant.     N.T., 2/27-28/12, at 137-139.   Although the

couple were no longer dating, they still had an amicable relationship. Id. at

139. Appellant indicated in the text message that he was at the back door

of the residence and Victim allowed Appellant to enter the home.       Id. at
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140.    Victim and Appellant went upstairs to Victim’s bedroom where they

talked, eventually had a sexual encounter, and then talked again.        Id. at

140-141. The two then had an argument, Victim asked Appellant to leave,

and she escorted Appellant downstairs to the back door.      Id. at 141-142.

Before leaving, Appellant threatened to hit Victim with a vacuum.        Id. at

143-144. Subsequently, Appellant strangled Victim from behind by using his

arm. Id. at 144-145. Victim lost consciousness. Id. at 145. When Victim

regained consciousness, Appellant said to Victim, “you’re gonna die today,”

and proceeded to strangle Victim again until she lost consciousness a second

time. Id. at 145-147. When Victim finally regained consciousness, she was

wrapped in a blanket and lying head-first in a recycling dumpster, under the

State Street Bridge. Id. at 147-150. Victim eventually worked her way free

and managed to get to the side of a roadway, where the driver of a passing

vehicle finally stopped and took Victim to the hospital. Id. at 149. Victim

was suffering from a broken vertebra in her neck, various facial injuries, a

lacerated and swollen tongue, a large contusion to her right eye, and

hypothermia. Id. at 16-21.

       On December 20, 2010, Appellant was charged with criminal attempt

to commit homicide, aggravated assault, kidnapping, recklessly endangering

another person (“REAP”), terroristic threats, and theft by unlawful taking.1

____________________________________________


1
    The charge of theft by unlawful taking was subsequently dismissed.



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On February 28, 2012, at the conclusion of a jury trial, Appellant was found

guilty of the crimes of criminal attempt — homicide, aggravated assault,

kidnapping, and REAP. The jury found Appellant not guilty for the charge of

terroristic threats. On May 18, 2012, Appellant was sentenced to a term of

incarceration of twenty to forty years for the conviction of attempted

homicide, a consecutive term of incarceration of two and one-half to five

years for his conviction of aggravated assault, and a consecutive term of

incarceration of two and one-half to five years for his conviction of

kidnapping. The trial court imposed no sentence for the conviction of REAP.

     On direct appeal, this Court determined that the convictions of

aggravated assault and attempted homicide should have merged because

the crimes arose from a single set of facts (namely, that Appellant choked

the victim to unconsciousness), vacated the judgment of sentence, and

remanded for resentencing.     Commonwealth v. Barnes, 691 MDA 2013,

93   A.3d   497    (Pa.   Super.   filed   December   3,   2013)   (unpublished

memorandum). On January 30, 2014, the trial court resentenced Appellant

to a term of incarceration of twenty to forty years for the conviction of

attempted homicide and a consecutive term of incarceration of five to ten

years for the conviction of kidnapping. On February 5, 2014, Appellant filed

a post-sentence motion, which the trial court denied on May 12, 2014. This

appeal followed.




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      In this direct appeal, the Majority concludes that because the jury did

not render a separate finding regarding serious bodily injury for the crime of

attempted murder, we are required to vacate the judgment of sentence

under Apprendi v. New Jersey, 530 U.S. 466 (2000), and remand for

resentencing. For the following reasons, I am compelled to dissent from the

Majority’s determination.

      I begin by noting that a challenge to the legality of sentence is an

attack   upon   the   power   of    a   court   to   impose   a   given   sentence.

Commonwealth v. Lipinski, 841 A.2d 537, 539 (Pa. Super. 2004).

Accordingly, our standard of review of Appellant’s issue is de novo, and our

scope of review is plenary. Commonwealth v. Saunders, 946 A.2d 776,

788 n.12 (Pa. Super. 2008).

      First, it is my understanding that our Supreme Court precedent

requires a conclusion that the element of serious bodily injury was

determined by the fact finder when the jury found Appellant guilty of the

crime of aggravated assault.       Indeed, the act of attempted murder, which

requires a substantial step toward an intentional killing, subsumes the act of

aggravated assault, which requires an attempt to inflict serious bodily injury.

As our Supreme Court stated in Commonwealth v. Anderson, 650 A.2d 20

(Pa. 1994):

      It is clear that the offense of aggravated assault is necessarily
      included within the offense of attempted murder; every
      element of aggravated assault is subsumed in the
      elements of attempted murder.            The act necessary to

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     establish the offense of attempted murder--a substantial step
     towards an intentional killing--includes, indeed, coincides with,
     the same act which was necessary to establish the offense of
     aggravated assault, namely, the infliction of serious bodily
     injury.

Id. at 24 (emphasis added). Accordingly, by virtue of its verdict convicting

Appellant of the crime of aggravated assault, the jury concluded that the

element of serious bodily injury was met, thereby permitting the imposition

of a maximum sentence of forty years for the conviction of attempted

murder.

     Second, in reaching its conclusion, the Majority relies upon this Court’s

per curiam decision in Commonwealth v. Johnson, 910 A.2d 60 (Pa.

Super. 2006), for the proposition that the judgment of sentence must be

vacated under Apprendi because “the jury was never presented with, nor

rendered a decision on, the question of whether a serious bodily injury

resulted from the attempted murder.”      Maj. slip op. at 6, citing Johnson.

However, I am constrained to conclude that Johnson is distinguishable from

the instant matter.

     As the Court in Johnson explained:

     Here, however, (1) [Johnson] was not charged with attempted
     murder resulting in serious bodily injury, (2) [Johnson] was not
     on notice that the Commonwealth sought either to prove that a
     serious bodily injury resulted from the attempted murder or to
     invoke the greater maximum sentence, and (3) the jury was
     never presented with, nor rendered a decision on, the question




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       of whether a serious bodily injury resulted from the attempted
       murder.9
             9
                Compare: Commonwealth v. Reid, 867 A.2d
             1280 (Pa.Super. 2005), appeal denied, 586 Pa. 725,
             890 A.2d 1058 (2005) (affirming legality of a term of
             imprisonment of up to forty years for attempted
             murder, imposed following plea of nolo contendere,
             where defendant was not formally charged with
             attempted murder resulting in serious bodily injury,
             but where the Commonwealth indicated its desire to
             seek a maximum term of imprisonment of forty
             years, and recited facts of substantial bodily injury,
             to which defendant thereafter entered his plea of
             nolo contendere to the charge of attempted murder).

Johnson, 910 A.2d at 67 (footnote and emphasis in original).

       Instantly, I must observe that, prior to commencement of trial in this

matter the Commonwealth provided Appellant with a copy of the sentencing

guidelines (with a print date of January 10, 2012), describing the charge as

a “Murder Inchoate — Attempt with S.B.I. [Serious bodily Injury].”

Commonwealth’s Answer to Defendant’s Post-Sentence Motion, Attachment

“A.”   (Docket Entry 70).    In addition, the statutory limit section of those

sentencing guidelines indicates a maximum penalty of 480 months.            Id.

Thus, I believe that any claim that Appellant was not apprised of the crime

and possible maximum sentence is unavailing.

       Further, in rendering instructions to the jury the trial court stated the

following pertaining to the crime of criminal attempt to commit murder:

             [Appellant] has been charged with criminal attempt,
       murder. To find [Appellant] guilty of this offense you must find
       that the following three elements have been proven beyond a
       reasonable doubt:
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             First, that [Appellant] did a certain act; that is, he
       physically assaulted and strangled [Victim].

            Second, that at the time of this alleged act, [Appellant]
       had the specific intent to kill [Victim]; that is, he had the fully
       formed intent to kill and was conscious of his intention.

             And, third, that the act constituted a substantial step
       toward the commission of the killing [Appellant] intended to
       bring about.

N.T., 2/27-28/12, at 214. This exact instruction was again repeated to the

jury prior to deliberations. Id. at 235. Then again, on two occasions after

jury deliberations began, the jury asked for various instructions to be

reread, and the above instruction was repeated verbatim. Id. at 244-245,

261.    Thereafter, the jury returned a verdict of guilty on the crime of

criminal attempt to commit murder. Id. at 265. Thus, by rendering such a

verdict the jury made a determination that, in committing the crime of

criminal attempt to commit murder, Appellant physically assaulted and

strangled Victim.     Hence, I believe that the jury made the necessary

determinations with regard to serious bodily injury relevant to the crime of

attempted murder and the trial court properly imposed the maximum

sentence of forty years.

       Moreover, I am compelled to conclude that the “law of the case”

doctrine applies in this matter.    Specifically, this Court’s prior decision on

appeal precludes us from determining that the jury did not render a decision

on the particular element of serious bodily injury for the crime of attempted

murder necessary to impose the instant sentence.

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      The law of the case doctrine “refers to a family of rules which embody

the concept that a court involved in the later phases of a litigated matter

should not reopen questions decided by another judge of that same court or

by a higher court in the earlier phases of the matter.” Commonwealth v.

Starr, 664 A.2d 1326, 1331 (Pa. 1995).

      Among the related but distinct rules which make up the law of
      the case doctrine are that: (1) upon remand for further
      proceedings, a trial court may not alter the resolution of a legal
      question previously decided by the appellate court in the matter;
      (2) upon a second appeal, an appellate court may not alter the
      resolution of a legal question previously decided by the same
      appellate court; and (3) upon transfer of a matter between trial
      judges of coordinate jurisdiction, the transferee trial court may
      not alter the resolution of a legal question previously decided by
      the transferor trial court.

      The various rules which make up the law of the case doctrine
      serve not only to promote the goal of judicial economy … but
      also operate (1) to protect the settled expectations of the
      parties; (2) to insure uniformity of decisions; (3) to maintain
      consistency during the course of a single case; (4) to effectuate
      the proper and streamlined administration of justice; and (5) to
      bring litigation to an end.

Id. (citations omitted).

      “Under the law of the case doctrine, a trial court cannot overrule the

holding of this Court upon remand proceedings.”         Commonwealth v.

McCandless, 880 A.2d 1262, 1267 (Pa. Super. 2005) (en banc). “A [trial]

court is without power to modify, alter, amend, set aside or in any manner

disturb or depart from the judgment of the reviewing court as to any matter

decided on appeal.” Id. (quoting Commonwealth v. Williams, 877 A.2d

471, 475 (Pa. Super. 2005)).     “[T]he law of the case doctrine might not

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apply under exceptional circumstances, including: an intervening change in

the law, a substantial change in the facts, or if the prior ruling was ‘clearly

erroneous’ and ‘would create a manifest injustice if followed.’” McCandless,

880 A.2d at 1268 (quoting Starr, 664 A.2d at 1332).

      My review reflects that in Appellant’s initial direct appeal before this

Court, we stated the following:

            Appellant argues that his convictions for Aggravated
      Assault and Attempted Homicide arise from a single set of
      facts and, therefore, these offenses merge for sentencing
      purposes. Commonwealth v. Rovinski, 704 A.2d 1068, 1075
      (Pa. Super. 2007). We note that the Commonwealth does not
      dispute Appellant’s contention.

            Upon review of the record, we are constrained to agree.
      The convictions in question arise from a single set of
      facts; namely, that Appellant choked the victim to
      unconsciousness. As such, the sentences for these offenses
      merge for sentencing purposes, and we are compelled to vacate
      Appellant’s sentence.

Barnes, 691 MDA 2013, 93 A.3d 497 (unpublished memorandum at 2-3)

(emphasis added).    Therefore, our previous determination that Appellant’s

convictions of aggravated assault, which included a finding of the element of

serious bodily injury, and attempted murder stemmed from the same

criminal act satisfies the requirements of a jury determination as to that

element for the crime of attempted murder. Because this Court confirmed

that the same facts found by the jury were relied upon to convict Appellant

of both attempted murder and aggravated assault, the trial court on remand

properly imposed the instant maximum sentence.


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